| SEE
ALSO Guide to Housing Act 2004 and
HMO's Houses in multiple occupation Housing
Act 2004 - Chapter 34 - continued PART
2 LICENSING
OF HOUSES IN MULTIPLE OCCUPATION Introductory 55
Licensing of HMOs to which this Part applies
(1) This Part provides for HMOs to be licensed by local housing authorities where-
(a)
they are HMOs to which this Part applies (see subsection (2)), and (b)
they are required to be licensed under this Part (see section 61(1)). (2)
This Part applies to the following HMOs in the case of each local housing authority-
(a)
any HMO in the authority's district which falls within any prescribed description
of HMO, and (b)
if an area is for the time being designated by the authority under section 56
as subject to additional licensing, any HMO in that area which falls within any
description of HMO specified in the designation.
(3) The appropriate national authority may by order prescribe descriptions of
HMOs for the purposes of subsection (2)(a). (4)
The power conferred by subsection (3) may be exercised in such a way that this
Part applies to all HMOs in the district of a local housing authority.
(5) Every local housing authority have the following general duties- (a)
to make such arrangements as are necessary to secure the effective implementation
in their district of the licensing regime provided for by this Part; (b)
to ensure that all applications for licences and other issues falling to be determined
by them under this Part are determined within a reasonable time; and
(c) to satisfy themselves, as soon as is reasonably practicable, that there are
no Part 1 functions that ought to be exercised by them in relation to the premises
in respect of which such applications are made. (6)
For the purposes of subsection (5)(c)- (a)
"Part 1 function" means any duty under section 5 to take any course of action
to which that section applies or any power to take any course of action to which
section 7 applies; and (b)
the authority may take such steps as they consider appropriate (whether or not
involving an inspection) to comply with their duty under subsection (5)(c) in
relation to each of the premises in question, but they must in any event comply
with it within the period of 5 years beginning with the date of the application
for a licence. Designation
of additional licensing areas 56
Designation of areas subject to additional licensing (1) A local housing authority
may designate either-
(a) the area of their district, or
(b) an area in their district, as subject to additional licensing in relation
to a description of HMOs specified in the designation, if the requirements of
this section are met.
(2) The authority must consider that a significant proportion of the HMOs of that
description in the area are being managed sufficiently ineffectively as to give
rise, or to be likely to give rise, to one or more particular problems either
for those occupying the HMOs or for members of the public.
(3) Before making a designation the authority must- (a)
take reasonable steps to consult persons who are likely to be affected by the
designation; and (b)
consider any representations made in accordance with the consultation and not
withdrawn. (4)
The power to make a designation under this section may be exercised in such a
way that this Part applies to all HMOs in the area in question.
(5) In forming an opinion as to the matter mentioned in subsection (2), the authority
must have regard to any information regarding the extent to which any codes of
practice approved under section 233 have been complied with by persons managing
HMOs in the area in question.
(6) Section 57 applies for the purposes of this section. 57
Designations under section 56: further considerations
(1) This section applies to the power of a local housing authority to make designations
under section 56.
(2) The authority must ensure that any exercise of the power is consistent with
the authority's overall housing strategy.
(3) The authority must also seek to adopt a co-ordinated approach in connection
with dealing with homelessness, empty properties and anti-social behaviour affecting
the private rented sector, both-
(a) as regards combining licensing under this Part with other courses of action
available to them, and (b)
as regards combining such licensing with measures taken by other persons. (4)
The authority must not make a particular designation under section 56 unless-
(a)
they have considered whether there are any other courses of action available to
them (of whatever nature) that might provide an effective method of dealing with
the problem or problems in question, and (b)
they consider that making the designation will significantly assist them to deal
with the problem or problems (whether or not they take any other course of action
as well).
(5) In this Act "anti-social behaviour" means conduct on the part of occupiers
of, or visitors to, residential premises- (a)
which causes or is likely to cause a nuisance or annoyance to persons residing,
visiting or otherwise engaged in lawful activities in the vicinity of such premises,
or (b)
which involves or is likely to involve the use of such premises for illegal purposes.
58
Designation needs confirmation or general approval to be effective (1)
A designation of an area as subject to additional licensing cannot come into force
unless- (a)
it has been confirmed by the appropriate national authority; or
(b) it falls within a description of designations in relation to which that authority
has given a general approval in accordance with subsection (6).
(2) The appropriate national authority may either confirm, or refuse to confirm,
a designation as it considers appropriate.
(3) If the appropriate national authority confirms a designation, the designation
comes into force on the date specified for this purpose by that authority. (4)
That date must be no earlier than three months after the date on which the designation
is confirmed. (5)
A general approval may be given in relation to a description of designations framed
by reference to any matters or circumstances. (6)
Accordingly a general approval may (in particular) be given in relation to- (a)
designations made by a specified local housing authority;
(b) designations made by a local housing authority falling within a specified
description of such authorities;
(c) designations relating to HMOs of a specified description. "Specified" means
specified by the appropriate national authority in the approval.
(7) If, by virtue of a general approval, a designation does not need to be confirmed
before it comes into force, the designation comes into force on the date specified
for this purpose in the designation.
(8) That date must be no earlier than three months after the date on which the
designation is made.
59 Notification requirements relating to designations (1)
This section applies to a designation-
(a) when it is confirmed under section 58, or (b)
(if it is not required to be so confirmed) when it is made by the local housing
authority.
(2) As soon as the designation is confirmed or made, the authority must publish
in the prescribed manner a notice stating- (a)
that the designation has been made,
(b) whether or not the designation was required to be confirmed and either that
it has been confirmed or that a general approval under section 58 applied to it
(giving details of the approval in question),
(c) the date on which the designation is to come into force, and (d)
any other information which may be prescribed.
(3) After publication of a notice under subsection (2), and for as long as the
designation is in force, the local housing authority must make available to the
public in accordance with any prescribed requirements- (a)
copies of the designation, and
(b) such information relating to the designation as is prescribed.
(4) In this section "prescribed" means prescribed by regulations made by the appropriate
national authority. 60
Duration, review and revocation of designations (1)
Unless previously revoked under subsection (4), a designation ceases to have effect
at the time that is specified for this purpose in the designation.
(2) That time must be no later than five years after the date on which the designation
comes into force.
(3) A local housing authority must from time to time review the operation of any
designation made by them. (4)
If following a review they consider it appropriate to do so, the authority may
revoke the designation. (5)
If they do revoke the designation, the designation ceases to have effect at the
time that is specified by the authority for this purpose.
(6) On revoking a designation the authority must publish notice of the revocation
in such manner as is prescribed by regulations made by the appropriate national
authority. HMOs
required to be licensed 61
Requirement for HMOs to be licensed
(1) Every HMO to which this Part applies must be licensed under this Part unless-
(a) a temporary exemption notice is in force in relation to it under section 62,
or
(b) an interim or final management order is in force in relation to it under Chapter
1 of Part 4. (2)
A licence under this Part is a licence authorising occupation of the house concerned
by not more than a maximum number of households or persons specified in the licence.
(3) Sections63 to 67 deal with applications for licences, the granting or refusal
of licences and the imposition of licence conditions.
(4) The local housing authority must take all reasonable steps to secure that
applications for licences are made to them in respect of HMOs in their area which
are required to be licensed under this Part but are not. (5)
The appropriate national authority may by regulations provide for-
(a) any provision of this Part, or
(b) section 263 (in its operation for the purposes of any such provision), to
have effect in relation to a section 257 HMO with such modifications as are prescribed
by the regulations. A "section 257 HMO" is an HMO which is a converted block of
flats to which section 257 applies. (6)
In this Part (unless the context otherwise requires)-
(a) references to a licence are to a licence under this Part,
(b) references to a licence holder are to be read accordingly, and
(c) references to an HMO being (or not being) licensed under this Part are to
its being (or not being) an HMO in respect of which a licence is in force under
this Part.
62 Temporary exemption from licensing requirement
(1) This section applies where a person having control of or managing an HMO which
is required to be licensed under this Part (see section 61(1)) but is not so licensed,
notifies the local housing authority of his intention to take particular steps
with a view to securing that the house is no longer required to be licensed. (2)
The authority may, if they think fit, serve on that person a notice under this
section ("a temporary exemption notice") in respect of the house. (3)
If a temporary exemption notice is served under this section, the house is (in
accordance with sections 61(1) and 85(1)) not required to be licensed either under
this Part or under Part 3 during the period for which the notice is in force.
(4) A temporary exemption notice under this section is in force- (a) for the period
of 3 months beginning with the date on which it is served, or (b) (in the case
of a notice served by virtue of subsection (5))
for the period of 3 months after the date when the first notice ceases to be in
force. (5) If the authority-
(a) receive a further notification under subsection (1), and
(b) consider that there are exceptional circumstances that justify the service
of a second temporary exemption notice in respect of the house that would take
effect from the end of the period of 3 months applying to the first notice, the
authority may serve a second such notice on the person having control of or managing
the house (but no further notice may be served by virtue of this subsection).
(6)
If the authority decide not to serve a temporary exemption notice in response
to a notification under subsection (1), they must without delay serve on the person
concerned a notice informing him of-
(a) the decision, (b)
the reasons for it and the date on which it was made, (c)
the right to appeal against the decision under subsection (7), and
(d) the period within which an appeal may be made under that subsection.
(7) The person concerned may appeal to a residential property tribunal against
the decision within the period of 28 days beginning with the date specified under
subsection (6) as the date on which it was made. (8)
Such an appeal- (a) is to be by way of a re-hearing, but (b) may be determined
having regard to matters of which the authority were unaware. (9)
The tribunal- (a)
may confirm or reverse the decision of the authority, and (b)
if it reverses the decision, must direct the authority to serve a temporary exemption
notice that comes into force on such date as the tribunal directs. Grant or refusal
of licences
63 Applications for licences (1)
An application for a licence must be made to the local housing authority.
(2) The application must be made in accordance with such requirements as the authority
may specify.
(3) The authority may, in particular, require the application to be accompanied
by a fee fixed by the authority. (4)
The power of the authority to specify requirements under this section is subject
to any regulations made under subsection (5). (5)
The appropriate national authority may by regulations make provision about the
making of applications under this section.
(6) Such regulations may, in particular- (a)
specify the manner and form in which applications are to be made;
(b) require the applicant to give copies of the application, or information about
it, to particular persons;
(c) specify the information which is to be supplied in connection with applications;
(d) specify the maximum fees which are to be charged (whether by specifying amounts
or methods for calculating amounts); (e)
specify cases in which no fees are to be charged or fees are to be refunded.
(7) When fixing fees under this section, the local housing authority may (subject
to any regulations made under subsection (5)) take into account-
(a) all costs incurred by the authority in carrying out their functions under
this Part, and (b)
all costs incurred by them in carrying out their functions under Chapter 1 of
Part 4 in relation to HMOs (so far as they are not recoverable under or by virtue
of any provision of that Chapter).
64 Grant or refusal of licence (1)
Where an application in respect of an HMO is made to the local housing authority
under section 63, the authority must either- (a) grant a licence in accordance
with subsection (2),
or (b) refuse to grant a licence. (2) If the authority are satisfied as to the
matters mentioned in subsection (3),
they may grant a licence either- (a)
to the applicant, or
(b) to some other person, if both he and the applicant agree. (3)
The matters are- (a)
that the house is reasonably suitable for occupation by not more than the maximum
number of households or persons mentioned in subsection (4)
or that it can be made so suitable by the imposition of conditions under section
67; (b)
that the proposed licence holder- (i) is a fit and proper person to be the licence
holder, and (ii) is, out of all the persons reasonably available to be the licence
holder in respect of the house, the most appropriate person to be the licence
holder;
(c) that the proposed manager of the house is either- (i) the person having control
of the house, or (ii) a person who is an agent or employee of the person having
control of the house; (d)
that the proposed manager of the house is a fit and proper person to be the manager
of the house; and (e) that the proposed management arrangements for the house
are otherwise satisfactory. (4)
The maximum number of households or persons referred to in subsection (3)(a) is-
(a) the maximum number specified in the application, or (b)
some other maximum number decided by the authority. (5)
Sections 65 and 66 apply for the purposes of this section. 65
Tests as to suitability for multiple occupation
(1) The local housing authority cannot be satisfied for the purposes of section
64(3) (a)
that the house is reasonably suitable for occupation by a particular maximum number
of households or persons if they consider that it fails to meet prescribed standards
for occupation by that number of households or persons. (2)
But the authority may decide that the house is not reasonably suitable for occupation
by a particular maximum number of households or persons even if it does meet prescribed
standards for occupation by that number of households or persons.
(3) In this section "prescribed standards" means standards prescribed by regulations
made by the appropriate national authority. (4)
The standards that may be so prescribed include-
(a) standards as to the number, type and quality of- (i) bathrooms, toilets, washbasins
and showers, (ii) areas for food storage, preparation and cooking, and (iii) laundry
facilities, which should be available in particular circumstances; and (b)
standards as to the number, type and quality of other facilities or equipment
which should be available in particular circumstances. 66
Tests for fitness etc. and satisfactory management arrangements
(1) In deciding for the purposes of section 64(3)(b) or (d) whether a person ("P")
is a fit and proper person to be the licence holder or (as the case may be) the
manager of the house, the local housing authority must have regard (among other
things) to any evidence within subsection (2) or (3).
(2) Evidence is within this subsection if it shows that P has- (a) committed any
offence involving fraud or other dishonesty, or violence or drugs, or any offence
listed in Schedule 3 to the Sexual Offences Act 2003 (c. 42) (offences attracting
notification requirements); (b)
practised unlawful discrimination on grounds of sex, colour, race, ethnic or national
origins or disability in, or in connection with, the carrying on of any business;
(c)
contravened any provision of the law relating to housing or of landlord and tenant
law; or (d)
acted otherwise than in accordance with any applicable code of practice approved
under section 233. (3)
Evidence is within this subsection if- (a) it shows that any person associated
or formerly associated with P (whether on a personal, work or other basis) has
done any of the things set out in subsection (2)(a) to (d), and (b) it appears
to the authority that the evidence is relevant to the question whether P is a
fit and proper person to be the licence holder or (as the case may be) the manager
of the house.
(4) For the purposes of section 64(3)(b) the local housing authority must assume,
unless the contrary is shown, that the person having control of the house is a
more appropriate person to be the licence holder than a person not having control
of it. (5)
In deciding for the purposes of section 64(3)(e) whether the proposed management
arrangements for the house are otherwise satisfactory, the local housing authority
must have regard (among other things) to the considerations mentioned in subsection
(6).
(6) The considerations are- (a) whether any person proposed to be involved in
the management of the house has a sufficient level of competence to be so involved;
(b) whether any person proposed to be involved in the management of the house
(other than the manager) is a fit and proper person to be so involved; and (c)
whether any proposed management structures and funding arrangements are suitable.
(7) Any reference in section 64(3)(c)(i) or (ii) or subsection (4) above to a
person having control of the house, or to being a person of any other description,
includes a reference to a person who is proposing to have control of the house,
or (as the case may be) to be a person of that description, at the time when the
licence would come into force.
67 Licence conditions
(1) A licence may include such conditions as the local housing authority consider
appropriate for regulating all or any of the following- (a) the management, use
and occupation of the house concerned, and (b) its condition and contents. (2)
Those conditions may, in particular, include (so far as appropriate in the circumstances)-
(a) conditions imposing restrictions or prohibitions on the use or occupation
of particular parts of the house by persons occupying it; (b)
conditions requiring the taking of reasonable and practicable steps to prevent
or reduce anti-social behaviour by persons occupying or visiting the house; (c)
conditions requiring facilities and equipment to be made available in the house
for the purpose of meeting standards prescribed under section 65; (d)
conditions requiring such facilities and equipment to be kept in repair and proper
working order;
(e) conditions requiring, in the case of any works needed in order for any such
facilities or equipment to be made available or to meet any such standards, that
the works are carried out within such period or periods as may be specified in,
or determined under, the licence; (f)
conditions requiring the licence holder or the manager of the house to attend
training courses in relation to any applicable code of practice approved under
section 233. (3)
A licence must include the conditions required by Schedule 4. (4)
As regards the relationship between the authority's power to impose conditions
under this section and functions exercisable by them under or for the purposes
of Part 1 ("Part 1 functions")-
(a) the authority must proceed on the basis that, in general, they should seek
to identify, remove or reduce category 1 or category 2 hazards in the house by
the exercise of Part 1 functions and not by means of licence conditions; (b)
this does not, however, prevent the authority from imposing licence conditions
relating to the installation or maintenance of facilities or equipment within
subsection (2)(c) above, even if the same result could be achieved by the exercise
of Part 1 functions; (c)
the fact that licence conditions are imposed for a particular purpose that could
be achieved by the exercise of Part 1 functions does not affect the way in which
Part 1 functions can be subsequently exercised by the authority.
(5) A licence may not include conditions imposing restrictions or obligations
on a particular person other than the licence holder unless that person has consented
to the imposition of the restrictions or obligations. (6)
A licence may not include conditions requiring (or intended to secure) any alteration
in the terms of any tenancy or licence under which any person occupies the house.
68
Licences: general requirements and duration (1)
A licence may not relate to more than one HMO.
(2) A licence may be granted before the time when it is required by virtue of
this Part but, if so, the licence cannot come into force until that time.
(3) A licence- (a) comes into force at the time that is specified in or determined
under the licence for this purpose, and (b) unless previously terminated by subsection
(7) or revoked under section 70, continues in force for the period that is so
specified or determined.
(4) That period must not end more than 5 years after- (a) the date on which the
licence was granted, or (b) if the licence was granted as mentioned in subsection
(2), the date when the licence comes into force.
(5) Subsection (3)(b) applies even if, at any time during that period, the HMO
concerned subsequently ceases to be one to which this Part applies. (6)
A licence may not be transferred to another person. (7)
If the holder of the licence dies while the licence is in force, the licence ceases
to be in force on his death.
(8) However, during the period of 3 months beginning with the date of the licence
holder's death, the house is to be treated for the purposes of this Part and Part
3 as if on that date a temporary exemption notice had been served in respect of
the house under section 62. (9)
If, at any time during that period ("the initial period"), the personal representatives
of the licence holder request the local housing authority to do so, the authority
may serve on them a notice which, during the period of 3 months after the date
on which the initial period ends, has the same effect as a temporary exemption
notice under section 62.
(10) Subsections (6) to (8) of section 62 apply (with any necessary modifications)
in relation to a decision by the authority not to serve such a notice as they
apply in relation to a decision not to serve a temporary exemption notice. Variation
and revocation of licences
69 Variation of licence s
(1) The local housing authority may vary a licence- (a)
if they do so with the agreement of the licence holder, or (b)
if they consider that there has been a change of circumstances since the time
when the licence was granted. For this purpose "change of circumstances" includes
any discovery of new information. (2)
Subsection (3) applies where the authority- (a)
are considering whether to vary a licence under subsection (1)(b); and
(b) are considering- (i) what number of households or persons is appropriate as
the maximum number authorised to occupy the HMO to which the licence relates,
or (ii) the standards applicable to occupation by a particular number of households
or persons.
(3) The authority must apply the same standards in relation to the circumstances
existing at the time when they are considering whether to vary the licence as
were applicable at the time when it was granted. This is subject to subsection
(4). (4)
If the standards-
(a) prescribed under section 65, and (b)
applicable at the time when the licence was granted, have subsequently
been revised or superseded by provisions of regulations under that section, the
authority may apply the new standards.
(5) A variation made with the agreement of the licence holder takes effect at
the time when it is made.
(6) Otherwise, a variation does not come into force until such time, if any, as
is the operative time for the purposes of this subsection under paragraph 35 of
Schedule 5 (time when period for appealing expires without an appeal being made
or when decision to vary is confirmed on appeal).
(7) The power to vary a licence under this section is exercisable by the authority
either- (a) on an application made by the licence holder or a relevant person,
or (b) on the authority's own initiative. (8)
In subsection (7) "relevant person" means any person (other than the licence holder)-
(a) who has an estate or interest in the HMO concerned (but is not a tenant under
a lease with an unexpired term of 3 years or less), or
(b) who is a person managing or having control of the house (and does not fall
within paragraph (a)), or
(c) on whom any restriction or obligation is imposed by the licence in accordance
with section 67(5).
70 Revocation of licences (1)
The local housing authority may revoke a licence- (a)
if they do so with the agreement of the licence holder; (b) in any of the cases
mentioned in subsection (2)
(circumstances relating to licence holder or other person); (c) in any of the
cases mentioned in subsection (3) (circumstances relating to HMO concerned); or
(d) in any other circumstances prescribed by regulations made by the appropriate
national authority. (2)
The cases referred to in subsection (1)(b) are as follows- (a)
where the authority consider that the licence holder or any other person has committed
a serious breach of a condition of the licence or repeated breaches of such a
condition; (b)
where the authority no longer consider that the licence holder is a fit and proper
person to be the licence holder; and (c)
where the authority no longer consider that the management of the house is being
carried on by persons who are in each case fit and proper persons to be involved
in its management. Section 66(1) applies in relation to paragraph (b) or (c) above
as it applies in relation to section 64(3)(b) or (d). (3)
The cases referred to in subsection (1)(c) are as follows- (a)
where the HMO to which the licence relates ceases to be an HMO to which this Part
applies; and (b)
where the authority consider at any time that, were the licence to expire at that
time, they would, for a particular reason relating to the structure of the HMO,
refuse to grant a new licence to the licence holder on similar terms in respect
of it. (4)
Subsection (5) applies where the authority are considering whether to revoke a
licence by virtue of subsection (3)(b) on the grounds that the HMO is not reasonably
suitable for the number of households or persons specified in the licence as the
maximum number authorised to occupy the house.
(5) The authority must apply the same standards in relation to the circumstances
existing at the time when they are considering whether to revoke the licence as
were applicable at the time when it was granted. This is subject to subsection
(6).
(6) If the standards- (a) prescribed under section 65, and (b) applicable at the
time when the licence was granted, have subsequently been revised or superseded
by provisions of regulations under that section, the authority may apply the new
standards. (7)
A revocation made with the agreement of the licence holder takes effect at the
time when it is made.
(8) Otherwise, a revocation does not come into force until such time, if any,
as is the operative time for the purposes of this subsection under paragraph 35
of Schedule 5 (time when period for appealing expires without an appeal being
made or when decision to vary is confirmed on appeal).
(9) The power to revoke a licence under this section is exercisable by the authority
either- (a) on an application made by the licence holder or a relevant person,
or (b) on the authority's own initiative.
(10) In subsection (9) "relevant person" means any person (other than the licence
holder)- (a)
who has an estate or interest in the HMO concerned (but is not a tenant under
a lease with an unexpired term of 3 years or less), or
(b) who is a person managing or having control of that house (and does not fall
within paragraph (a)), or (c)
on whom any restriction or obligation is imposed by the licence in accordance
with section 67(5).
Procedure and appeals 71
Procedural requirements and appeals against licence decisions Schedule
5 (which deals with procedural requirements relating to the grant, refusal, variation
or revocation of licences and with appeals against licence decisions) has effect
for the purposes of this Part.
Enforcement
72 Offences in relation to licensing of HMOs (1)
A person commits an offence if he is a person having control of or managing an
HMO which is required to be licensed under this Part (see section 61(1)) but is
not so licensed.
(2) A person commits an offence if- (a)
he is a person having control of or managing an HMO which is licensed under this
Part,
(b) he knowingly permits another person to occupy the house, and (c) the other
person's occupation results in the house being occupied by more households or
persons than is authorised by the licence.
(3) A person commits an offence if- (a) he is a licence holder or a person on
whom restrictions or obligations under a licence are imposed in accordance with
section 67(5), and (b) he fails to comply with any condition of the licence.
(4) In proceedings against a person for an offence under subsection (1) it is
a defence that, at the material time- (a) a notification had been duly given in
respect of the house under section 62(1), or (b) an application for a licence
had been duly made in respect of the house under section 63, and that notification
or application was still effective (see subsection (8)). (5)
In proceedings against a person for an offence under subsection (1), (2) or (3)
it is a defence that he had a reasonable excuse- (a) for having control of or
managing the house in the circumstances mentioned in subsection (1), or (b) for
permitting the person to occupy the house, or (c) for failing to comply with the
condition, as the case may be. (6)
A person who commits an offence under subsection (1) or (2) is liable on summary
conviction to a fine not exceeding £20,000. (7)
A person who commits an offence under subsection (3) is liable on summary conviction
to a fine not
exceeding level 5 on the standard scale. (8)
For the purposes of subsection (4) a notification or application is "effective"
at a particular time if at that time it has not been withdrawn, and either- (a)
the authority have not decided whether to serve a temporary exemption notice,
or (as the case may be) grant a licence, in pursuance of the notification or application,
or (b) if they have decided not to do so, one of the conditions set out in subsection
(9) is met.
(9) The conditions are- (a) that the period for appealing against the decision
of the authority not to serve or grant such a notice or licence (or against any
relevant decision of a residential property tribunal) has not expired, or (b)
that an appeal has been brought against the authority's decision (or against any
relevant decision of such a tribunal) and the appeal has not been determined or
withdrawn. (10)
In subsection (9) "relevant decision" means a decision which is given on an appeal
to the tribunal and confirms the authority's decision (with or without variation).
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73
Other consequences of operating unlicensed HMOs: rent repayment orders
(1) For the purposes of this section an HMO is an "unlicensed HMO" if- (a) it
is required to be licensed under this Part but is not so licensed, and (b) neither
of the conditions in subsection (2) is satisfied. (2)
The conditions are- (a) that a notification has been duly given in respect of
the HMO under section 62(1) and that notification is still effective (as defined
by section 72(8)); (b) that an application for a licence has been duly made in
respect of the HMO under section 63 and that application is still effective (as
so defined). (3)
No rule of law relating to the validity or enforceability of contracts in circumstances
involving illegality is to affect the validity or enforceability of- (a) any provision
requiring the payment of rent or the making of any other periodical payment in
connection with any tenancy or licence of a part of an unlicensed HMO, or (b)
any other provision of such a tenancy or licence.
(4) But amounts paid in respect of rent or other periodical payments payable in
connection with such a tenancy or licence may be recovered in accordance with
subsection (5) and section 74. (5)
If- (a)
an application in respect of an HMO is made to a residential property tribunal
by the local housing authority or an occupier of a part of the HMO, and
(b) the tribunal is satisfied as to the matters mentioned in subsection (6) or
(8), the tribunal may make an order (a "rent repayment order") requiring the appropriate
person to pay to the applicant such amount in respect of the housing benefit paid
as mentioned in subsection (6)(b), or (as the case may be) the periodical payments
paid as mentioned in subsection (8)(b), as is specified in the order (see section
74(2) to (8)). (6)
If the application is made by the local housing authority, the tribunal must be
satisfied as to the following matters-
(a) that, at any time within the period of 12 months ending with the date of the
notice of intended proceedings required by subsection (7), the appropriate person
has committed an offence under section 72(1) in relation to the HMO (whether or
not he has been charged or convicted), (b)
that housing benefit has been paid (to any person) in respect of periodical payments
payable in connection with the occupation of a part or parts of the HMO during
any period during which it appears to the tribunal that such an offence was being
committed, and
(c) that the requirements of subsection (7) have been complied with in relation
to the application. (7)
Those requirements are as follows- (a) the authority must have served on the appropriate
person a notice (a "notice of intended proceedings")- (i) informing him that the
authority are proposing to make an application under subsection (5), (ii) setting
out the reasons why they propose to do so, (iii) stating the amount that they
will seek to recover under that subsection and how that amount is calculated,
and (iv) inviting him to make representations to them within a period specified
in the notice of not less than 28 days; (b) that period must have expired; and
(c) the authority must have considered any representations made to them within
that period by the appropriate person. (8)
If the application is made by an occupier of a part of the HMO, the tribunal must
be satisfied as to the following matters- (a)
that the appropriate person has been convicted of an offence under section 72(1)
in relation to the HMO, or has been required by a rent repayment order to make
a payment in respect of housing benefit paid in connection with occupation of
a part or parts of the HMO, (b)
that the occupier paid, to a person having control of or managing the HMO, periodical
payments in respect of occupation of part of the HMO during any period during
which it appears to the tribunal that such an offence was being committed in relation
to the HMO, and (c)
that the application is made within the period of 12 months beginning with- (i)
the date of the conviction or order, or (ii) if such a conviction was followed
by such an order (or vice versa), the date of the later of them.
(9) Where a local housing authority serve a notice of intended proceedings on
any person under this section, they must ensure- (a)
that a copy of the notice is received by the department of the authority responsible
for administering the housing benefit to which the proceedings would relate; and
(b)
that that department is subsequently kept informed of any matters relating to
the proceedings that are likely to be of interest to it in connection with the
administration of housing benefit. (10)
In this section- "the appropriate person", in relation to any payment of housing
benefit or periodical payment payable in connection with occupation of a part
of an HMO, means the person who at the time of the payment was entitled to receive
on his own account periodical payments payable in connection with such occupation;
"housing benefit" means housing benefit provided by virtue of a scheme under section
123 of the Social Security Contributions and Benefits Act 1992 (c. 4); "occupier",
in relation to any periodical payment, means a person who was an occupier at the
time of the payment, whether under a tenancy or licence or otherwise (and "occupation"
has a corresponding meaning); "periodical payments" means periodical payments
in respect of which housing benefit may be paid by virtue of regulation 10 of
the Housing Benefit (General) Regulations 1987 (S.I. 1987/1971) or any corresponding
provision replacing that regulation.
(11) For the purposes of this section an amount which- (a) is not actually paid
by an occupier but is used by him to discharge the whole or part of his liability
in respect of a periodical payment (for example, by offsetting the amount against
any such liability), and (b) is not an amount of housing benefit, is to be regarded
as an amount paid by the occupier in respect of that periodical payment. ___________________________ Own
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Landlords Insurance _____________________________ 74
Further provisions about rent repayment orders
(1) This section applies
in relation to rent repayment orders made by residential property tribunals under
section 73(5).
(2) Where, on an application by the local housing authority, the tribunal is satisfied-
(a) that a person has been convicted of an offence under section 72(1) in relation
to the HMO, and (b) that housing benefit was paid (whether or not to the appropriate
person) in respect of periodical payments payable in connection with occupation
of a part or parts of the HMO during any period during which it appears to the
tribunal that such an offence was being committed in relation to the HMO, the
tribunal must make a rent repayment order requiring the appropriate person to
pay to the authority an amount equal to the total amount of housing benefit paid
as mentioned in paragraph (b). This is subject to subsections (3), (4) and (8).
(3) If the total of the amounts received by the appropriate person in respect
of periodical payments payable as mentioned in paragraph (b) of subsection (2)
("the rent total") is less than the total amount of housing benefit paid as mentioned
in that paragraph, the amount required to be paid by virtue of a rent repayment
order made in accordance with that subsection is limited to the rent total. (4)
A rent repayment order made in accordance with subsection (2) may not require
the payment of any amount which the tribunal is satisfied that, by reason of any
exceptional circumstances, it would be unreasonable for that person to be required
to pay.
(5) In a case where subsection (2) does not apply, the amount required to be paid
by virtue of a rent repayment order under section 73(5) is to be such amount as
the tribunal considers reasonable in the circumstances. This is subject to subsections
(6) to (8). (6)
In such a case the tribunal must, in particular, take into account the following
matters- (a) the total amount of relevant payments paid in connection with occupation
of the HMO during any period during which it appears to the tribunal that an offence
was being committed by the appropriate person in relation to the HMO under section
72(1); (b) the extent to which that total amount- (i) consisted of, or derived
from, payments of housing benefit, and (ii) was actually received by the appropriate
person; (c) whether the appropriate person has at any time been convicted of an
offence under section 72(1) in relation to the HMO; (d) the conduct and financial
circumstances of the appropriate person; and (e) where the application is made
by an occupier, the conduct of the occupier. (7)
In subsection (6) "relevant payments" means- (a) in relation to an application
by a local housing authority, payments of housing benefit or periodical payments
payable by occupiers; (b) in relation to an application by an occupier, periodical
payments payable by the occupier, less any amount of housing benefit payable in
respect of occupation of the part of the HMO occupied by him during the period
in question. (8)
A rent repayment order may not require the payment of any amount which- (a)
(where the application is made by a local housing authority) is in respect of
any time falling outside the period of 12 months mentioned in section 73(6)(a);
or
(b) (where the application is made by an occupier) is in respect of any time falling
outside the period of 12 months ending with the date of the occupier's application
under section 73(5); and the period to be taken into account under subsection
(6)(a) above is restricted accordingly. (9)
Any amount payable to a local housing authority under a rent repayment order-
(a) does not, when recovered by the authority, constitute an amount of housing
benefit recovered by them, and (b) until recovered by them, is a legal charge
on the HMO which is a local land charge. (10)
For the purpose of enforcing that charge the authority have the same powers and
remedies under the Law of Property Act 1925 (c. 20) and otherwise as if they were
mortgagees by deed having powers of sale and lease, and of accepting surrenders
of leases and of appointing a receiver. (11)
The power of appointing a receiver is exercisable at any time after the end of
the period of one month beginning with the date on which the charge takes effect.
(12) If the authority subsequently grant a licence under this Part or Part 3 in
respect of the HMO to the appropriate person or any person acting on his behalf,
the conditions contained in the licence may include a condition requiring the
licence holder-
(a) to pay to the authority any amount payable to them under the rent repayment
order and not so far recovered by them; and (b)
to do so in such instalments as are specified in the licence. (13)
If the authority subsequently make a management order under Chapter 1 of Part
4 in respect of the HMO, the order may contain such provisions as the authority
consider appropriate for the recovery of any amount payable to them under the
rent repayment order and not so far recovered by them.
(14) Any amount payable to an occupier by virtue of a rent repayment order is
recoverable by the occupier as a debt due to him from the appropriate person.
(15) The appropriate national authority may by regulations make such provision
as it considers appropriate for supplementing the provisions of this section and
section 73, and in particular- (a)
for securing that persons are not unfairly prejudiced by rent repayment orders
(whether in cases where there have been over-payments of housing benefit or otherwise);
(b) for requiring or authorising amounts received by local housing authorities
by virtue of rent repayment orders to be dealt with in such manner as is specified
in the regulations.
(16) Section 73(10) and (11) apply for the purposes of this section as they apply
for the purposes of section 73. 75
Other consequences of operating unlicensed HMOs: restriction on terminating tenancies
(1)
No section 21 notice may be given in relation to a shorthold tenancy of a part
of an unlicensed HMO so long as it remains such an HMO. (2)
In this section- a "section 21 notice" means a notice under section 21(1)(b) or
(4)(a) of the Housing Act 1988 (c. 50) (recovery of possession on termination
of shorthold tenancy); a "shorthold tenancy" means an assured shorthold tenancy
within the meaning of Chapter 2 of Part 1 of that Act; "unlicensed HMO" has the
same meaning as in section 73 of this Act.
Supplementary provisions 76
Transitional arrangements relating to introduction and termination of licensing
(1) Subsection (2) applies where- (a)
an order under section 55(3) which prescribes a particular description of HMOs
comes into force; or (b)
a designation under section 56 comes into force in relation to HMOs of a particular
description. (2) This Part applies in relation to the occupation by persons or
households of such HMOs on or after the coming into force of the order or designation
even if their occupation began before, or in pursuance of a contract made before,
it came into force. This is subject to subsections (3) to (5). (3)
Subsection (4) applies where- (a)
an HMO which is licensed under this Part, or a part of such an HMO, is occupied
by more households or persons than the number permitted by the licence; and (b)
the occupation of all or any of those households or persons began before, or in
pursuance of a contract made before, the licence came into force.
(4) In proceedings against a person for an offence under section 72(2) it is a
defence that at the material time he was taking all reasonable steps to try to
reduce the number of households or persons occupying the house to the number permitted
by the licence.
(5) Subsection (4) does not apply if the licence came into force immediately after
a previous licence in respect of the same HMO unless the occupation in question
began before, or in pursuance of a contract made before, the coming into force
of the original licence. (6)
An order under section 270 may make provision as regards the licensing under this
Part of HMOs- (a)
which are registered immediately before the appointed day under a scheme to which
section 347 (schemes containing control provisions) or 348B (schemes containing
special control provisions) of the Housing Act 1985 (c. 68) applies, or
(b) in respect of which applications for registration under such a scheme are
then pending.
(7) In subsection (6) "the appointed day" means the day appointed for the coming
into force of section 61. 77
Meaning of "HMO" In
this Part- (a)
"HMO" means a house in multiple occupation as defined by sections 254 to 259,
and (b)
references to an HMO include (where the context permits) any yard, garden, outhouses
and appurtenances belonging to, or usually enjoyed with, it (or any part of it).
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