Gurmail Gill & Anor v The Royal Borough of Greenwich

Joint owners of the whole of an HMO who are collectively entitled to receive its rack rent are each a person having control for the purposes of section 263 of the Housing Act 2004. It is immaterial that, as between themselves, each owner is entitled to only a share of the rent.

Each joint landlord who has control of an unlicensed HMO commits the offence under section 72(1) separately. Section 249A(3) prevents more than one financial penalty being imposed on the same person for the same conduct. It does not prevent a separate penalty being imposed on each joint landlord for that landlord’s own offence.

When fixing penalties, the decision maker must assess each landlord’s individual responsibility, conduct and circumstances.

The appellants, two brothers, jointly inherited a house which was occupied as a house in multiple occupation. It was subject to the respondent local authority’s additional licensing scheme but was not licensed. The brothers received rent from a tenant who sub-let to the occupiers.

The Royal Borough of Greenwich imposed a financial penalty of £10,000 on each appellant for having control of an unlicensed HMO contrary to section 72(1) of the Housing Act 2004. The First-tier Tribunal (Property Chamber) confirmed those separate penalties on a rehearing.

On appeal, the central issues were whether each joint landlord was a person having control under section 263 and, if so, whether section 249A permitted separate penalties for each of them.

1. Appeal dismissed. Martin Rodger QC held that both appellants were persons having control of the HMO and that separate financial penalties could lawfully be imposed on them.

2. Section 6 of the Interpretation Act 1978 permits the singular expression “person having control” in section 263 of the Housing Act 2004 to include more than one person. The statutory definition does not require that each joint owner must individually receive two-thirds of the property’s full net annual value. Joint owners of the whole building are together entitled to the whole rent. Their respective shares as between themselves do not alter that entitlement.

3. The reasoning in Pollway Nominees Ltd v Croydon London Borough Council [1987] 1 AC 79 supported the conclusion that a plurality of persons may collectively be persons having control. Accordingly, each appellant was entitled to receive the rack rent and each had control of the HMO.

4. The section 72(1) offence is committed individually by every person having control while the HMO requires, but lacks, a licence. The appellants did not commit one joint offence. Each committed his own offence and could separately have been prosecuted.

5. Section 249A(3) prohibits multiple financial penalties imposed on one person for the same conduct. It does not prevent separate penalties being imposed on different persons whose substantially identical acts or omissions each amount to their own relevant housing offence.

6. The Tribunal added that a local authority or the First-tier Tribunal must assess the responsibility, actions and circumstances of each joint landlord separately when setting a penalty. That observation did not affect this appeal, because quantum was not challenged.

• Upper Tribunal (Lands Chamber): dismissed the appeal and upheld the First-tier Tribunal’s confirmation of separate £10,000 financial penalties.
• First-tier Tribunal (Property Chamber): on a rehearing of the local authority’s decisions, confirmed a separate financial penalty for each appellant.