Accelerated possession proceedings defences #10

The property is not licensed

The Housing Act 2004 introduced a new definition of houses in multiple occupation and, for the first time, introduced compulsory licensing for some HMOs.

What is an HMO?

According to this page here on the direct.gov site:

Your property is an HMO if you let (or plan to let) to at least three tenants who form more than one household and who share (or will share) toilet, bathroom or kitchen facilities. If so, you may need a licence.

Further down the page, it continues :

You must have a licence if you own a large HMO. A large HMO has:

• three or more storeys
• five or more tenants forming more than one household

Some councils require smaller HMOs or all HMOs in certain areas to have a licence as well. You should contact your local council to see if you need one.

It is an offence not to apply for a licence if your property must have one.

So there you are. Despite this seeming simplicity, the subject of what is or is not an HMO, and (if you are able to work this out) whether it does or whether it does not require licensing, can be exceedingly difficult to work out. Unless of course you live in Oxford where ALL HMO properties will require a license.

OK, you may be saying, but whats all this got to do with a series on possession proceedings?

HMOs and section 21

The point is that if your property ought to be licensed by isn’t, you can’t serve a valid section 21 notice.

Housing Act 2004 S75(1):  No section 21 notice may be given in relation to a shorthold tenancy of a part of an unlicensed HMO so long as it remains such an HMO.

The act defines an unlicensed HMO as an HMO which is required to be licensed but isn’t (makes sense). However you are all right if at the time of service:

• You had put in an application for a license which is still pending, or
• You had a temporary exemption notice

HMO licensing and the court claim form

The new form 5B, which is the form you use when applying for possession using the accelerated procedure is pretty specific – you have to say whether or not the property is an HMO, whether or not it needs licensing, and then if it does, give the name of the local authority which issued the license and its date.

If you are a tenant on the receiving end of a 5B summons, and you are pretty sure that your property is a licensable HMO which is unlicensed, it may be worth following this up. You will need to speak to your Local Authority housing officer about it.

If you are right, it will be good news as not only will you be able to defend the possession claim, you may also be able to apply for a rent repayment order.

I personally am not aware of any possession cases where a claim has been successfully defended on this basis though – do you know of any?