Landlord Licensing & Defence has raised concerns over what it describes as “double jeopardy” enforcement, in which licence conditions repeat existing legal requirements.
The firm notes that duplication often occurs across areas such as HMO Management Regulations 3–9, EICR rules, EPC requirements, Gas Safety law, tenancy deposit obligations, prescribed information duties, pest control legislation, and the Regulatory Reform Fire Safety Order.
Phil Turtle, the firm’s licensing specialist, says he is representing landlords whose housing licences include provisions that replicate these statutory obligations.
Turtle explained: “Every day we represent against licences where the local housing authority has regurgitated tens of different pieces of primary legislation as licence conditions.
“These are all pieces of existing legislation passed by government and each with their own specific enforcement regime specified by government.”
He added that the council practice effectively creates two routes to prosecution or financial penalty for the same alleged failing.
Turtle commented: “Councils are double-dipping and legally untrained enforcement officers are creating dozens of new criminal offences so that not only can they prosecute landlords under the regime envisaged and set by the government, but they also get a second go by re-stating the existing law as a licence condition.”
He argues this applies across selective, additional and mandatory HMO licensing.
He continued: “Doing, or not doing, anything specified in a licence condition is a breach of licence condition – a strict-liability criminal offence with unlimited fines in court or a fine of up to £30,000 if the council decides to issue a civil penalty and keep the fine money. On average we are seeing fines of around £12,000 per condition that is breached.”
Turtle claims the structure of licence drafting creates a financial incentive and said: “Obviously the more things councils can stuff in the licence – that can be breached – the more opportunities there are to issue civil financial penalties to asset-strip landlords’ properties for their own revenue budgets.”
While acknowledging the legality of the framework, he questions its ethics.
Turtle added: “Double jeopardy, whilst sadly not illegal, is immoral and is not acceptable.”
Landlord Licensing & Defence says it has persuaded a small number of councils to amend licence wording to prevent dual enforcement.
The proposed clause states: “Where there is a lack of compliance, and a condition is a reminder of primary legislation or regulation, enforcement will be under the Primary Legislation and not as a breach of this licence.”
Turtle says this restores enforcement to the route intended by the government.
He added: “Often it is easier for the council to prosecute and fine as a breach of licence condition than in the way the government intended.
“In a number of cases, government decided that the council doesn’t get the fine money.
“Of course, this is a big reason to make that thing a licence condition where they can pocket the money.”
Turtle reserves particular criticism for how conditions are created and said: “It is highly wrong that councils can bend the law in this way, with junior people with no legal training creating new ‘landlord crimes’ with unlimited court fines or civil fines where councils add up to £30,000 per condition breached to their revenue budget.
“It is wrong to be able to fine landlords twice, once under the proper primary legislation and again as a breach of licence condition. Even if councils agree to only use one mechanism, it should be the one the government intended and not the ‘easier to get’ one of licence condition breach.”
Turtle is now calling for sector-wide reform.
Turtle concluded: “We call on all councils to stop this immoral activity immediately, stop giving themselves powers to double dip and be moral and honest for once and put in the clause we recommend.”