The HMO Legal Basics series is a collaboration between Tessa Shepperson and David Smith of Anthony Gold Solicitors.
What is a House in Multiple Occupation (HMO)?
The first HMO definition we are going to look at is the one people generally think of in connection with HMOs and landlords legal obligations.
It is the definition set out (at great and confusing length) in s254 onwards in the Housing Act 2004. It is the type of House in Multiple Occupation which is the main subject matter of this series, and is the one we are generally referring to when we say ‘HMO’, although we will also refer to it as a ‘Type 1’ HMO.
What sort of situation will create a Type 1 HMO?
This can be:
- Either a building with living accommodation which is not self contained flats (ie a building with bedsits or a shared house, OR
- It can BE a self contained flat (but shared)
In either of these situations the following must apply:
- The living accommodation is occupied by three or more people who do not form a single ‘household’
- They either occupy this property as their main home or are treated as occupying it as their main home
- They pay rent or an equivalent in cash or other goods (or at least one of them does)
- They don’t use the living accommodation for anything else (i.e. they don’t run a business there) – this is often referred to as the ‘sole use’ condition
- They share one or more basic amenities (or the property does not have basic amenities)
What is a household?
The concept of a ‘household’ is an important one when defining a House in Multiple Occupation. A ‘household’ is is made up of someone who has living with them:
- Their family (including partners living together as man and wife/ same sex partners, half blood relatives and step children). This definition is pretty wide as it includes grandparents, grandchildren, uncles, aunts, nephews, nieces and cousins. It does not include in-laws however. There is no central measuring point to the test either so provided that a chain of relationships is maintained that all fall within the definition then some fairly disparate people can be one household. Therefore myself, my cousin, and my cousin’s cousin can all form one household as we are linked buy a chain.
- People who perform a paid domestic service where living in the property is a part of their job (e.g. a live in nanny)
- Their carer, if they are receiving care
(The government has power to add further definitions in the future)
You should note that the manner in which the people actually live is irrelevant. Therefore three friends sharing will never form one household even if they all eat together, share all the bills, and otherwise behave as a family.
People treated as occuping a property as their main home:
You may have noticed that above, we talk about people being ‘treated as occupying a property as their main home’. What is this?
This is a situation where someone does not necessarily use the property as their main home, but are treated for the purposes of the HMO legislation as if they do. These are:
- Students
- People living in a refuge (eg because they have left their home due to violence or abuse)
- Asylum seekers, and
- Migrant workers who are receiving accommodation as part of the payment for their work.
Basic amenities
These are described in s254 of the Housing Act 2004 as
(a) a toilet,
(b) personal washing facilities, or
(c) cooking facilities
For this type of HMO, the occupiers must share one or more of these facilities.
HMO Declarations
As you can see from the information above, which is a very brief and condensed description of the legislation, there are a lot of variables. Often there is disagreement between landlords and Local Authorities (who do most of the regulating) about whether a property is an HMO, or not.
One of the main areas of argument is around the sole use condition which requires that an HMO is the sole use of a property for the legislation to apply. If the property comes substantially within the definition of an HMO except for the sole use condition then a Local Authority can serve an HMO declaration notice if they consider that this is the case.
If you do not agree with this, you can appeal but you must do this within 28 days or as set out in the Notice. However you are strongly advised to get some proper legal advice before you do so.
Next time we will be looking at the second definition of an HMO under the Housing Act 2004.
Further HMO resources:
Advice: If you need some legal advice, for example if you have have been served with an HMO Declaration which you do not agree with, you can use our ‘HMO Hotline‘ telephone advice service.
Training: Easy Law Training has regular workshops on HMO Law & Practice. You can read about these >> here (you will need to scroll down to find out the dates).
