Usually if you are the landlord of a House in Multiple Occupation (HMO), you know it. Even if you don't know the law, you know the facts of who is living there. It is well-known that ignorance of the law would not provide a defence to the various offences in the Housing Act 2008 for not having or complying with a licence if one is needed. But what if you think you have let a property to a family, but in fact it is being used as a HMO? Surely you can't be prosecuted for failure to have a licence then? Surely it is your tenant's fault?
In a recent case, a Waltham Forest landlord found himself in that position (Mohamed v London Borough of Waltham Forest, High Court). An inspection of one of his properties revealed that it was being used as a HMO without a licence. Mr Mohamed insisted that he had let it to a single family and that he had no reason to believe that it was, in fact, occupied by multiple households.
The council started a prosecution for letting without a licence. Before it even got to the criminal courts, Mr Mohamed challenged the council's decision to prosecute, saying that there was no offence unless he actually knew the property was being used as a HMO. In legal terms, he argued that the offence required a guilty state of mind (what lawyers call a mens rea); that is, that he had knowingly failed to get a licence. Therefore that he was not guilty and that no persecution should even have been started.
The court rejected that submission. It ruled that the offence of renting out a HMO without a licence is one of "strict liability". That means the council does not need to prove that the person in control of the property knew it was being used as a HMO or knew that there wasn't a licence. They merely have to be in breach.
The court pointed out that there is a defence under the statute if you have a "reasonable excuse". It may well be Mr Mohamed has a "reasonable excuse" if the magistrates believe he really did not know, but that point was not for the High Court to decide on a legal challenge to the decision to start proceedings. No doubt that will be part of the facts being tested when the full case is heard at a later date in the Magistrates' Court.
With the expansion of the rented sector in recent years and the increase in councils adopting expanded licensing schemes, it is an important reminder for residential landlords to properly understand who is in your property and – intrusively perhaps, but importantly – the relationships between them. The housing regime does have some strict rules that should not be forgotten.
It is also worth remembering that the council does not have to, and indeed should not, automatically prosecute every time an offence is discovered. Mr Mohamed was an experienced private landlord who the council may have felt should have had a better understanding of his tenants. If a mistake, omission or oversight has occurred, early and positive engagement can certainly help to minimise the risks and achieve the main aim of the legislation – to ensure good landlords provide quality accommodation for tenants.