I was recently consulted by Fransesca who is an HMO Landlord in Haringey in North London. (HMO stands for ‘House in Multiple Occupation’).
She has experienced a major problem with her property and the Council and asked me to alert other landlords to it.
Francesca’s story
I own a property, which I rent to 5 tenants with 5 separate ASTs. 2 floors, 2 bathrooms and one kitchen
Due to the change in the law last October 2018, my property became an HMO. I applied for the licence which was granted in July this year.
Little did I know that in my area article 4 was imposed in 2013 – the licencing team at the council did not inform me at the time:
Using a property as House in Multiple Occupation (HMO) for seven or more occupants requires planning permission is all parts of Haringey. Using a property as a small HMO with 3-6 occupants (Use Class C4), is normally permitted development, however, Haringey has made an Article 4 Direction to remove the permitted development rights for change of use from dwelling houses (Use Class C3) to houses in multiple occupation (Use Class C4). The Direction came into force on the 30 November 2013, which means that planning permission will be required for this type of development.
I had no idea that I had to have planning permission to change the use of the property at all and the licencing team did not tell me, I have never dealt with HMOs – I also know that ignorance is not an excuse.
One of the basic rules for this particular planning application to be successful is that the original dwelling has to be at least 120 sqm or the council will reject the application – by ‘original’ they mean that it does not matter to them that the property has been substantially extended (like mine has) – they only look at the original floor space and they won’t budge. My property is 110 sqm, so below the 120 sqm with the extension and conservatory it is in fact 128 sqm, so well above the required standard to ensure good quality of living for the tenants, which they have but it is being ignored due to an arcane rule. I think most landlords will have this issue, considering the size of houses built hundreds of years ago.
So now I am being told that if my application is rejected (which they have already told me they will), they will revoke my licence and they will send reinforcement officers to throw out the tenants.
Lawful development certificate for existing use?
Francesca was wondering if she could solve the issue by making an application for ‘‘lawful development certificate for existing use’. As I am not a planning lawyer I was unable to help her.
However, maybe readers have some relevant experience which they could share with Fransesca?
The problem with Councils
One aspect which concerns me about this is that Fransesca had already got an HMO license and was not told about the planning issue by the department which issues the licenses.
The HMO licensing department and the planning department in many councils are quite different and do not talk to each other. However ordinary landlords can’t be expected to know this.
Indeed I see in one of the emails which Fransesca sent me, the Planning Officer actually said:
The Licensing Team work under entirely different policy / legislation. I have discussed with management and advised that this is an unsatisfactory process for customers, as the planning policy could have been flagged by Licensing Team earlier in the process.
I could not agree more.
Surely it is time that Council’s started behaving in a more responsible way towards landlords such as Fransesca? Particularly as decent housing is in such short supply.
If YOU are applying for a new HMO license
Always check whether you need planning permission first. As you can see from Francesca’s story, this may not get picked up by the department which deals with your HMO license application.
Note also that running an HMO property is not the same as managing an ordinary let and, quite apart from the planning issues, there are other things you need to be aware of.
Here are some resources for you:
- We have a free HMO 101 course here
- There is a free ‘HMO Basics’ series of articles on this blog, although it is a bit old now.
- Landlord Law members will find an HMO video course based on a workshop with solicitor and HMO Expert David Smith here
- We also run HMO workshops with David from time to time. These will be announced to people on our mailing list.
- If you need one to one advice we have an ‘HMO Hotline’ telephone advice service here.
John says
December 10, 2019 at 11:16 AMAn important point that deserves highlighting is the threat by the council to penalise the tenants by having them removed. This is absolutely outrageous.
I see this kind of attitude a lot on “poverty porn” shows like “Nightmare Tenants, Slum Landlords” where a property is deemed overcrowded and the LL threatened with action if it’s not rectified, then the tenants mysteriously vacate by the time the official inspection happens. The council show no interest in whether these people were illegally evicted and may now be homeless. All they seem concerned about is being able to tick boxes to say a property now complies with a particular regulation. When it’s 30 immigrants in three rooms who all work for the LL in some dodgy cash-based enterprise one might assume they will just be moved to a different property but in the above case we are talking about a fairly normal, otherwise legal house-let with settled people probably in regular jobs and registered to vote. What the hell are the council doing threatening to turf these people out on such a jobsworth-style technicality when it is not even the tenants that are at fault?
alan armstrong says
December 10, 2019 at 12:26 PMMy understanding is that if the property has been an HMO for 10 years or more, operating in the same way, then an application for planning permission is not required and a Certificate of Lawfulness should be acquired
I do not think this is granted based on the Article 4 criteria, and probably more so if the ‘change’ from C3 (family home) to C4 (Small HMO) took place before the Article 4 directive was introduced and so planning USE CLASS will already be C4 when the Article 4 came into being.
When the Government introduced HMO licencing back in 2006 they didn’t require the correct planning permission to be in place when a licence is issued.
So, if the HMO has been operating since before November 2013 it already has C4 Planning Use under permitted development rights.
I am not sure the Council can refuse to issue the licence if the property meets the standards required to be licenced (Section 65) as there is no requirement for planning permission in those standards.
If the Licence Conditions require planning permission to be held, then the licence holder may be in breach of the licence conditions.
If the licence conditions do not have planning permission as a condition, then it is a Town and Country Planning Act 1990 offence, and I think the planners need to ask you to comply with a Notice, and this could be achieved by not renewing a tenancy(s) when it/they come(s) to a natural end.
The other option would be to see if a Temporary Exemption Notice could be granted, giving 6 months for tenancies to expire bringing the number of occupiers under the planning limit.
If all the tenants are long term, then maybe they will sign a joint tenancy, this still requires a Licence but I think under Planning Law it may be considered as a family dwelling (C3).
David Mensah says
December 11, 2019 at 8:33 AMIt sounds like Francesca was already operating an HMO in 2013 when the article 4 came into place. In all article 4 areas that I have worked in she would be grandfathered in. The planners may require proof of continual use as an HMO in the period 2013 til now.
What surprises me a bit is the 120 m^2 original house requirement. Normally the requirements are per bedroom plus separate requirements for common spaces. A 5 bed HMO can normally easily fulfill these in less than 120 m^2.