Unlicensed HMO and date of offence

Luton Borough Council v Altavon Luton Ltd & Ors (2019) EWHC 2415 (Admin)

An appeal by way of case stated from a DJ’s decision at Luton Magistrates. The sole issue was whether the informations in the case had been laid within 6 months “from the time when the offence was committed, or the matter of complaint arose.” (Section 127 of the Magistrates’ Court Act 1980.)

The key question was whether the ‘offence was committed or the matter of complaint arose’ on 16 May 2017. If it was earlier, then the informations were laid out of time.

The evidence from the council was

“(a) Paul Fountain gave evidence on 9th August 2018. He told the court he was a ‘Rogue Landlord Officer’ with Luton Borough Council since 2016. He first had contact with the address, 38 Russell Rise, following an initial complaint, on 20th April 2017, when he visited the address. He spoke with someone on the doorstep but did not ask to go in to the premises. Mr Fountain gave evidence from memory aided by a statement dated 10th October 2017 and notes in a notebook.
(b) On 21st April 2017 he again visited with a colleague but did not enter the premises, but left questionnaires to be completed by the occupiers with a view to obtaining information regarding the house and whether it was an HMO. The completed forms he collected on 24th April 2017.
(c) On 25th April 2017, Mr Fountain stated that he had received a telephone call from Mr Anas Miah, the landlord at 38 Russell Rise from whom Altavon Luton Ltd rented the property. He wanted to talk to Mr Fountain about his property being turned into an HMO, and what he could do about it as he could get no response from Altavon Luton Ltd.
(d) On 12th May 2017, Mr Fountain received a telephone call from Mr Sayed/Bashir on behalf of the company, asking how he could resolve the issue of the unlicensed HMO. He cautioned Mr Sayed and informed him that he could not evict the tenants in order to resolve the issue as that itself would be an offence. Mr Fountain had been made aware of an attempted eviction when he had earlier received a call from one of the occupants. As a result of that call, Mr Fountain informed the community safety officer that ‘the agent had turned up at the house and was trying to evict the tenants of an unlicensed House of Multiple Occupation’.
(e) Mr Fountain had had an earlier telephone conversation regarding the eviction, in April, with Kate Bukrashvilli. According to his statement, he explained to her that ‘as the property was an unlicensed HMO a section 21 eviction notice could not be issued’.
(f) Mr Fountain next visited the premises on either 15th May or 16th May 2017. In his statement dated 10th October 2017, he wrote 15th but in evidence said it was the 16th, as he said he had not been at work on the 15th.
(g) Whether on the 15th or 16th, he did enter the premises, inspected and took photographs. Mr Fountain in evidence said he needed to enter to inspect and establish that it was an unlicensed HMO.”

Photographs were taken on the May visit, and these were date stamped 16 May 2017.

The DJ had found the information was out of time.

The High Court held:

It was not disputed that this was a continuing offence. The offence continued until at least Mr Fountain’s May entry into the property.

Given the date stamp on the photos, that date was 16 May 2017.

As these were continuing offences, as a matter of fact the offending continued until 16 May 2017 when Mr Fountain visited. Knowledge gained by him prior to that date was relevant in so far as it enabled him to place himself in a position whereby he had sufficient information/grounds to enter the property. Further, we accept the point made by the appellant that the entry into and inspection of the property was necessary for the identification and detail of the breaches of the regulatory offences contained within the four informations alleging regulatory breaches.

Comment

I gather that another High Court case is forthcoming where the ‘continuing offence’ point is not being conceded. But, as with every limitation point, the broader issue is do not leave it to the last day….

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Regulation and planning and tagged , , , .

One Comment

  1. Pingback: Judge Clears Up HMO Licensing Confusion | GRL Landlord Association

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