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HMO mandatory licensing- calculating storeys

London Borough of Islington v The Unite Group Plc [2013] EWHC 508 (Admin)

Thanks again to David Smith and our friends at Nearly Legal for drawing this recent case to our attention. NL has summarised the case comprehensively here so the below is a quick overview.

The High Court in this case has clarified the rules on calculating the number of storeys of a property in a block of flats. This is important in order to determine whether a particular property falls into the mandatory licensing category.
The building in the case in question contained a number of flats over more than 3 storeys. Each flat comprised of one storey with up to six student occupiers in each flat – what you might describe as a standard HMO. The ground floor of the building was used as business premises.

The Court was asked to determine whether these flats were HMOs that required licensing. The statutory requirements are that if an HMO or any part of it comprises three storeys or more and it is occupied by five or more persons and those persons form two or more single households, then the HMO must be licensed.

The high court found that “it is the HMO that must comprise the three storeys and not the building in which an HMO happens to be found”.

So, where living accommodation is in a part of a building above or below business premises you must take into account each storey comprising the business premises. Where a series of self-contained flats sit above commercial premises, you count the commercial premises in your calculation and the number of storeys in the flat itself, not the building.

The case should make it simpler to calculate whether an HMO falls into the mandatory licensing category and should release many landlords from the requirement to license self-contained single storey flats that sit in a block. However, since failure to have a licence when required has such severe consequences including prosecution, fine and rent repayment orders, if in doubt do seek guidance from the local authority (armed with a print out of the high court ruling to wave at them if necessary).

This ruling contrasts with the case of R v Roderick John Williams 2008 but as a High Court decision will take precedence. In Mr Williams’ case, he was successfully prosecuted for having an unlicensed HMO. This HMO actually covered two storeys but it sat on top of a basement flat and the court decided that under the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2006 [link] the two storey flat had to be calculated as having three storeys as it sat over a one storey flat.

One Comment

  • rob h 12th April 2013 at 6:45 pm

    Don’t forget this would be different if LBI had a separate additional licensing scheme covering HMO of less than 3 floors for example, as in such a case a 2 floor HMO may need a licence and the commercial floor would count as one floor. In that case separate flats within the block may need a HMO licence albeit that the building per se would not itself be an HMO.

    Also, if this were not a new purpose built block (as many flats above victorian shops are not) then S257 may apply if building regs were not met when the conversion was done – again not mandatory licensable, BUT in these “poor” conversion cases the whole building may be a S257 HMO and individual flats may also be HMO depending on the number of floors and occupiers, and again this can be affected by additional licensing which may make flats with only 2 floors licensable and also may render all S257’s licensable.

    The decision is however hugely useful in determining how many floors an individual HMO is within a larger block and as to what parts outside the actual flat are counted.

    Unit of course have the resources to take this on, which is great, one wonders how many other landlords have accepted that their single story flat (often ex local council) is in fact a mandatory licensable HMO when it is not and have been dissuaded from letting to a group of sharers in favour of a lease to the council ?

    If anyone has any thoughts on the above feel free to say- its simply an opinion- and there is no doubt more that those on the front line can add or correct !

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