Earlier this year (RPI, March/April issue) we gave readers a detailed summary of the Housing Act 2004. However, before it comes into force, various Regulations need to be made. The purpose of this article is to give the latest information regarding the implementation of the Act, especially the licensing provisions.

The Act requires mandatory licensing of certain houses in multiple occupation (HMOs) and gives local authorities powers to license other types of HMO and to introduce selective licensing in areas of low demand or anti-social behaviour.

The Act also introduces a new riskbased fitness standard.

Originally, the Government said these would come into force in October. This has now been delayed. The latest we have is that they will become law in "late autumn".

Furthermore, the Government has accepted a proposal from the RLA that although a licence application must be submitted by the implementation date, the enforcement provisions will not come into force for another three months. Precise details are awaited, but it is likely that during this time you cannot be prosecuted, rent cannot be claimed back from you and you can still evict using the shorthold procedure.

The Government are therefore allowing a three-month lead-in time but you should still make sure that your application is submitted by implementation date. As long as you have submitted a valid application you can carry on renting out your property - you do not have to wait for the actual licence.

Meanwhile, of course, it is not possible to submit a licence application because we have not had the start date for licensing.

The Government had intended to publish the relevant Regulations before the end of July, but instead a number of policy announcements were made which will form part of the Regulations.

Licence fees will not be capped. Each local authority will be able to set its own licensing fees. However, when fixing licensing fees, these should be on a cost-only basis and they will not be able to take into account the costs of enforcing the new fitness standard, which will include any inspection by the local authority to check on the property during the five years after an application for a licence has been submitted.

Manchester City Council has now indicated that its mandatory licensing fee for a shared five-bedroom house will be £540. No doubt other authorities will be announcing their fee in due course.

The Government is going to leave it to local authorities to decide when fees are payable. But it is likely that you will be able to pay by instalments rather than up-front, since the local authorities have said they will prefer payments over the period of the licence.

Generally speaking, an HMO means any property occupied by three or more unrelated people who share basic amenities, ie toilet, washing or cooking facilities.

A mandatory HMO licence will be required where an HMO is occupied by five or more persons and has three or more storeys, with a basement counting as a storey. When calculating the number of persons, include children and babies. In deciding whether people are related, then foster children, children being cared for and domestic employees will be treated as part of the household as if they were relatives.

Where there is a resident landlord, the property will not be treated as an HMO if the owner-occupier occupies the property with no more than two lodgers. Properties where owneroccupiers live in one flat and let out rooms will be treated as HMOs.

Some local authorities already operate registration schemes for HMOs. The Government have decided to passport HMOs that need mandatory licensing and which are already registered under such schemes. This means that the existing registration will count as a licence for the remainder of the current registration period.

The Act allows the Government to introduce national minimum amenity standards for shared facilities, including baths, toilets, kitchens, fire precaution facilities and certain other facilities. These will require a kitchen, bathroom and toilet for every five occupants.

Local authorities are entitled to adopt higher standards. The Government wants standards to reflect different types of HMO accommodation such as shared houses or bedsits.

Issues have arisen in the case of certain authorities, eg Brighton and Leeds, where some current standards are lower and the local authority is happy otherwise for this to continue. However, where the 1:5 ratio is not met, the local authority will have to require those standards to be reached within three years of the grant of the licence.

There will be a requirement to publish standards and make any document available.

Educational institutions and registered social landlords such as housing associations will not be subject to the HMO licensing regime. The Government is preparing an approved Code of Practice for colleges and universities. It had originally planned to publish a code of practice covering all HMO accommodation but now says it will examine the need for such a code in the light of experience of the new licence regime once it has settled in.

Additional licensing schemes and selective licensing schemes normally require Government approval before implementation. The Government has said it is prepared to give general approval for such schemes to local authorities classified as excellent or good. In other words, those local authorities will not need individual consent before implementing additional or selective licensing.

Regulations will specify the information required in an application form for a licence. This will include information about the landlord and property, including the number of rooms and their use and the date of conversion (if relevant); the number of households and individual occupants; details of fire precautions, certificate of gas safety and evidence of electrical and furniture safety.

The form will ask whether in the last five years the applicant has been subject to enforcement, eg where there has been a prosecution by the council or works in default have had to be carried out. Local authorities will be able to ask for additional information.

There will be a public register of licences. This has caused the RLA much concern, particularly in relation to landlords having to disclose their addresses.

As yet we do not have detailed information but it is understood that a landlord will not need to give his or her home address. A service address will suffice but not a PO box.

The Government have already introduced those parts of the Act which allow local authorities to decide which areas will be subject to additional licensing and selective licensing.

The Government is encouraging local authorities and landlords to discuss in advance of licensing exactly how the application process will work in each locality. A series of conferences around the country is being organised.

The Government says it expects local authorities to take into account the contribution that the private rented sector makes to the housing market, and that the administration costs must be kept down.

The Government has accepted many representations the RLA has made. We now need to make sure that local authorities actually carry them into practice.

The RLA is about to conduct a survey of local authorities to discover how much they intend to charge, what their intentions are in relation to additional licensing and selective licensing, and what steps they are putting into place to consult with local landlords.

The Government will be placing additional burdens on landlords. A new Regulatory Reform Order is due to come into force on April 6, 2006. This will abolish the need for a fire certificate in hotels, shops, offices, etc, but will replace it with a duty to carry out a risk assessment in relation to fire safety, as well as responsibilities for making sure that proper fire precautions are provided.

Due to how the order is drafted, the common parts (such as halls, stairs, landings, shared kitchens) in blocks of flats and HMOs will be treated as non-domestic premises. This means that the fire authority will be the enforcement authority for the common parts whereas the local authority will be the enforcement authority for living accommodation.

Many landlords can give examples where fire officers and environmental health officers disagree between themselves on fire precautions. At the same time under the Housing Act, the Housing Health and Safety Rating System, involving risk assessments by local authorities, will apply to the building as a whole, including the common parts.

Landlords of HMOs are therefore faced with two different systems of regulations at a time when Canary Wharf will no longer require a fire certificate! The RLA is making urgent representations to the Government on this issue.

Meanwhile, we still await an announcement of the implementation date for licensing.

The RLA will continue to keep members abreast of developments.

Richard Jones is the RLA’s company secretary and part of the RLA Parliamentary Team – he has drafted amendments for the ODPM during the Bill stages. He is partner in law firm Bury & Walkers, 0113 244 4227.