Council multiple flat HMO status for Fire Regs over-reaching?

by Readers Question

13:47 PM, 6th July 2020
About a month ago

Council multiple flat HMO status for Fire Regs over-reaching?

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Council multiple flat HMO status for Fire Regs over-reaching?

Obviously we are all familiar with Council’s over-reaching, so I am always cynical with their “regulations”. This is a fairly dry post, but one that possibly calls out the exploitation of LHA’s across the country.

I have been approached by Eastbourne council to have a fire risk assessment done on a 3 flat Vic terrace conversion, whereby I own 2 of the flats and am co-freeholder with the other flat owner.

The building has a separate entrance to the basement flat, and the ground and first floor share a common entrance with a maybe 12ft hallway. Therefore by the LACORS guidance, it is in fact considered a 2 storey house per fire regs. (see page 73 of LACORS) Click here

In my phone conversation with the Eastbourne LHA, they insisted it was a 3 storey for fire regs, so automatically this reveals a misapplication of the LACORS legislation (and my concern for exploiting landlords). Further they said it was because it was not owner-occupied, but again, that is not the whole truth for qualifying as an HMO.

The council wants to call our type of building an HMO in reference to the Housing Act 2004, section 257, but my reading of the legislation is different.

https://www.legislation.gov.uk/ukpga/2004/34/part/7/crossheading/meaning-of-house-in-multiple-occupation

Qualifying HMO criteria states, that the building must be less than 2/3 owner occupied (which ours is) AND did/does not comply with the appropriate building standards.

Not complying with “Appropriate building standards” means if it does not comply with the 1991 Building regs, if application was not made before June 1992, and the work was done post 1991. (funny order of dates, I know, but I think that is how it reads)

An exemption is made by Regulation 20
https://www.legislation.gov.uk/uksi/1991/2768/regulation/20/made

Which I read as any building work previous to the 1991 regs, so long as it is covered by the 1984 regs, does not need to comply with the 1991 regs.

The conversions in this property were done pre 1979, as that is when the original lease was granted.

Therefore, to be acceptable to LACORS, the property must not be an “HMO”, which means it must be good to the 1991 regs (or the 1984 regs if work done prior to 1991), IF it is less than 2/3 owner occupied. Does anyone agree?

Thank you in advance for our comments

Adam



Comments

Rob Crawford

19:36 PM, 6th July 2020
About a month ago

I would agree with the council that it is a three story property. Lacors is not "legislation" it's guidance! Lacors is also in the process of being rewritten. I don't feel you have provided sufficient info for anyone here to determine if the building represents an HMO, i.e number of tenants/households, type of tenancy, self contained flats or rooms with use of communal areas etc etc. A two storey property can still be a licencable HMO!

brian gill

11:09 AM, 7th July 2020
About a month ago

There are several definitions for an HMO. We have buildings which have self contained flats, and they are technically HMO's even though there are no shared facilities. This is from the Housing Act 2004
Meaning of “house in multiple occupation”
(1)For the purposes of this Act a building or a part of a building is a “house in multiple occupation” if—
(a)it meets the conditions in subsection (2) (“the standard test”);
(b)it meets the conditions in subsection (3) (“the self-contained flat test”);
(c)it meets the conditions in subsection (4) (“the converted building test”);
(d)an HMO declaration is in force in respect of it under section 255; or
(e)it is a converted block of flats to which section 257 applies.

AP

8:02 AM, 11th July 2020
About a month ago

It sounds to me as if you clearly do not meet the definition of a section 257 HMO as 1 flat of the 3 flats is owner occupied.

As for the buildings regs, if you think the conversion would meet the standards of the 1991 building regs (even if the conversion was carried out earlier) my reading of the legislation is that it is not a section 257 HMO. The Act states “building standards equivalent to those imposed, in relation to a building or part of a building to which those Regulations applied”.

The word ‘equivalent’ is obviously very wide reaching and open. But nowhere in the Act does it says if your conversion was pre 1991 (and your building is more than 2/3 non owner occupied) it’s automatically a section 257 HMO. Many councils just find it easier to use this interpretation.

If you can prove that the conversions meet those standards I would push back on both points with the council. Although section 257 HMO’s are not subject to mandatory licensing now, they may be in the future for all we know.

I have done this - I would say successfully as I never heard from the council again. But I’m prepared for them to approach me again at some point. I’ve carried out a FRSA and have a surveyors report regarding the works meeting the 1991 standards of building regs.

I think if you had to do a FRSA, you would need fire doors to each of the two flats that share a hallway with self closers, a fire safety notice / no smoking notice, and possibly a linked smoke alarm to the flats. None of those things are prohibitively expensive and are worth doing for safety anyway.


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