Licensing
There are Three Types of Licensing Criteria
Mandatory
Additional
Selective
Having regard to the Definition of an HMO or House in Multiple Occupation as defined under Section 254.
Who should apply for a HMO licence?
Anyone who owns or manages an HMO that must be licenced has to apply to the Local Authority for a licence. The Authority must give a licence if it is satisfied that:
- The HMO is reasonably suitable for occupation by the number of people allowed under the licence
- The proposed licence holder is a “fit and proper person”
- The proposed licence holder is the most appropriate person to hold the licence
- The proposed manager (if there is one) is a “fit and proper person”
- The proposed management arrangements are satisfactory
- The person involved in the management of the HMO is competent
- The financial structures for the management are suitable
” Landlord”
An owner of real property who leases (rents) that property to a tenant under a lease agreement. He is bound to perform certain duties and is entitled to certain rights.
His obligations are:
1. To perform all the express covenants into which he has entered in making the lease;
2. To secure to the tenant the quiet enjoyment of the premises leased; but a tenant for years has no remedy against his landlord, if he be ousted by one who has no title, in that case the law leaves him to his remedy against the wrong doer. But the implied covenant for quiet enjoyment may be qualified and enlarged or narrowed according to the particular agreement of the parties and a general covenant for quiet enjoyment does not extend to wrongful evictions or disturbances by a stranger;
“Person Managing”
Unlike the person having control, the person managing must own the property or have a lease of it. However, it will include their agents
“Person managing” means the person who being an owner or lessee of the premises receives (whether directly or through an agent or trustee) rents or other payments from – (i) (in the case of an HMO), persons who are in occupation as tenants or licensees of parts of the premises or (ii) (in the case of a house to which selective licensing applies) the persons who are in occupation of tenants or licensees of parts of the premises or of the whole of the premises.
It extends to a person who would receive those rents/other payments but for having entered into an arrangement with another person who is not an owner or lessee of the premises by virtue of which that other person receives the rents or other payments e.g. an arrangement relating to housing benefits.
The definition also includes in the case where the rents or other payments are received by another person as agent or trustee, the agent or trustee himself.
“Person having control”
This is a phrase which has been used in housing legislation since before the Second World War. It is a vital definition as the legislation places many obligations on the person having control i.e. the person who receives the rack rent of the premises (whether on his own account or as agent or trustee of another person). “Rack rent” means a rent which is not less than two thirds of the full market value of the premises. If the premises are unlet or let at less than a rack rent (e.g. at a ground rent) it is the person who would receive it if the premises were let at a rack rent”. The key points to note that that to be the person having control you must receive rent but you can receive it in your own right or as agent (or Trustee) for another. Thus, a managing agent who collects rent will be the person having control as well as the landlord. More than one person can be the person having control at the same time.
Examples
- Normally you would have to take the rent money into your bank account to be the person having control.
- A bank holding an account into which the rent money is paid will not normally be a person having control.
- A Solicitor or accountant who receives rent into his client account is likely to be a person having control.
- A rent collector acting for someone else will not normally be a person having control.
The purpose underlying the definition is to make it less difficult for local authorities to serve notices in a case where the owner (in the strict sense) cannot be found. This applies particularly in the case of absent owners or owners who hide behind agents. It is intended to mean that there is someone who is responsible and can be served with notices to whom the local authority can look for expenses. It has nothing to do with whether the person served is capable of dealing with the notice or indeed, whether or not they have authority to do so.
The First detailed is
Mandatory Licensing
Part 2 of the 2004 Housing Act is intended initially to apply only to the larger higher risk HMOs of 3 or more storeys occupied by 5 or more people.
What is a storey?
1. A section or horizontal division of a building, extending from the floor to the ceiling or roof lying directly above it
2. all the rooms on the same level of a building
3. any horizontal section or division
So, you can have a property with:
A basement, ground floor first floor – 3 storeys
A ground floor, first floor and second floor – 3 storeys
Ground floor, first floor and attic conversion – 3 storeys
A self contained flat to the ground floor, a separate two storey maisonette above – 3 storeys
A shop to the ground floor and a self contained flat above on 2 floors – 3 storey
A Mezzanine floor would constitute a storey
So if we now take this and add it to Section 258 the definition of a single household you will see that a three storey property being occupied by 5 or more persons, who are unrelated forming two or more households would need to be Licensed under the Housing Act 2004
So to summarise:
Does it meet the prescribed definition of a mandatory licensable HMO?
Where the property is not managed or controlled by a public body mentioned above, or is not subject to the religious exemption (as set out in Schedule 14 of the Act) and is not regulated by other legislation (as set out in Schedule 1 of SI 2006 No, 373), the LHA must decide whether it meets the prescribed definition of an HMO set down in SI 2006 No. 371 and whether it will be subject to mandatory HMO licensing.
In short, if the HMO does comprise of 3 storeys or more, is occupied by five or more persons and is occupied by persons living in two or more households, then it will be subject to mandatory HMO licensing.
The owner or person managing must apply for a mandatory licence, and that person must be a Fit and Proper Person. If there is an agent, they to must be Fit & Proper
So to summarise:
A property which is three storeys , occupied by 5 or more persons who are unrelated forming two or more households, the owner must apply to City & County of Swansea for a mandatory licence, and that person must be a Fit and Proper Person. If there is an agent, they to must be Fit & Proper
There are calls for Licensing of Letting Agents, and therefore, one must think that if an agent is not a member of a recognosewd body, such as NAEA, ARLA, RICS or NALS, then this could question whether the agent is FIT AND PROPER!
