Guidance On Room Size Condition For Houses In Multiple Occupation (HMOs)
When granting licences for houses in multiple occupation (HMOs), whether under a mandatory or additional HMO licensing scheme, there are conditions that must be included in the licence. Local authorities also have the power to impose conditions on that licence relating to the management, use and occupation of the licensed HMO. Before granting a HMO licence the local authority must be satisfied that the house is reasonably suitable for occupation by not more than a maximum number of households or persons or that it can be made suitable if conditions are imposed.
It is clear that under the existing legislation that a local authority had the power to decide the maximum number of households or persons who could occupy the licensed HMO, however, the question remained whether the local authority could impose a prescribed minimum room standard.
The Upper Tribunal Decision
Local authorities developed their own guidance setting out their view on what room size standard is considered acceptable.Whilst reference to their guidance when deciding whether a bedroom could be used as sleeping accommodation was lawful, local authorities frequently adopted their guidance as a statutory prescribed standard.
This was challenged in the key case of Clark v Manchester City Council  UKUT 129 (LC) in which the Upper Tribunal concluded that a local authority's adoption of mandatory minimum room size standards was unlawful.
The Government has now sought to clarify the uncertainty caused by the Upper Tribunal Decision and has introduced a national room size for licensable HMO properties (see The Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulation 2018 SI 2018 No. 616).
National Minimum Room Size
From 1 October 2018, when granting a licence for a HMO property, a local authority must impose conditions relating to the minimum room size which may be occupied as sleeping accommodation. Any room which does not meet the minimum requirement must not be used a sleeping accommodation.
What is sleeping accommodation?
Under the Regulations, a room is used for sleeping accommodation if it is normally used as a bedroom, whether or not it is also used for other purposes.
What is the minimum sleeping room size?
A HMO licence granted under Part 2 of the Housing Act 2004 (that is pursuant to mandatory and additional licensing schemes) must contain conditions requiring the licence holder to ensure that any room used for sleeping accommodation is
- Not less than 6.51 m2 for one person over 10 years;
- Not less than 10.22 m2 for two persons over 10 years of age; and
- Not less than 4.64 m2 for one person aged under 10 years.
The Government's non-statutory guidance "Houses in Multiple Occupation and residential property licensing reform: Guidance for Local Housing Authorities" states that the statutory minimum is not intended to be the optimal room size and that local authorities will continue to have discretion to set their own higher standards within licence conditions but must not set a lower standard. However, while local authorities are entitled to produce guidance on what room size they consider acceptable, they are not able to apply their guidance as if it has statutory force
Requirement to Notify the Local Authority
It will be a mandatory condition of the licence that any room less than 4.64 m2 cannot be used as sleeping accommodation and the licence holder will be required to notify the local authority of any room in the HMO with a floor space of less than 4.64 m2
Calculating the Room Size
When determining the area of the room, any part of the room where the height of the ceiling is less than 1.5 meters will not be taken into account.
The Guidance states that other communal space in other parts of the HMO cannot be used to compensate for rooms smaller than the prescribed minimum. This is a change to the position in Clark, which required the local authority to take into account all of the relevant circumstances including the other amenities in the property as a whole, such as communal living space. For example, the floor space of an en-suite bathroom will not be taken into consideration when assessing the bedroom which it serves.
It is likely that the local authority will need to inspect the property to ensure effective compliance with the minimum room sizes.
Conditions on the maximum number of person
In addition, the local authority must impose a condition specifying the maximum number of persons over and under 10 years of age who may occupy each room as sleeping accommodation.
There are exclusions in the Regulations for visitors to the property who are not considered to be "persons" within the meaning of the Regulations. Visitors who sleep over night on an occasional basis are not treated as occupying the room. However, the landlord is required to take steps to rectify a situation where a tenant is in breach of their tenancy conditions by allowing a person to occupy the room on a permanent basis.
Rectifying an Unknowingly Permitted Breach of Condition
The HMO licence must also contain conditions which require the licence holder to rectify the breach within a specified period if
- Any of the room size conditions have been breached;
- The licence holder has not knowingly permitted the breach; and
- The local authority has notified the licence holder of the breach.
The Government guidance gives the example of where a tenant has given birth to a child since moving into the HMO and the landlord was unaware that the tenant was pregnant.
In such circumstances, the local authority must provide the licence holder with a specified period of time (of up to 18 months) to remedy the overcrowding before it can prosecute the licence holder for breach of licence conditions. The landlord must be notified that they are deemed to be in breach and the notice must specify the length of time they have to remedy the breach.
A licence holder will be committing a criminal offence if, without reasonable excuse, the licence holder breached the licence conditions by
- Knowingly permitting the HMO to be occupied by more persons or households than is authorised by the licence; and
- Failing to comply with a condition of the licence.
If prosecuted for a criminal offence in the magistrates' court, an unlimited fine could be imposed if found guilty. Alternatively, the local authority could issue the licence holder with a financial penalty notice of up to £30,000.
A breach of licence condition is banning order offence under the Housing and Planning Act 2016 and repeat offenders could be subject to a banning order and/or placed on the Government's Rogue Landlord Database.
Mandatory and Additional Licences
The Regulations only apply to Part 2 licences, meaning they only apply to HMOs licensed under mandatory and additional licensing.
Existing Selective Licenses
The Regulations do not apply to Part 3 Licences, meaning that Selective Licenses will be unaffected.However, HMOs currently licensed under selective licensing, which fall within the mandatory regime after 1 October, will have the conditions imposed when the first HMO licence is granted
Existing HMO licences granted before 1 October 2018
Existing licenses are unaffected by the new Regulations and remain valid. However, at the time the licence holder is required to renew the licence the local authority must impose the new mandatory conditions.
HMO licences Granted on or after 1 October 2018
The conditions will apply to all licences granted on or after 1 October 2018, this includes renewals of existing HMO licences. The local authority must give the licence holder time to comply with the new regulations.When granting the licence, the local authority must give the licence holder notice specifying the room size condition with which the landlord is not complying and specifying a period within which the licence holder is required to comply. The period for compliance is within the discretion of the local authority but cannot exceed 18 months. During the period set out in the notification the licence holder is not committing an offence and therefore cannot be prosecuted or subject to a financial penalty. The local authority is also not able to revoke the licence for breach of the condition set out in the notification. This stay on sanctions is not available to licence holders who, before the licence was granted, have been convicted of an offence of overcrowding or breach of licence condition in relation to the HMO.