The HMO Debate – an admission of defeat.

by Ben Reeve-Lewis

13:04 PM, 24th October 2011
About 9 years ago

The HMO Debate – an admission of defeat.

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The HMO Debate – an admission of defeat.

My last article on Property 118 brought forth a host of questions from landlords wondering whether their property was in or out of the HMO grip.

I got questions saying “Help! is my house an HMO?” and comments that they weren’t getting any sense or consistency out of their Environmental Health Officers. This seemed to beg an article clarifying things once and for all in a user’s guide format that would help real people in real situations.

As well as being a working Tenancy Relations Officer I have been, since 1998, a freelance trainer of housing law for the Chartered Institute of Housing, Sitra, Shelter etc and I long ago learnt that my  job in many ways was really more of a translator than an educator.

Lawyers are phenomenally clever people who are well versed in the vagaries and small detail of their areas of expertise. However, with the notable exception of Tessa Shepperson of Landlord Law, most of them aren’t great at explaining things in ways that non-lawyers who have to actually work with the rules can actually understand.

So for the past 13 years I have been reading their stuff and re-writing it in ways that other people can grasp.

It was with this head on that I set to on Saturday to thoroughly investigate the regulations on HMOs. For me it was to be a task like writing a training manual, which I have done many times but for once I was defeated.

I read the provisions of the Housing Act 2004, which describes all the legislation on HMO definitions and penalties. I read through countless interpretations on a range of specialist solicitors websites and some of the many useful council websites that share information and yet I found so many areas of disagreement.

Just when I thought I had found a cast iron solid fact I would read a different viewpoint that contradicted what I had just read.

However the internet is never wholly reliable so I also got on the phone and spoke to an EHO mate in another London borough and picked his brain. I found several of my previously thought of indisputable facts thrown out the window again.

I re-worked the article in the light of what I had gleaned from the horses mouth and felt hot to trot. I just had 2 questions that needed clarifying and for that I thought I would talk to my own EHOs on Monday morning. When I arrived I asked my 2 simple questions of the chief EHO and found my work thrown out of the window yet again.

Now I don’t trust what I spent countless hours this weekend writing. The anomalies are just too different and misleading in many cases to risk committing to print.

For instance, 1 indisputable fact is that an HMO is created when 3 or more people occupying a dwelling as 2 or more households. One website I read gave an example of a couple who take in a lodger which then becomes an HMO because you then have 3 people comprising 2 households.

This information was backed up by my original source but when I spoke to our own EHOs this morning they said this wasn’t the case, citing the fact that the couple own the property means you don’t count them. There would have to be 3 lodgers on top of the family for it to be classed an HMO. You would only count the family if they were renting themselves and subletting to their lodger.

I discovered that an annex to a property can count as 1 of the floors if it is connected to the main building by stairs (the actual number of stairs not being defined) but when I ran this past a real EHO he said the stairs were irrelevant and that the way an annexe could be part of the house would be if it wasn’t self contained and the occupants had to access the house for kitchen and bathroom.

These are crucial legal differences.

The regulations are there in black and white and it should therefore be easy enough to define categories so why are there so many interpretations floating around?

In addition to Mandatory licensing there is also ‘Additional Licensing’ and ‘Selective licensing’. Different councils operate these in response to different local problems which may give rise to certain inconsistencies but the basic definitions shouldn’t vary.

Neither in person, in website or in legislation can I find a truly reliable source. I have never known this to happen. I teach advanced homelessness law and advanced housing law and I have never encountered such varied interpretations as to what a law actually means.

What I have learnt is that if I ever get asked to teach a course on HMO regulations I will say “No!”



Comments

Martin McDonagh

19:53 PM, 24th October 2011
About 9 years ago

Hi Ben,
on reading your article I was at first disappointed, but this quickly changed to relief as I realised my earlier questions hadn't been as dumb as I'd feared.

Thanks for trying.

I guess the person who's view counts is the local EHO; and we'll have to ask them for each scenario we have...

regards,

Martin

Ben Reeve-Lewis

6:12 AM, 25th October 2011
About 9 years ago

Not dumb at all Martin, it was your very question that I put to the 2 EHOs that got the 2 different replies that finally sank my project and took away the will to live.

However within those 2 conflicting answers was I think the answer to your question, a property let on a single written agreement to 2 couples sharing facilities would be an HMO by both EHOs interpretations because 1 said it doesnt matter if one couple are the owners and the other said it did, but either way you look at it, your people arent the owners anway, so both EHOs are right in your case.

However it wouldnt be elgible for Mandatory licensing anyway because it doesnt consist of at least 5 people and isnt 3 floors. But this again illustrates what my problem was. My research on 'Additional Licensing', which a council can choose to bring in tells me that a council can decide to license premises of only 2 floors but where there still must be 5 or more people in occupation. When I put this to my EHO he agreed but added it didnt have to be 5 people, so the whole thing fell apart yet again.

I accept that after a piece of legislation is introduced case laws come in and highlight linguistic innacuracies and inconsistencies. That is how our legal system works but what seems to be unique with HMO regs is that different councils and even EHOs within the same council often disagree on interpretation, which is quite frankly daft.
I think maybe what is needed is a standard letter template that landlords being accused of running an HMO without their knowlegde could rattle of to the council asking for chapter and verse, ie "What section of the legislation are you citing and what specific case law interpretations are you using to qualify your position?". Then they have to give you source specific information instead of parrroting canteen rumours

Ben Reeve-Lewis

6:24 AM, 25th October 2011
About 9 years ago

In Fact feel free to use this as a template

Dear Sirs,
Re:....property address here

I have received your recent communication in connection with your assertion that the above named property is currently running as an unlicensed House in Multpile Occupation. I am mindful of the existence of regulations in respect of HMO properties that are set down in the Housing Act 2004 and have researched thoroughly but I am still confused about the requirmenets as there does not seem to be a consistent interpretation of the statutory legislation.

Can You please advise me of the specific section of the relevant Act that brings my property into the orbit of legislation and also the cactual case laws being used to qualify the interpretation particular section of the Housing Act that you seem to think I am breaching?

Yours etc etc

Pin them dopwn to specifics to justify their argument.

Good luck

Mark Alexander

6:33 AM, 25th October 2011
About 9 years ago

I feel your pain Ben, I've done similar research and been equally frustrated. And we woonder why the PRS inadvertantly fall foul of laws? It would be nice for the enforcers to know what they are, that would be a good place to start, then to tell us. But do they know who the PRS landlords are?

Ian Ringrose

13:40 PM, 26th October 2011
About 9 years ago

I think part of the problem is that not all HMO have to be licensed, also there is nothing to say that the same set of words will mean the same in different sections of the law, (case law is even worse)

However I think most people just care about: “If I have xyz, what laws do I have to keep too?” without needing to know if “xyz” is a HMO or not.

Ben Reeve-Lewis

14:01 PM, 26th October 2011
About 9 years ago

Thats the crux of the problem Ian. All anyone wants to know is "Is my property a licensable HMO or not?" and you cant get a clear answer from anyone. Thats why I advocate what is sometimes known in Homelessness law as 'The methodical test' approach. If a council tells you it is an HMO and you have your doubts, ask them to quote the precise part of the statute (housing Act 2004) that they are applying and the specific case law that they are using to interpet the statute. If they cant point to it they have a weak case.

This is how I train Shelter advisers to challenge homelessness decisions. Get chapter and verse in tiny detail and jump on responses that say "We believe". If they cant illustrate their position with specific regulations then they are probably working off of hearsay

Martin McDonagh

19:40 PM, 26th October 2011
About 9 years ago

Ben,
thanks for putting your time & effort into this - much appreciated.

regards,

Martin

Ben Reeve-Lewis

6:02 AM, 27th October 2011
About 9 years ago

Yesterdays online article by ARLA says an HMO starts when there are 6 people in occupation, for cryijng out loud http://bit.ly/tjil2p

9:53 AM, 27th October 2011
About 9 years ago

The HMO as explained to me by my local authority is 5 or more seperate people, living and sharing bathroom/ kitchens, in more than a 2 storey property.!!

Comments please,

John Clark
Landlord Gloucester.

10:16 AM, 27th October 2011
About 9 years ago

no no, no, Ben, you've got it all wrong, it's a Happy Mad Orang-Utan... definitive. 🙂

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