Is my student let a HMO or not?

Reply to the comment left by Michael Holmes at 01/11/2017 - 11:49
https://www.gov.uk/house-in-multiple-occupation-licence

There is a difference between a HMO and a HMO that must by statute have a licence.

Don't forget that councils have a legal right to impose licencing beyond that required by statute.

Reply to the comment left by Jay James at 01/11/2017 - 14:12
I agree that Councils have a right to make conditions on housing that falls outside the legal definition of an HMO, but not all choose to do so. In those cases, it is up to the landlord how far he is prepared to go to meet the HMO standards outlined in previous comments. Personally I take a pragmatic view and fit things like smoke and CM detectors and have fire extinguishers around the house plus give the tenants a run-down of procedures to follow in the event of fire and have them sign a form to confirm the instructions. Similarly have fire doors fitted where necessary.

Reply to the comment left by Michael Holmes at 01/11/2017 - 11:49There are different definitions for HMOs. Licensing which you are commenting on Michael, planning and the housing act. Lenders also have different names for them depending on type of tenancies and no. of beds. All very confusing unless you deal with the sector on a regular basis.

My understanding is that a tenant is allowed to let to lodgers provided they have the landlord's permission, and they can have two lodgers before it is classed as an HMO. I am not an expert in this field though and others would need to confirm that this is correct.

Reply to the comment left by Alison King at 02/11/2017 - 10:32
Brett has not yet advised us as to how many friends are in the "group of friends" that are living there, but it does appear to be a situation where the group of friends (however many this may be) are all named on the tenancy agreement as joint tenants, so none of them are lodgers.

As far as I know, the HMO legislation does not give exceptions for lodgers, so the same criteria apply, i.e. if there are more than 3 people living there (and at least one of them is unrelated, so this would include a couple plus a single person), then it is a HMO. The legal definition of a HMO can be found in s254 of the Housing Act 2004, see: http://www.legislation.gov.uk/ukpga/2004/34/section/254

The criteria for a licensable HMO, i.e. one that requires a mandatory licence, is somewhat different, but that does not alter the fact that a shared property that is not "licensable" may still be a HMO (s254 HA 2004) and as such is still subject to the various other HMO regulations (as I've already mentioned in my earlier post).

The definition of a HMO, and the duties this imposes on the landlord, may also be very different to the criteria specified by individual councils for properties subject to "selective licensing", which is basically where the Council decide a further set of criteria that private housing/private landlords must comply with within a defined area. Thus, "selective licensing" can apply to all private rented properties within a defined area, not just HMOs.

Reply to the comment left by Robert Mellors at 02/11/2017 - 10:54
Thanks Robert. I got that idea from "Spareroom.com" in the thread called "Will taking in a lodger turn my home into an HMO?".where it says: "For your property to be classed as such, you'd need to have more than 2 lodgers, since as a live in landlord, you are allowed two 'non family' lodgers before your property is classed as an HMO."
Elsewhere I have seen information suggesting that a "live in landlord" in this context means the lodger's landlord, so it could be a tenant in the BTL context and such an arrangement might resolve the issue for some people. However, it does look as though the Council need to be consulted wherever there is any doubt.

Reply to the comment left by Alison King at 02/11/2017 - 11:55
Within s254 HA 2004 there is reference (at section (5)), to the HMO definition not applying to properties listed in Schedule 14. The Schedule 14 (at s6(1)) lists properties occupied by owners, so this may perhaps encompass the "owner plus lodger(s)" scenario?

I also note that there also appears to be an exemption for some student accommodation in very limited circumstances (at s4 of Schedule 14), but the terminology used is such that I think it would only apply in a very narrow set and specified set of circumstances, not to the vast majority of privately owned/managed student accommodation. I think a specialist solicitor would need to be consulted for a proper interpretation of this and how it may or may not apply to particular student lettings.

I've been trying to decide to what standard an HMO that is NOT subject to either Mandatory or Selective licensing needs to be.
My current thinking is that as it is policed by the local council, it needs to be the same standard as that council requires it's Mandatory licensable HMO's to be, and so a landlord could refer to their standards guidance for same.
I'd be interested in hearing the views of anyone more knowledgeable than me on this point.

Reply to the comment left by John Frith at 02/11/2017 - 16:52None of my HMOs fall within a "selective licensing" area, and none of them have 5 or more residents so they do not require a mandatory licence.
One of my HMOs was trashed (cosmetically) by the tenants and the Council came out and did an inspection. The list of works that the Council came up with was huge, it included things like "pick up the duvet" that a tenant had dropped on the floor in the dining room, replace the wallpaper because one corner had been peeled off (about 2"x1"), replace a tile because there was a crack in it, replace a set of drawers because there was a cigarette burn mark on it, etc, etc. Some of the works were more sensible, but I was amazed at how petty some of the items on the list were, and it did not make any difference whether the tenants had caused the damage themselves or not.
The HMO legislation gives the Council scope for interpreting it very widely, and applying it to whoever whenever they wish. The newest set of HMO legislation gives the Councils scope for "fining" the landlord (applying penalties) without even proving their case, and as they are then allowed to keep the money raised this way, it appears that some councils are utilising this new power more and more. It is like the government giving them a blank chequebook, but the government don't have to pay the cheques, it is the private HMO landlords that have to pay!!
In view of this, I would suggest that you visit your HMOs and try to pick fault with them, make yourself a list of even the slightest mark/defect etc and then rectify this. Of course this may mean massively increased running costs, so you may have to increase your rents, but the council won't care about this.

If I could for one moment return to one of the issues in this post which is locks on internal doors. If you let on a shared tenancy whatever the status of the house you are not obliged to put locks on internal doors. If you let on room by room basis with separate leases you are and as mentioned here they should be thumb turn locks. I have two large student HMO's let on shared tenancies and I will not allow internal locks. It is sometimes questioned by tenants because of their insurance but I always tell them to go to Endsleigh who are specialist in student insurance and know exactly the ruling on this and their only interest is front and back door on shared tenancies.