Landlords could be fined twice for same offence warns licensing expert

A landlord expert has accused councils of “double jeopardy enforcement against landlords” by fining them twice for the same offence.

Phil Turtle, licensing expert at Landlord Licensing & Defence, has warned councils are creating two routes to prosecution or financial penalty for the same alleged failing, such as selective, additional or HMO licensing.

Mr Turtle has called on councils to amend licence wording to prevent dual enforcement.

Duplication occurs across multiple legislative areas

Landlord Licensing & Defence has represented hundreds of landlords with housing licences where councils have duplicated existing statutory obligations within licence conditions.

The duplication frequently occurs across multiple legislative areas, including HMO Management Regulations 3 through 9, EICR rules and EPC requirements.

Mr Turtle said: “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 the government and each with their own specific enforcement regime specified by the government.”

Legally untrained enforcement officers are creating dozens of new criminal offences

However, Mr Turtle says councils are now re-stating existing legal duties as enforceable licence conditions and warns landlords can face fines for breaching both the original legislation and the duplicated licence wording.

He explains: “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.

“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.”

Mr Turtle claims the structure of licence drafting creates a financial incentive and said: “Obviously the more things councils can include in the licence that can be breached, the more opportunities there are to issue civil financial penalties that effectively strip value from landlords’ assets to support their own revenue budgets.”

Immoral and not acceptable

While double jeopardy is not illegal, councils can still penalise landlords multiple times for the same issue.

Mr Turtle said: “Double jeopardy, whilst sadly not illegal, is immoral and is not acceptable.

“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.”

Dishonesty and deception used by councils has to stop

Landlord Licensing & Defence has managed to persuade some councils to revise licence wording to prevent dual enforcement, but says more action is needed.

The clause they recommend says: “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.”

Mr Turtle says this restores enforcement to the route intended by the government.

However, many councils continue to refuse to amend legislation

Mr Turtle said: “Even when we ask councils to do the decent thing and include the clause we propose, some just flatly refuse.

“We call on all councils to stop this immoral activity immediately, end their ability to ‘double dip,’ and be honest by implementing the clause we recommend.

“The dishonesty and deception used by councils to generate revenue from landlords has to stop.”

As previously reported by Property118, despite councils charging landlords hundreds of pounds for selective licensing schemes, the government claims councils should not profit from licensing.

Landlords can book a no-charge, no-commitment 10-minute diagnostic call with an expert on HMO and selective licensing or other compliance matters by clicking here or by calling 0208 088 8393.