What are HMOs?
Houses of multiple occupation, or HMOs, are generally defined as properties where tenants who are not part of the same ‘household’ are sharing kitchen, bathroom and toilet facilities. Depending on the type of HMO and where it is, licensing may be required, rooms may be subject to minimum size guidelines and additional fire safety measures may need to be in place. Typically this applies to student lets or the increasingly common practice of professionals sharing, whilst they save up for their own place. HMOs are highly regulated and failure to do things by the book can lead to fines, a criminal record and being unable to terminate tenancies.
Mandatory licensing has applied nationwide since 2006, but was re-defined in October 2018, and applies to:
- Houses occupied by 5 or more people who are not part of the same household, who share a toilet, bathroom or kitchen.
- Buildings converted into self-contained flats occupied by 5 or more people in total who are not part of the same household, who share a toilet, bathroom or kitchen
- Purpose built block of flats occupied by 5 or more people in total who are not part of the same household, who share a toilet, bathroom or kitchen
Mandatory licensing does not apply to purpose-built blocks of flats with 3 or more self-contained flats in the block. However purpose-built flats in smaller blocks with 3 of more self-contained flats (even if above a commercial premises) will require licensing if they are not occupied by a single household.
To complicate matters, local authorities can declare that additional properties not covered by mandatory licensing, will require licensing.
A landlord who fails to apply for the appropriate licence will be committing a criminal offence. Penalties for operating an unlicensed HMO can include criminal prosecution by the local authority with unlimited fines imposed if found guilty. Other penalties include rent repayment orders brought by tenants or the local authority and a prohibition on serving a valid s.21 notice, making it difficult to terminate the tenancy. Repeat offenders may also be subject to a banning order and risk being placed on the rogue landlord database.
Rent Repayment Orders
It is an offence for a manager or letting agent to be in control of or manage an unlicenced HMO. Apart from facing criminal prosecution, a landlord or agent committing such an offence may be subject to a Rent Repayment Order requiring the repayment of up to 12 months’ rent or housing benefit (or the housing costs element of any universal credit paid) to each of his tenants. It is not necessary for the landlord or agent to have actually been convicted, but, in order to grant a Rent Repayment Order, a tribunal must be satisfied beyond reasonable doubt that an offences has been committed. An application for a Rent Repayment Order must be made to the First Tier Tribunal. The application can be made by the occupier or the local authority.
Rent Repayment Orders can also be made if the landlord or agent:
- Uses or threatening violence in order to gain entry
- Is responsible for an illegal eviction or harassment
- Fails to comply with and improvement notice,
- Fails to comply with prohibition order
- Breaches a banning order
As an HMO licence cannot be transferred to another person, when a landlord acquires a tenanted property which requires and already has a licence, s/he cannot rely on the existing licence but must apply to the local authority for her/his own, otherwise s/he commits an offence
Room Size Issues
For years local authorities have relied upon their own guidance as to room sizes as if it were binding law. This approached was successfully challenged in the case of Clark v Manchester City Council in 2015 in which it was held that the local authority’s rigid adoption of mandatory minimum room sizes was unlawful. The Government has since introduced a national minimum room size for licensable HMO properties under The Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences (England) Regulations 2018. All new HMO licences granted since 1 October will (or ought to) contain a condition as to the following minimum room sizes for bedrooms.
- 6.51² – one person over 10 years old
- 10.22m² – two people over 10 years old
- 4.6m² – one child under 10 years old
Notwithstanding this, local authorities are free to set their own more stringent conditions. However local authority guidance as to room size cannot be treated as if it is binding law.
How can we help?
We assist both landlords facing prosecution or other enforcement action and tenants seeking to challenge the validity of s.21 notices and seeking rent repayment orders. We also act for landlords in dealing with alleged breaches of licensing conditions, including issues over minimum room sizes.