Scottish Government

HOUSES IN MULTIPLE OCCUPATION: A GUIDE FOR LANDLORDS

PART 3: WHAT ARE THE STANDARDS REQUIRED?

The licensing of HMOs seeks to control standards in three main areas: the suitability of a property owner to be an HMO landlord, his management of the premises, and the physical condition and facilities of the accommodation. These things must be checked before a licence is granted; the licence is then usually granted with conditions which require the standards to be maintained through the period of the licence.

HMO licensing covers a wide variety of different types of property and occupiers. It is for the licensing authority to set the standards and conditions required for each property, taking individual circumstances into account. The Scottish Executive has published guidance for licensing authorities, to provide a degree of consistency, but this is intended as a reference point to start from, not a generic standard to be applied in all cases. The following sections outline the types of standards which would normally be applied.

3-1: FIT AND PROPER PERSON

The licensing authority must be satisfied that the person applying for an HMO licence is a "fit and proper person" to hold a licence. The same test applies to any person managing the premises, and any director or partner in a company or organisation which owns or manages the HMO.

The legislation does not give a precise definition of a "fit and proper person", but the licensing authority is expected to check with the police whether the applicant has any relevant convictions. For example, motoring offences would not be relevant to an application for an HMO licence, but a conviction for fraud or theft could be since the HMO operator would be in a position of trust. If the HMO is subject to any other form of regulation, the licensing authority may wish to approach the relevant regulatory authority, such as the Care Commission or the environmental health service, for their comments. This would usually focus on the applicant's record of maintaining standards and their response if concerns are raised. Ultimately it is for the local authority to decide whether the applicant is a "fit and proper person" based on all the information available to it.

3-2: MANAGEMENT STANDARDS AND LICENSING CONDITIONS

One key aim of HMO licensing is to improve the standard of management in this type of property. As a landlord, you have a responsibility to maintain the property, to comply with the laws on letting property and respect tenants' rights, and to deal effectively with any problems that arise. Good management is key to tackling the issues which most concern neighbours of HMOs, such as building maintenance, cleaning, and noise or disturbance from tenants.

3-2.1 Licensing Conditions

The landlord of a licensed HMO has two sets of obligations. One is to meet the requirements of licensing, which the local authority has the responsibility to enforce. The other set of obligations relates to the tenancy or occupancy agreement between the landlord and the tenant and the legal requirements governing tenancies and the provision of residential accommodation. Notes on different tenancy/occupancy arrangements are given at 3-3.2.

All types of HMO should provide occupants with some form of agreement setting out the rights and responsibilities of both parties, even if the accommodation is only temporary. Good management based on a clear tenancy/ occupancy agreement can be very effective in tackling any problems at an early stage. Your local authority should be able to provide information and advice to help you deal with the situation if tenants do not fulfil their side of the occupancy/tenancy agreement, or cause disturbance to other tenants or neighbours.

The licensing conditions (LC) imposed by a local authority are likely to include the following. The wording here is intended to be general, but the conditions may be adapted by licensing authorities to suit particular types of HMO. You should be aware that breaching any condition of a licence can lead to the licence being suspended, or to prosecution.

LC1 The landlord must provide each tenant with a clear statement, in a form they can understand and keep for reference, of what is expected of them and what they can expect from the landlord. (The licensing authority may provide a list of features to be included in the agreement.)

LC2 The landlord must take steps to ensure that the property, fittings and furniture, including fire precautions and gas and electrical installations, are maintained throughout the period of the licence to the standard required.

LC3 The landlord must act lawfully and reasonably in requiring any advance payments, handling rents, returning deposits, and making deductions from deposits.

LC4 Actions to secure repossession must be only by lawful means.

LC5 The landlord must comply with all relevant legislation affecting private sector residential tenancies, and all legislation relating to other activities carried on in the premises, such as the provision of care or support, or food preparation.

LC6 The landlord must manage the property in such a way as to seek to prevent or deal effectively with any anti-social behaviour by tenants to anyone else in the HMO or in the locality of the HMO.

LC7 The landlord must provide tenants and adjoining neighbours with details of how they can contact him or his agent in an emergency, or with non-urgent complaints.

LC8 The landlord must ensure that a telephone line is available in an area of the property accessible to all tenants, where the tenants can provide a handset and arrange for the telephone service to be provided. (In large properties it may be more appropriate to provide a payphone or emergency telephone in a communal area).

LC9 Tenants must be given clear advice on action to be taken in the event of an emergency.

3-2.2 Tenancy / occupancy agreements

There are various ways to set up the arrangements for letting a property. You should take the following points into account in deciding what is appropriate for your HMO.

Individual and joint tenancies

In most HMO situations, the occupants do not know one another before they move in, and they move in and move out at different times. In order to be clear what each person is responsible for, particularly in terms of rent and any payments due for damage or bills, it is best practice for each of them to have a separate tenancy or occupancy agreement, which also specifies the parts of the accommodation which they have an exclusive right to occupy and the parts which they share with others.

Some landlords grant tenancies in an HMO on a "joint and several" basis, in which all the tenants are jointly responsible for the rent and other liabilities, but if any of them defaults, the others are required to cover that debt. If you use these arrangements, you should ensure that tenants are fully aware of their liabilities before accepting the tenancy.

Re-letting, subletting and visitors

In some shared flats and houses, the landlord may require the remaining tenants to find a new tenant when someone leaves, or they may set up the tenancy so that one person is the principal tenant and the others sub-let from them. If you use these arrangements, you should provide an agreement in writing which clearly sets out the tenants' responsibilities and liabilities for such things as advertising costs, taking up references and arranging for the payment of rent. If you, as the landlord, take on the task of finding new tenants, you should give the existing tenants at least 24 hours notice of a new tenant moving in.

You should take steps to ensure you are aware of who is staying in your property on an informal basis. A person who may be considered a long-term visitor by the tenant could be defined as an additional resident by the licensing authority. Suitable arrangements for informing the landlord about visitors will depend on the type of HMO. In a hostel, there may be strict rules about non-residents being brought into the premises, for security reasons. In a shared flat, you might simply ask the tenants to let you know of any visitors staying for longer than a specified period.

Tenancies and leases

Some HMO buildings, particularly where some form of care or support is provided, are owned by one person or organisation and leased by another, which operates the day-to-day management and lets the accommodation to individuals. In this situation, the owner must still obtain the HMO licence, but it is the lessee's procedures and tenancy/occupancy agreements that need to meet the required standards. The licensing authority will also examine the terms of the lease between the owner and the operator, to ensure that responsibility for issues such as maintenance are clear, and that the operator has the freedom and authority necessary to fulfil its duties towards the occupants.

3-2.3 Recommended elements of tenancy / occupancy agreements

The licensing authority will normally require to check the form of tenancy or occupancy agreement that you use, before granting an HMO licence. This may be a formal tenancy or may come in another form, such as, in temporary accommodation, a list of house rules and service standards, or as part of a contract of employment or a care and support plan. This section is not intended to provide a model occupancy agreement, but to identify elements that local authorities will look to see included in all agreements.

As with the licensing conditions, the tenancy elements (numbered "TE") set out below are intended to be applicable to all types of HMO accommodation. This means that in some cases the requirements or restrictions may be "none", but for the sake of clarity they should still be included, so that there is no uncertainty should a dispute arise. The importance of the tenancy / occupancy agreement is not simply as a piece of paper, but as a statement of intent and commitment to acceptable behaviour from both parties, which can then be monitored.

This guidance does not cover all the clauses which are required by legislation in different types of formal tenancy. You should consult with a solicitor, if you are unsure, to check that your arrangements comply with the law, and protect your rights as a landlord and your ability to regain possession of your property. The following elements cover issues which need to be clear between the landlord and the tenant to ensure the landlord can effectively manage the property, and the tenant knows what is expected of them.

TE1 The tenancy / occupancy agreement clearly sets out the amount of rent, what it covers, how it is to be paid, how any changes of rent will be notified to the tenant, arrangements for return of rent deposits and how any deductions from the deposit will be agreed.

TE2 The tenancy / occupancy agreement clearly sets out the respective responsibilities of the landlord and the tenant for cleaning, maintaining and repairing the property, fittings and furnishings. This includes timescales for the tenant to report any disrepair which is the responsibility of the landlord to rectify, and for the landlord to respond.

TE3 The tenancy / occupancy agreement states that the tenant is entitled to receive 24 hours notice, in writing, of the landlord's intention to enter the property, or areas of the property to which he or his staff do not normally have access, for the purpose of carrying out maintenance, repairs or inspection. (This does not restrict emergency access if necessary. Access for other purposes, such as cleaning, security or to provide care, should be dealt with separately where appropriate.)

TE4 The tenancy / occupancy agreement makes clear that the tenant, and any person visiting the tenant, must not commit any form of harassment, or behave in a way that causes nuisance or distress, to other tenants, neighbours or (where relevant) staff.

TE5 The tenancy / occupancy agreement gives details of the landlord or agent's name and address.

TE6 The tenancy / occupancy agreement clearly sets out whether the tenant may sublet, and any restrictions on tenants having visitors.

In assessing whether a property is suitable to be licensed as an HMO, the licensing authority will want to see that it is safe and has sufficient facilities for the number of occupants. The following paragraphs set out the aspects which will be considered.

While guidance is provided to local authorities to provide a degree of consistency between similar HMOs, the standards which will be appropriate may vary, depending on the circumstances of each case. It may also be possible to achieve an adequate level of accommodation or safety through different packages of measures. Detailed requirements can only be set by the licensing authority, taking into account the individual circumstances of each property.

Relationship to compliance with the Building Regulations

Newly-built or converted HMOs must of course meet the level of requirements applicable under the Building Regulations. However, even buildings that meet the Building Regulations requirements may require additional work to make the property suitable for use as an HMO rather than, for example, a family home. In many cases, a building warrant will be required for such work, or if a warrant is not required, the work may still have to meet Building Regulations. You should seek advice from the local authority's building standards officers.

Treatment of children and resident landlords

A number of the standards refer to the space and facilities required according to the number of occupants of the property. In general, this relates to the number of adults. For these standards, licensing officers will usually treat children over 10 years as full adults, children between one and ten years as equivalent to half an adult, and children under one will not be counted.

Resident landlords, and any members of their family who live with them, are excluded from the calculation of the number of "qualifying persons" in an HMO. However, when assessing the standards and facilities required, licensing officers will take account of all the occupants of the property. For example, a couple with five tenants would need facilities appropriate for 7 people.

P1 Space and layout

The HMO should not be overcrowded. Normally, sleeping accommodation will be in the form of single or double bedrooms, although other arrangements can be accepted. Every room used as a bedroom should be capable of accommodating at least

• a bed,
• a wardrobe (except where a built-in wardrobe of equal size is provided) and
• a chest of drawers

together with adequate activity space around them. A guide to minimum room sizes is provided in the Annex to this booklet.

All bedrooms should be located so that it is not necessary to pass through another bedroom to reach a bathroom, WC or circulation space. If there is not a WC on the same level as each bedroom, there must be one no further than the next floor up or down.

Suitable arrangements should be provided internally or externally for drying clothes, bedding etc.

Every stair for a change in level of more than 600mm should have a suitable handrail on at least one side.

P2 Kitchens

Part of the definition of an HMO is that it is the only or main residence of the occupants, that is, their home. Most local authorities therefore require that residents can get all meals in the accommodation and snacks at reasonable times, whether this is achieved by providing kitchen facilities for residents' use or meals cooked by staff.

The requirements for kitchen facilities should take account of the needs of the occupants and the arrangements for meals (for example, meals cooked communally require less space and equipment than if each person cooks separately). Where kitchen facilities are provided for residents' use they should have:

• one sink for every six people, with integral drainers.
• adequate food storage for the number of occupants (lockable where requested by occupants).
• adequate impervious work surface.
• one cooker for every six people, with adequate activity space around it.

Microwave ovens and automatic dishwashers may also be provided, but these do not entirely replace cookers and sinks. Where the number of occupants is not divisible exactly by six, it is suggested that a microwave or dishwasher may be accepted as providing for the remaining numbers. (eg, 15 occupants: 2 sinks, 2 cookers, 1 dishwasher, 1 microwave)

P3 Sanitary facilities, water and drainage

There should be

• one WC for every five people
• one bath or shower for every six people.

Every toilet should have a washbasin within the toilet itself or within an adjacent space providing the sole means of access to the toilet. The toilet and washbasin space should also be separated by a door from any room or space used wholly or partly for the preparation or consumption of food.

There should be hot and cold water supplies suitable and sufficient for their purposes.

The building should be provided with a safe and hygienic drainage system which complies with the relevant British or European Standards.

P4 Space heating

Each bedroom and living room should have a fixed space heating appliance or be served by a central heating system, which may include any system of warm air or underfloor heating, capable of maintaining an appropriate temperature in the room.

Liquid Petroleum Gas (LPG) heaters should not be used.

P5 Lighting and ventilation

Every bedroom and living room should have adequate natural lighting and ventilation from a window or windows situated in an external wall or roof, or in a wall between the room and a conservatory.

Kitchens, bathrooms and toilets should have either natural ventilation as for bedrooms and living rooms, or adequate mechanical ventilation.

There should be at least one electric lighting point in every circulation space, bedroom, living room, kitchen, bathroom, toilet and other space having a floor area of 2 square metres or more. Any lighting point serving a stair within an HMO should have controlling switches at each storey.

P6 Fire safety

Every HMO must have adequate fire precautions, including provision for:

• detection and giving warning in case of fire;
• escape from the building; and
• fighting fire.

You should carry out a risk assessment, or have one carried out on your behalf, to establish both the risk of fire occurring and the risk to people in the event of fire. This would apply to everyone who may be in the HMO (residents, staff and visitors) and should take adequate account of any people with special needs. Such a risk assessment will show whether the existing fire precautions are adequate, and what changes need to be made if not. The risk assessment will be reviewed by officers of the licensing authority or fire authority when inspecting the premises. Guidance on risk assessment and other fire safety matters is contained in "Fire Safety - an employer's guide" (ISBN 0113412290). Guidance on risk assessment specifically for HMOs is currently under review.

The main points usually required are

• mains-powered smoke alarms on a linked circuit, so that if one detects a fire, all of them sound the alarm. The number and position of smoke alarms will be determined by the size and layout of the accommodation;
• the escape route from every living room and bedroom should be enclosed by walls with 30 minutes fire resistance;
• all fire doors should be self-closing and have 30 minutes fire resistance;
• water-type extinguishers should be provided on each floor, and a fire blanket in the kitchen.

There may be additional requirements for escape routes depending on the height of the HMO from the ground, or the number of storeys, and the distance to be travelled within the HMO to the main exit.

Fire safety equipment must be regularly maintained according to the manufacturer's recommendations. You should prepare an emergency plan, and all residents and staff must be made aware of what to do in the event of a fire.

P7 Gas and Electrical Safety

Under the Gas Safety (Installation and Use) Regulations 1998, you must have an annual gas safety check carried out on all gas appliances by a CORGI registered gas installer. A copy of the current gas safety certificate must be provided to the licensing authority, and to every tenant.

The electrical system and any appliances you provide must be examined by a competent person to confirm they are functioning properly and are safe. Such an examination should be carried out at least once every three years. You are not expected to check electrical equipment belonging to tenants, but you may wish to highlight electrical safety issues to them.

The number of electrical socket outlets should meet at least the following minimum requirements:

• 6 in each kitchen
• 4 in each bedroom and living room
• 4 additional sockets anywhere in the building.

P8 Noise reduction

Noise is a significant source of complaints about HMOs from neighbours, and some physical aspects of the property can add to the problems. You should consider ways of minimising noise nuisance in relation to the choice and installation of items such as door closers and extract fans, for example. You should also ensure that deafening between floors is not removed during work under the floorboards. It may be helpful to lay carpets rather than wooden flooring.

P9 Security

The accommodation should have secure locks on all access doors and ground floor or accessible windows and, on the doors of residents' rooms where appropriate. All locks should be capable of being opened from the inside without recourse to a key, so that residents can escape in case of fire. You may find it helpful to consult the Crime Prevention Officer at the local Police Station for advice.