My HMO (House in Multiple Occupation) Dilemma

Ben, something has just occurred to me. As there is nothing in the statute books to suggest that 3 people sharing a property make it a licenceable HMO, is what Oxford Council are implementing on Monday even legal? If a landlord letting a house to three people refused to pay the HMO licensing fee what could Oxford Council actually do about it?

The HA 2004 defines an HMO in terms of the number of "households" rather than people/families and the term household is clearly defined within the act.  An HMO, for the purpose of the HA 2004, is about the number of "households" who share facilities within a buiding.  The term HMO has an entirely different definition for Council Tax liability and depends on the contract(s) (Tenancy Agreements) that define the use of the building, this is totally unrelated to the actual use or number of users.

This is what the Housing Act says in relation to households (not for council tax)
section 254
(2) persons are to be regarded as not forming a single household unless-
a - they are all members of the same family, or b - their circumstances are circumstances of a description specified for the purposes of this section in regulations made by the appropriate national authority.
(3) For the purpose of subsection 2(a) a person is a member of the same family as another person if-
a - those persons are married to each other or live together a husband and wife (or an equivalent relationship in the case of persons of the same sex); b - one of them is a relative of the other, or c - one of them is, or is a relative of, one member of a couple and the other is a relative of the other member of the couple
(4) For the purposes-a - a "couple” means two persons who are married to each other or otherwise fall within subsection (3)(a); b - “relative” means parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew, niece or cousin; c - a relationship of a half-blood shall be treated as a relationship of the whole blood; and d - the stepchild of a person shall be treated a his child

Joined up departments? God no! That is the big misunderstanding people who have never worked for councils make. The very words “Council” or “Town Hall” suggests a unified body of people. But you would be astonished at how frustrated everyone who works in a council feels over barriers to information sharing or common agreement.
 
And I speak not just as a council worker, I only work for 1 at the end of the day, but as a trainer who has over the years trained literally thousands of staff in councils from St Austell to Motherwell and hear the same complaints.
 
Bear in mind that a council is made up out of different directorates, such as Housing, regeneration, finance, social services, highways, Education  etc etc and then each directorate breaks down into departments, such as children and families, environmental health, homelessness etc etc  who then break down further into units and then teams within those units. Each are governed by their own separate laws, handed down by government and internal rules and procedures that grow out of a response to those governing statutes and where the different teams meet on a joint case or issue as human beings sitting around a table the laws and procedures don’t. And believe me….the ridiculousness of these systems are not lost on the people sitting around the table either.
 
Sticking with the HMO example, albeit a hypothetical but typical one. I can be involved in a landlord/tenant dispute over withholding  rent for instance, the tenants have stopped paying their HB over to the landlord because they reckon he isn’t doing the proper repair works and then go to EHOs who are dealing with the licensing element of the HMO. I am trying to advise the landlord who is liable for the council tax but can’t get a consensus from my EHO lads about whether it is indeed an HMO.
 
Meanwhile the landlord has complained loudly to HB about the rent, only to be told they can’t discuss it with him because he isn’t the claimant and it isn’t for them to get involved in the housing element because they are finance directorate.
 
In the middle of this the homelessness unit is looking to rehouse a mother and child from the HMO but before they can do so they need to know if the lack of fire prevention works in the building constitute a risk to their health. It doesn’t matter what I say because I can only deal with the legal bit EHOs have to decide that but their rules say they aren’t allowed to declare a property unfit because they have to operate under the Housing Health and Safety Rating System in the Housing Act 2004 whilst a legal determination of whether it is reasonable to occupy is defined by Part VII of the Housing Act 1996, in which they have no powers.
 
That’s my job, day in day out and why the only way I can get things done is to say “F**k the rules and just try and sort it out. Not everyone shares my approach.

Mark a property that is defined as an HMO in the HA 2004 is subject to Mandatory licensing if it has 5 or more occupiers, who form 2 or more households, sharing facilities which are on 3 or more floors. 

If an authority decides to use its powers of Selective or Additional licensing these powers apply to properties that fall below the numbers above.  A property just needs to be occupied by more than two households (unrelated people) sharing facilities to be an HMO.

If a landlord fails to apply for an HMO licence there are severe penalties but in my opinion the most severe is the fact that you cannot use Section 8 for repossession without and HMO licence number if the property is an HMO.

Could you frward this to me at my email address I would like to show this to my letting agents....

I think the problem for everyone is not so much disgareement on the basic statutes but what are becoming increasinghly bizarre local variations. And its not as if the law even allows for these interpretations. These decisions could be laughed off as mere comic incompetence if it wasnt for people like poor old PVHaines getting pilloried and charged a fortune.

I thought it was only section 21s that were invalidated Mary or have a missed something else?

That's not very severe then in my opinion. The ability for a tenant to defend against a section 8 makes if pretty much not worth the paper it's written on. In theory it's great to be able to give a bad tenant two weeks notice but I've yet to see an example of when this has lead to an eviction quicker than serving a Section 21 notice which gibes the tenant two months notice to vacate and can not be defended. That said, you probably have more experience than me based on the number of landlords you meet and the amount of time you have been in this business. Do you have any examples of where a defended section 8 has resulted in a faster eviction than could have been achieved than if a S21 was served. If so, roughly what percentage of cases and what you you generally recommend that landlords utilise?

If you see the "Caring is Sharing" buttons below the main article you will see a print option. Click that and you have a choice on whether to print to a printer or convert the page into a PDF which you can then forward via email.

Alternatively, why not email a link to this article to your agent?

Third option, just ask your letting agent to Google search "My HMO Dilemma" and this article comes up number 1 page 1. All articles on Property118 are search engine optimised in this way.

I hope this helps.

Actually Mark I agree and I always tell landlords to go for a Section 21 if they can wait.  Anti social behaviour or none payment of rent early in the tenancy are the main reasons why some landlords cannot use Section21 but using Section 8 does not always get possession any quicker. 

If landlords would use Statory Periodics rather than issuing new fixed term AST's life would be much simpler

Woah there. I am not aware that a landlord of an unlicensed HMO cant serve a Section 8. I am aware that said landlord cant serve a section 21, as is the case where deposits were unprotected until after protection.

Statute please? And I dont say that arrogantly. With HMOs I am quite prepared to acceot I may have missed that