The purpose of licensing, especially for HMOs, is to ensure that residential accommodation within the Private Rented Sector (PRS) is safe, well managed and of good quality with a particular focus on safety.
What is a HMO?
A House in Multiple Occupation (HMO) is any residential property occupied by three or more people sharing facilities like a bathroom and/or kitchen who form two or more 'households'.
What is meant by the term 'Household'?
A household is either a single person or members of the same family who live together. A family includes people who are:
· Married couples or couples living together as married (including people in same-sex relationships)
· Relatives or half-relatives e.g. grandparents, aunts, uncles, siblings, nieces, cousins
· Step-parents and step-children
· Foster parents and foster children
Some domestic staff would be included in the household if they are living in the house as a result of the terms of their contract e.g. an adult carer and up to three people receiving care are a single household.
There are three types of property licensing
Mandatory licensing of large HMOs
This applies nationwide for HMOs where there are five or more occupants in a property of three or more storeys and the tenants comprise of two or more households.
However, from 1st October 2018 the definition is changing and the three storey requirement is being dropped. This means single storey flats or two storey maisonettes will need a mandatory licence if they are let to 5 or more people who form more than one household. There is an exception for purpose built flats situated in a block of three or more self-contained flats.
In addition, new mandatory licensing conditions will be introduced prescribing national minimum sizes for rooms used as sleeping accommodation, and requiring landlords to adhere to council refuse schemes.
This rule change applies to new and existing tenancies and those landlords affected are advised to apply for a mandatory licence now. If they haven’t applied by 1st October 2018 they will be committing a criminal offence.
When a council imposes a policy requiring other sizes of HMOs to also be licenced. For example, a council can bring in additional licensing requiring all HMOs to be licenced.
This is at the discretion of the borough and can affect all rental properties regardless of size, number of storeys, or number of occupants. For example, a council can instigate compulsory licensing of all residential rental properties within a street, ward or the whole borough.
Before granting a licence, the local authority must be satisfied that the owner and any managing agent of the property is fit and proper to hold a licence and that the property meets required physical standards.
If you are unsure whether your property requires a licence, please contact the local council directly to obtain clarification, ideally in writing.
A licence will normally be granted where...
· Appropriate fire safety measures are in place such as smoke detectors, extinguishers etc
· Annual gas safety checks are up-to-date
· The electrical wiring and appliances have been checked and certified as safe every five years
· The property is not overcrowded
· There are adequate cooking and washing facilities
· Communal and shared areas are kept clean and in good repair
· There are appropriate refuse storage and disposal facilities
Once granted the licence must be clearly displayed within the communal areas along with the name, address and telephone number of the licencee or property manager of the premises. A copy of the current gas safety certificate must also be on display.
How can I check if a property needs to be licenced?
If you are not sure whether it needs to be licenced then contact the local borough council in question - often their website contains the relevant information.
Can a landlord evict a tenant to avoid licensing?
No. Landlords are not allowed to evict existing tenants in order to avoid licensing. Any attempt to get a tenant out of a property that should be licenced but isn't may be considered a crime under the Protection from Eviction Act 1977, and the landlord or anyone else involved may be prosecuted. The Deregulation Act 2015 has also changed the law so a valid notice cannot be served to end a tenancy if the property should be licensed but isn't currently.
What will the council take into account when deciding whether or not to grant a licence?
· The suitability of the HMO for the number of occupiers
· The suitability of the facilities within the HMO, such as toilets, bathrooms and cooking facilities
· The suitability of the landlord and/or the managing agent to manage the HMO (this is called the "fit and proper" test)
· The general suitability of existing management arrangements of the property
The council also has to carry out a Housing Health and Safety Rating System (HHSRS) risk assessment on a HMO within five years of receiving a licence application. If the inspector finds any unacceptable risks during the assessment then the landlord will be instructed to carry out works to eliminate them. The landlord must also notify the council if they plan to make changes to a HMO (structural or decorative), if the tenants make changes to the property, or if the tenants' circumstances change (e.g. they have a child).
The council must ensure that a licenced HMO is not overcrowded and has suitable shared amenities and facilities for the number of persons occupying it. If there are too many people living in the HMO at the time the licence is granted, the landlord must take reasonable steps to reduce the number of occupiers to the permitted number. Existing tenants will not normally be evicted. Instead, when they move out, it will be an offence for the landlord to allow new tenants to move in if that would bring the total number of occupiers above the maximum number allowed.
What happens if a landlord doesn't apply for a licence?
It is a criminal offence to operate a HMO that should be licenced but isn't and if convicted, the fines for non-compliance are unlimited.
Local authorities also have a range of other enforcement options including the power to vary the terms of a granted HMO licence or to revoke an HMO licence.
Under a rent repayment order, landlords may have to pay back to a tenant any rent they have received, or to the council any housing benefit they have received, up to a maximum 12 months. The tenancy itself will not be affected if the landlord has failed to apply for or obtain an HMO licence, although the council may take over the management of the property as another method of enforcement.
Can a tenant withhold rent if the landlord has not applied for a licence?
No, a tenant cannot withhold rent.
What happens if a landlord breaches the terms or conditions of the licence?
If a landlord or managing agent allows a HMO to be occupied by more people/households than it is licenced for then unless there is a reasonable excuse they are committing a criminal offence and the fines are unlimited. If the breach is serious or persistent the licence may be entirely revoked. If the council revokes a licence it must take over the HMO management.
What happens if the council refuses to grant a licence?
If the council is unable to grant a licence for a HMO then it will need to take over the management responsibility for the property until circumstances change and it can then be licenced. There are special rules that apply when a council takes over the management of a HMO.
What happens if the conditions in a HMO are poor?
Whether or not the HMO is licenced it should be reasonably free from hazards that might affect a tenant's health and safety. The council is responsible for enforcing those standards and can require a landlord to take appropriate action to remedy any defects. In some emergency cases the council may do the works itself.
For further information, please see the Government booklet on HMOs (PDF).
MINIMUM SLEEPING ROOM SIZES FOR HMOS
As of 1st October 2018, local authorities must impose minimum room sizes for any rooms within a HMO used as sleeping accommodation.
The minimum standards applicable nationwide are:
· 4.64 m² for one child under 10 years of age
· 6.51 m² for one person over 10 years of age
· 10.22 m² for two people over 10 years of age
Any part of a room where the ceiling height is less than 1.5m is not considered as usable floor space.
Minimum sleeping room sizes will apply to new HMO licence applications. In due course, all existing licences will also have to comply with these standards. Councils can also apply larger room size standards within their borough, but cannot set a standard lower than the above nationwide standards.