Property is an unlicensed HMO- what effect on tenancy?

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  • Property is an unlicensed HMO- what effect on tenancy?

    Want another s.21 problem with which to grapple?
    See s.75(1) of Housing Act 2004. "No section 21 Notice may be given in relation to [an AST] of a part of an unlicensed HMO so long as it remains such an HMO."
    At least the provision is clear. Just as where a deposit should be protected but remains unprotected, when no s.21 Notice can be served, the same is true where a property should be licensed as an HMO but remains unlicensed.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

  • #2
    i have just come upon this while filling out the court papers.But tell me what is part1 and part3? I think i have a hmo but not which requires a licence.(council could,nt tell me a year ago)It has 3 story.all self contained,4 flats but converted some time ago, so would not meet current regs...so a hmo yes?...but requires a licence? just 4 tenants. one of the flats does not even share a door into the house.

    Comment


    • #3
      Originally posted by vantagex View Post
      i have just come upon this while filling out the court papers.But tell me what is part1 and part3?
      Part 1 and part 3 of what?

      Part 1 of the Housing Act is Housing Conditions, i.e Housing Health and Safety Rating System and Part 3 is Selective licensing of other residential accommodation, if that helps any?

      Originally posted by vantagex View Post
      I think i have a hmo but not which requires a licence.(council could,nt tell me a year ago)It has 3 story.all self contained,4 flats but converted some time ago, so would not meet current regs...so a hmo yes?
      Looks like a definate HMO to me

      Originally posted by vantagex View Post
      ...but requires a licence? just 4 tenants.
      Not unless your council are operating additional licensing or selective, but you would need to speak to your council.

      Originally posted by vantagex View Post
      one of the flats does not even share a door into the house.
      No relevance really as it appears to be a converted building to which section 257 applies of the above Act.

      The only real issue with this is it will cost a little more in fire protection. By that I mean the flat with its own front door wont be connected to the communal stairway and therefore cannot have an interlinked smoke detection system installed in that particular flat as per the Institute of Electrical Engineers.

      What usually happens is you may be asked to provide suitable 60 minute fire protection between any areas of that flat (seperate entrance) that are connected with any other flats, be it the ceiling, wall or floor, etc.

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      • #4
        Originally posted by red40 View Post
        the flat with its own front door wont be connected to the communal stairway and therefore cannot have an interlinked smoke detection system installed in that particular flat as per the Institute of Electrical Engineers.


        I’ve been trying to find out about the above. This is a regulation that I haven’t heard of before, an important one, would you have an Internet link by any chance?

        Comment


        • #5
          No sorry, you should ring the IEE or any of the electrician registration schemes, NAPIT, BRE, NICEIC, etc, etc, for advice, or have a good bedtime read of BS5839, BS7176, etc, etc, guaranteed to send you to sleep.

          Having said that, you could also use the, say, Aico RF smoke detection system, these can be interlinked as they use radio frequency and are only connected to each (as required) light fitting pendant in the dwelling. If these are used the fire resistant integrity of the structure could go back to 30minute. Also with these types of systems each unit of accommodation can be house coded, to minimise the common problem of false alarms.

          Comment


          • #6
            Originally posted by Wickerman
            Even though the HA 2004 definition of HMO includes flats in converted building (where not complying with 199x building regulations (think it is 1993) and more than 1/3rd being privately rented), our local council pointedly does not follow this.
            I had a look wickerman but cant see were they say that, any chance of pointing us in the right direction or a link.

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            • #7
              looks like the fire system may need upgrading...i,ve found these which i am going to run past the fire risk assessor http://www.safelincs.co.uk/section.p...FQyI1QodQ2FOFw

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              • #8
                Evicting tenant from unlicensed HMO - catch 22!?

                Hi
                I am looking at buying an unlicensed HMO that is a death trap in waiting and requires major renovation to bring it up to standard. The tenants are on AST's and would need to be evicted to allow the refurbishment to happen. The catch 22 problem is that the legislation, as I understand it, does not allow a section 21 notice to be issued to tenants where the HMO is unlicensed so the works cannot be done to get the property licensed - any suggestions? Thanks in advance

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                • #9
                  Originally posted by NAK View Post
                  Hi
                  I am looking at buying an unlicensed HMO that is a death trap in waiting and requires major renovation to bring it up to standard. The tenants are on AST's and would need to be evicted to allow the refurbishment to happen. The catch 22 problem is that the legislation, as I understand it, does not allow a section 21 notice to be issued to tenants where the HMO is unlicensed so the works cannot be done to get the property licensed - any suggestions? Thanks in advance
                  Are you sure about this?

                  It is true that you cannot issue a s21 when the tenants' deposit is unprotected - but what legislation are you referring to?

                  If the property is a death trap as you say, the EHO can order LL to effect repairs, quite apart from the requirements of the HMO licence, and if those repairs/upgrading renders the house uninhabitable in the process, the tenants obviously cannot remain in it.

                  If it is the case that you cannot issue a section 21 (although I'd be very surprised), you could offer the tenants a financial incentive to move out; possibly offer them first refusal on the property when it is refurbished; help them find alternative acccomodation.

                  How long will the refurb take?
                  'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

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                  • #10
                    Originally posted by mind the gap View Post
                    Are you sure about this?

                    It is true that you cannot issue a s21 when the tenants' deposit is unprotected - but what legislation are you referring to?

                    If the property is a death trap as you say, the EHO can order LL to effect repairs, quite apart from the requirements of the HMO licence, and if those repairs/upgrading renders the house uninhabitable in the process, the tenants obviously cannot remain in it.

                    If it is the case that you cannot issue a section 21 (although I'd be very surprised), you could offer the tenants a financial incentive to move out; possibly offer them first refusal on the property when it is refurbished; help them find alternative acccomodation.

                    How long will the refurb take?
                    It seems to be pretty definate that s21 is out if unlicensed - the specific wording is "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. "

                    The property is large and the refurb would take about 1 year. I believe EHO are about to pounce on the current owner and they have apparently told the tenants that their tenancies are safe/uninterrupted. As I don't own the property yet I would like to know if there is another defined legal way (ie is the EHO simply incorrect!) to get the tenants out so the work can be done without having to rely on negotiating with tenants and EHO.

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                    • #11
                      I can relate to this. I took over an HMO from another agent for a friend and the HMO license had lapsed, there were no certs of any description on the property and everything had failed from emergency lights to fire alarms, I had no electrical certs, gas certs etc.

                      It was a nightmare!

                      I had drug addicts and alcoholics etc in the property and it was a **** hole beyond belief and I wanted to evict the tenants. Some had been served notice by the old agent on the instruction of the landlord with S21s but didn't leave. I went to apply for accelerated possesion to find I needed the HMO licence to find it had lapsed despite being told it was current. I couldn't then get the new licence because I had no certificate hence the nightmare began.

                      Now I am not sure if the HMO licence issue only applies to accelerated possession but you are correct that you can't go down that route without it. It stopped me in my tracks. It took a while to get the licence back. I still went on to serve S21 notices though and some tenants did leave under notice. (They were non the wiser - a landlord can serve an invalid notice if they want to)

                      For those who did not move out on the expiry of the S21 notice, and I knew they weren't going to, they were paid off to leave and they did leave. There was nothing illegal going on here or harassment. It was an offer/incentive which they took. They only got the cash if they agreed to my rules. One it only took £190. If I compare that to months of going through the proper chanels and court fees, I know which I would choose.

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                      • #12
                        There is a ground under S8 notice, ground 6 but I do not know how applicable it is in your case so sorry if it leads you up the garden path. Maybe others can qualify if this would be possible? I offer it as a lifeline only and something to explore as I have no experience of the practicalities of using it.

                        Ground 6
                        The landlord who is seeking possession or, if that landlord is a registered social landlord or charitable housing trust, a superior landlord intends to demolish or reconstruct the whole or a substantial part of the dwelling house or to carry out substantial works on the dwelling house or any part thereof or any building of which it forms part and the following conditions are fulfilled-

                        (a) the intended work cannot reasonably be carried out without the tenant giving up possession of the dwelling house because-

                        (i) the tenant is not willing to agree to such a variation of the terms of the tenancy as would give such access and other facilities as would permit the intended work to be carried out, or

                        (ii) the nature of the intended work is such that no such variation is practicable, or

                        (iii) the tenant is not willing to accept an assured tenancy of such part only of the dwelling house (in this sub paragraph referred to as "the reduced part") as would leave in the possession of his landlord so much of the dwelling house as would be reasonable to enable the intended work to be carried out and, where appropriate, as would give such access and other facilities over the reduced part as would permit the intended work to be carried out, or

                        (iv) the nature of the intended work is such that such a tenancy is not practicable; and

                        (b) either the landlord seeking possession acquired his interest in the dwelling house before the grant of the tenancy or that interest was in existence at the time of that grant and neither that landlord (or, in the case of joint landlords, any of them) nor any other person who, alone or jointly with others, has acquired that interest since that time acquired it for money or money's worth; and

                        (c) the assured tenancy on which the dwelling house is let did not come into being by virtue of any provision of Schedule 1 to the Rent Act 1977, as amended by Part I of Schedule 4 to this Act or, as the case may be, section 4 of the Rent (Agriculture) Act 1976, as amended by Part II of that Schedule.

                        For the purposes of this ground, if, immediately before the grant of the tenancy, the tenant to whom it was granted or, if it was granted to joint tenants, any of them was the tenant or one of the joint tenants of the dwelling-house concerned under an earlier assured tenancy or, as the case may be, under a tenancy to which Schedule 10 to the Local government and Housing Act 1989 applied, any reference in paragraph (b) above to the grant of the tenancy is a reference to the grant of that earlier assured tenancy or, as the case may be, to the grant of the tenancy to which the said Schedule 10 applied.

                        For the purposes of this ground "registered housing association" has the same meaning as in the Housing Associations Act 1985 (see section 5(4) and (5) of that Act) and "charitable housing trust" means a housing trust, within the meaning of the Housing Associations Act 1985, which is a charity, within the meaning of the Charities Act 1993.

                        Comment


                        • #13
                          That's interesting. I'm staggered that you cannot use a s21 for an unlicensed HMO property - as you say, it's a real catch 22.

                          Are you sure you really want to buy this property?!

                          If so, I think you are going to have to factor in cost of buying them out - and you would have to make that a condition of the purchase (assuming that's legal!). If you didn't, you could be stuck with them for years by the sound of it.

                          What a nightmare.

                          Incidentally...it's difficult to know whether this ground would be applicable or not, when they construct sentences like this:

                          "For the purposes of this ground, if, immediately before the grant of the tenancy, the tenant to whom it was granted or, if it was granted to joint tenants, any of them was the tenant or one of the joint tenants of the dwelling-house concerned under an earlier assured tenancy or, as the case may be, under a tenancy to which Schedule 10 to the Local government and Housing Act 1989 applied, any reference in paragraph (b) above to the grant of the tenancy is a reference to the grant of that earlier assured tenancy or, as the case may be, to the grant of the tenancy to which the said Schedule 10 applied".

                          Clear as mud!
                          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

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                          • #14
                            Originally posted by bunny
                            Well, I guess it's no different to a landlord being unable to evict without protecting the deposit. If you are supposed legally to have a HMO licence then if you haven't it's a penalty for not doing as you should.
                            No, I don't think it's quite the same, because, if you cannot get a tenant out of a property which is unsafe (by HMO standards) - in other words, a property in which they could be trapped in a fire, electrocute themselves, die of carbon monoxide poisoning, etc., then you are relying on the tenant's own sense of self-preservation if they are to leave so that repairs may be done. (And they may not have much of this sense - they may not have much sense at all. The LL is supposed to exercise it on their behalf). The whole idea of HMO licensing is to protect tenants more effectively from risk to life and limb. So, effectively, the council is leaving the tenant at risk of something potentially much worse than being asked to leave at the end of an AST.
                            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                            Comment


                            • #15
                              Yes I see your point, I was looking at it more from the penalty to the landlord aspect than the tenant as the S21 route is for the landlord's benefit not the tenants.

                              I was and still am quite shocked at the council's lax attitude to the houses I now manage which were far far far from being legal HMOS and it was in their system that the HMO on one was lapsed for quite some time. They actually issued the new license though without the certificates required for licensing believe it or not. So, they do not know to this day that I have the certificates. So, are HMOs licenses worth the paper they are written on???

                              Of course, the authorities will throw the book at you if something seriously goes wrong but otherwise, well, I'm not convinced from my limited experience. The properties I am referring to were surely raising a red flag. I am sure those who enforce HMOs are under resourced so rogue landlords can and do slip through the net. Knowing you need a license makes many more landlords reach and maintain requirement levels than would have done so, so it does have its positives but it's a flawed system which I am sure has been debated many times on here.



                              Originally posted by mind the gap View Post
                              No, I don't think it's quite the same, because, if you cannot get a tenant out of a property which is unsafe (by HMO standards) - in other words, a property in which they could be trapped in a fire, electrocute themselves, die of carbon monoxide poisoning, etc., then you are relying on the tenant's own sense of self-preservation if they are to leave so that repairs may be done. (And they may not have much of this sense - they may not have much sense at all. The LL is supposed to exercise it on their behalf). The whole idea of HMO licensing is to protect tenants more effectively from risk to life and limb. So, effectively, the council is leaving the tenant at risk of something potentially much worse than being asked to leave at the end of an AST.

                              Comment

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