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Which Flats Count Towards a Licensable HMO?

Licensable HMOs – rather an esoteric subject which turns out to be rather complex. As complicated as it is, a Landlord also has to get it right because failing to license an HMO carries draconian penalties:

  • A fine and costs – the legislation says up to £20,000 but prosecutions are generally brought for multiple offenses, so the biggest fine I have heard about personally was a Blexley Landlord who had to pay £110,000 + £5000 costs.
  • Rent Repayment Order – Tenants and Local Authorities are entitled to have their rent & Housing Benefit returned to them.
  • No Eviction Rights – If a property is unlicensed a Landlord cannot serve legal papers such as S21 Notice, or proceed with evictions.

I think that this illustrates that the issue is more than theoretical and Cotswold District Council established in Court :

This case brought by Cotswold District Council is of particular importance because it clarifies the ambiguous legislation that defines which storeys within a building should be counted when determining if a house in multiple occupation, or part of it, comprises three storeys or more.

A legal judgment on the case given on December 21st 2007 at Gloucester confirmed that a self-contained ground-floor flat at a property does in fact count towards the total number of storeys. This clarified a grey area within the legislation.

However 5 years later another court made what I consider an inconsistent ruling:

when counting storeys in a building for HMO purposes it is not necessary to consider other residential storeys unless they are actually part of the HMO being considered. It is necessary to consider business premises.

And now we have yet another oddity as the above cases relied upon 2004 Housing Act defines a Mandatorily Licensable HMO as:

a)the HMO or any part of it comprises three storeys or more;

(b)it is occupied by five or more persons; and

(c)it is occupied by persons living in two or more single households.

It additionally defines which parts of a building should be defined as a storey where there might be some doubt or argument as to whether they are included in the living accommodation:

3) The following storeys shall be taken into account when calculating whether the HMO or any part of it comprises three storeys or more—

(a)any basement if—

(i)it is used wholly or partly as living accommodation;

(ii)it has been constructed, converted or adapted for use wholly or partly as living accommodation;

(iii)it is being used in connection with, and as an integral part of, the HMO; or

(iv)it is the only or principal entry into the HMO from the street.

(b)any attic if—

(i)it is used wholly or partly as living accommodation;

(ii)it has been constructed, converted or adapted for use wholly or partly as living accommodation, or

(iii)it is being used in connection with, and as an integral part of, the HMO;

(c)where the living accommodation is situated in a part of a building above business premises, each storey comprising the business premises;

(d)where the living accommodation is situated in a part of a building below business premises, each storey comprising the business premises;

(e)any mezzanine floor not used solely as a means of access between two adjoining floors if—

(i)it is used wholly or mainly as living accommodation; or

(ii)it is being used in connection with, and as an integral part of, the HMO; and

(f)any other storey that is used wholly or partly as living accommodation or in connection with, and as an integral part of, the HMO.

These are the clauses which caused so much heartache in the previous 2 cases.

If you have an HMO with 2 principle storeys of living accommodation on the 1st and 2nd floor, but a private access stair from the ground floor, Local Authorities have been reading this as a 3 storey mandatorily licensable HMO. The situation translates directly to the specific example given in the Housing Act where it talks about counting a basement if it is the main entrance to the HMO, so I agree with that.

Link to Original Story

Original Story

However in an odd and contradictory development a recent judgement at Bristol Magistrate’s Court District Judge Zara ruled that a property on the upper two floors of a two story building, accessed by a private staircase leading from the ground floor is not a Licensable HMO. Bristol City Council believed that the layout at the premises was such that the ground floor hallway and first floor landing associated with the maisonette constituted a storey, thus making the premises liable to licensing. The judge however ruled that the areas concerned only formed part of a storey. The ruling means that Local Authorities that have two storey maisonettes with private means of access within their areas may now face claims for the return of licensing fees.

 

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