Tenant Couple with 2 Lodgers - Is this a HMO?

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  • jpkeates
    replied
    There are two different definitions of an HMO, which can be confusing.

    For council tax purposes, an HMO requires two unconnected people (so two households) in one property.
    For property law (ie. our) purposes, and HMO is three or more people in more than one household.

    There is a specific exemption for a property owner with two lodgers that does not apply here.

    A small HMO does not usually require licensing, but the local authority may require it (most don't).

    But the issue isn't the licence, it's that the property would almost certainly require modification to be legal - and a fire risk assessment (which is mandatory) may raise issues about fire exit routes.
    Who needs to licence it will depend on who creates and manages the property, which I suspect is you - but it might fall to the landlord, on the basis that they agreed the setup and you are probably not in a position to make the property legal.

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  • Deiseman
    replied
    I've done some research on the local authority but we don't quite fit into any box. Also, it is not clear with the mandatory licensing whether you need to satisfy one or a number of requirements before mandatory licensing is required. For instance, one of the points says if two or more households share a kitchen/bathroom then a license is required but then this would essentially mean any household with 2 x tenants, 1 x tenant/1 x lodger etc. would need a license so it seems a bit of a strict!

    I can email the landlord and say to them that I think it might require a license and that I believe that is their responsibility. If he accepts responsibility then I guess we are in a better position but if he doesn't then it gets complicated.

    We like the house (and the arrangement) so do not want to leave but if we are leaving ourselves at risk then yes it needs to be brought to a quiet end.

    I also don't think he wants to lose us and he has been working under these long before we arrived so I imagine he will just get it licensed if it otherwise means us moving out.

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  • doobrey
    replied
    It is best to do plenty of research (as you are doing now... and I would say next extend the scope of your research to local authority HMO regs) before taking any further action.

    My view would be that your best option is probably to discuss with your landlord, educate them as required, and bring the current arrangement quietly to an end without the authorities getting involved.

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  • Deiseman
    replied
    doobrey,

    An abrupt ending I could live with but I couldn't live with financial penalties.

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  • Deiseman
    replied
    Originally posted by theartfullodger View Post

    Trouble is there are two landlords here:. Which one did you mean ?
    I assume they meant the main landlord/owner of the house as the question I asked was "who is responsible, us or the landlord".

    My next question is, if I go to the council - then am I potentially opening a can of worms? Would it be best to do an anonymous information gathering phone call and then speak to the landlord about any potential short-comings? The landlord is very approachable so I would have no problem high-lighting any shortcomings to them.

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  • doobrey
    replied
    :-) I was going to say 'owner' but I repeated 'landlord' because that was the term OP had used to refer to their landlord. By 'landlord' I was referring to the owner of the house.

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  • theartfullodger
    replied
    doobrey,

    Trouble is there are two landlords here:. Which one did you mean ?

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  • doobrey
    replied
    Originally posted by Deiseman View Post
    So main questions are now:

    1. Who is responsible for licensing - us or the landlord?
    2. What is the risk to us with it being unlicensed?
    3. If we only had one lodger, would it still be a HMO? If so, would it still need licensing?

    Thanks for the help, everyone's been great in what appears to a bit of a grey area.
    It isn't a particularly grey area. It is a fairly complex area due to the nature of difference HMO definitions and requirements (e.g. Housing Act 2004 / C4 planning / selective licencing), but the definitions are generally fairly clear-cut.

    Without being a particular expert, I believe:

    1. Just the landlord.
    2. The current arrangement coming to a fairly abrupt end. LL alone would be responsible for breaches of regs.
    3. Yes. Three people, two households = HMO as per Housing Act

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  • theartfullodger
    replied
    Check what the local council for THAT property requires. In your shoes I'd approach them first as if they come after you first themselves things are likely to be more painful.

    Good luck!

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  • Deiseman
    replied
    theartfullodger,

    I absolutely do not want to ignore the risk so want to remove all doubt.

    Another thing, with the mandatory licensing rules. Does it require a license if if any one "mandatory requirement" is met or does it have to be a number of them?

    One of the mandatory requirements is that if there are two 'households' sharing a kitchen/bathroom. If this is the case, then wouldn't any house with two separate people (such as 1 x tenant and 1 x lodger, or 2 x tenants who don't know each other) who share a kitchen/bathroom then need a mandatory license?

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  • Section20z
    replied
    Deiseman,

    And assuming you are not married (or civilly partnered) then just having one lodger would still be treated as HMO (3 separate households) by some authorities.

    Leave a comment:


  • theartfullodger
    replied
    IMHO ultimately the property owner needs to take steps to ensure they avoid prosecution and/or fines such as rent payment orders.

    But hey, your choice if you wish to ignore the risk.

    Here's a case where the question of who was landlord & who should repay rent cropped up.. (yes I know your circumstances are different...)
    https://nearlylegal.co.uk/2019/09/re...-the-landlord/

    Leave a comment:


  • Deiseman
    replied
    Originally posted by theartfullodger View Post
    Bigger problems come from having to pay back ALL the rent etc etc etc and s21 invalid
    This is concerning. Are you saying that we would have to pay back all the rent that lodgers paid to us, or the landlord would have to pay back rent that we paid to them?

    In terms of the S21 becoming invalid. Do you mean in the sense that the landlord could evict us instantly without the proper notice period?

    So the house is definitely a HMO but we need to confirm with the local authority whether it needs a license or not. My second main question is whether the licensing would be the responsibility of the landlord or us.

    Essentially, what is the risk to us here? Any headaches relating to evicting lodgers/our rights in the house are not of major concern. My main concern would be who is responsible for the licensing and any potential fines for it not being licensed when it should be.

    So main questions are now:

    1. Who is responsible for licensing - us or the landlord?
    2. What is the risk to us with it being unlicensed?
    3. If we only had one lodger, would it still be a HMO? If so, would it still need licensing?

    Thanks for the help, everyone's been great in what appears to a bit of a grey area.


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  • theartfullodger
    replied
    Bigger problems come from having to pay back ALL the rent etc etc etc and s21 invalid

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  • jpkeates
    replied
    It's definitely an HMO.
    It may or may not require licensing depending on your local authority rules.
    Whether or not it needs planning permission, or is allowed at all, is also is a local decision.

    The regulations relating to any HMO are essentially the same, licensing simply adds more if the local authority wants more.

    It is unlikely that a standard residential property would meet the regulations without modification

    Leave a comment:

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