The new mandatory bedroom sizes in HMOs

The 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?