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The new mandatory bedroom sizes in HMOs

September 27, 2018 by Tessa Shepperson

HMO - overcrowded houseThe new regulations which extend the HMO licensing rules (in England) to properties which are single or two storeys high are not the only changes coming into force on 1 October 2018.

There are also new English mandatory minimum bedroom sizes.

What the law has been up to now

Up until 1 October 2018, there were no absolute minimum sizes.  Many Local Authorities had their own recommended room sizes but these were supposed to be for guidance only.

If it was clear that they were following them blindly without considering the circumstances of the property, license conditions could, and often were, challenged.  The leading case on this was Clark v. Manchester City Council in 2015 discussed here.

However, from 1 October, this will all change.  This is the relevant statutory instrument.

The minimum room sizes:

  • One person aged over 10 years – room must be not less than 6.51 sqm
  • Two persons over 10 years – room must be not less than 10.22 sqm
  • One person aged under 10 years – room must be not less than 4.64 sqm

So any room which has less than 4.64 sqm can’t be used as sleeping accommodation at all.  At least not if the property is an HMO.

The statutory instrument refers to ‘floor area’ not ‘usable floor area’ and it does not look as if ‘floor area’ is defined anywhere.  So there is scope for confusion here:

  • Does it include the area inside cupboards?
  • What about skirting boards?
  • What about fireplaces/
  • Etc

However, the act does make it clear that any part of the room where the ceiling height is less than 1.5 metres cannot be taken into account.

Note also that under the new rules, the other areas of the property available to the occupier are not to be taken into account when determining the room size.  So be careful about adding en-suite bathrooms as they will go to reduce the room size.  For smaller rooms – maybe just a sink.

Time for compliance

The new minimum size rules will apply to all new or replacement licenses issued after 1 October 2018.  So all licenses from then on will need to include conditions setting out the rules.

If the rules are breached without the landlord knowing about it- for example, if the tenant has a new baby, which brings the occupiers to above the permitted maximum, without telling the landlord – then if the Local Authority finds out about it they will notify the landlord.  The landlord will be given a period of time, which must not be more than 18 months from the date of the notification, to rectify the situation.

If the tenants are uncooperative then the only course of action open to the landlord will be eviction, ideally under section 21.  Another reason why long fixed terms are not a good idea – as you cannot use section 21 until after the fixed term has ended.  Although I suppose landlords could always apply to the court for an injunction ordering the tenants to comply.

Tenancy Agreement advice

In view of all this, I would strongly recommend that from now all tenancy agreements specify the number of permitted occupiers.  If family or other occupiers who are not tenants are included, these should also be named in the tenancy agreement.

Then if it is found that there are other people living there, it will be clear that the tenants are in breach of the tenancy agreement and you will have a much better chance of obtaining an injunction or even a possession order if the Council notify you that there are too many people or rooms are being used illegally as bedrooms.

We have had these clauses for some time in the Landlord Law tenancy agreements.

Tell the Council your room sizes

Rather strangely, the regulations also require license holders to notify their local housing authority of any room in their HMO which has a floor area of less than 4.64 metres.

Presumably, this is so they will know in future and won’t have to keep re-measuring the room.

Just to be on the safe side, landlords should take care to ensure that all floor plans done are absolutely accurate and are prepared by a reputable company.  So that the correct size is known and recorded from the start.  If your property is shown as having a smaller size room than is, in fact, the case, you may experience problems in the future.

Is all this a good idea?

Councils have wanted set minimum room sizes for a long time as it makes life easier for them.  This is understandable as they are mostly short staffed and don’t want to have to take time to consider whether small rooms are justified or not.  However, it will undoubtedly mean that accommodation which might otherwise have been accepted will no longer be available.

  • For example, if you have a very small bedroom which is all that the tenant has to live in – it is probably right that it should be banned.
  • However if you have the same size bedroom, but the tenant lives in a large house where he has access to a spacious living room and kitchen plus a garden, and only uses the bedroom for sleeping – its less of a problem.

Many houses have rooms which were always intended to be used as bedrooms but which are now too small to be used as such in an HMO.  In a time when affordable accommodation is at a premium, this is not going to help things.

Particularly as the rogue and criminal landlords are unlikely to let it stop them cramming as many tenants as they can into their substandard properties.  Frequently unchallenged and ignored by the housing authorities when they don’t have the resources to deal with them.

But what do you think?

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IMPORTANT: Please check the date of the post above - remember, if it is an old post, the law may have changed since it was written.

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Tessa is a specialist landlord & tenant solicitor and the creator of this site! She is a director of Landlord Law Services which now hosts Landlord Law and other services for landlords and property professionals.

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Comments

  1. David Griffith says

    September 27, 2018 at 8:27 PM

    What is the room size for 3 or more persons over 10?

  2. John Cart says

    September 28, 2018 at 9:21 AM

    Particularly as the rogue and criminal landlords are unlikely to let it stop them cramming as many tenants as they can into their substandard properties. Frequently unchallenged and ignored by the housing authorities when they don’t have the resources to deal with them.

    So, from 1st October 2018 we can look forward to seeing story after story in the property press of rogue landlords being brought to account……………don’t make me laugh. The lazy jobsworths will go after the easy targets as they always do. Its all about the money for the local Council that’s all they’re interested in. If the number of real “bad” landlords brought to Court doesn’t increase by 300% then we can call the scams (opps, sorry) schemes a failure. I won’t hold my breath.

  3. Nick Parkin says

    September 28, 2018 at 7:03 PM

    I see nothing about rooms where there are no shared cooking facilities. Pre 2004 when LA had their own standards Westminster didn’t allow HMO with shared cooking, and the space standards were as the 1985 Housing Act (10.2 for single person & 20.x for a couple sorry for poor memory). There were new more rigorous standards in preparation when the 2004 Act removed local standards & imposed national ones which reverted to the 1985 Act. If this now supersedes previous legislation what is the space standard for bedsits with cooking? 6.51 square metres & 10.22 square metres for single & couple doesn’t sound reasonable at all?

  4. Adam says

    September 29, 2018 at 1:13 AM

    DG> You won’t be able to rent a room for 3 people to occupy. The council will also be required to specify the maximum number of people that can sleep in a room. (Paragraph 3 in the page Tessa linked to the SI). If you have any rooms you want to rent to more than 3 people you will need to divide it up and the new rooms will need to meet the room size requirements.

    Having just evicted a tenant (by asking him rather than full legal process thankfully) so that I can knock a wall down to increase a room from 6.4sqm, I am quite looking forward to the new legislation being enforced. The number of rooms in HMOs in Oxford will be reduced by about 1/4 (based on my experience with looking for properties to buy – there is normally at least one room which is too small in every property). There is already a shortage of HMO properties and prices have more than doubled since the council introduced their additional licensing scheme. I can see room prices going up by at least 10% over the next 2 years (Oxford typically issue 1 or 2 year licences and have told me they will not give any time to comply with the room size requirement).

    Oxford City Council have also told me that the total number of people permitted to occupy bedrooms can not exceed the number of people in the licence. I can’t see anything about this in the SI. Has anyone else heard about this? One of my HMOs with two double rooms and one single room was going to be licensed for four people and I was told that I would need to nominate the room to have two people. This would mean that I would need to vary the licence if I wanted to change the double room.

    • alan armstrong says

      October 1, 2018 at 7:41 AM

      One way to read the Regulations is for the Licence to specify for each room the maximum number of people who can occupy that room and then specify the maximum number of people in the house.

      So in your example

      Rooms 1 & 2 = 2 people
      Room 3 = 1 person

      Maximum Occupation of the House = 4 people.

      Confusing, yes, but that is how I interpret the regulations..

      Oh, if the licence holder wishes, the room occupation can be for less than the maximum allows, for example you could choose to have 1 person maximum in each room and the licence would be written accordingly.

      and that is before you start to factor in Planning Use Class.

      alan.

  5. Helen says

    October 2, 2018 at 8:41 AM

    Tessa’s comment about built-in cupboards is a good point. A room which meets requirements and has no storage (i.e. will need to have it added) is different from a room with built-in storage which needs no wardrobe!

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