Landlord wins appeal over HMO licence penalty amid dispute over whether five people lived in property

A landlord has successfully appealed to the Upper Tribunal (Lands Chamber) over whether a property he owns has enough occupants to qualify as a house in multiple occupation (HMO) liable for licensing by Cornwall Council.

Upper Tribunal Judge Elizabeth Cooke found for Richard O’Halloran because of a lack of information about a putative fifth tenant.

The court heard Mr O’Halloran owns a property in St Austell with five bedrooms and a shared kitchen and bathrooms, with rooms let to individuals who do not form a single household.

In October 2022 Cornwall served a notice of intention to impose a £15,000 civil penalty for failing to have a licence.

Mr O'Halloran appealed to the First-tier Tribunal on a number of grounds, one of which was only four people resided at the property and that a fifth did not live there as her sole or main residence.

The FTT found that there were five residents and rejected a defence of reasonable excuse, though reduced the penalty to £7,500.

Mr O’Halloran appealed to the Upper Tribunal on the ground that evidence provided to the FTT was insufficient to support the conclusion that five individuals occupied the premises as their only or main residence.

He said it was not clear what evidence, if any, there was about the fifth occupant, Doris, who was not seen or interviewed by Cornwall officers.

Judge Cooke said there was no appeal against the finding that there were five people living at the property on 7 July 2022.

“The issue is whether there was sufficient evidence for the FTT to have found that [Doris] occupied the property as her only or main residence on the relevant date,” she said.

Cornwall housing officer Amanda Evans had been told by other tenants of an occupier known as Doris. She knocked on her door but there was no answer and officers did not see her on any later visits.

The FTT concluded the property was occupied by five tenants including Doris, and was satisfied beyond reasonable doubt that the five people were occupying it as their main residence.

Judge Cooke said: “The Tribunal will only rarely interfere with a finding of fact made by the FTT, because the FTT is best placed to assess the evidence it saw and heard and then to make findings of fact.

“But in the present case the problem is the absence of evidence. I take the view that the finding that Doris.... occupied the property as her only or main residence on 7 July 2022 could not be justified on the evidence before the FTT, and it is therefore set aside.”

This meant only four people were found to be occupying the property as their only or main residence on 7 July 2022, and therefore there was no breach of section 72(1) of the Housing Act 2004 and no financial penalty.

Mark Smulian