CHAPTER TWO – WHAT IS A HOUSE IN MULTIPLE OCCUPATION?
Part 2 of the Housing Act 2004 provides for a scheme for local authorities to require the licencing of houses in multiple occupation (HMOs). Subject to exceptions, every HMO to which Pt 2 applies must be licensed: section 61(1).
Before considering whether a property is an HMO which is required to be licensed it is necessary to consider whether the property is an HMO at all.
Disputes as to whether or not the definition is satisfied are common and frequently form the basis of challenges to enforcement action. The statutory scheme requires careful attention to the relevant definitions and tests.
Statutory Framework
Section 77 provides, for the purposes of Part 2, that “HMO” means a house in multiple occupation as defined by sections 254 to 259 and includes any yard, garden, outhouses and appurtenances belonging to or usually enjoyed with it. By section 254(1) a building, or part of a building, is an HMO if :
- it satisfies ‘the standard test’ (section 254(2));
- it satisfies ‘the self-contained flat test’ (section 254(3));
- it satisfies the ‘converted building test’ (section 254(4));
- an HMO declaration is in force in respect of it under section 255; or
- it is a converted block of flats to which section 257 applies.
Each test must be considered separately. A property may fall within more than one category, but need only satisfy one to constitute an HMO for the purposes of the Act.
The Standard HMO Test
Under section 254(2), a building or part of a building meets the standard test if–
- it consists of one or more units of living accommodation not consisting of a self-contained flat or flats;
- the living accommodation is occupied by persons who do not form a single household;
- the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it;
- their occupation of the living accommodation constitutes the only use of that accommodation;
- 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
- 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 is the most commonly applied test and captures the typical shared house or bedsit accommodation. Each element of the test must be satisfied.
Particular issues often arise in relation to the identification of separate households and whether occupation is as an only or main residence.
‘Occupied by persons who do not form a single household’
Under section 262(6) an “occupier” is a person who occupies residential premises whether as a tenant, or a person with an estate or interest in the premises, or a licensee. It is not therefore necessary for the occupiers to be tenants.
Section 258 sets out when persons are to be regarded as not forming a single household for the purposes of section 254. Persons are to be regarded as not forming a single household unless (a) they are members of the same family or (b) their circumstances are specified in regulations: section 258(2).
A person is a member of the same family as another person if (a) they are a couple (married, civil partners or live together as if they were) (b) one of them is a relative of the other; or (c) one of them is, or is a relative of, one member of a couple and the other is a relative of the other member of the couple: section 258(3)
“Relative” means parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew, niece or cousin. A stepchild is treated as a child and “a relationship of the half-blood shall be treated as a relationship of the whole blood”: section 258(4).
A foster child will be regarded as part of a single household with his or her foster parent if placed there under the provisions of the Fostering Services Regulations 2002 (SI 2002/57).
Persons carrying out work of a ‘domestic nature’ (such as au pairs, nannies, maids and personal assistances) are considered part of a single household where live-in accommodation is provided as part of the payment for work. As are members of that persons family who live with them: The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (SI 2006/373), The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Wales) Regulations 2006 (SI 2006/1715).
There are also provisions for a person receiving care from an approved placement carer and his or her carer who occupy the same building or part of a building under the Adult Placement Schemes (England) Regulations 2004 (SI 2004/2071) and Adult Placement Schemes (Wales) Regulations 2004 (SI 2004/1756).
‘Only or Main Residence’
Whether a person occupies property as their only or main residence is a question of fact. Guidance on the quality of occupation which is required and factors which will indicate that the requirement is satisfied can be taken from case law and the question arises in various different statutory contexts, but it remains question of fact in each case (see Opara v Olasemo [2020] UKUT 96 (LC) and Camfield v Uyiekpen [2022] UKUT 234 (LC); [2022] HLR 48).
Certain occupiers, however, are deemed to be occupying the property as their only or main residence even though their principal home may be elsewhere including full-time students, occupiers of refuges, migrant workers accommodated by their employers and asylum seekers being accommodated by the National Asylum Support Service: section 259 and reg.5, Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (SI 2006/373), and reg.5, Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Wales) Regulations 2006 (SI 2006/1715).
Occupation of the living accommodation must constitute the occupiers’ only or main residence. Section 260 of the Housing Act 2004 creates a rebuttable presumption that this requirement is satisfied.
In practice, difficulty may arise where the nature of occupation fluctuates, making it unclear whether the accommodation is being used as the residents’ only or main residence at any given time. This issue commonly arises in premises such as hotels or hostels which may, at different times, accommodate short-term visitors and longer-term residents who have no other home. In such cases, the assessment turns on the factual use of the accommodation rather than its formal designation or intended purpose.
The sole use condition.
The occupation of the living accommodation must constitute the only use of that accommodation (section 254(2)(d)). Section 260 creates a rebuttable presumption in any proceedings that this condition is met, placing the burden on the party asserting that other concurrent uses exist.
The meaning of section 254(2)(d) was authoritatively determined by the Court of Appeal in Global 100 Ltd v Jimenez [2023] EWCA Civ 1243; [2024] 1 WLR 1775. The case concerned property guardians; individuals licensed by a guardian company to occupy empty commercial buildings in return for a weekly fee, on the basis that their presence deterred trespass and vandalism. The guardian company argued that the guardians’ occupation served two purposes (residence and security) and therefore did not constitute the only use of the living accommodation.
The Court of Appeal dismissed the appeals and held that s.254(2)(d) focuses on the use the occupiers make of their living accommodation, not the purpose of the guardian company in placing them there. Use and purpose are conceptually distinct: the guardians’ use was to live in the accommodation as their main residence; the company’s purpose in facilitating that occupation was the protection of its client’s building. The incidental deterrent effect of the guardians’ presence did not introduce a second use of the living accommodation. As Dingemans LJ put it at para 50, the provision concerns the use made by the property guardians of their living accommodation, their occupation of it, 77and not the guardian company’s purpose in allowing them to reside there. The Court reached this conclusion on the facts without needing to rely on the s.260 presumption.
Sharing basic amenities
Two or more of the households which occupy the living accommodation must share one or more of the basic amenities or the living accommodation must be lacking in one or more of those facilities.
Basic amenities are defined at section 254(8) as meaning (a) a toilet (b) personal washing facilities or (c) cooking facilities.
The Self-Contained Flat Test
By Section 254(3) a part of a building meets the self- contained flat test if it is a self-contained flat and paragraphs (b)-(f) of section 254(2) apply (reading references to the living accommodation as references to the flat).
It is essentially the same as the standard test but applies to a self-contained flat. Self-contained flat is defined at section 254(8) as a separate set of premises (whether or not on the same floor) (a) which forms part of a building (b) either the whole or a material part of which lies above or below some other part of the building and (c) all three basic amenities are available for the exclusive use of its occupants.
This test therefore covers shared flats, including those let on a room-by-room basis with shared basic amenities.
The Converted Building Test
By Section 254(4) a building or a part of a building meets the converted building test if-
- it is a converted building (defined in section 254(8) 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);
- 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);
- the living accommodation is occupied by persons who do not form a single household (see section 258);
- 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);
- their occupation of the living accommodation constitutes the only use of that accommodation; and
- rents are payable or other consideration is to be provided in respect of at least one of those persons’ occupation of the living accommodation.
HMO Declarations
Section 255 enables a local housing authority to make a HMO declaration where occupation of the living accommodation amounts to a “significant use” of the property (rather than sole use) and the other elements of either the standard test, self-contained flat test or converted building test are satisfied. The Act does not define “significant use” but it is commonly used where mixed-use accommodation has a fluctuating pattern of occupation such that it is unclear whether the sole use requirement is satisfied at any given time.
To make an HMO declaration a local housing authority must serve a notice which must (a) state the date of the authority’s decision to serve the notice; (b) be served on each relevant person within the period of seven days beginning with the date of that decision; (c) state the day on which it will come into force if no appeal is made, which must be not less than 28 days after the date of the authority’s decision (s.255(5)); and (d) set out the right to appeal against the decision and the period within which an appeal may be made.
By section 255(12) a relevant person is defined as any person who, to the authority’s knowledge, has an estate or interest in the building or part of the building concerned (other than a tenant under a lease with an unexpired term of three years or less); or is a person managing or having control of the building, within the meaning of section 263 (see Chapter 8).
Where no appeal is made, the declaration takes effect on the date specified in the notice: section 255(6).
A relevant person may appeal against an HMO declaration to the First-tier Tribunal (in England) or the residential property tribunal (in Wales) within 28 days beginning with the date of the authority’s decision: section 255(9). Where an appeal is made in time, the declaration does not come into force unless and until it is confirmed by the tribunal and the time for appealing to the Upper Tribunal has expired, or any further appeal is withdrawn or determined: section 255(7)-(8).
An appeal is by way of rehearing, but the tribunal may take into account matters of which the authority was unaware at the time of its decision: section 255(10) (see Chapter 7).
Section 257 HMOs
Section 257 creates a distinct category of HMO relating to certain converted blocks of flats. Where a building or part of a building which (a) has been converted into, and (b) consists of, self-contained flats the section applies if-
- building work undertaken in connection with the conversion did not comply with the appropriate building standards (defined in section 257(3)) and still does not comply with them; and
- less than two-thirds of the self-contained flats are owner-occupied (defined in section 257(4)).
The fact that this section applies to a converted block of flats (with the result that it is HMO under section 254(1)(e)) does not affect the status of any individual flat in the block as a house in multiple occupation.