A guide to the licensing and management provisions in Parts 2, 3 and 4 of the Housing Act 2004 DRAFT www.communities.gov.uk community, opportunity, prosperity DRAFT DRAFT A guide to the licensing and management provisions in Parts 2, 3 and 4 of the Housing Act 2004 January 2010 Department for Communities and Local Government: London DRAFT Department for Communities and Local Government Eland House Bressenden Place London SW1E 5DU Telephone: 030 3444 0000 Website: www.communities.gov.uk © Crown Copyright, 2010 Copyright in the typographical arrangement rests with the Crown. This publication, excluding logos, may be reproduced free of charge in any format or medium for research, private study or for internal circulation within an organisation. This is subject to it being reproduced accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the publication specified. Any other use of the contents of this publication would require a copyright licence. Please apply for a Click-Use Licence for core material at www.opsi.gov.uk/click-use/system/online/pLogin.asp, or by writing to the Office of Public Sector Information, Information Policy Team, Kew, Richmond, Surrey TW9 4DU e-mail: [email protected] If you require this publication in an alternative format please email [email protected] Communities and Local Government Publications Tel: 0300 123 1124 Fax: 0300 123 1125 Email: [email protected] Online via the Communities and Local Government website: www.communities.gov.uk January 2010 Product Code: 09PRL05980 ISBN 978-1-4098-1538-9 A guide to the licensing and management provisions in Parts 2, 3 and 4 of the Housing Act 2004 | 3 DRAFT Contents Introduction 4 Chapter 1 Definition of a house in multiple occupation 5 Chapter 2 Licensing: general 22 Chapter 3 Licensing: houses in multiple occupation 56 Chapter 4 Licensing: Part 3 houses 72 Chapter 5 Management orders: general 80 Chapter 6 Management orders: other provisions 112 Annex A: Links to the legislation 118 4 | A guide to the licensing and management provisions in Parts 2, 3 and 4 of the Housing Act 2004 DRAFT Introduction Houses in multiple occupation (HMOs) are a key source of housing for significant and often vulnerable groups of people. However, historically, HMOs have often been badly managed and poorly maintained. The Housing Act 2004 (the Act) introduced a range of measures designed to address these issues and specifically to improve the management of such properties. The Act introduced mandatory licensing of all HMOs which have three or more storeys and are occupied by five or more persons forming two or more households. It also introduced two types of discretionary licensing. These are additional licensing, where a council can impose a licence on other HMOs in its area which are not subject to mandatory licensing, but where the council considers that poor management of the properties is causing problems either for the occupants or the general public, and selective licensing to cover all privately rented property in areas which suffer or are likely to suffer from low housing demand and also to those that suffer from significant and persistent anti-social behaviour. Other measures include management orders and rent repayment orders. The purpose of this guidance is to provide a detailed explanation of the provisions in the Act. It is primarily aimed at practitioners in local housing authorities, but may also form a useful guide to the legislation for private landlords and tenants. The guidance sets out the requirements of the Act. It cannot, however, provide a definitive interpretation of the legislation or provide answers to all the questions or types of cases that might arise. Only the courts can provide an authoritative interpretation of the law. A guide to the licensing and management provisions in Parts 2, 3 and 4 of the Housing Act 2004 | 5 DRAFT Chapter 1 Definition of a house in multiple occupation Introduction 1. The Housing Act 2004 (the 2004 Act) introduced a new definition of an HMO - sections 254 to 260 (see Annex A), replacing that which previously applied in section 345 of the Housing Act 1985.1 (the 1985 Act) 2. The 2004 Act limits the range of houses that can be included within the HMO definition. Although the definition in the 1985 Act was relatively concise (in comparison with the new one), the reality was its brevity led to uncertainty and sometimes unintended results. For example, a ‘house’ under the 1985 definition applied to a wide range of buildings, including any building converted, built or adapted for multiple occupation. Thus sometimes buildings that were not typically regarded as HMOs, such as conference centres2 and those which had been converted to provide modern flats3, were caught by the legislation. 3. The 2004 Act provides that a house cannot be an HMO unless it is occupied by persons as their residence. The 1985 definition did not qualify the mode or purpose of occupation, and it had been held by the courts that ‘occupation’ could amount to ‘live in’ without any qualification.4 Thus any person staying at (and sleeping in) a ‘house’ for whatever purpose, could be held to be an occupier. As a result of this broad definition, persons sharing property for short periods of time were held to be ‘occupiers’5 as were the children, numbering up to ninety at a time, staying in a holiday hostel.6 4. What constituted a ‘single household’ was not defined by the 1985 Act. This led to difficulty because clearly it would be open to interpretation as to the nature of the relationship of the occupiers to determine the question. For example in the cases of Barnes v Sheffield City Council7 and Rogers v Islington London Borough of Council.8 Both cases involved ‘unrelated’ persons sharing a ‘house’. In the former case, the persons occupying the house were students (studying at the same university) who knew each other prior to renting the property, whereas in the latter case they were unconnected young professionals. Whilst there were 1 Housing Act 1985 c.68. 2 Living Waters Christian Centres Ltd v Conwy County Borough Council (1998) 77 P & CR 54. 3 Stanley v Ealing LBC [2003] All ER (D) 306 (Apr). In this case the house, including additions to it, had been converted into 11 self- contained flats. 4 Siblers v Southwark LBC (CA 1977). 5 As in the case referred to at footnote 2. 6 Reed v Hastings Corporation (1964) 62 LGR 588, 108 Sol Jo 480. 7 Barnes v Sheffield City Council (1995) 27 HLR 719. 8 Rogers v Islington London Borough of Council [1999] All ER (D) 925. 6 | A guide to the licensing and management provisions in Parts 2, 3 and 4 of the Housing Act 2004 DRAFT9 distinguishing features between the two cases , these judgments led to potential confusion as to whether or not a property was occupied as a ‘single household’. In the former case the students were classed as a ‘single household’ whereas in the later case each individual young professional was deemed to form a separate household. The 2004 Act therefore provides for a clear definition of ‘single household’. General principles 5. The Housing Act 2004 definition of an HMO now applies to all HMOs, however Schedule 14 of the 2004 Act defines those buildings that cannot be HMOs for the purpose of the Act, other than Part 1 (Housing Conditions). Of course, local housing authorities (LHAs) must apply the definition of HMO10 to those buildings when determining a relevant issue under that part of the 2004 Act. 6. The intention of the legislation is not to extend the definition of an HMO, but rather limit it. Although the 2004 Act’s definition is certainly more detailed than that in the 1985 Act, it is the detail which actually limits the definition of a property that can properly be regarded as an HMO. Thus there is no (except to the extent of its application to tenure11) radical departure from the basics of the definition contained in the 1985 Act. Meaning of HMO 7. In order for a building, or part of a building, to form an HMO it must fall within the meaning of one of the following descriptions: • a building in which more than one household shares a basic amenity e.g. a bathroom, toilet or cooking facilities. This is called ‘the standard test’12 • a flat in which more than one household shares a basic amenity (all of which are in the flat) e.g. a bathroom, toilet or cooking facilities. This is called ‘the self-contained flat test’13 • a building which has been converted and does not entirely comprise of self contained flats. This is called ‘the converted building test’14 • a building which is comprised entirely of converted self-contained flats and the standard of the conversion does not meet, at a minimum, the standard required by the 1991 Building Regulations, and less than two 9 Such as the sizes of the houses, the number of occupiers and that the court established in Barnes the existence of a common thread between the occupants of the household. 10 Sections 254 to 260. 11 Schedule 14. 12 Section 254(2). 13 Section 254(3). 14 Section 254(4). A guide to the licensing and management provisions in Parts 2, 3 and 4 of the Housing Act 2004 | 7 DRAFT15 thirds of the flats are owner occupied. This type of building is also known as a section 257 HMO Each of these tests is explored in more detail below.