Judge JR MorrisMr MJ Ayres FRICSDate 31 January 2025
DECISION
[1]The Tribunal is satisfied beyond a reasonable doubt that the Respondents were persons having control of or managing an HMO which was required to be licensed but was not so licensed which is an offence under section 72(1) of the Housing Act 2004.[2]The Tribunal makes a Rent Repayment Order against the Respondent, as the immediate landlord, in the sum of £4,000.00 payable within 28 days of this Order.[3]The Tribunal makes an order for the reimbursement of the Application and Hearing Fees of £300.00 to be paid within 28 days of this Order.
REASONS
[4]On 22 January 2024 the Applicant applied under section 41 of the Housing and Planning Act 2016 for a Rent Repayment Order as a Tenant of a room at 80 Obelisk Rise, Northampton NN2 8QU (“the Property”). The legislation applicable to this Application is found in the Housing Act 2004 (the “2004 Act”) and the Housing and Planning Act 2016 (the “2016 Act”). The relevant provisions are attached to this decision at Annex 2.[5]The Applicant alleges that the Respondent has committed an offence under section 72(1) of Part 2 of the Housing Act 2004 of being a person having control of or managing a House in Multiple Occupation (an HMO) which is required to be licensed.[6]The Applicant claims a Rent Repayment Order (RRO) under section 41 of the 2016 Act for 12 months’ rent of £6,720.00 being the amount the Applicant states she paid in the period from September 2022 to September 2023.[7]Directions were issued on 4 September 2024.[8]In accordance with the Directions the Applicant provided:• A statement of case,• Agreements between the Respondent and the Applicant to occupy the Property,• A copy of a Land Registry search in respect of the Property,• A copy of the Application Form,• A copy of a letter dated 11 September 2023 from West Northamptonshire Council to the Applicant together with a copy of the public register of Landlords of HMOs and a Section 255 Declaration of an HMO in respect of the Property.[9]No written statement of case was provided by the Respondent. Hearing[10]A hearing was held via video link on 7 January 2024 attended by the Applicant, Ms Poppy Moses, and the Respondent, Mrs Rosana Lorente Scott.[11]During the hearing the Tribunal considered the written evidence and submissions adduced by the Applicant prior to the hearing in accordance with the Directions and the oral evidence and submissions of both parties. Evidence, Submissions and Findings Tenancy Agreement[12]Firstly, the Tribunal considered the agreements under which the Applicant occupied the Property. The Applicant provided copies of two agreements both described as “Lodgers Agreements.” The first was dated 9 July 2021 between Mrs Rosana Scott and the Applicant for a term of 12 months commencing on 1 August 2021 and thereafter monthly, of a room, referred to as “Annex Double”, and the “common areas” of the Property at a rent of £550.00 per month payable in advance. A deposit of £550.00 was also payable (“the First Agreement”). Under the agreement the Applicant shared the kitchen and bathrooms. The second agreement was dated 1 August 2024 between Mrs Rosana Scott and Miss Poppy Carmen Moses for a term which purported to be 3 months continuing thereafter monthly of a “Double Room with Fire Place” and the “common areas” of the Property at a rent of £620.00 per month payable in advance. A deposit of £550.00 was also payable (“the Second Agreement”). Under the agreement the Applicant shared the kitchen and bathrooms. Several of the terms of both agreements were unlawful e.g. it was stated that 15 days notice for termination of tenancy could be given and that without the Notice (15 days) the lodger would lose the full deposit.[13]The Tribunal found that notwithstanding the terminology and terms both agreements created a monthly periodic tenancy which were assured shorthold tenancies of a room within the Property. Status of Respondent[14]Secondly, the Tribunal considered the status of the Respondent against whom the Applicant sought an RRO. The Applicant provided a copy of a search of the Land Register for the Property. Title Number NN22139 accessed on 6 September 2024. The entries under the Proprietorship Register showed the Proprietor to be Rosana Lorente Gomes as from 31 October 2011. The Applicant also provided copies of her building society account which showed the sum of £560.00 being paid on or around the 1st of each month from February 2023 to January 2024 to Rosana Scott.[15]At the hearing the Respondent said that her maiden name was Gomes and that she took her married name of Scott. She confirmed that she was the registered owner, Rosana Lorente Gomes, now Mrs Rosana Scott, and that she was the person to whom the Applicant paid the rent.[16]The Tribunal found that the Respondent was the owner and landlord of the Property and person in receipt of the rent and so pursuant to section 263 of the 2004 Act is “a person having control” and “a person managing” the Property. Validity of Application[17]Thirdly the Tribunal considered the validity of the Application. The Applicant provided a letter dated 11 September 2024 from the West Northamptonshire Council, the licensing authority for Houses in Multiple Occupation for Northampton, which included a timeline that confirmed on 18 October 2023 that the Property was an HMO and that on 1 December 2023 a Request to Licence Letter was sent to the Respondent confirming that the Property was unlicensed.[18]At the hearing the Respondent confirmed that during the period the Property was not licensed as an HMO but that it did not need to be because there were only two people living there.[19]The Tribunal found that the Application made was valid if a relevant offence had occurred between 18 October 2023 and 1 December 2023. Since the Application was received on 22 January 2024 it was within 12 months of the alleged offence taking place under section 41 of the 2016 Act. Potential Rent Repayment Period[20]Fourthly the Tribunal considered the period for which the Applicant could claim the repayment of rent. According to the agreements the Applicant occupied a room in the Property from 1 August 2021 to the present date and the monthly rent payable was £550.00 until 1 August 2024 when it increased to £620.00 per month.[21]At the Hearing the Respondent agreed that the Applicant resided in the Property for the period stated but that it was not a licensed HMO as it did not need to be licensed. So far as the Respondent was aware there were only two persons living at the Property apart from relatives and friends who occasionally visited and stayed at the Property.[22]The Tribunal found that if the Applicant occupied the Property from 1 August 2021 to the date of the hearing as her main residence and that from 20 May 2022 to 30 May 2024 the Property was an unlicensed HMO then under section 44 the period for which the Applicant could potentially claim (i.e. “the Relevant Period”) a Rent Repayment Order included the period not exceeding 12 months from September 2022 to September 2023, during which time the landlord was committing the alleged offence.[23]In addition, the Tribunal found that no notice of intended proceedings had been served by the local housing authority on the Respondent under section 42 of the Housing and Planning Act 2016.[24]During the Relevant Period the Applicant said that the agreed Rent was £560.00 per month and provided bank statements to that effect. The amount of rent was not disputed by the Respondent.[5]Definition of a House in Multiple Occupation and Application to the Property[25]Fifthly the Tribunal considered whether the Property was an HMO. Under sections 55 and 61 of the 2004 Act a House in Multiple Occupation must be licensed by a local authority if comes within the definition in article 4 of The Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 (2018 /No.221) of a house occupied by five or more persons living in two or more separate households and meets the standard test under section 254(2) of the 2004 Act.[26]A building or a part of a building meets the standard test under section 254(2) of the 2004 Act if—(a) it consists of one or more units of living accommodation not consisting of a self-contained flat or flats;(b) the living accommodation is occupied by persons who do not form a single household (see section 258);(c) the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);(d) their occupation of the living accommodation constitutes the only use of that accommodation;(e) rents are payable or other consideration is to be provided in respect of at least one of those persons' occupation of the living accommodation; and(f) two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.[27]The Tribunal considered whether the Property could potentially come within the definition. It did not inspect the Property but was able to obtain a relevant description from the Internet which was confirmed by the Parties at the Hearing as follows:[28]The Property is a two-storey semi-detached dormer style house with brick elevations under a concrete tile roof. There is a separate single storey annex to the rear of the Property of similar construction. The rainwater goods, doors and windows are upvc. The windows and patio doors have double glazed units. There is a car port to the side giving access to the rear garden which has a patio and decked area. There is hard standing for 2 or 3 cars to the front of the Property and additional car parking in the car port for 1 or possibly 2 vehicles.[29]On the ground floor entry is directly into a dining room from which stairs rise to the second-floor landing. There is an entrance hall, from which rise stairs to the first floor. To one side of the dining room there is a door to the kitchen which has fitted units, white goods, and a double cooker. There is a door from the kitchen giving access to the car port and garden. To the other side of the dining room there are double doors to a room which has a patio door to the garden. The annex is a separate building to the rear of the Property. It comprises an entrance lobby from which there is access to two bedrooms and a shower room with w.c. On the first floor there are four bedrooms and a bathroom with w.c. The largest bedroom has an ensuite bathroom and w.c.[30]At the Hearing the Applicant said that the room she occupied under the First Agreement was in the Annex and under the Second Agreement she occupied the downstairs room which has a patio door to the garden.[31]The Applicant said that initially all seven rooms in the Property were occupied and up to 10 people were living there at any one time as some of the rooms were occupied by couples. She said that during the Relevant Period 5 rooms were occupied. These were the two rooms in the annex and three rooms in the main house. A Prohibition Order was made by West Northamptonshire Council against letting two of the first-floor rooms because they were of insufficient size.[32]The Applicant said that none of the people who resided at the Property were related. She said they each had their own rooms and, so far as she knew, the Property was their only or main residence, and the Property was not occupied for any other purpose. The Applicant said that she shared the shower room in the Annex with whoever occupied the other room and when she was in the ground floor room of the main house, she shared the bathroom. They all shared the kitchen and dining room. They compared their agreements and found some paid more than others but all the agreements were made directly with the Respondent and all the occupiers paid their rent to the Respondent. She said that there was no manager although during the Relevant Period one or other of the tenants would take responsibility for organising a necessary repair, pay the contractor engaged and deduct the cost from the rent. It was understood that the person who took on the role had a discounted rent. For a time, the cleaner took on the role. The Applicant said that the residents could only get hold of the Respondent by telephone via WhatsApp but would not always get a reply.[33]The Applicant submitted in support of her statements that during the Relevant Period the Property was an HMO and referred to the timeline in the letter dated 11 September 2024 from the West Northamptonshire Council:•20 May 2022 Intelligence Officers visited the Property and found 5 individuals residing notwithstanding that the Property was not licensed as an HMO.•22 November 2022 the Property was visited by an officer of West Northamptonshire Council and the previous intelligence was confirmed.•27 September 2023 a warrant was issued by Northampton Magistrates Court.•18 October 2023 the warrant was executed and it was confirmed that the Property was an HMO.•19 October 2023 Declaration of an HMO was sent to the Owner.[34]At the Hearing the Respondent submitted that it was not an HMO. She repeated that as far as she was aware only two persons were living at the Property apart from relatives and friends who occasionally visited and stayed at the Property. If more persons occupied the Property, then they did so without her knowledge or permission. She said there was no manager or agent as this was unnecessary. The cleaner or a tenant would inform her of any problems.[35]The Applicant disputed this saying that all the occupiers said that they had an agreement directly with the Respondent and paid their rent directly into her account. As a result, the Applicant contended that the respondent knew who was living at the Property.[36]The Tribunal considered the Applicant to be a credible witness and that her testimony although lacking some corroboration e.g. statements or agreements from fellow tenants nevertheless was cogently supported by the letter dated 11 September 2024 from the West Northamptonshire Council. The Respondent in contrast appeared to base her case regarding the Property not being operated as an HMO on ignorance.[37]The Tribunal found that the Property was being occupied and operated as an HMO.[6]Requirement to Licence a House in Multiple Occupation & Offence of and Defence to Failing to do so[38]Under section 72 of the 2004 Act a person commits an offence if they are a person having control of or managing an HMO which is required to be licensed under this Part (see section 61(1)) but is not so licensed. The Tribunal must be satisfied beyond a reasonable doubt that the offence has been committed.[39]The Tribunal referred again to the timeline in the letter dated 11 September 2024 from the West Northamptonshire Council together with its enclosures, which stated that:•20 May 2022 Intelligence Officers visited the Property and found 5 individuals residing notwithstanding that the Property was not licensed as an HMO.•22 November 2022 the Property was visited by an officer of West Northamptonshire Council and the previous intelligence was confirmed.•27 September 2023 due to there being no response from the Owner regarding numerous Notices and requests to licence the Property as an HMO a warrant was issued by Northampton Magistrates Court.•18 October 2023 the warrant was executed and it was confirmed that the Property was an HMO.•19 October 2023 Declaration of an HMO was sent to the Owner.•1 December 2023 a Request to Licence Letter was sent to the Owner.•30 May 2024 Payment Made and Licence Issued.[40]The Tribunal found that during the Relevant Period the Property was an unlicensed HMO.[41]The Respondent has a defence under section 72(5) of the 2004 Act, if it can be shown, on the balance of probabilities, that they had a reasonable excuse for having control of or managing the HMO without a licence or for permitting the persons to occupy the house without obtaining an HMO licence. Until the hearing no reasonable excuse had been put forward.[42]At the Hearing the Respondent said this was the only Property that she had in the UK. She added that it had been her home and was only letting it while she was abroad but had now returned to sell it. The Respondent said that she had been out of the country when the Property was let and did not know that the Property was occupied in such a way that it had to be licensed as an HMO. She said that she had not been well and was out of the country during the Relevant Period. She said that she had not received any of the letters that had been sent. When she returned and was informed that the Property needed to be licensed, she immediately took steps to obtain a licence and employed a person to help her as English was not her first language.[43]The Respondent went on to say that she now was seeking to sell the Property due to her financial circumstances. In reply to the Tribunal’s questions, she said that she had not be able to work for health reasons and that she was now in difficult financial circumstances but gave no further details.[44]In response to the Tribunal’s questions the Respondent stated that when she applied for the Licence the Local Authority requested a gas safety certificate, Electrical Installation Condition Report (EICR) and an Energy Performance Certificate (EPC) which she supplied to the local authority but not the Applicant.[45]Also, in response to the Tribunal’s questions the Respondent agreed that she had received a deposit from the Applicant but stated that she had not paid this into a Tenancy Deposit Scheme.[46]The Tribunal considered whether the Respondent had shown that she had reasonable excuse for not obtaining a licence. In Thurrock v Daoudi [2020] UKUT 209 which held that ignorance of the provisions cannot amount to reasonable excuse, although it may in some circumstances amount to mitigation of a penalty. In Aytan v Moore [2022] UKUT 027 (LC), it was held that it was for persons having control and managing an HMO to acquaint themselves with the regulations and to obtain professional advice. Some latitude may be afforded a landlord of a single property which may amount to mitigation of a penalty but it is not a reasonable excuse for not obtaining an HMO licence.[47]The Tribunal found that her reasons for not obtaining a licence were based on ignorance of the regulations. As stated above, whereas, this may be mitigation it is not a reasonable excuse. Decision[48]Having considered the evidence and submissions of the parties and made the above findings, the Tribunal is satisfied beyond a reasonable doubt that the Respondent is a person having control of or managing an HMO which is required to be licensed but without reasonable excuse is not so licensed. Whether an Order should be made[49]Having found that the Respondent had committed an offence under section 72 of the 2004 Act and section 1(3) of the 1977 Act, before determining whether to make an order the parties addressed the matters that the Tribunal must consider as set out in section 44(4) of the 2016 Act as follows: a) The conduct of the landlord and the tenant, b) The financial circumstances of the landlord, c) Whether the landlord has at any time been convicted of an offence to which the specific legislation applies a) Conduct of the Parties[50]The Tribunal was satisfied that the Applicant had paid rent and complied with the legal obligations placed on her.[51]There is a requirement under section 21A of the Housing Act 1988 as amended that requires a landlord to comply with prescribed legal requirements which are identified in legislation which include the obligation to provide:• A written tenancy agreement,• A How to Rent booklet,• Deposit must be placed in a Tenancy Deposit Scheme under section 212 and Schedule 10 of the Housing Act 2004• a gas safety certificate pursuant to regulation 36 of The Gas Safety (Installation and Use) Regulations 1998,• an Electrical Installation Condition Report (EICR) pursuant to regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 and• an Energy Performance Certificate (EPC) pursuant to regulation 6 of The Energy Performance of Buildings (England and Wales) Regulations 2012 Enforcement of these individual requirements is not within the Tribunal’s jurisdiction but is a matter for other bodies under the specific regulations that impose them. Nevertheless, they are relevant when considering the landlord’s conduct when making a Rent Repayment Order.[52]The Tribunal found that the Respondent had provided the Applicant with a written tenancy agreement of sorts but no ‘How to Rent’ booklet. The Respondent said that she had provided a gas safety certificate and Electrical Installation Condition Report to the local authority to apply for the HMO licence, however, none had been served on the Applicant.[53]The Tribunal found the Respondent, from her own admission, agreed that she had received a deposit from the Applicant but had not paid this into a Tenancy Deposit Scheme as required by section 212 and Schedule 10 of the Housing Act 2004.[54]The Tribunal found that the Respondent had not been resident in the country while operating an HMO and had no formal management arrangement in place. Any issues such as repairs had been dealt with by virtue of the occupiers’ being proactive and not by proper oversight by the Respondent.[55]The Tribunal believed that the Respondent, contrary to her statement, knew who occupied the Property and received the rent from the Tenants into her account. b) Financial Circumstances of the Landlord[56]The Tribunal noted that the Respondent said that she had not be able to work for health reasons and was in difficult financial circumstances but no evidence was adduced by way of accounts etc regarding her financial circumstances.[57]The Tribunal noted that the Applicant had been paying £560.00 per calendar month and that the letter dated 11 September 2024 from the West Northamptonshire Council stated that on 20 May 2022 Intelligence Officers visited the Property and found 5 individuals residing. Although the Tribunal cannot be sure as to the precise amount the Respondent was receiving it is likely to be in the region of £30,000.00 per annum less expenditure for utilities etc. and mortgage repayments. c) Previous Convictions of Landlord[58]The Respondent did not have any previous convictions. The Tribunal referred to Hallett v Parker [2022] UKUT 165 (LC) at [35] where it was said that the fact that the local authority has decided not to prosecute a landlord for an offence should not be treated as a “credit factor”. It was submitted that the lack of a conviction is a neutral factor. Reference was made to the final sentence of [35] which states “what matters are the relevant facts and the tribunal’s assessment of how serious the offence is”.[59]Considering the conduct and financial circumstances of the Respondent the Tribunal decided that an Order should be made. The Amount of the Order[60]The Applicant provided bank statements which showed she had paid rent of £560.00 per calendar month for the period February 2023 to January 2024. The Tribunal accepted that she had been paying this monthly rent for the Relevant Period of September 2022 to September 2023 making a total of £6,720.00 for that 12-month period. The Respondent said she thought a part of the rent had been paid from benefits received by the Applicant. The Applicant refuted this and no evidence was adduced to say that this was the case.[61]The purpose of an Order as set out in Government Guidance is to: Punish the offender, Deter the offender from repeating the offence, Dissuade others from committing similar offences, Remove any financial benefit from the offender as a result of committing the offence.[62]The Tribunal took guidance from the following cases in reaching its decision. In Parker v Waller and Others [2012] UKUT 301 (LC) it was held that the benefit obtained by the tenant in having had accommodation is not a material consideration, however, the length of time that the offence has been committed and the degree of culpability of the landlord are relevant factors. In Vadamalayan v Stewart & Others [2020] UKUT0183 (LC) it was held that the starting point is the rent and there is no reason why the landlord’s costs in meeting the obligations under the lease should be set off against the cost of meeting an obligation to comply with a Rent Repayment Order. Utilities are also all part of the rent. In Ficcara & Others v James [2021] UKUT0038(LC) and Amad v Hooley [2021] UKUT0055 (LC) it was stated that the tribunal must weigh up the seriousness of the offence against any mitigating circumstances. In Acheampong v Roman and others [2022] UKUT 239 (LC) Judge Cooke provided some practical guidance for the FTT when assessing the amount of rent to be repaid. The Tribunal which was to:a. Ascertain the whole of the rent for the relevant period;b. Subtract any element of that sum that represents payment for utilities that only benefited the tenant, for example gas, electricity, and internet access. It is for the landlord to supply evidence of these, but if precise figures are not available an experienced tribunal will be able to make an informed estimate.c. Consider how serious this offence was, both compared to other types of offence in respect of which a rent repayment order may be made (and whose relative seriousness can be seen from the relevant maximum sentences on conviction) and compared to other examples of the same type of offence. What proportion of the rent (after deduction as above) is a fair reflection of the seriousness of this offence? That figure is then the starting point (in the sense that that term is used in criminal sentencing); it is the default penalty in the absence of any other factors but it may be higher or lower in light of the final step:d. Consider whether any deduction from, or addition to, that figure should be made in the light of the other factors set out in section 44(4).[63]The Tribunal determined as follows: a) The whole rent for the relevant period was £6,720.00. b) The Tribunal considered that an amount of £720.00 represented payment for the utilities that only benefited the Applicant Tenant. c) The Tribunal considered that the offence was of medium to high seriousness. The Respondent showed a disregard for the obligations of letting properties. The licensing of HMOs is to ensure that where properties are let to several tenants they are maintained and managed to ensure the safety, health, and welfare of the tenants. The Respondent let the Property as an HMO without attempting to find out what her legal obligations were in doing so. Her disregard for the legislative requirements is evidenced by being an absentee landlord without making appropriate management arrangements to protect the Tenants or that the Property itself was kept in proper repair and by failing to put the deposits in a Tenancy Deposit Scheme. From what the Applicant said the Respondent was fortunate in having the Property maintained and managed during the Relevant Period by the Tenants. d) The only mitigating factor is that no serious incident occurred due to the Respondent’s failure to maintain and manage the Property which would have placed the offence at a high level of seriousness. However, this was entirely due to the Tenants being sensible.[64]The Tribunal makes a Rent Repayment Order against the Respondent, as the immediate landlord, in the sum of £4,000.00 payable within 28 days of this Order.[65]Pursuant to Rule 13 of the Tribunal procedure (First-tier Tribunal) (Property Chamber) Rules 13 (2) the Tribunal makes an order for the reimbursement of fees of the Application Fee of £100.00 and Hearing Fee of £200.00 payable within 28 days of this Order. Judge JR Morris ANNEX 1 - RIGHTS OF APPEAL[1]If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written application for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.[2]The application for permission to appeal must arrive at the Regional Office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.[3]If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.[4]The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e., give the date, the property, and the case number), state the grounds of appeal, and state the result the party making the application is seeking. ANNEX 2 – THE LAW[1]The relevant provisions regarding the Licensing of Houses in Multiple Occupation are in the following sections of the Housing Act 2004 Part 2 and 7: Section 55 Licensing of HMOs to which this Part applies(1) This Part provides for HMOs to be licensed by local housing authorities where— (a) they are HMOs to which this Part applies (see subsection (2)), and (b) they are required to be licensed under this Part (see section 61(1)).(2) This Part applies to the following HMOs in the case of each local housing authority— (a) any HMO in the authority’s district which falls within any prescribed description of HMO, and (b) if an area is for the time being designated by the authority under section 56 as subject to additional licensing, any HMO in that area which falls within any description of HMO specified in the designation.(3) The appropriate national authority may by order prescribe descriptions of HMOs for the purposes of subsection (2)(a). The prescribed description is: Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 (2018 /No.221) Interpretation[3]In this Order “the Act” means the Housing Act 2004. Description of HMOs prescribed by the Secretary of State[4]An HMO is of a prescribed description for the purpose of section 55(2)(a) of the Act if it—(a) is occupied by five or more persons;(b) is occupied by persons living in two or more separate households; and(c) meets— (i) the standard test under section 254(2) of the Act; (ii) the self-contained flat test under section 254(3) of the Act but is not a purpose-built flat situated in a block comprising three or more self-contained flats; or (iii) the converted building test under section 254(4) of the Act. Section 61 Requirement for HMOs to be licensed (1) Every HMO to which this Part applies must be licensed under this Part unless— (a) a temporary exemption notice is in force in relation to it under section 62, or (b) an interim or final management order is in force in relation to it under Chapter 1 of Part 4. (2) A licence under this Part is a licence authorising occupation of the house concerned by not more than a maximum number of households or persons specified in the licence. (3) Sections 63 to 67 deal with applications for licences, the granting or refusal of licences and the imposition of licence conditions. Section 72 Offences in relation to licensing of HMOs (1) A person commits an offence if he is a person having control of or managing an HMO which is required to be licensed under this Part (see section 61(1)) but is not so licensed. (2) A person commits an offence if— (a) he is a person having control of or managing an HMO which is licensed under this Part, (b) he knowingly permits another person to occupy the house, and (c) the other person’s occupation results in the house being occupied by more households or persons than is authorised by the licence. (3) A person commits an offence if— (a) he is a licence holder or a person on whom restrictions or obligations under a licence are imposed in accordance with section 67(5), and (b) he fails to comply with any condition of the licence. (4) In proceedings against a person for an offence under subsection (1) it is a defence that, at the material time— (a) a notification had been duly given in respect of the house under section 62(1), or (b) an application for a licence had been duly made in respect of the house under section 63, and that notification or application was still effective (see subsection (8)). (5) In proceedings against a person for an offence under subsection (1), (2) or (3) it is a defence that he had a reasonable excuse— (a) for having control of or managing the house in the circumstances mentioned in subsection (1), or (b) for permitting the person to occupy the house, or (c) for failing to comply with the condition, as the case may be. (6) A person who commits an offence under subsection (1) or (2) is liable on summary conviction to a fine. (7) A person who commits an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (7A) See also section 249A (financial penalties as alternative to prosecution for certain housing offences in England). (7B) If a local housing authority has imposed a financial penalty on a person under section 249A in respect of conduct amounting to an offence under this section the person may not be convicted of an offence under this section in respect of the conduct. (8) For the purposes of subsection (4) a notification or application is “effective” at a particular time if at that time it has not been withdrawn, and either— (a) the authority have not decided whether to serve a temporary exemption notice, or (as the case may be) grant a licence, in pursuance of the notification or application, or (b) if they have decided not to do so, one of the conditions set out in subsection (9) is met. (9) The conditions are— (a) that the period for appealing against the decision of the authority not to serve or grant such a notice or licence (or against any relevant decision of the appropriate tribunal) has not expired, or (b) that an appeal has been brought against the authority’s decision (or against any relevant decision of such a tribunal) and the appeal has not been determined or withdrawn. (10) In subsection (9) “relevant decision” means a decision which is given on an appeal to the tribunal and confirms the authority’s decision (with or without variation). Section 254 Meaning of “house in multiple occupation” (1) For the purposes of this Act a building or a part of a building is a “house in multiple occupation” if— (a) it meets the conditions in subsection (2) (“the standard test”); (2) A building or a part of a building meets the standard test if— (a) it consists of one or more units of living accommodation not consisting of a self-contained flat or flats; (b) the living accommodation is occupied by persons who do not form a single household (see section 258); (c) the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);(d) their occupation of the living accommodation constitutes the only use of that accommodation;(e) rents are payable or other consideration is to be provided in respect of at least one of those persons' occupation of the living accommodation; and(f) two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.[2]The relevant provisions regarding the Protection from Eviction Act 1977 are as follows:[3]The relevant provisions regarding the Rent Repayment Orders are in Chapter 4 sections 40, 41, 43 and 44 of the Housing Act 2016 (2016 Act) as follows: Section 40 Introduction and key definitions(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord has committed an offence to which this Chapter applies.(2) A rent repayment order is an order requiring the landlord under a tenancy of housing in England to— (a) repay an amount of rent paid by a tenant, or (b) pay a local housing authority an amount in respect of a relevant award of universal credit paid (to any person) in respect of rent under the tenancy.(3) A reference to “an offence to which this Chapter applies” is to an offence, of a description specified in the table, that is committed by a landlord in relation to housing in England let by that landlord. Act section general description of offence 1 Criminal Law Act 1977 section 6(1) violence for securing entry 2 Protection from Eviction Act 1977 section 1(2), (3) or (3A) eviction or harassment of occupiers 3 Housing Act 2004 section 30(1) failure to comply with improvement notice 4 section 32(1) failure to comply with prohibition order etc 5 section 72(1) control or management of unlicensed HMO 6 section 95(1) control or management of unlicensed house 7 This Act section 21 breach of banning order(4) For the purposes of subsection (3), an offence under section 30(1) or 32(1) of the Housing Act 2004 is committed in relation to housing in England let by a landlord only if the improvement notice or prohibition order mentioned in that section was given in respect of a hazard on the premises let by the landlord (as opposed, for example, to common parts). Section 41 Application for rent repayment order (1) A tenant or a local housing authority may apply to the First-tier Tribunal for a rent repayment order against a person who has committed an offence to which this Chapter applies. (2) A tenant may apply for a rent repayment order only if — (a) the offence relates to housing that, at the time of the offence, was let to the tenant, and (b) the offence was committed in the period of 12 months ending with the day on which the application is made. (3) A local housing authority may apply for a rent repayment order only if— (a) the offence relates to housing in the authority’s area, and (b) the authority has complied with section 42. (4) In deciding whether to apply for a rent repayment order a local housing authority must have regard to any guidance given by the Secretary of State. Section 43 Making of rent repayment order (1) The First-tier Tribunal may make a rent repayment order if satisfied, beyond reasonable doubt, that a landlord has committed an offence to which this Chapter applies (whether or not the landlord has been convicted). (2) A rent repayment order under this section may be made only on an application under section 41. (3) The amount of a rent repayment order under this section is to be determined in accordance with— (a) section 44 (where the application is made by a tenant); (b) section 45 (where the application is made by a local housing authority); (c) section 46 (in certain cases where the landlord has been convicted etc). Section 44 Amount of order: tenants (1) Where the First-tier Tribunal decides to make a rent repayment order under section 43 in favour of a tenant, the amount is to be determined in accordance with this section. (2) The amount must relate to rent paid during the period mentioned in the table. If the order is made on the ground that the landlord has committed the amount must relate to rent paid by the tenant in respect of an offence mentioned in row 1 or 2 of the table in section 40(3) the period of 12 months ending with the date of the offence an offence mentioned in row 3, 4, 5, 6 or 7 of the table in section 40(3) a period, not exceeding 12 months, during which the landlord was committing the offence (3) The amount that the landlord may be required to repay in respect of a period must not exceed— (a) the rent paid in respect of that period, less (b) any relevant award of universal credit paid (to any person) in respect of rent under the tenancy during that period. (4) In determining the amount, the tribunal must, in particular, take into account— (a) the conduct of the landlord and the tenant, (b) the financial circumstances of the landlord, and (c) whether the landlord has at any time been convicted of an offence to which this Chapter applies. Section 263 Meaning of “person having control” and “person managing” etc. (1) In this Act “person having control”, in relation to premises, means (unless the context otherwise requires) the person who receives the rack-rent of the premises (whether on his own account or as agent or trustee of another person), or who would so receive it if the premises were let at a rack-rent. (2) In subsection (1) “rack-rent” means a rent which is not less than two-thirds of the full net annual value of the premises. (3) In this Act “person managing” means, in relation to premises, the person who, being an owner or lessee of the premises— (a) receives (whether directly or through an agent or trustee) rents or other payments from— (i) in the case of a house in multiple occupation, persons who are in occupation as tenants or licensees of parts of the premises; and (ii) in the case of a house to which Part 3 applies (see section 79(2)), persons who are in occupation as tenants or licensees of parts of the premises, or of the whole of the premises; or (b) would so receive those rents or other payments but for having entered into an arrangement (whether in pursuance of a court order or otherwise) with another person who is not an owner or lessee of the premises by virtue of which that other person receives the rents or other payments; and includes, where those rents or other payments are received through another person as agent or trustee, that other person. (4) In its application to Part 1, subsection (3) has effect with the omission of paragraph (a)(ii).(5) References in this Act to any person involved in the management of a house in multiple occupation or a house to which Part 3 applies (see section 79(2)) include references to the person managing it.[4]Rule 13 of the Tribunal procedure (First-tier Tribunal) (Property Chamber) Rules 13 (2) states: (2) The tribunal may make an order requiring a party to reimburse to any other party the whole or part of the amount of any fee paid by the other party which has not been remitted by the Lord Chancellor. (3) The tribunal may make an order under this rule on an application or on its own initiative.[5]21ACompliance with prescribed legal requirements(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.(2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to— (a) the condition of dwelling-houses or their common parts, (b) the health and safety of occupiers of dwelling-houses, or (c) the energy performance of dwelling-houses.(3) In subsection (2) “enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.(4) For the purposes of subsection (2)(a) “common parts” has the same meaning as in Ground 13 in Part 2 of Schedule 2.(5) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.