Boyfriends/girlfriends: Is it now an HMO?

Good question Judith and always best to be careful as I am not 100% sure either.

Some councils describe an HMO as 3 or more unrelated people living in the property, but:

Is the boyfriend living there?
Is he just a visitor?
Does it matter if he is not on the AST?

I would be inclined to double check all the rules with Croyden and also consider how you may be exposed if anything changes.

Usually for someone to be classed as in occupation they need to be using the property as their main and principle home.
If the boyfriend has another property that he has a tenancy for, then I would say he is a guest of the girl not an occupier.
In law there is no legal stipulation on how many night equates to occupation as this still is determined by the occupiers tenure.
He is not paying rent and not using the property as his home.
So I would say not an HMO

It's often difficult to say when someone is living in a property or is just a guest. There is no statutory definition. But if the boyfriend is living there it will be an HMO, although maybe not licensable.

You may want to amend your tenancy agreement in future to stipulate how many nights guests can stay (we have this in the Landlord Law Tenancy Agreements).

You may also be interested in my free HMO 101 course here: https://tenancylawyer.co.uk/hmo101/index.html#/

It’s good to check the legal side, but think also need to be sensible. In reality how would the LA know and how would a landlord police the max. Number of nights a guest stays over. Think there is also an element of a landlord getting too involved and as long as the tenants are happy with guests that’s fine.

Below, although in an actual HMO, in my opinion, is where I think landlords are likely effecting they quite enjoyment of tenants and tbh must be a pretty miserable place for their tenant to live.

I read on a HMO group that some landlords do not allow over night guest without written permission and that will only be given if other bedrooms are empty at that time, so basically not exceeding the number sleeping in that property, in-line with the maximum number of occupants as noted in the HMO certificate. They say it’s to do with fire safety and worry of prosecution if something happened.

They also said, if there tenant wanted to sleep overnight with their partner, that would have to be done at their partners place.

I questioned, what if the couple both live in HMOs with this rule in force in both rentals, the couple would never be allowed to sleep together! Must be a miserable HMO to live in!

I had an HMO at one point in Croydon. The tenancy agreement stated "no overnight stays". This was to avoid any guest staying there permanently & did not really mind overnight stays.

It is virtually impossible for a landlord or the council to police this or prove this as, even another tenant living in the property, would have to be very watchful to establish that the guest has actually stayed over night and would have difficulty proving this without having CCTV in the offending tenant's room.

I would have thought the Tenancy Agreement with a clause stating the maximum number of people living in the room or basically saying no over night stays would be sufficient.

I would just like to back up the comment by Julie Ford who has in my opinion put the answer in a nutshell. I have two large student HMO’s which I have let for forty years, and have never dared to restrict visitors, and have never had any problems in that direction. If the boyfriend is not using this flat as his main residence, and could prove he has another property as his main residence, if push came to shove, then I do not see what there is to worry about. As a family we have one student house with a very good agent and nowhere in their lease do they restrict visitors. And if you did try to restrict visitors how on earth could one police that? The only problem I see is if another tenant complains or if the landlord thought the extra use of facilities were damaging, and both problems would be best solved by negotiation.

In an HMO a Landlord must be very careful re number of occupants. Having experienced
5 illegally sharing a one bedroom flat,
6 illegally sharing one room,
others sleeping in a room in the day and a different person at night
to argue a person is not in occupation seems unacceptable. Furthermore it is unfair on other tenants. The law is there to prevent overcrowding. Any person staying over the permitted limit must surely be breaking the law.

My concern on this point is not that anyone is routinely checking for extra "bodies", but that if there were (eg) a serious fire, and it was clear that the landlord knew of the extra person, the landlord would then be blamed for not having a licensed and compliant house (eg by not having a mains powered fire alarm system).

Thank you all.

Obviously my daughter is one of the permitted occupants but unfair yo make her the spy in the camp. Though is is rather passed off that the gas quarry bill has increased by £60 and the electric by £20!

I will amend the tenancy agreement in renewal (1st May) to have overnight guest/visitor clause restricting to 2 nights per week (plus 14 days in a 6 month period?) unless with permission of the landlord. Anyone have a similar clause in their agreements? Would you be kind enough to let me have the wordage?

Interesting though that legislation/regulation is silent on having the same visitor being a regular X maximum number of nights per week before being classed as an occupier. In theory could have a permanent house guest.
Know for housing benefit it's 3 nights per week before benefits are reduced. Wonder what the situation is re Council a Tax if claiming single discount?

Interestingly, having spoken to Citizens Advice they have said, the same person staying more than 3+ nights per week may be an excluded occupier. They then suggested I speak to Shelter.