A Short Legal Analysis of the Law Relating to Homes In Multiple Occupation

This is a difficult area of law, where the law is ill defined. It is an important area of law because homes in multiple occupation (HMOs) need to be safe and the law attempts to make them safe by having very harsh penalties for contravention of the law, but without making it easy for landlords to understand what the law is. It places landlords in a difficult and sometimes impossible position. The applicable statutes are badly drafted and in important aspects unclear, which is an unsatisfactory state of affairs where the statute imposes criminal sanctions.

A House in Multiple Occupation is one where there are more than two tenants who share either a toilet, bathroom or kitchen facilities, where the tenants are not related and do not form a household. So, if a couple are living together, they would form a household and would count as only one occupier and the property would not constitute a HMO. If there are three unrelated people sharing facilities, such as students, the property would be a HMO and all the regulations would apply. Larger HMOs, comprising five or more people on people in a dwelling which has three or more stories occupied as a HMO need to be licensed by the Local Authority.

However, licensing, which is a statutory requirement, does not affect the regulations; the regulations apply to a HMO whether it is licensable or not.

The main practical regulations that a landlord must adhere to concern fire safety, because HMOs are at more risk when it comes to fire than ordinary dwellings. HMOs must have fire alarms with smoke detectors in each room, and the alarms must be of a certain standard. Internal doors must be of a construction that will resist fire for 30 minutes; the doors should have working self-closer mechanisms, and intumescent strips to contain fire and cold smoke seals to contain smoke. Exit doors should have thumb turn handles, not keys, on the internal side.

There are also standards under which the property must be kept in good repair; loose hand rails on stairs are not permitted not are missing balustrades.

Now a landlord, seeking to comply with HMO regulations (and non-compliance is a criminal act) cannot easily find what the standards are, because the regulations only deal with obligations in most general terms.  The source of what the landlord’s obligations are will be found in guidance, rather than in law. The guidance was issued by the Local Authorities Coordinators of Regulatory Services (LACORS) and can be found at http://www.rla.org.uk/docs/LACORSFSguideApril62009.PDF where there are examples of what should be done. The most unsatisfactory thing about this system is that different local authorities interpret guidance in different ways, so when it comes to details a landlord cannot be certain as to what should be done. There are many grey areas.

For example, some local authorities do not require thumb turn locks on exit doors to the garden and exit doors from the garden. They deem that security (which can also present a very real risk and safety hazard to occupiers) should be balanced with fire risk. Other local authorities take a different view and require thumb turn locks on all exit doors. This places the landlord in an invidious position; a landlord has to make a specific enquiry with a local authority in order to find out what the practice is otherwise the landlord risks prosecution for a matter which may not even be an offence in another local authority.

Also guidance changes as risks are better understood. Although most local authorities require intumescent strips on doors, some now take the view that these strips, which melt under heat to create a barrier, make it very difficult for the fire brigade to enter a room in case of fire, and deem that risk higher than the risk of fire escaping.

These kind of problems should not be faced by a landlord who lets out HMOs; certainty is required, not uncertainty. The consequences of non-compliance are severe; in cases where there are breaches but no event has happened, which will be the vast majority of cases, the maximum fine is £20,000 per offence, and the case will be heard in the magistrates courts, who tend to fine very high amounts for what many would regard as minor transient breaches.

There is also uncertainty as to who is responsible for the breaches; some local authorities have successfully prosecuted rent collectors, as opposed to the landlords themselves, or letting agents who do not manage the HMO.

A breach of the regulations which leads to actual loss of life of serious fire damage will be prosecuted in almost every case under laws that go beyond the HMO regulations; here the penalties will almost certainly include imprisonment.

It is also likely that if someone has been successfully prosecuted for a breach of HMO regulations, (whether in the Crown Court or breaches where no event has happened in the Magistrates Court) the court may grant an application under the Proceeds of Crime Act to deprive the perpetrator of the financial gains obtained as a result of breaches of HMO regulations.

There are defences to HMO prosecution; the most common defence is that the person being prosecuted had a reasonable excuse, but the courts tend to allow this defence in very rare cases.

If a company is prosecuted for HMO regulations and succeeds in its defence, the company is still out of pocket; no costs will be awarded to the defence, even though the company has been found to be as pure as the driven snow. That is simply unjust, and gives the opportunity for a local authority to prosecute with no risk to itself.

HMO law is complex; it is expensive to get advice, both from lawyers and from HMO consultants, but it is even more expensive to be prosecuted; the fines mount up, and that will be the least of a landlord or manager’s problems if someone dies or is injured in a fire.

http://www.kblaw.co.uk

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