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Houses in multiple occupation (HMOs)

Houses divided into bed-sitting rooms and other forms of shared accommodation are a crucial source of housing in times of great housing demand. Local authorities have long had powers to regulate HMOS, i.e. houses in multiple occupation. The Housing Act 2004 introduced a new definition of HMO and introduced a mandatory licensing for HMOs of certain high-risk categories.

Tests for a house in multiple occupation

1. A building or part of a building is a "house in multiple occupation", i.e. an "HMO", if it meets one of a number of tests set out in the Housing Act 2004.

2. Local authorities must operate a licensing scheme for certain, high-risk HMOs and may devise their own licensing schemes for other HMOs. Failure to comply with a licensing scheme is a criminal offence and can have other serious consequences for a landlord.

3. The terms of the licence regulate the number of persons and households who may live in the HMO. A licence also contains conditions, breach of which is a criminal offence.

4. Management Regulations impose standards which govern the condition in all HMOs. Breach of these standards is a criminal offence.

5. In respect of HMOs outside the licensing scheme, local authorities may serve notices regulating how an HMO is to be occupied.

6. Definition - HMO: The Housing Act 2004 introduced a new definition of HMO and new powers for local authority powers to control standards in HMOs, which replaced the provisions in the Housing Act 1985 Pt 11.

7. An HMO can be a building or a part of a building, e.g. shared accommodation above a shop:s.254(1). To be an HMO, the building (or part) must satisfy one of a number of tests (s.254):

a. the standard test;
b. the self-contained flat test;
c. the converted building test;
d. there is an HMO declaration in force in respect of it; or
e. it is a converted block of flats, which satisfies certain requirements.

Standard Test

8. This includes the majority of HMOs encountered in practice, e.g. bedsitting-room accommodation and shared houses. Each one of six conditions must be satisfied: s.254(2).

9. First, the premises must consist of one or more units of living accommodation which are not in themselves a self-contained flat. A self-contained flat is a separate set of premises which forms part of a building in which all the basic amenities are available for the exclusive use of its occupants. The basic amenities are:

a. a toilet;
b. personal washing facilities, e.g. bathroom or shower-room; and
c. cooking facilities.

10. Secondly, the accommodation must be occupied by persons who do not form a single household. Persons do not form a single household unless they are either all members of the same family, or they fall within prescribed circumstances. Family members include: spouses; cohabitees who live together as husband and wife; same-sex couples who are in an equivalent relationship; parents; grandparents; children; grandchildren; brothers; sisters; uncles; aunts; nephews; nieces; and, cousins. Half-blood relationships are treated as full-blood relationships, and step-children are treated as children (s.258). Regulations prescribe certain categories of person as being part of a single household even though they are not family members, e.g. carers, foster children and live-in employees, such as au pairs and nannies (Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006/373 regs 3 and 4; or Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Wales) Regulations 2006/1715 regs 3 and 4).

11. Thirdly, the occupiers must occupy the living accommodation as their only or main residence. The test is similar to the "only or principal home" residence condition for security of tenure under both the Housing Act 1988 and the Housing Act 1985. In practice, this is rarely controversial. Certain occupiers are deemed to be occupying property as their only or main residence (s.259):

a. students occupying the property for the purpose of undertaking a full-time course of further or higher education;
b. people living in refuges;
c. other occupiers specified in regulations, i.e. certain migrant or seasonal workers and asylum seekers (seeLicensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006/373 reg.5; or Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Wales) Regulations 2006/1715 reg.5).

12. Fourthly, the occupiers' occupation of the living accommodation must constitute the only use of that accommodation, with the consequence that all the occupiers must occupy the HMO as their only or main residence. In some circumstances, the population of a property may fluctuate, or the nature of the population's occupation may be uncertain or variable, so that it cannot be said with confidence that the property is the only or main residence of each and every occupier, e.g. in an hotel which provides both short-term accommodation and longer-term hostel accommodation for the homeless. There is a presumption that the requirement is satisfied, but this may be rebutted by evidence from the landlord. To avoid the problem, authorities may declare a property to be an HMO, provided certain criteria are met (see below).

13. Fifthly, at least one of the occupiers must be liable either to pay rent or to provide other consideration for occupying the property, e.g. services or something else of value.

14. Sixthly, two or more of the households which occupy the living accommodation must share one or more basic facilities, i.e. toilet, personal washing facilities or cooking facilities, or else the living accommodation must be lacking in one or more of those facilities.

Self-contained flat test

15. The self-contained flat test is concerned with flats in multiple occupation. The only difference between the self-contained flat test and the standard test is that the relevant premises must be a self-contained flat rather than a building or part of a building. It is satisfied where a self-contained flat meets conditions (2) to (6), above: s.254(3).

Converted building test

16. This test is concerned with buildings (or parts of buildings) which have been partly converted into self-contained flats but which also include living accommodation that is not a self-contained flat, e.g. because there is no front door providing access to all parts of the living accommodation: s.254(4). The test is significant for properties comprising both self-contained flats and bedsitting-room accommodation. Although the part consisting of bedsitting-room accommodation would satisfy the standard test and would be an HMO in itself, the effect of this test is that the whole building, including the self-contained flats, is subject to the controls of the HMO legislation.

17. A converted building is a building (or part of a building) consisting of residential accommodation in which one or more units have been created since the building (or relevant part) was originally constructed. For a converted building test to satisfy the test:

a. it must contain one or more units of living accommodation which are not self-contained flats (whether or not it also contains a self-contained flat or flats);
b. the living accommodation must be occupied by persons who do not form a single household (see above);
c. the living accommodation must be occupied by those persons as their only or main residence (see above);
d. their occupation must constitute the only use of that living accommodation (see above); and,
e. at least one of the occupiers must be liable either to pay rent or to provide other consideration for occupying the property.

HMO declaration by local authority

18. To satisfy any of the three tests set out above, it is necessary for the sole use of the living accommodation to be occupation by people as their own or main residence. Where the property's population fluctuates, or the nature of that population's occupation is uncertain or variable, an authority may - to remove doubts about a property's status - make an HMO declaration: s.255. Before making a declaration, the authority must be satisfied: that the standard test, the self-contained flat test, or the converted building test would be satisfied but for the fact that the sole use condition is not satisfied; and, that occupation as an only or main residence by persons who do not form a single household is at least a significant use of the property.

19. The authority must serve notice of their decision on: (a) any person who has an estate or interest in the premises (save a tenant under a lease with less than three years to run); (b) a person managing the premises; and (c) any person having control of the premises. That notice must inform the recipient of his right to appeal to the "appropriate tribunal" within 28 days of the date of the authority's decision. In England, the appropriate tribunal is the First-tier Tribunal (Property Chamber) and, in Wales, it is the residential property tribunal. There is no power to extend this time limit. If no appeal is brought in time, the declaration comes into force on the date specified in the notice.

Converted block of flats test

20. A converted block of flats is a building (or part of a building) which has been converted into and consists of self-contained flats: s.257(1). The effect is to bring within the HMO regime properties which have inadequate fire separation between flats. To qualify as an HMO, a converted block of flats must satisfy two conditions.

21. First, the conversion works must fail to comply with the appropriate building standards (either, if the conversion was completed before 1 June 1992, the standards contained in the original form of the Building Regulations 1991/2768) or, if completed later, the standards which applied at the date of completion).

22. Secondly, less than two-thirds of the flats must be owner-occupied. A flat is owner-occupied if it is occupied by a freeholder, long leaseholder or members of their families.

Exemptions

23. Certain properties which otherwise qualify as HMOs on the basis of one or other of the above tests are nonetheless exempt for the purposes of the application of the licensing regime and the application of certain other powers: Sch.14. A building is exempt if it is:

a. managed by a local authority, PRP, RSL or certain other specified public bodies and certain co-operative societies;
b. subject to the control of other, specified regulatory schemes, e.g. a care home;
c. occupied by full-time students at specified educational institutions, where the person managing or having control of the building is the educational institution or another specified person;
d. occupied by a religious community;
e. predominantly occupied by owner-occupiers, i.e. freeholders and long leaseholders - the building may be occupied by no more than two persons who are not owner-occupiers or members of their families;
f. occupied by only two persons who form two households.

24. Definitions - Landlords and managers: In considering action by local authorities in relation to HMOs, there are certain other key terms which need to be understood, in particular "person having control" and "person managing".

 

Section 1

Person having control and person managing

25. The "person having control" is defined as the person in receipt of not less than two-thirds of the full net annual value of the premises (often referred to as the "rack rent"), whether on his own account or as agent or trustee for another, or who would be in receipt of the rack-rent were the premises let: s.263. Accordingly, both landlords and managing agents can fall within this definition.

26. The "person managing" is the owner or lessee of the property who receives - directly or through an agent or trustee - rents or other payments from persons who are tenants of parts of the premises or who are lodgers: s.263. The person managing the HMO remains so even if the rent (or other payments) are being paid to another person, who is not the owner or lessee, whether voluntarily or under a court order. "Other payments" includes the collection of meter monies from gas and electricity meters used by tenants: Jacques v Liverpool CC (1997) 29 H.L.R. 82. The definition also includes an agent or trustee where the rents or other payments are received through the agent or trustee. Again, both landlords and managing agents can fall within this definition.

Section 2

Licensing of HMO's

27. Licensing: The most significant change effected by the 2004 Act was to introduce a licensing scheme for HMOs. Local authorities must have a licensing scheme for certain HMOs, the intention being to ensure that HMOs which present the greatest risk of death by fire because of their size are licensed. In addition, authorities have power to create their own discretionary licensing schemes.

28. Although there was no licensing of HMOs before the 2004 Act, authorities had power under the 1985 Act to make "registration schemes", which required registration of HMOs (as then defined) in their area. Such schemes could include control provisions limiting the number of households or occupiers in an HMO and/or special control provisions regulating management standards. Accordingly, many authorities were operating a de facto form of licensing before the 2004 Act. Detailed transitional provisions were made to convert such registration schemes into licensing schemes.

29. Authorities are under general duties to make arrangements to secure effective implementation of the licensing regime and to ensure that all applications for licences are determined within a reasonable time: s.55. As soon as reasonably practicable after a application for a licence is made, and within five years of that application, they must satisfy themselves as to whether they ought to take action under the HHSRS: s.55(5), (6).

Mandatory licensing schemes

30. HMOs subject to the mandatory licensing scheme are defined in regulations:Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006/371 or Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (Wales) Order 2006/1712. To be subject to mandatory licensing, an HMO must:

a. comprise three storeys or more;
b. be occupied by at least five persons; and,
c. be occupied by persons living in two or more single households.

31. Both Orders contain the same, detailed provision for calculating the number of storeys. Attics, mezzanines and basements are to be taken into account only in specified circumstances. Business premises above or below the HMO are included, e.g. a two-storey HMO above a shop comprises three storeys. In contrast residential storeys outside the HMO are not included so that a flat in multiple occupation in a three-storey block of flats does not have to be licensed: Islington LBC v Unite Group Plc [2013] EWHC 508 (Admin); [2013] H.L.R. 33.

32. In Bristol City Council v Digs (Bristol) Ltd [2014] EWHC 869 (Admin); [2014] H.L.R. 30, the HMO was a two-storey maisonette on the second and third floors of a converted house. Access from the ground floor was via a dedicated, internal staircase consisting of two floors and a landing. It was held that staircase and landing were not storeys for the purposes of the Order. Accordingly, the maisonette had only two storeys and did not have to be licenced.

Local authority licensing schemes

33. Local authorities can adopt their own licensing scheme in addition to the mandatory regime. This is done by making a designation. The power can be restricted to certain areas or to particular categories of HMO. Authorities must ensure that any exercise of their power to require additional licensing is consistent with their overall housing strategy and must adopt a co-ordinated approach in dealing with the overlapping issues of homelessness, empty properties and anti-social behaviour in the private sector: s.57.

34. Additional licensing is not just about regulating the conditions in HMOs but is also about controlling the behaviour of occupiers of HMOs and their visitors. Accordingly, to make a designation, the authority must consider that a significant proportion of the HMOs which will be subject to the scheme are being managed so ineffectively as to give rise, or to be likely to give rise, to problems either for the occupiers of the HMOs or for members of the public: s.56(2). Before making a designation, the authority must take reasonable steps to consult persons who are likely to be affected by it, and must consider any representations made in response: 56(3). Failure to carry out proper consultation may render the subsequent designation invalid:R. (on the application of Peat) v Hyndburn BC [2011] EWHC 1739 (Admin).

35. A designation must be confirmed by the Secretary of State or the Welsh Ministers: s.58. This confirmation may either be specific or by way of a general approval for schemes of certain types. Following confirmation of the designation, the authority must take steps to publicise it, which are specified in regulations.

36. A designation must specify how long it is to last, subject to a maximum of five years: s.60. The authority must periodically review its operation and may revoke it if they consider it appropriate to do so. If a designation is revoked, the authority must comply with certain prescribed publicity requirements.

Temporary exemption notices

37. A person having control of or a person managing an HMO which needs to be licensed (whether under the mandatory or an additional scheme) may notify the authority of his intention to take steps to ensure that the house no longer requires to be licensed, e.g. by reducing the number of persons or households occupying the property: s.62. If so, the authority may serve a "temporary exemption notice", the consequence of which is that the HMO does not have to be licensed. A notice remains in force for three months but it can be extended for a further three months.

38. If the authority refuse to issue a temporary exemption notice, they must give the applicant written reasons for their decision and inform him of his right to appeal to the appropriate tribunal within 28 days: s.62(6). There is no power to extend this time limit.

Licence applications

39. A licence is required for each HMO, i.e. a landlord cannot have one licence that covers more than one HMO: s.68. Licences are not transferable so that on sale of the HMO, the new landlord has to apply for a new licence: s.68(6). Detailed provision is made for what happens on the death of the licence-holder: s.68(7)-(10). An application for a licence must be made to the authority and must conform with any requirements which the authority may impose, including payment of a fee. Specified information must be contained in the application:Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006/373 reg.7 and Sch.2, or Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Wales) Regulations 2006/1715 reg.7 and Sch.2.

40. In particular, the application must include: details about the person managing the HMO and the person having control of the HMO; details about the layout of the HMO and facilities provided; and, declarations that furniture and gas appliances in the HMO meet relevant safety requirements.

41. The form must also include questions designed to elicit information as to whether the proposed license holder and proposed manager are "fit and proper persons" (see below). The applicant and the proposed licence holder (if different) must both sign the form, and their application must be accompanied by signed declarations as to the truth of its contents. A person knowingly supplying any information in the form which is false or misleading, or supplying such information reckless as to whether it is false or misleading, commits an offence: s.238(1).

Licensing decisions

42. Licensing decisions: Before granting a licence, the authority must be satisfied of five matters: s.64(3).

43. First, the HMO must be reasonably suitable for occupation by not more than a specified maximum number of households or persons, or can be made so suitable by the imposition of conditions. (The maximum number is either that specified in the application or a number determined by the authority.)

44. Suitability for occupation is determined by reference to standards prescribed by regulations: Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006/373 Sch.3, or Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Wales) Regulations 2006/1715 Sch.3. The regulations are detailed and set the appropriate level of facilities, e.g. for cooking and washing, for a given number of occupiers.

45. Secondly, the proposed licence holder must be a "fit and proper person" to be the licence holder and must be the most appropriate person to hold the licence. In deciding this issue, authorities must take into account any evidence that the person in question (s.66(2)):

a. has committed any offence involving fraud or other dishonesty, or violence or drugs, or any offence listed in Sch.3 of the Sexual Offences Act 2003(offences attracting notification requirements);
b. has practised unlawful discrimination on grounds of sex, colour, race, ethnic or national origins or disability in connection with carrying out any business;
c. has contravened any provision of the law relating to housing or of landlord and tenant; or
d. has acted otherwise than in accordance with any applicable approved code of practice for the management of HMOs.

46. Evidence of any such conduct by a person associated with, or formerly associated with, the proposed licence holder or manager, whether on a personal, work or other basis, must also be taken into account if it appears to be relevant to whether the person under consideration is a fit and proper person (s.66(3)).

47. Thirdly, the proposed manager must either be the person having control of the HMO or his agent.

48. Fourthly, the proposed manager of the HMO must also be a fit and proper person.

49. Fifthly, the proposed management arrangements for the HMO must be otherwise satisfactory. In deciding this issue, the authority must take into account (s.66(5), (6)) whether:

a. any person proposed to be involved in the management of the HMO is sufficiently competent;
b. any person proposed to be involved in the management is a fit and proper person; and
c. any proposed management structures and funding arrangements are suitable.

50. Detailed provision is made for the procedure for granting or refusing licences: Sch.5 Pt 1. In particular, before making a decision, the authority are obliged to consult "relevant persons", i.e. any other person who has an estate or interest in the HMO (other than a tenant under a lease of three years or less to run) or any other person managing or person having control of the HMO. On the grant or refusal of a licence, the authority must inform the applicant and any relevant person of their decision. There is a right of appeal to the appropriate tribunal within 28 days, e.g. against a refusal or terms contained in the licence. The appropriate tribunal has power to extend this time-limit where it is satisfied that there is "good reason".

Licence conditions

51. Licence conditions: A licence must identify the maximum number of persons and households who may occupy the HMO: s.64(3), (4). In addition, it must require the licence-holder:

a. to produce to the authority a gas safety certificate of the annual inspection required under the Gas Safety (Installation and Use) Regulations 1998/2451;
b. to keep electrical appliances and furniture provided by him in a safe condition and to supply the authority, on demand, with a declaration by him as to their safety;
c. to install smoke alarms and keep them in proper working order and to supply the authority, on demand, with a declaration as to their safety; and
d. to supply the occupiers with a written statement of the terms under which they occupy.

52. In addition, an authority can include other conditions which they consider appropriate for regulation of the management, use and occupation of the HMO and its condition and contents: s.67. The Act provides the following examples of such conditions:

a. restrictions or prohibitions on the use or occupation of particular parts of the HMO;
b. requirements for taking reasonable and practicable steps to prevent or reduce anti-social behaviour by occupiers or their visitors;
c. provisions for facilities and equipment in the HMO to meet prescribed standards;
d. obligations to keep such facilities and equipment in repair and proper working order;
e. time-limits for carrying out such works of repair; and
f. a requirement for the licence holder or manager to undertake training courses in relation to the standards which may be set out in an approved code of practice.

53. A defect in an HMO may constitute a Category 1 or Category 2 hazard under HHSRS against which the authority could take enforcement action under Pt 1 Housing Act 2004 but which could also be dealt with by imposing license conditions. Authorities should generally deal with Category 1 or Category 2 hazards by enforcement action rather than by imposing licence conditions:s.68.

Duration, variation and revocation of licences

54. The licence comes into force on the date specified in the licence and, unless the licence holder dies or the licence is revoked, remains in force for a maximum of five years:s.68.

55. A licence may, however, be varied or revoked at any time. An authority may revoke a licence either with the licence holder's agreement or in the following circumstances (s.70):

a. where the authority consider that the licence holder or any other person has committed a serious breach of a condition of the licence or repeated breaches of such a condition;
b. where the authority no longer consider that the licence holder is a fit and proper person;
c. where the authority consider that the management of the HMO is no longer being carried out by persons who are fit and proper persons;
d. where the HMO ceases to be an HMO which needs to be licensed;
e. where the authority consider that, were the licence to expire they would, for a reason relating to the management structure for the HMO, refuse to grant a new licence to the licence holder on similar terms to the existing licence.

56. As with licensing decisions, detailed provision governs the procedure to be adopted before a licence can be revoked or varied: Sch.5. Before making a decision, consultation must take place with the licence holder and any relevant person. The authority must give reasons for their decision and there is a right of appeal to the appropriate tribunal within 28 days (which may be extended for good reason).

Licensing offences

57. Licensing offences: If an HMO is not licensed when it should be, the person having control of or managing the HMO commits an offence: s.72(1). No offence is committed if the defendant has an outstanding application for a licence or temporary exemption notice or an outstanding appeal at the relevant time. It is also a defence that the defendant had a reasonable excuse. The offence is punishable by a maximum fine of £20,000.

58. A person having control of or a managing an HMO commits an offence if he knowingly permits someone to occupy it so that the house is occupied by more households or persons than permitted under the licence: s.72(2). It is a defence that the defendant had a reasonable excuse for permitting the person to occupy. The offence is punishable by a maximum fine of £20,000.

59. Failure to comply with a licence condition is an offence: s.72(3). The offence is committed by the person on whom the condition is imposed (usually the licence holder). A defence is available if there was a reasonable excuse for failing breaching the condition. The offence is summary only and punishable by a fine not exceeding Level 5 on the standard scale (currently £5,000).

Section 3

Restriction on possession by landlord

60. Most tenants of HMOs are assured short-hold tenants. Under an assured short-hold tenancy, a landlord is entitled to recover possession provided he has served a notice in accordance with s.21 of the Housing Act 1988, i.e. he does not have to establish grounds for possession. As long as an HMO which needs a licence remains unlicensed, however, the landlord may not serve a s.21 notice: s.75. There is nothing to prevent the tenancy being brought to an end by other means. Accordingly, the landlord may recover possession by serving a notice under s.8 of the Housing Act 1988 and proving any of the grounds for possession the 1988 Act Sch.2.
Section 4

Rent payment orders against landlords

61. Failure to obtain a license when one is necessary can also lead to the making of a "rent repayment order". Such an order is made on application to the appropriate tribunal and may require the landlord to repay rent (or other payments) to the occupier, or, if the occupier was in receipt of housing benefit, to repay the benefit to the local authority. An application may be made by the local authority or by an occupier. It may be made against the "appropriate person", defined as the person who was entitled to receive payments on his own account, i.e. usually the landlord rather than a managing agent: s.73(10).

62. Before applying for a rent repayment order, an authority must serve a notice of intended proceedings. This warns the landlord of the authority's intention to make the application and invites representations within 28 days. The notice must give reasons for making the application and provide a calculation for the money sought.

63. On an authority's application, the tribunal cannot make an order unless it is satisfied of the following three matters: s.73(6).

a. At any time within the period of 12 months ending with the date of the notice of intended proceedings, the appropriate person committed the offence of failing to obtain a licence. It is not, however, necessary for there to have been a prosecution.
b. Housing benefit was paid whether to the appropriate person or someone else. (Whether the housing benefit has been passed on is only relevant to the amount of the repayment.)
c. Notice of intended proceedings was served by the authority and the authority have considered any representations made in response.

64. Subject to three qualifications, the tribunal must order repayment of the total amount of housing benefit paid during the relevant period, if satisfied that:

a. a person has been convicted for failure to obtain a licence; and
b. housing benefit was paid during the period when the offence was being committed (s.74(2)).

65. The three qualifications are as follows:

a. If the total amount received by the appropriate person is less than the housing benefit paid, e.g. because the tenant or managing agent did not pay the housing benefit over to the landlord, the amount of the repayment is limited to what was received.
b. The repayment cannot exceed the amount which the tribunal is satisfied that, by reason of exceptional circumstances, it would be reasonable for the appropriate person to have to repay.
c. The order cannot require repayment of an amount payable more than twelve months before the date of the notice of intended proceedings.

66. Otherwise and additionally, the amount of the repayment to the occupier is such amount as the tribunal considers to be reasonable in the circumstances. In considering this, the tribunal must consider:

a. the amount paid during the time when it appears that an offence of failure to licence was being committed;
b. the extent to which that amount consisted of housing benefit and was actually received by the appropriate person;
c. whether the appropriate person has been convicted of an offence of failing to licence; and,
d. the conduct and financial circumstances of the appropriate person.

67. Where the application is made by an occupier, the tribunal must be satisfied of three matters. First, the appropriate person must either (a) have been convicted of an offence of failing to obtain a licence; or (b) there must be an existing rent repayment order in respect of housing benefit, i.e. the authority have already successfully obtained a rent repayment order. Secondly, the occupier must have made payments to a person having control of or person managing the property during the relevant time. Thirdly, the application is made within 12 months of the date of the conviction or earlier order.

68. The amount of the repayment is as on an authority's application, save that by way of additional consideration, the tribunal must have regard to the occupier's conduct: s.74(6). The order cannot require repayment of an amount payable more than 12 months before the date of application: s.74(8). Recovery of rent from the landlord is governed by the scheme of the 2004 Act; it is not possible for the prosecution to apply for a confiscation order in relation to the rent: Sumal & Sons (Properties) Ltd v Newham LBC [2012] EWCA Crim 1840; [2012] Lloyd's Rep. F.C. 692.

Section 5

Management by local authority

69. A management order allows an authority to take over the management of an HMO. It is usually made because the authority consider that there is no reasonable prospect of granting a licence, which may be because an appropriate licence holder cannot be found. The general effect of a management order is that the authority take possession of the property, although they do not acquire any legal interest in it. Such orders are rare in practice and are not considered here.
Section 6

Standards of HMO managment

70. Management Regulations may be issued to ensure that the person managing an HMO observes proper standards of management : s.234. For all HMOs other than converted blocks of flats, the management regulations are contained in theManagement of Houses in Multiple Occupation (England) Regulations 2006/372and theManagement of Houses in Multiple Occupation (Wales) Regulations 2006/1713.

71. The Management Regulations are detailed but, in general terms, they require the manager of the house to:

a. provide contact details to all occupiers and display these in the house;
b. take safety measures (including fire safety);
c. maintain the water supply and drainage;
d. supply and maintain gas and electricity, including ensuring that appliances are tested and that certificates are provided to the local housing authority upon request;
e. maintain common parts, fixtures, fittings and appliances;
f. maintain living accommodation; and
g. provide waste disposal facilities.

72. Similar duties are imposed on a person managing a property which is an HMO because it is a converted block of flats: Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007/1903 or Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (Wales) Regulations 2007/3229. The manager's duty only extends to parts of the HMO over which it would be reasonable to expect the licence holder to exercise control: reg.3.

73. Duties are imposed on those living in the house to ensure that the manager can effectively carry out these requirements. Failure to comply with a regulation without reasonable excuse is an offence punishable by a fine not exceeding Level 5 on the standard scale (currently £5,000): s.234(3).

Section 7

Overcrowding controls

74. A licence for an HMO specifies a permitted level of occupation: s.64. In relation to unlicensed HMOs, authorities can serve overcrowding notices to regulate the level of occupation. An authority may serve notice in respect of an HMO which appears to them to accommodate, or be likely to accommodate, an excessive number of persons: s.139. The notice must specify the maximum number who are to sleep in reach room in the HMO. The notice may also state that some rooms are unsuitable for use as bedrooms. The maximum stated may be age-related. The notice may be served on one or more "relevant persons". The notice must contain one of two further classes of prohibition: an immediate or a natural reduction.

75. In the case of an immediate reduction, the person served must not:

a. permit a room to be occupied otherwise than in accordance with the notice; or
b. allow so many people to live in the house that it is impossible for them to occupy without offending the notice, or without sleeping in parts of the house which are not rooms, or without two persons of the opposite sex and over the age of 10, not living together as man and wife, being obliged to sleep in the same room.

76. In the case of a natural reduction, the person served must not:

a. permit a room to be occupied by a new resident, other than in accordance with the notice; or
b. permit a new resident to occupy any part of the premises if it is not possible to do so without offending the notice, or without sleeping in parts of the house which are not rooms, or without two persons of the opposite sex and over the age of 10, not living together as man and wife, being obliged to sleep in the same room.

77. At least seven days before serving an overcrowding notice, the authority must inform every relevant person of their intention to serve the notice. At the same time, the authority must try to ensure that every occupier is also told of their intention.

78. A person aggrieved by an overcrowding notice, e.g. landlord or occupier, may appeal to the appropriate tribunal within the 21 days of service: s.143. The effect of an appeal is to suspend the operation of the notice pending the outcome. The notice may be revoked or varied by the authority at any time on the application of any relevant person: s.144. A refusal to revoke or vary may also - within 21 days - be appealed to the appropriate tribunal.

79. Breach of a notice is a criminal offence (s.139(7)), punishable by a fine on standard scale 4 (currently £2,500). It is a defence that the person has a reasonable excuse for contravening the notice.
80. Codes of practice: Codes of practice may be issued laying down standards of conduct and practice to be followed with regard to the management of HMOs, including exempt HMOs: s.233. Failure to comply with a provision of a code does not of itself render a person liable to any civil or criminal proceedings, but a code may be relevant in a number of circumstances, e.g. failure to comply with a provision of a code is relevant to whether a proposed licence holder is a fit and proper person. The only codes of practice which have been issued relate solely to accommodation for students in halls of residence and other university buildings.

 

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