In Nottingham City Council v Parr and another, the Supreme Court has held that the power to impose conditions under the Housing Act 2004 can be used to limit the class of persons, for whom the HMO is suitable.
2 properties in Nottingham were both used for letting to students and each had an attic bedroom with additional useable living space. HMO applications were made on behalf of the landlord for the properties including the attic rooms.
Nottingham City Council (NCC) can grant HMO licenses if it is satisfied, among other requirements, that “the house is reasonably suitable for occupation by not more than the maximum number of households or persons or that it can be made so suitable by the imposition of other conditions…” NCC issued guidance on the licensing scheme which provided that the minimum space provision in the case of bedrooms in single occupation in HMOs is eight square meters, although a degree of flexibility is sometimes possible if other features are present.
NCC granted the HMO licenses for the properties but imposed conditions prohibiting the use of the attic bedrooms because they were both below eight square meters.
An appeal was lodged against the conditions at the First Tier Tribunal (FTT) on behalf of the landlord. The FTT deleted the conditions and for one of the properties it substituted the condition so that the attic bedroom could be used for sleeping accommodation by a full-time student who can only reside in it for 10-months of the year.
The NCC appealed the FTT decision to the Upper Tribunal (UT) who dismissed the appeal and imposed the 10-month limit condition on both attic bedrooms. NCC again appealed to the Court of Appeal who upheld the UT decision and also imposed a further condition. The additional condition in both HMO licenses stated that the communal space should be kept available for communal living and that no bedrooms be let to persons other than full-time students.
NCC appealed once again to the Supreme Court arguing that the power to impose additional conditions cannot be used to limit the class of persons for whom the HMO is suitable, and that the additional conditions imposed by the Tribunals and Court of Appeal are irrational and unenforceable.
The Supreme Court dismissed the NCC appeal. The Housing Act 2004 indicates that the purpose of the imposition of conditions is to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the housing authority. Furthermore, the Act also provides that the licence may include such conditions as the local authority considers appropriate for regulating all or any of “the management, use and occupation of the house..”, and it sets out a non-exhaustive list of permitted conditions including “conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it.”
The court held that 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. However, lower standards than those permitted in the Act are not permitted. Thus, the power to impose conditions under the Act can be used to limit the class of persons, in this case students, for whom the HMO is suitable.
The Court further held that the condition limiting the occupation to students is rational and enforceable. However, the court considered the requirement limiting occupation to 10 months in each year irrational and deleted it. The Court held that if the room is suitable for 10 months then it is certainly suitable for 12 months. Therefore, subject to the one deletion the remaining conditions were held to be entirely lawful.