WHAT IS A HOUSE IN
One of the most important aspects of HMO law is defining what and what is not an HMO. In addition to defining an HMO one then needs to consider whether the HMO (all of which come under the ambit of the Management Regulations) is one which is required to be licenced or not. Hence as well as working out if your property is an HMO you also need to consider whether the property requires a licence (either under what is called additional licensing schemes or under the mandatory scheme). If a prosecution occurs it is fundamental to the prosecution case that the Local Authority make the Court sure beyond reasonable doubt that the property in question is or was an HMO at the time of the offence. If it wasn’t or isn’t then all offending falls away. There are further a number of exemptions to the HMO rules as to properties which, although ostensibly are HMOs, are in fact exempt from HMO rules. There are also provisions as to which type of persons are deemed or presumed to live in the HMO as their sole or main residence.
Important questions to be asked
Before I go on to the legislation, the important practical questions to ask are:
How many people unrelated are in residence in the property as their main property?
What is the evidence of them being in residence as their main property?
Does the property come within the ambit of the definitions in the Housing Act 2004?
Is the property once which requires either a mandatory licence or is it within an area which is subject to additional licensing?
Is it within an area subject to selective licensing?
Does an exemption apply as to whether it is an HMO?
The five tests
Under section 254(1)(a)-(e) there are five tests as to whether a property is an HMO. Some are more common than others. These are:
The standard test;
The self-contained test;
The converted building test;
A property declared to be an HMO under section 255;
A HMO defined under Section 257.
A declaration that a property is an HMO under section 255 is rare. The more common HMO permutations are a-c.
Under Section 254(2) a building or part of a building meets the standard test for an HMO if:
“(a) it consists of one or more units of living accommodation not consisting of a self-contained flat or flats;
(b) the living accommodation is occupied by persons who do not form a single household (see section 258);
(c) the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);
(d) their occupation of the living accommodation constitutes the only use of that accommodation;
(e) rents are payable or other consideration is to be provided in respect of at least one of those persons’ occupation of the living accommodation; and
(f) two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.”
This definition will cover most standard shared flats. Unless deemed to be occupying it as their main residence the property must be their only or main residence. Students, in particular, come under the deeming provisions (and are to be treated as so occupying it) under section 259 if the property is their residence for the purposes of a full-time course in further or higher education.
What is Sole Residence?
Others to be treated as occupying the property as their sole or main residence include those
in a refuge managed by a voluntary organization due to domestic violence from their partner (section 259(2)(b) and (3));
a migrant worker or a seasonal worker whose occupation of the building or part is made partly in consideration of his employment within the United Kingdom, whether or not other charges are payable in respect of that occupation and where the building or part is provided by, or on behalf of, his employer or an agent or employee of his employer;
an asylum seeker or a dependent of an asylum seeker who has been provided with accommodation under section 95 of the Immigration and Asylum Act 1999 and which is funded partly or wholly by the National Asylum Support Service
The phrase “sole or main residence” in the Court of Appeal authority of Williams v Horsham  1 WLR 1137 was held to mean the following by Lord Philips MR:
“All this reinforces the conclusion (which is one that we would have reached without reference to the dictionary) that in section 6(5) of the Act “sole or main residence” refers to premises in which the taxpayer actually resides. The qualification “sole or main” addresses the fact that a person may reside in more than one place. We think that it is probably impossible to produce a definition of “main residence” that will provide the appropriate test in all circumstances. Usually, however, a person’s main residence will be the dwelling that a reasonable onlooker, with knowledge of the material facts, would regard as that person’s home at the material time. That test may not always be an easy one to apply, but we have no doubt as to the conclusion to which it leads in the present case.”
Although for a council tax sole residency case this leading authority can be transposed for HMO cases. (See also R (On the Application of Bennett) v Copeland DC  EWCA Civ 672 where the reasoning in Williams was affirmed).
The self-contained test is defined in section 254(3) as
“(3) A part of a building meets the self-contained flat test if—
(a) it consists of a self-contained flat; and
(b) paragraphs (b) to (f) of subsection (2) apply (reading references to the living accommodation concerned as references to the flat)”
In other words, it is the same as the standard test but with the phrase “living accommodation” substituted for “flat”. Self-contained flats are defined as a separate set of premises (whether or not on the same floor)—
which forms part of a building;
either the whole or a material part of which lies above or below some other part of the building; and
in which all three basic amenities are available for the exclusive use of its occupants
Converted Building Test
Under the converted building test a building or part of a building is part of an HMO if:
“(a) it is a converted building;
(b) it contains one or more units of living accommodation that do not consist of a self-contained flat or flats (whether or not it also contains any such flat or flats);
(c) the living accommodation is occupied by persons who do not form a single household (see section 258);
(d) the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);
(e) their occupation of the living accommodation constitutes the only use of that accommodation; and
(f) rents are payable or other consideration is to be provided in respect of at least one of those persons’ occupation of the living accommodation.”
The test is again virtually identical to the other tests but with the proviso of being a converted building. A converted building is defined as a building or part of a building consisting of living accommodation in which one or more units of such accommodation have been created since the building or part was constructed. Note the use of the past tense – it must have been converted since the building was constructed.
Section 257 HMO
This section applies to self-contained flats in blocks which were built not in compliance with at their minimum building standards as of 1st June 1992. In other words, self-contained flats not built in conformity with the 1991 Building Regulations that came into force on 1st June 1992 (and still do not comply with them) are regulated as HMOs. In addition, less than two-thirds of the flats must be owner-occupied. Note that it is for the LA to prove that any block of flats comes within this exemption in any prosecution under the section 257 route. The practical issue here is finding the relevant building control certificates or conveyancing documents to show that the converted flats were not in conformity with the 1991 Building Regulations if no works have been undertaken to bring them to them up to the necessary building standards. It is critical to ask the LA what the proof is that the property is a section 257 HMO – why do they say it does not comply with pre-1992 building standards? Where are their records to prove this? Here is the relevant legislation:
“(1) For the purposes of this section a “converted block of flats” means a building or part of a building which–
(a) has been converted into, and
(b) consists of,
(2) This section applies to a converted block of flats if–
(a) building work undertaken in connection with the conversion did not comply with the appropriate building standards and still does not comply with them; and
(b) less than two-thirds of the self-contained flats are owner-occupied.
(3) In subsection (2) “appropriate building standards” means–
(a) in the case of a converted block of flats–
(ii) which would not have been exempt under those Regulations,
building standards equivalent to those imposed, in relation to a building or part of a building to which those Regulations applied, by those Regulations as they had effect on 1st June 1992; and
(b) in the case of any other converted block of flats, the requirements imposed at the time in relation to it by regulations under section 1 of the Building Act 1984 (c. 55).
(4) For the purposes of subsection (2) a flat is “owner-occupied” if it is occupied–
(a) by a person who has a lease of the flat which has been granted for a term of more than 21 years,
(b) by a person who has the freehold estate in the converted block of flats, or
(c) by a member of the household of a person within paragraph (a) or (b).
(5) The fact that this section applies to a converted block of flats (with the result that it is a house in multiple occupation under section 254(1)(e)), does not affect the status of any flat in the block as a house in multiple occupation.
(6) In this section “self-contained flat” has the same meaning as in section 254.”
Section 255 Declaration
There is limited power in section 255 for LAs to declare certain buildings under the standard, self-contained or converted building test to be an HMO with an appeal by way of a re-hearing at the Property Tribunal if the LA believes that to a significant extent the property is being used as an HMO. Using this difficultly worded section certain examples of significant but not sole use might include a hotel catering for short term guests or a hostel accommodating permanent residents.
Meaning of a single household
Section 258 sets out the people who are to be regarded as forming single households. This broad definition includes:
Members of the same family as a husband and wife or a couple living together as husband and wife (or in the equivalent same sex relationship);
Relatives defined as including parents, grandparents, children, grandchildren, brothers, sisters, uncles, aunts, nephews or cousins, or stepchildren.
One person being a relative of one member of a couple and the other a relative of the other member of the couple.
In short, relationships by blood or marriage will mean that the individuals concerned do count as a single household. Others to be regarded as forming a single household (with a family) under Regulation 3 of the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 include workers for a family living in accommodation provided as consideration for the work they perform (which must be of an exclusively domestic nature) for the person they share with and where they do not pay rent or any other consideration for the living accommodation.
Work usually carried out by an au pair, nanny, carer, servant, maid, cleaner, gardener, chauffeur, cook, cleaner, butler, secretary or personal assistant is to be regarded as work of a “domestic nature”. What is important to ensure that any domestic staff come within the exclusionary ambit if they share accommodation is to ensure they do not pay extra rent for their room or lodging.
Others to be regarded as forming a single household are adult placement carers under the Approved Placement Schemes (England) Regulations 2004 so long as that carer provides care in the living accommodation for not more than three service users along with those placed with foster carers. The key to this section is that unrelated individuals will almost invariably be caught out by the provisions unless within this very tightly delineated group
One point to note is the situation of a family moving in and telling the managing agent or owner they are all related when in fact they are not by blood. Here there is a question of whether the letting agent or owner has a reasonable excuse in believing them and thus not complying with the Management Regulations or having the property licenced as the case may be.
In Paramaguru v London Borough of Ealing  EWHC 373 (Admin) a child under 18 and indeed a new born baby were held to be “residents” in the case of property, under planning law, used as a Class C4 HMO (for use of not more than six residents as an HMO). That property had compromised six adults and four children and hence the owner had breached a planning enforcement notice. The purpose of all HMO legislation is to protect the most vulnerable from danger and an approach deeming the children not to be treated as residents would run counter to the purpose of HMO law. (See para 37 of Paramaguru where the comments of Buxton LJ on the special need to guard against the risks of danger in HMO’s in Brent London Borough Council v Reynolds 2002 HLR 15 are cited).