February 4, 2023

HMO: Legal relevance of “proposed mode of occupation”

The power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, can be used so as to limit the class of persons for whom the HMO is suitable.

The power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, can be used so as to limit the class of persons for whom the HMO is suitable.

Part 2 of the 2004 Act the manner of occupation of a house and the general characteristics of occupants are considered relevant in contexts connected with HMOs and with housing standards generally. Therefore, in certain circumstances the operation of the legislative scheme will depend on the personal characteristics of the occupants or their activities.

There will be certain circumstances in which it will be appropriate to have regard to the mode of occupation when applying the same objective standards which apply to all HMOs.

It is entirely appropriate, when considering the suitability of accommodation in an HMO for a particular purpose, to have regard to the mode of occupation. If the house is to be occupied by a group living together “cohesively”, each having his or her own bedroom but sharing other facilities including a kitchen/diner and a living room, the availability of those additional facilities is a material consideration. In these circumstances the mode of occupation means that the shared facilities will benefit all the occupants and, as a result, this may compensate for a bedroom which is slightly smaller than the recommended minimum.

By contrast, where occupants of an HMO each live independently of all others, sharing only bathroom, toilet and kitchen facilities, any communal living space made available will not benefit the occupants in the same way because of their different living arrangements

Therefore, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant.

The power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, can be used so as to limit the class of persons for whom the HMO is suitable.

Please note:

  1. Persons carrying out domestic services are regarded as occupying the same household as their employer if they are occupying rent free tied accommodation in the same building (2006 Regulations, regulation 3)
  2. A full-time student is regarded as occupying accommodation as his only or main residence if it is occupied for the purpose of his full-time course (section 259(2)(a))
  3. Some religious communities are outside the HMO scheme if their principal occupation is prayer, contemplation, education or the relief of suffering (Schedule 14, paragraph 5)

For further questions please email info@aamevol.com

Reference: Nottingham City Council (Appellant) v Parr and another (Respondents): On appeal from: [2017] EWCA Civ 188

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