Extended mandatory HMO licensing requirements
The extended mandatory HMO licensing requirements is effective as of 1st October 2018. The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 2 (‘the Prescribed Description Order 2018’) has the effect of:
Extending the scope of section 55(2)(a) of the Housing Act 2004 (‘the Act’)
Extending the scope of section 55(2)(a) of the Housing Act 2004 (‘the Act’), so that mandatory HMO licensing also applies to HMO properties which are less than three storeys high. This Order changes the definition of an HMO under the Housing Act 2004. In effect, the new definition of an HMO for licensing purposes will be any property occupied by five or more people, forming two or more separate households.
The definition before 1st October 2018 was a property occupied by 5 or more people, forming two or more separate households and comprises three or more storeys. The new definition removes the requirement for the property to be over three floors and therefore many more properties may require a licence from 1 October 2018.
Mandatory national minimum sleeping room sizes
From 1 October 2018 local housing authorities must impose conditions as to the minimum room size which may be occupied as sleeping accommodation in the HMO. A room smaller than the specified size must not be used as sleeping accommodation, and communal space in other parts of the HMO cannot be used to compensate for rooms smaller than the prescribed minimum. The purpose of this condition is to reduce overcrowding in smaller HMOs. The standards adopted are similar, but not identical to, those relating to overcrowding in dwellings under section 326 of the Housing Act 1985.
What is the minimum sleeping room size?
The minimum sleeping room sizes to be imposed as conditions of Part 2 licences are:
- 6.51 m2 for one person over 10 years of age
- 10.22 m2 for two persons over 10 years of age
- 4.64 m2 for one child under the age of 10 years
Any area of the room in which the ceiling height is less than 1.5m cannot be counted towards the minimum room size.
What are the sanctions for breaching minimum room sizes?
A licence holder commits an offence if, without reasonable excuse, the licence holder breaches the licence by:
- knowingly permitting the HMO to be occupied by more persons or households than is authorised by the licence;
- failing to comply with a condition of the licence such as a prohibition against occupation as sleeping accommodation.
If convicted for such an offence the licence holder is liable to an unlimited fine. The local housing authority may impose a financial penalty of up to £30,000 as an alternative to prosecution. Local housing authorities should consider this within their compliance and enforcement policies and devise a proportionate process for dealing with landlords in breach. A reasonable period for compliance must be allowed in certain circumstances .
The conditions related to room size and occupancy will not be breached by temporary arrangements, such as visitors sleeping overnight on an occasional basis, who are not to be treated as occupying the room. However, where for example, the tenant has moved a friend in permanently, the landlord should rectify the issue, since the tenant will be in breach of the tenancy agreement. The local authority will need to consider the circumstances in determining whether a landlord is permitting the overcrowding and therefore is in breach of the occupancy levels within the licence.
Waste disposal provision requirements
From 1 October 2018, local authorities are required to impose a mandatory condition concerning the provision of suitable refuse storage facilities for HMOs. Local authorities will be aware that HMOs, occupied by separate and multiple households, generate more waste and rubbish than single family homes. Some local authorities have made specific provision under their function as the local waste authority for landlords of HMOs to ensure there are appropriate facilities for storing rubbish their properties generate.
All licensed HMOs need to comply with the scheme issued by the local authority (if one exists) for the storage and disposal of domestic refuse pending collection. A licence holder’s failure to comply with the scheme is a breach of the licence and a criminal offence.
This condition must be included in all HMO licences (mandatory or additional) granted or renewed after commencement of the Mandatory Conditions Regulations 2018 on 1 October 2018.
Local authorities should be mindful that HMOs are residential properties, and as such, they should provide a comprehensive and frequent waste collection service for such households which is free at the point of use; this includes HMOs which are occupied by students. Accordingly, it would not be appropriate for local authorities to levy commercial waste charging on such residential properties, or seek to impose such charging via any scheme or direction.
Properties licensed before 1 October 2018
The new conditions apply to HMOs which are required to be licensed under Part 2 of the 2004 Act from 1 October 2018. The condition will not apply to existing licences issued before 1 October 2018, until the current licence expires.
At expiration, a new HMO licence will be required at which point the property will then be subjected to the extended mandatory HMO licensing requirements.