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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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HMO Licence – for a House where the owner is dead

Customer Question

Alex,


 


HMO Licence – for a House where the owner is dead and there are no heirs, executors, trustees or the like. Please respond in Q&A format (not Chat)


 


BACKGROUND


 


I run a House of Multiple Occupancy. The owner registered at the Land Registry is a lady who died in India (I have a copy of the death certificate). No inheritance or whatever procedure has ever been initiated for her. Her (living) husband and children etc do not want to enter into such a process for reasons that they are unwilling to tell me.


 


Therefore, the house still belongs to this dead woman. There are no heirs, executors, trustees or the like whatsoever. The husband and son, however, still control the place – I rent it from them and then re-rent it by the room.


 


In a previous, unrelated matter, the Councils  Council Tax department did try to get me to get the husband to write a letter to the Council giving me permission to manage the house on his behalf. But this was an evident trap to try and get him to recognise his de facto ownership of the property on paper and so make him liable for Council Tax. He declined to do this, and so the Council Tax is now in the name of the “Executors of Mrs…”, even though there are no such executors.


 


The local Council’s HMO inspector has come and inspected the place. He found a few minor non-conformities, but these have been addressed. Otherwise, from a practical safety etc point of view everything is in order (gas, electric, alarm, PAT etc certificates and a Disclosure Scotland certificate to show I don’t have a criminal record etc).


 


The relevant law (Housing Act 2004 Part 2, S.55(5)) delegates a general duty on local authorities to secure implementation of the licensing regime


 


However, on receipt of the HMO Licence application forms, it is clear that the (dead) OWNER is required to fill out the forms (and appoint a licence holder if she so wishes…).


 


I do want to get an HMO Licence – I am not trying to avoid this


 


But given that the process of applying for an HMO licence is largely a test to see if the applicant is a “fit and proper person”, filling the forms out as the owner, when I am clearly no such thing, seems to undermine the process – I am being asked to break a law (knowingly lie) to conform with a law??? ie To commit an improper act, to demonstrate that I am (fit and) proper??


 


I have pointed out this conundrum to the Council and ask them to provide me with alternate forms, or give me specific guidance (step-by-step) as to how I am supposed to fill out these forms and to give me assurance that I am not doing anything illegal or improper in so doing. I have also asked them to provide me with details of the relevant laws to assure myself (In delegating the general duty to implement the licensing regime, I presume the Housing Act 2004 made it a requirement for each local authority to promulgate some rule, regulations, byelaws or similar – would this seem correct?)


 


They just responded by asking me to get the husband to sort out this matter (inheritance I suppose) with a solicitor (I don’t think this is any of their business) and get Mr. Patel to write to them stating he gave me permission to manage this property on HIS behalf – but it is not his property to give such permission


 


QUESTION (1)


 


Generally in law, if I am required by a government instance, to do take certain steps, does that government instance not have the legal obligation to make it possible for me to take these steps? Surely I cannot be prosecuted under such law, if compliance with such law has been rendered impossible to me by the relevant, duty bound authority?


 


QUESTION (2)


 


Would you know what the local authority rules, regulations, byelaws or whatever are that regulate the local authority’s general duty to secure such effective implementation of an HMO licensing regime? The relevant local authority in this matter is Manchester City Council – they have not been forthcoming so far.


 


Thanks


 


Andrew


 


PS: Please let me know how much time you spend on this, so I can estimate the correct bonus

Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.
Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Let me take some time to read this and come back to you.

Expert:  Ash replied 3 years ago.
Was there a will at all?
Customer: replied 3 years ago.

Not that I know of - nothing has been done (she died in 2009)

Expert:  Ash replied 3 years ago.
Really then it belongs to the Crown if there is no will etc. This means it is the property of the Queen (so maybe she needs to apply for a HMO licence!).

But the Crown now owns it if there are no heirs etc.

Generally in law, if I am required by a government instance, to do take certain steps, does that government instance not have the legal obligation to make it possible for me to take these steps? Surely I cannot be prosecuted under such law, if compliance with such law has been rendered impossible to me by the relevant, duty bound authority?

No - you are correct, if you have taken reasonable steps then you can not be prosecuted.

Would you know what the local authority rules, regulations, byelaws or whatever are that regulate the local authority’s general duty to secure such effective implementation of an HMO licensing regime? The relevant local authority in this matter is Manchester City Council – they have not been forthcoming so far.

I don't offhand but you need to ask them for a copy of their policy and guidelines.

http://www.manchester.gov.uk/info/10084/information_for_private_landlords/5674/licenses_for_privately_rented_accommodation

Can I clarify anything for you about this today please?

Customer: replied 3 years ago.

QUESTION:


Can you give me the legal basis on which I cannot be prosecuted if I have taken reasonable steps.


 


QUESTION


I would also like to know what the test is for "reasonable" steps


This, so I can work out if my request for a form that "I" can fill out, or step-by-step instructions telling me how to fill out the existing form with assurance that I will not be held in any way liable for misdeeds for doing so + references to the relevant rules, regulation, byelaws or whatever so I can check this out for myself


 


I have read the website you linked to - but unsurprisingly it does not take this peculiar situation into account. It is also a "user friendly" layman's guide to the regulations - I need the regulations, rules, byelaws or whatever itself so see how we could navigate a path through this marais.


 


Thanks


 


Andrew


 


PS: I don't think the Crown knows she's dead. I don't think anyone knows if there is a will. Though, given there is a husband and children, I would have thought it would be inherited by them if the owner was intestate... But at present, the ownership has not passed onto anyone - the Crown or family - nor has the responsibility in the mean time passed on to any executors. No body has taken any steps and from what I can see there is no legal obligation on anyone to undertake any such steps, so the house ownership is and can remain in limbo indefinitely... Unless you think differently?

Expert:  Ash replied 3 years ago.
This is common law. If you want regulations and bye laws you first need to speak with Manchester City Council for theirs as I do not have them.

In any event HMO's are under the Housing Act 2004 Part 2:

http://www.legislation.gov.uk/ukpga/2004/34/part/2

I hope this helps.
Customer: replied 3 years ago.

I am sorry, but can you be a little bit more specific than "This is common law"


I need to have something to cite to the Council and some key words to do further research on Google etc


Thanks Andrew

Expert:  Ash replied 3 years ago.
(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.

Therefore if you do not have control (as you are not the owner) you can not commit the offence.

Customer: replied 3 years ago.

That was not the question


 


QUESTION


ALEX: No - you are correct, if you have taken reasonable steps then you can not be prosecuted.


ANDREW: Can you give me the legal basis on which I cannot be prosecuted if I have taken reasonable steps?


ALEX: This is common law.


ANDREW: I am sorry, but can you be a little bit more specific than "This is common law". I need to have something to cite to the Council and some key words to do further research on Google etc



PLEASE CAN YOU ANSWER THE LAST POINT



Thanks Andrew



PS: I am in control of the house (even though not the owner) and am knowingly allowing several households to live there (they pay me rent). This is not in dispute. The only issue is who and how can an HMO licence be applied for. The Council have to resolve this headache - not me (they are duty bound by the Housing Act 2004)

Expert:  Ash replied 3 years ago.
R v Alibhai
Customer: replied 3 years ago.

Sorry, but I'll need a smidgeon more than that


Maybe tonight you can give me a little more to go on


All I find under this reference is details to do with prosecutors duty to disclose evidence


Andrew

Expert:  Ash replied 3 years ago.
This should help: AD and OD v the United Kingdom (App no 28680/06)
Customer: replied 3 years ago.

I had a brief look. I don't understand, these 2 references are to cases that have no relevance to my question. The former is about 3rd party disclosure by prosecutors and the latter about having a child taken away because of allegations of child abuse


 


I asked the folowing:


QUESTION


ALEX: No - you are correct, if you have taken reasonable steps then you can not be prosecuted.


ANDREW: Can you give me the legal basis on which I cannot be prosecuted if I have taken reasonable steps?


ALEX: This is common law.


ANDREW: I am sorry, but can you be a little bit more specific than "This is common law". I need to have something to cite to the Council and some key words to do further research on Google etc


PLEASE CAN YOU ANSWER THE LAST POINT


I really need an explanation, rather than a citation of a case...


Sorry to pester you on this point but it is vital. If I get it wrong I could be prosecuted - fine of upto £20,000 and even some prison time!


I will make it wortyh your while, as I have done in the past, if you can give me this.


Thanks Andrew

Expert:  Ash replied 3 years ago.
I will need some time, I am away at Court for a few days on a trial so it may be the weekend when I reply. No need to respond to this as it comes back to my Inbox.

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