22.1 HMO Licensing
It's a national legislative requirement that all houses in multiple occupation (HMOs) with five or more unrelated occupiers, who share facilities must be licensed. The aim of licensing is to make sure every licensable HMO is safe for the occupants and visitors, and is properly managed. The responsibility for applying for a licence rests with the person having control of or the person managing the property.
In March 2018, Brighton & Hove City Council introduced a discretionary licensing scheme across the city. They did this as a way to improve the safety standards and living accommodation for the benefit of tenants of smaller HMOs and other residents. The responsibility for applying for a licence under this scheme also rests with the person having control of or the person managing the property.
It's an offence under the Housing Act 2004, not to licence a property which falls under either scheme. It is also the landlord’s responsibility to re-licence a property as necessary. While we will aim to remind licence holders when renewals are due, this may not always be possible and the responsibility is on the landlord to apply before the licence expires. The council will prosecute, or issue a civil penalty, where a person fails to apply for a licence.
When considering the amenities required in a house in multiple occupation, regard will be made to the Brighton & Hove HMO Standards. These include minimum room sizes, along with bathing facilities and cooking amenities.
Find out more about the HMO Standards.
22.2 HMO licencing offences and management orders
The Housing Act 2004 sets out a number of licensing related offences all of which carry an unlimited fine, including:
- operating an unlicensed HMO or allowing an HMO to be occupied by more persons than a licence allows
- breach of licence condition
- supplying incorrect information in a licence application
Also, a landlord who operates an unlicensed HMO can be subject to a Rent Repayment Order (RRO) by a First-tier Tribunal (Property Chamber) under sections 96 and 97 of the Housing Act 2004. The council may also decide to apply a Civil Penalty for certain offences using the Housing and Planning Act 2016.
A RRO requires repayment of rent received by the landlord over a period of up to 12 months. The council will usually consider applying for such a measure if the landlord has received rent that has been paid by Housing Benefit.
Where an unlicensed HMO is identified, the council will assess whether there are good reasons why an application has not been received. If there are no good reasons, the council will look to take formal proceedings with a view to prosecution in the courts or by way of issuing a Civil Penalty.
If a landlord of an unlicensed HMO approaches the council for licensing and the landlord fully cooperates with the council, including addressing any management, safety or amenity issue within an agreed timescale, the council would consider not taking enforcement action.
Generally, any breach of licence condition will be dealt with informally initially. However, if the breach is serious and affects the safety of the occupants or the responsible person does not carry out necessary work within an agreed timescale, the council will pursue legal proceedings.
Interim and Final Management Orders
An Interim Management Order (IMO) transfers the management of a residential property to the council for a period of up to twelve months. The circumstances in which an order can be made are discussed below. In particular, the IMO allows the council possession of the property against the immediate landlord, and subject to existing rights to occupy can:
- do anything in relation to the property, which could have been done by the landlord, including repairs and collecting rents
- spend monies received through rents and other charges for carrying out its responsibility of management, including the administration of the property
- create new tenancies - with the consent of the landlord
Under an IMO, the council must pay to the relevant landlord. That is the person(s) who immediately before the order was made, was entitled to the rent for the property and any surplus of income over expenditure and any interest on such sum accrued during the period in which the IMO is in force. It must also keep full accounts of income and expenditure in respect of the house and make such accounts available to the relevant person.
The council must take enforcement action in respect of a licensable property (which means an HMO subject to Part 2, or other residential property subject to Part 3) by making an IMO if:
- the property ought to be licensed, but is not, and the council considers there is no reasonable prospect of it granting a licence in the near future. An IMO may not, however, be made on these grounds if an effective application is outstanding with the authority for the grant of a licence or a temporary exemption notice or if such a notice is in force
- the Private Sector Housing Team is satisfied that the health and safety condition isn’t met and, therefore, it would not have granted an application for a licence
- the Private Sector Housing Team intends to revoke the licence on one or more of the grounds specified in Parts 2 or 3 of the act, other than the property has ceased to be licensable, and upon revocation there will be no reasonable prospect of the property being licensed in the near future - to another suitable person for example
- the Private Sector Housing Team is satisfied that when the licence is revoked the health and safety condition test will be met
Final Management Orders
In exceptional circumstances, the council can also apply for a Final Management Order (FMO) which can last for up to five years. Such powers will only be used in exceptional circumstances.
A FMO cannot be made unless an IMO or another FMO was already in force. An FMO transfers the management of the house to the council for the duration of the order.
In particular, the FMO allows the council:
- possession of the property against the immediate landlord, but subject to existing rights of occupation
- to do anything in relation to the property, which could have been done by the landlord, including repairs, and collecting rents
- to spend monies received through rents and other charges for carrying out its responsibility of management, including the administration of the property
- to create new tenancies - without the consent of the landlord
Management Order Management Schemes
The council must adopt a management scheme for a property subject to an FMO. The scheme must set out how the council intends to manage the house.
In particular, the management scheme must include:
- the amount of rent it will seek to obtain whilst the order is in force
- details of any works which the council intends to undertake in relation to the property
- the estimate of the costs of carrying out those works
- provision as to the payment of any surpluses of income over expenditure to the relevant landlord, from time to time
- in general terms how the authority intends to address the matters that caused the council to make the order
The council must also keep full accounts of income and expenditure in respect of the house and make such accounts available to the relevant landlord.
Temporary Exemption Notices
Where a landlord is, or shortly will be taking steps to make an HMO non-licensable, the council may serve a Temporary Exemption Notice (TEN). A TEN can only be granted for a maximum period of three months.
In exceptional circumstances a second TEN can be served for a further three-month period. A TEN will be served where the owner of the HMO states in writing that steps are being taken to make the HMO non-licensable within three months.
22.3 Raising standards in all HMOs
Under current legislation many HMOs do not currently require a licence. These include houses containing self-contained flats. Many of these still pose a significant degree of risk to occupants and/or have a history of being poorly managed.
The council will continue to regulate such HMOs through enforcement of the HMO Management Regulations and by use of the Housing Health and Safety Rating system.
22.4 Fire safety in HMOs
Statistically, HMOs have one of the highest incidents of deaths caused by fire in any type of housing. It is therefore essential that any HMO possesses an adequate means of escape in event of a fire and adequate fire precautions.
The actual level of fire protection and detection required will be determined by a risk assessment. When requiring fire safety works, the council will have regards to the LACORS Fire Safety Guidance document.
The Private Sector Housing Team is generally the lead enforcing authority for fire safety in HMOs. However, where an HMO contains common areas, a Fire Risk Assessment must be carried out in accordance with the Regulatory Reform Order which is enforced by East Sussex Fire & Rescue Service.
For clarification, and/or general fire safety guidance, contact the Private Sector Housing Team.
22.5 HMOs and planning legislation
Planning and HMO licensing are separate and governed by different pieces of legislation. HMO licensing is concerning the safety and welfare of the tenants. If tenants are present, we have to ensure the property complies, even if they are occupying without planning permission.
We'll liaise with the Planning Team where this is the case and decide on the approach on a case by case basis. We may, grant a licence for a period of time until the situation is regularised, or not grant a licence until the situation is regularised.
Landlords may wish to seek independent advice in relation to planning and HMOs as there are a number of variables. For instance, where an Article 4 Direction is in force under the Town & Country Planning Act 1990 (as amended), there must be planning permission for a smaller HMO.
Larger HMOs also require planning permission in all areas.
You can find more information about planning permission for houses in multiple occupation.
22.6 HMOs, noise and anti-social behaviour
If we receive any complaints about noise or other anti-social behaviour from a licensed property, in the first instance we would write to the owner, managing agents and tenants about the issue, and remind them of their responsibilities under the provisions of the HMO Licence. After this we would ask for proof that the owners had addressed the issue with the tenants.
The name and address of the licence holder and the managing agents are detailed on the HMO register available on the council’s website. This is so the neighbour could approach them directly regarding the noise issues should they wish in addition to, or instead of approaching us.
You can find the register of HMO licences in Brighton & Hove.
Also, if the noise is frequent, the person complaining should report a noise problem to the the Noise Team in Environmental Health.
Both the University of Sussex and University of Brighton have teams that support community liaison where issues arise with their students living in the private rented sector. We liaise with them where appropriate.
We will also liaise with the Safer Communities Team as appropriate.