HMO Council Error

Part 2, Housing Act 2004, makes provision for the licensing of certain Houses of Mutiple Occupation (HMOs). Controlling or managing an unlicensed HMO is a criminal offence, subject to a defence of “reasonable excuse”. Where the First-Tier Tribunal (Property Chamber) is satisfied beyond reasonable doubt that a landlord has committed an offence it may make a “rent repayment order” requiring the landlord to repay some or all of the rent to the tenant, to a maximum of 12 months rent.

In the case of Ojukwu v Onuoha [2024] UKUT 313 (LC) the appellant was the leasehold owner of a three-bedroom maisonette. She let each room on separate tenancies so that the property was subject to HMO licensing. The respondent was the tenant of one of the rooms. At no time during his occupation did the appellant have an HMO licence. The respondent applied for a rent repayment order. The appellant defended the proceedings, contending that she had the defence of reasonable excuse. She argued that the reason she had not previously applied for a licence was that the information on the local authority website suggested she did not need one. The First-Tier Tribunal rejected her argument without any detailed analysis and made an rent repayment order.

The Upper Tribunal allowed an appeal. The evidence did indeed appear to show that the local authority website contained wording which erroneously suggested she did not need a licence which could in principle give rise to a reasonable excuse defence. The FTT had not grappled with her contention that she had relied on that error. The case was remitted for re-hearing by a different FTT panel.

Oliver Kew

Published on 13/11/2024