Commentary on Parts Enforcement by local authority
171.Section 144 gives a local authority power to order that no rent or other payments are due from occupants of an HMO under any tenancy or occupancy arrangement. This may be done if a licensable HMO is not licensed or a condition in a licence has been breached. Procedures for notification and revocation are set out. An order does not affect any other terms of the tenancy or occupancy arrangement. Rent and other sums not paid while the order has effect do not become payable subsequently.
172.Under section 145 a local authority can serve a notice on a licence holder requiring action to be taken to rectify or prevent a breach of a condition in an HMO licence. While such a notice is in force, no new occupiers should be permitted to move in. Such action would result in an offence being committed (section 154(2)(b) and (4)(b)). Existing occupiers will be notified of the requirement (section 158(7)).
173.Sections 146 to 150 and schedule 5 make arrangements about HMO amenity notices. Such a notice can be served on any living accommodation which the local authority believes to be an HMO which requires to be licensed, and which the local authority considers is not reasonably fit for occupation by the number of persons occupying it. Section 147 sets out the issues the local authority must have regard to in deciding whether the accommodation is reasonably fit for occupation. By serving an HMO amenity notice the local authority may require the owner to carry out work to make the accommodation reasonably fit for occupation. The notice must specify the work to be carried out and the period in which it must be done (not less than 21 days), and may specify particular steps to be taken in carrying out the work. An HMO amenity notice may not require the owner to take any fire safety measures within the meaning of the Fire (Scotland) Act 2005, since enforcing such matters is the responsibility of the Fire and Rescue Service.
174.Section 148 provides that the local authority may revoke the HMO amenity notice if the living accommodation is demolished or the work is no longer considered necessary. Section 149 allows the authority to extend the period for the work to be carried out, if it considers that it will be completed within a satisfactory period.
175.Schedule 5 sets out arrangements for enforcement of HMO amenity notices. If the owner fails to comply with the notice, the local authority may carry out the work and recover its costs. Before carrying out any work on a listed building, the authority must consult appropriate bodies. If the authority proposes to do the work but considers that doing so is likely to endanger occupiers, it can require them to move out, and can if necessary obtain a warrant for ejection. It is an offence for any person to move into any land or premises from which occupiers have been required to move. The authority must grant a certificate of completion that the work has been carried out, if requested. The local authority must record HMO amenity notices in the Building Standards Register, or keep a written record if the HMO is not a building.
176.Section 151 allows the local authority to carry out work required by an HMO amenity notice, or arrange for it to be carried out, by agreement with the owner and at the owner’s expense.
177.Section 152 applies where an occupier moves from a house to allow work required by an HMO amenity notice, whether moving was required by the local authority, in terms of a warrant of ejection or otherwise. The tenancy or occupancy agreement is not taken to be terminated, varied or altered as a result (if the occupier chooses). That person can resume lawful occupation on the same terms and conditions as he or she enjoyed before leaving.
178.Section 153 deals with people who are authorised or entitled to do anything under an HMO amenity notice. If anyone, having received notice of the intended action, prevents or obstructs a person from doing something they are authorised or entitled to do, the sheriff can order the person causing the obstruction to allow access. If they fail to comply with the order from the sheriff, then they are guilty of an offence and on summary conviction liable to a fine of up to level 3 on the standard scale. This does not apply to any rights conferred by Part 9.