In this part of our series we look specifically at the conditions imposed on licenses by Councils and what landlords can do about it.
Conditions on HMO licenses
The most obvious condition is the number of people in the property. Breach of that condition is a serious offence, it is as serious as not having a license at all.
There are then a series of statutory conditions that must go on all licenses. They are things that we have discussed before, such as
- The requirement that there be a gas safety certificate
- The requirement that the property is fire safe
- The requirement that the furniture is safe, etc
These will all either be set out in the license itself or will be implied by statute.
Local authorities can also set out further license conditions and these can be all kinds of things. They are restrictions and again this is a big area of difficulty. For several reasons.
Standard license conditions
The first is the use of what we like to call ‘standard license conditions’. Some local authorities have extensive lists of standard license conditions which they seek to apply to all licenses.
However, this is a problem because the Tribunals have determined that they can’t do that. The first such decision was in Wales but it has been followed by a range of other decisions in England as well which say similar things.
License conditions are supposed to be matters relating to a specific license for a specific property. It is not a blanket wish list. So there shouldn’t be standard conditions. There should be conditions that are applied to a property which relate to the specific problems found in that property.
Now that’s not to say of course that those conditions may not be very similar to conditions that are applied for other properties in the same area, but local authorities are not allowed to have a standardised list, that they stick on everything.
In the worst cases, some local authorities have conditions that are so standardised they include the words “if applicable” in them as they may not in fact apply it the property for which they have been applied.
This is something that can be challenged by a landlord who is frustrated by some of the conditions attached to his license.
Restrictions on conditions
The second thing that needs to be considered is restrictions on conditions. There are two main statutory restrictions on the types of conditions that the local authorities can apply.
1. Conditions on third parties
Local authorities can’t impose any condition on a license that seeks to impose a restriction on a third party. Ie not someone who is involved in the actual license application.
The classic example of this is local authorities who have tried to impose conditions on occupiers of the property through an HMO licensee. For example stipulating that they will put rubbish out or deal with rubbish properly or not take part in anti social behaviour.
That is not permissible. You can only impose conditions on the license holder or the person named on the license as the manager.
2. Conditions seeking changes to the tenancy agreement
A local authority can’t impose a condition that seeks to make a change to the tenancy agreement itself.
So if the local authority is trying to impose a condition which could only be satisfied by the landlord changing his tenancy agreement, then that condition will be unlawful.
Many local authorities find themselves in difficulty with that restriction. This is a common problem where restrictions regarding anti-social behaviour are used.
Local authorities are in a bit of a catch 22 here as the legislation tells them that they can impose conditions which are designed to reduce or manage anti-social behaviour. The obvious way to do so is to require that a tenancy agreement includes a clause saying that anti-social behaviour is not permitted.
However, that would not be allowed because of the prohibition on changes to tenancy agreements.
Double Jeopardy Conditions
Some local authorities like to impose conditions that are simply repeats of the HMO Management Regulations.
This creates a strange sort of double jeopardy for a landlord as a breach of the HMO Management Regulations is an offence and so is a breach of a licence condition. Therefore a landlord could theoretically be prosecuted twice for the same set of facts.
This type of condition is accordingly generally considered to be unacceptable by the Tribunals.
However, a local authority can impose a condition which supports the Management Regulations.
So a local authority could not impose a condition which states that the property must be fire safe as that is in the Management Regulations – but they could impose a condition that required fire risk assessments to be recorded in writing and repeated every year.
Appealing license conditions
When the landlord is told that his license is being granted, he should be told what the conditions are going to be. This is an opportunity to immediately make representations to the local authority about those conditions, and their appropriateness.
If the local authority, having considered those representations, goes ahead and grants the license with those conditions, then the landlord can appeal to the Tribunal and ask them to replace the local authority decision with its own.
However you cannot appeal until the final decision has been made. You should also note that if you want to bring this kind of appeal, there is a strict time limit of 28 days from the date of the Local Authority decision, which must be adhered to.
Extra time is very rarely granted by the Tribunal and you would need a very good excuse. If you have missed the time limit there are other ways to challenge licence conditions but this is an area in which specialist advice should be sought.
Generally also the Tribunal is often reluctant to completely replace local authority decision making, unless they think it is been extraordinarily bad. Therefore licence conditions will have to be quite seriously wrong before they can be challenged.
Although this is something a landlord can do on his own, he would be ill advised to do this without some legal advice first.
Next time we will be looking at temporary exemption notices and penalties for noncompliance with the rules.
Further HMO resources:
Advice: If you need some legal advice, for example if you are considering challenging conditions imposed on your HMO license by your Local Authority, you can use our ‘HMO Hotline‘ telephone advice service.
Training: Easy Law Training has regular workshops on HMO Law & Practice. You can read about these >> here (you will need to scroll down to find out the dates).