PART 5 continued
The licence holder may cancel the HMO licence at any time by returning it (and any certified copy issued under section 140(3)) to the local authority.
(1) The local authority may, on the application of the owner of any HMO which requires to be licensed under this Part but which is not so licensed, grant an order (“a temporary exemption order”) in respect of the HMO.
(2) Such an application must specify the steps which the owner of the HMO intends to take with a view to securing that it stops being an HMO which requires to be licensed under this Part.
(3) The local authority may grant a temporary exemption order only if satisfied that the steps specified in the application will have the intended effect.
(4) An HMO does not require to be licensed under this Part during any period for which a temporary exemption order has effect in relation to it.
(5) A temporary exemption order has effect for—
(a) 3 months from the date it is granted, or
(b) where that period is extended under subsection (6), the extended period.
(6) The local authority may, on the application of the owner of any HMO in respect of which a temporary exemption order has effect, extend the period during which the order has effect by such period (not exceeding 3 months) as it thinks fit.
(7) But the local authority may so extend a period only if satisfied that there are exceptional circumstances which justify the extension.
(8) The 3 month period may not be extended more than once.
(1) A temporary exemption order may require the owner of the HMO concerned to carry out such work in the HMO as the local authority may specify in the order for the purpose of improving the safety or security of its occupants during the period for which the order has effect.
(2) Any such work must be completed by such date as the local authority may specify in the order.
(3) But a date so specified must be not earlier than the date by which the local authority reasonably considers that the work required can be completed.
(4) The local authority may revoke a temporary exemption order if it is satisfied that the owner of the HMO has failed to comply with any requirement included in it.
(5) A revocation of a temporary exemption order has effect from—
(a) the last date on which the decision to revoke the order may be appealed to the sheriff, or
(b) where such an appeal is made, the date on which it is abandoned or finally determined other than by quashing the decision to revoke.
(1) The local authority may, if satisfied—
(a) that an HMO which requires to be licensed under this Part is not so licensed, or
(b) that any condition included in an HMO licence has been breached (regardless of whether the local authority has taken any other action, or of whether criminal proceedings have been commenced, in respect of that breach),
by order provide that no rent or other sums for occupation are to be payable under any tenancy or occupancy arrangement by virtue of which any person occupies the living accommodation concerned.
(2) A notice under section 158 giving notice of the decision to make an order under subsection (1) must specify—
(a) the name of the owner of the living accommodation concerned (where the local authority is aware of it),
(b) the address of the living accommodation concerned,
(c) the effect of the order, and
(d) the date on which it is take effect (which must not be earlier than the date on which the notice is served on the owner).
(3) Where the local authority is aware of the name and address of a person who acts for the owner on whom that notice is served the local authority must serve a copy of the notice (accompanied by a copy of the order) on that person.
(4) The local authority must revoke an order under subsection (1) if—
(a) in the case of an order made in pursuance of paragraph (a) of that subsection, the local authority—
(i) subsequently grants an HMO licence to the owner of the living accommodation concerned, or
(ii) is subsequently satisfied, on the application of any person with an interest or otherwise, that the living accommodation concerned is no longer an HMO, or
(b) in the case of an order made in pursuance of paragraph (b) of that subsection, the local authority is subsequently satisfied, on the application of any person with an interest or otherwise—
(i) that the condition is no longer being breached, or
(ii) that the living accommodation concerned is no longer an HMO.
(5) The local authority must serve notice of any such revocation, as soon as practicable after doing so, on—
(a) the owner of the living accommodation concerned,
(b) the occupiers of the living accommodation concerned, and
(c) where the local authority is aware of the name and address of a person who acts for the owner, that person,
and the revocation is to have effect from the day on which notice is served under paragraph (a).
(6) An order under subsection (1) does not affect the terms or validity of the tenancy or occupancy arrangement to which it relates (otherwise than by suspending the rent or other sums payable for occupation under that tenancy or occupancy arrangement).
(7) Revocation of an order under subsection (1) does not make any person liable to pay any rent or sums which that person would, but for the order, have been liable to pay under the tenancy or occupancy arrangement concerned while the order had effect.
(8) Failure to comply with—
(a) section 158(6)(b), or
(b) subsection (3) or (5)(b) or (c),
does not invalidate the order or, as the case may be, the revocation concerned.
(1) This section applies where the local authority considers that any condition included in an HMO licence has been, or is likely to be, breached (regardless of whether the local authority has taken any other action, or of whether criminal proceedings have been commenced, in respect of that breach).
(2) Where this section applies the local authority may require the licence holder to take such action as the local authority considers necessary for the purposes of rectifying or, as the case may be, preventing the breach.
(3) A requirement under subsection (2) has effect from the date on which notice of the decision to make the requirement is served on the licence holder under section 158.
(4) That notice must specify—
(a) the action required, and
(b) the period within which that action must be undertaken.
(5) The period so specified must be the period within which the local authority reasonably considers that that action can be undertaken.
(6) The local authority may revoke a requirement under subsection (2) by serving notice to that effect on the licence holder; and the local authority must do so if satisfied that the licence holder has complied with the requirement.
(1) This section applies to any living accommodation—
(a) which is, or which the local authority believes to be, an HMO which requires to be licensed under this Part (whether or not so licensed), and
(b) which the local authority considers is not reasonably fit for occupation by the number of persons whom the authority knows or believes to be occupying it.
(2) The local authority may require the owner of any living accommodation to which this section applies to carry out work in the living accommodation for the purposes of making it reasonably fit for occupation by—
(a) the number of persons whom the authority knows or believes to be occupying it, or
(b) such smaller number of persons which the authority considers could be reasonably accommodated in it if the work is carried out.
(3) A requirement under subsection (2) must be made by serving a notice (an “HMO amenity notice”) in accordance with section 158.
(4) The notice must specify, in addition to the matters specified in section 158(12)(a) and (b)—
(a) the work which requires to be carried out, and
(b) the period within which the work must be completed.
(5) The period so specified must be a period of not less than 21 days from the date on which the notice takes effect within which the local authority reasonably considers that the work can be completed.
(6) The HMO amenity notice may also specify particular steps which the local authority requires to be taken in carrying out the work required.
(7) An HMO amenity notice may not require the owner to take any fire safety measures within the meaning of the Fire (Scotland) Act 2005 (asp 5).
(1) In reaching a decision for the purposes of section 146(1)(b) in relation to any living accommodation, the local authority must have regard to—
(a) the extent (if any) to which the living accommodation falls short of the provisions of building regulations, and
(b) any defects with respect to any of the matters mentioned in subsection (2).
(2) Those matters are—
(a) natural and artificial lighting,
(b) ventilation,
(c) installations for the supply of water, gas and electricity and for sanitation, space heating and heating water,
(d) personal washing facilities, and
(e) facilities for the storage, preparation and provision of food.
(1) The local authority may revoke an HMO amenity notice if—
(a) the living accommodation to which it relates is demolished, or
(b) it considers that the work required by the notice is no longer necessary for the purpose for which the notice was served.
(2) The local authority must give notice of any such revocation in accordance with section 158.
(1) The local authority may, at any time, extend the period within which any work required by an HMO amenity notice must be completed by such period as it considers reasonable.
(2) But such a period may be extended only where the local authority—
(a) considers that satisfactory progress has been made in carrying out the work, or
(b) has received a written undertaking from the owner stating that the work will be completed by a later date which the authority considers satisfactory.
(3) The local authority must give notice of any extension in accordance with section 158.
Schedule 5 makes further provision about HMO amenity notices.
A local authority may carry out, or arrange for the carrying out of, any work which any other person is required under section 145(2) or 146(2) to carry out (but only by agreement with, and at the expense of, that other person).
(1) Where—
(a) a person moves from any living accommodation for the purposes of enabling any person to carry out any work required under section 145(2) or 146(2) (whether in pursuance of a requirement under paragraph 2(1) of schedule 5 or a warrant under paragraph 3(4) of that schedule or otherwise), and
(b) that person resides in the living accommodation under a tenancy or occupancy arrangement,
the tenancy or occupancy arrangement, if that person so chooses, is to be taken not to have terminated, varied or altered by reason of that person moving.
(2) If a person who has so moved resumes lawful occupation, the same terms apply (except so far as otherwise agreed) in respect of that occupation as applied in respect of the previous occupation.
(3) In this section “lawful occupation” means occupation which is not an offence under paragraph 4 of schedule 5.
(1) This section applies if, after receiving notice of the intended action, any person prevents or obstructs any other person from doing anything which that other person is by or under section 145(2), 146(2) or 151 or schedule 5 required, authorised or entitled to do.
(2) Where this section applies, the sheriff may order the person who prevented or obstructed another person to permit that other person to do all things which the other person reasonably requires to do for the purposes of—
(a) complying with any requirement imposed under section 145(2) or 146(2) or schedule 5, or
(b) doing anything which that other person is by or under section 145(2), 146(2) or 151 or schedule 5 authorised or entitled to do.
(3) Any person who fails to comply with such an order is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) This section does not apply in relation to rights conferred by Part 9.
(1) The owner of an HMO which requires to be licensed under this Part commits an offence if the HMO is not so licensed (unless the owner has a reasonable excuse for not holding an HMO licence).
(2) A licence holder commits an offence if—
(a) any condition included in the HMO licence is, without reasonable excuse, breached at any time during which the living accommodation concerned is an HMO which requires to be licensed under this Part,
(b) the licence holder, without reasonable excuse, permits any person to occupy the living accommodation concerned at any time during which a requirement under section 145(2) (power to require rectification of breach) has effect in relation to it, or
(c) the licence holder authorises any person who is not specified as the licence holder’s agent in the HMO licence to do anything which directly permits or facilitates the occupation of the living accommodation concerned as an HMO which requires to be licensed under this Part.
(3) The owner of any living accommodation commits an offence by, without reasonable excuse, representing an HMO licence which has ceased to have effect as having effect in relation to the living accommodation.
(4) A person commits an offence if the person, without reasonable excuse, does anything as agent for the owner of any living accommodation which directly permits or facilitates the occupation of the living accommodation—
(a) as an HMO which requires to be licensed under this Part at any time when—
(i) it is not so licensed, or
(ii) an HMO licence does not authorise the person to do so, or
(b) at any time during which a requirement under section 145(2) has effect in relation to it.
(5) An agent specified in an HMO licence commits an offence if the agent, without reasonable excuse, causes any condition included in the HMO licence to be breached at any time during which the living accommodation concerned is an HMO which requires to be licensed under this Part.
(6) A person commits an offence by preventing or obstructing any person from exercising a power conferred by section 181(1)(e) (powers of entry).
(1) The owner of an HMO which requires to be licensed under this Part but which is not so licensed has reasonable excuse for not holding an HMO licence if—
(a) either of the circumstances mentioned in subsection (2) apply, and
(b) the owner—
(i) has taken reasonable steps with a view to securing that the living accommodation concerned stops being an HMO which requires to be licensed under this Part, but
(ii) despite having taking those steps, is unable to stop it from being such an HMO without breaching the terms of any tenancy or occupancy arrangement under which any person occupied it on the day on which the HMO licence was revoked or, as the case may be, on which the exemption ceased to have effect.
(2) The circumstances mentioned in subsection (1)(a) are—
(a) that an HMO licence held by the owner in respect of the HMO has been revoked,
(b) that the HMO requires to be licensed under this Part by virtue only of the fact that an exemption provided by an order by the local authority under section 127(2) has ceased to have effect.
(3) A licence holder has reasonable excuse for breaching a condition of an HMO licence if the licence holder—
(a) has taken reasonable steps with a view to securing that the condition is not breached, but
(b) despite having taken those steps, cannot secure compliance with the condition without breaching the terms of any tenancy or occupancy arrangement under which any person occupied the living accommodation concerned on the day on which the HMO licence was granted or, as the case may be, varied so as to include that condition.
(4) Subsections (1) and (3) do not affect the generality of the defence of reasonable excuse.
(5) It is not an offence under section 154(2)(b) or (4)(b) to permit or, as the case may be, to do anything which permits or facilitates the occupation by any person of the living accommodation concerned if that person occupied it on the day from which the requirement in question has effect.
(6) Where—
(a) the owner of living accommodation has applied for an HMO licence in respect of it, and
(b) the local authority has not determined the application,
it is not an offence to do anything as agent for that owner which would otherwise be an offence under section 154(4)(a) if that act does not entitle a person to occupy the living accommodation before an HMO licence is granted in respect of it.
(1) A person guilty of an offence under section 154 is liable, on summary conviction, to a fine not exceeding—
(a) in the case of an offence under subsection (1) or (4)(a) of that section, £20,000,
(b) in the case of an offence under subsection (2), (4)(b) or (5) of that section, £10,000,
(c) in the case of an offence under subsection (3) or (6) of that section, level 3 on the standard scale.
(2) Within 6 days of the court convicting a person of an offence under section 154, the clerk of court must provide to the local authority which granted the HMO licence—
(a) an extract of the conviction and sentence (if any), and
(b) a note of any order made under section 157(2).
(1) This section applies where a court convicts a person of an offence under section 154 (other than an offence under subsection (6) of that section committed by a person who is not the owner of the living accommodation concerned nor an agent acting for that owner).
(2) Where this section applies, the court may, in addition to imposing a penalty under section 156, by order—
(a) revoke any HMO licence which has effect in relation to the living accommodation concerned,
(b) where the convicted person is the owner of the living accommodation concerned, disqualify the owner (and, where the owner is not an individual, any director, partner or other person concerned in the management of the owner) from holding an HMO licence for such period not exceeding 5 years as may be specified in the order,
(c) where the convicted person acted as agent for the owner of the living accommodation concerned, disqualify the convicted person (and, where the convicted person is not an individual, any director, partner or other person concerned in the management of the convicted person) from being able to act as agent for any licence holder for such period not exceeding 5 years as may be specified in the order.
(3) A person may appeal against an order under subsection (2) in the same manner as the convicted person may appeal against sentence.
(4) The court which made an order under subsection (2) may suspend its effect pending such an appeal.
(5) The court may, on summary application by a person disqualified by an order under subsection (2)(b), revoke the order with effect from such date as the court may specify.
(6) But no such revocation may be made unless the court is satisfied that there has been a change in circumstances which justifies the revocation of the order.
(7) No application may be made for the purposes of subsection (5) during the first year of a disqualification.
(8) The court may order the applicant to pay the whole or part of the expenses arising from an application made for the purposes of subsection (5).
(1) This section applies to any decision by the local authority—
(a) to grant an HMO licence (with or without conditions) or to refuse to do so,
(b) to vary an HMO licence or not to make a proposed variation,
(c) to revoke an HMO licence or not to make a proposed revocation,
(d) to grant a temporary exemption order (with or without a requirement such as mentioned in section 143) or to refuse to do so,
(e) to extend the period for which a temporary exemption order has effect or to refuse to do so,
(f) to revoke a temporary exemption order,
(g) to make an order under section 144(1) or to refuse, on the application of any person with an interest, to revoke the order,
(h) to make a requirement under section 145(2),
(i) to revoke a requirement under section 145(2),
(j) to serve an HMO amenity notice,
(k) to revoke an HMO amenity notice,
(l) to extend the period within which the work required by an HMO amenity notice must be completed,
(m) to demand recovery of expenses under paragraph 6 of schedule 5, or
(n) to refuse to grant a certificate under paragraph 7 of schedule 5.
(2) The local authority must serve notice of a decision falling within paragraphs (a) to (c) of subsection (1) on—
(a) the applicant or, as the case may be, the licence holder,
(b) the chief officer of the fire and rescue authority, and
(c) the chief constable.
(3) The local authority must also either—
(a) serve notice of a decision falling within paragraph (a) of that subsection on each person who made a valid written representation, or a late written representation considered by the authority, in relation to the application, or
(b) give notice of that decision in a newspaper circulating in its area.
(4) The local authority must also serve notice of a decision falling with paragraph (c) of that subsection to any person from whom it heard evidence in pursuance of section 139(2)(b) (notice inviting respondent to be heard).
(5) The local authority must serve notice of a decision falling within paragraphs (d) to (f) of that subsection on the owner and the occupiers of the living accommodation concerned.
(6) The local authority must serve notice of a decision falling within paragraph (g) of that subsection on—
(a) the owner of the living accommodation concerned,
(b) the occupiers of the living accommodation concerned, and
(c) in the case of a refusal on the application of any other person, that person.
(7) The local authority must serve notice of a decision falling within paragraph (h) or (i) of that subsection on—
(a) the licence holder,
(b) the occupiers of the living accommodation concerned,
(c) the chief officer of the fire and rescue authority, and
(d) the chief constable.
(8) The local authority must serve notice of a decision falling within paragraph (j), (k) or (l) of that subsection on—
(a) the owner and occupiers of the living accommodation concerned,
(b) the chief constable,
(c) the chief officer of the fire and rescue service,
(d) any creditor holding a standard security over the living accommodation,
(e) any person who, directly or indirectly, receives rent in respect of the living accommodation, and
(f) any other person appearing to the local authority to have an interest in the living accommodation.
(9) Failure to comply with any of paragraphs (d) to (f) of subsection (8) does not invalidate a notice if the local authority, after exercising its powers under section 186(1), is not aware of the existence of the person on whom the notice should have been served.
(10) The local authority must serve notice of a decision falling within paragraph (m) or (n) of subsection (1) on the owner of the living accommodation concerned.
(11) A notice of a decision to which this section applies must be served within 7 days of the decision.
(12) The notice must—
(a) give the local authority’s reasons for the decision,
(b) advise of the right to appeal against the decision and of the period within which such an appeal must be made,
(c) if an HMO licence is granted, narrate the effect of section 134 (which sets the date from which the HMO licence has effect and the date on which it expires),
(d) if an HMO licence is varied or revoked, narrate the effect of section 138 or, as the case may be, 139 (which sets the date from which the variation or, as the case may be, revocation has effect),
(e) if a temporary exemption order is granted, be accompanied by a copy of the order,
(f) if an order under section 144(1) is made, be accompanied by a copy of the order.
(1) Any decision of a local authority to which section 158 applies may be appealed by summary application to the sheriff.
(2) An appeal may be made only by a person on whom notice of the decision requires to be served under that section.
(3) An appeal is not competent unless the person making it has followed every procedure made available under this Part for stating a case to the local authority in relation to the decision being appealed that it would be reasonable to have expected the person to follow.
(4) An appeal must be made within 28 days of the person receiving notice of the decision.
(5) But the sheriff may on cause shown hear an appeal made after the deadline set by subsection (4).
(6) The sheriff may determine the appeal by—
(a) confirming the decision (and any HMO licence or order granted or varied, or requirement made, in consequence of it) with or without variations,
(b) remitting the decision, together with the sheriff’s reasons for doing so, to the local authority for reconsideration, or
(c) quashing the decision (and any HMO licence or order granted, or variation or requirement made, in consequence of it).