Private Dwelling or HMO

[Ricardo]

Would appreciate views on this scenario, a private dwelling I have heard about recently where the owner has let it out to a single tenant, who in turn has allegedly taken in ten people to share the house with him, all 11 happen to be foreign nationality, the owner is aware of this,(he actually thought that about six people were now living in this house)  is adamant that he has done nothing wrong, and that he let the house out to a single tenant, and that it is now his responsibility.

The local housing department and Environmental office are aware of the situation, the housing merely say that if the people are put out, they will help them get other accommodation, and environmental health are saying that this is operating as an HMO and their only option is to prosecute, but since this may take a long time, they are reluctant to proceed, which leaves the local fire officer with the dilemma of what to do.

Do they attempt to serve a prohibition notice on the occupier of this private dwelling, on the belief that the property is being used as an HMO, as it appears to me that this property is not being used as a single private dwelling? Or do they turn a blind eye so to speak, in the belief that it is a private dwelling where they have no powers.
I have heard that the single tenant is taking rent from the ten other tenants, and in turn the single tenant pays the house owner monthly rent.

I am trying to get more details as we speak to find out exactly what is being done about this one, I can keep you posted.

[jokar]

It is quite clear that this is not a single private dwelling as it is not a family unit living together.  Therefore, the enforcers have responsibilty to enforce both the Housing Act and the RR(FS)O.  Whether that is done is of course down to those respective organisations.

[Ken Taylor]

This sort of thing really needs enforcement action as it sets an example for others to avoid the implications of HMO safety requirements.

[The Lawman]

Not doing anything is not an option in my view. The Tenant is clearly in Breech of his Lease conditions and the Landlord coud seek legal recourse under the lease. As the Lease will no doubt be silent regarding resposibility for a FRA the Landlord could be pursued by the Fire Officer at the same time that action is taken agaist the tenant.

[Ricardo]

Thanks for the replies so far, forgot to mention previously this is a 2 bedroom house, Jokar can you provide more info regards to housing officials enforcing the Housing Act, as I know nothing about their powers, what can/should they enforce here?

Lawman, what do you mean by RFA?was it a slip of the finger, and should be FRA? and under what powers can the landlord be pursued by the FO, in this case? I would have thought it was the tenant here who was at fault and fully responsible?, but yet the Owner is aware of the situation so, what is he in breech of?

[The Lawman]

Thanks for the replies so far, forgot to mention previously this is a 2 bedroom house, Jokar can you provide more info regards to housing officials enforcing the Housing Act, as I know nothing about their powers, what can/should they enforce here?

Lawman, what do you mean by RFA?was it a slip of the finger, and should be FRA? and under what powers can the landlord be pursued by the FO, in this case? I would have thought it was the tenant here who was at fault and fully responsible?, but yet the Owner is aware of the situation so, what is he in breech of?

Yep, slip of the finger. Sorry about that.

I would agree the tenant is at fault but the landlord could have liability if he acquiesces ie knowingly permits the use of the dwelling as a HMO. The landlord could be pursued as he has failed to discharge his obligations as a Responsible Person ie someone having some control over the property. This would make it "easier" for the landlord to be persuaded to take action against the tenant due to the fact that the tenant is in breech of his lease conditions.

[PhilB]

Hi Ricky

In my opinion, this premises is an HMO and it should be licensed under the Civic Government (Scotland) Act 1982.

If it is an HMO it is not a domestic premises as defined in Fire Safety (Scotland) Act 2005.

Someone should act and I think it is more appropriate to use housing law in this case.

But if the housing department will not act the fire authority should use their powers. They can serve an enforcement notice or if the risk is serious they could prohibit/restrict the use.

[Midland Retty]

The key to all this is whether or not the additional residents are paying rent.

If they arent it could be argued they are simply mates of the single tenant just 'stopping over' (rather like if you had friends round to stay at your house)

If they can craftily argue that then neither the FRA or LA can do anything about it.

It would have to proven that these residents have been in situ longer than a few days and are claiming squatters rights to discard the argument of them "merely stopping over at a friends house".

If they are paying rent the Local Authorty can issue a prohibition notice but it takes time and is not issued on the spot as it were.

When considering a prohibition the FRA must be able to prove that more than one household is living in the premises, which sometimes can be difficult, particularly if the residents are sleeping on anything other than beds or matresses (ie they might be sneaky and sleep in sleeping bags and roll up matts and stash the sleeping bags  / mats in the loft when not in use)

When gathering evidence photos are generally used and if the photos only show one or two beds then a solicitor could dispute the claim that more than one household is living there.

SO you do have to be very careful. Clearly if the landlord admits these people have been on the premsies thats a different matter.

Dont get me wrong I think this is a HMO its just making sure that the tenants aren't crafty and able to jump trhough some of the legal loop holes associated with this.

[Ricardo]

Many thanks for all your feedback. Lawman I take it that you mean by "The landlord could be pursued as he has failed to discharge his obligations as a Responsible Person" that the landlord should ensure that this 2 bedroom house is let out only to the single tenant who is paying him the rent, and to Knowone else?

Hi Phil, can I ask you what exactly housing can/should do about this? can they evict these ten people, and if so can they do it immediately? or do these things take time due to red tape etc.

Midland Retty, my understanding of what I have heard about this is that the ten new residents are paying the single tenant for the pleasure of staying in this house, as I said before, I have heard that the landlord has said he thought about six people were now staying in the house, but is of the opinion that his single tenant is the person at fault, and what exactly is squaters rights?

If I hear any more I will let you all know

[Midland Retty]

Midland Retty, my understanding of what I have heard about this is that the ten new residents are paying the single tenant for the pleasure of staying in this house, as I said before, I have heard that the landlord has said he thought about six people were now staying in the house, but is of the opinion that his single tenant is the person at fault, and what exactly is squaters rights?

If I hear any more I will let you all know

Hi Ricardo

Yeah from what you are telling me this is a HMO without doubt ! Sounds an intresting case.

Sqatters Rights (The exact legal term for it escapes me) but I had a case of it recently infact its very similar to the case youve described in this topic - a students rents a small flat off a landlord. After a while a group of his student pals decided to occupy it too.  

However his student palls didnt pay rent and were therefore seen as "squatters"

The landlord had the hassle of serving an eviction notice on them which takes a lot of time - in the meantime they were living there scot free. So people who decide to live on the premises without paying rent cant be turfed out just like that  - they have to be served with notice, and this is what is called (in very very basic terms) "squatters rights"

[Mike Buckley]

Being cynical I would suggest that the local FSO must take action. I appreciate that the lawyers may find various legal loopholes to crawl through however if the action is effective in improving the safety of the place that must be good. If the action is blocked legally then at least the FRA can show that it has tried to take action when things go pearshaped.

[AndyJ]

Sounds to me like all 11 living there regard the house as their dwelling and so there is only one dwelling. Basically for most of the RRFSO the house is simply a shared house and outside scope of the Order. The exception may be article 31 (prohibition). The test for that is going to be whether the house is a single private dwelling. That's one for ther lawyers.

Housing law is by far the safer bet and the FRS should by rights refer the case to Housing by way of complaint. The HA can then do an HHSRS and if necessary serve a prohibition.

[Chris Houston]

I see the posts above all are about the legal side of things......but has anyone offered the occupants any fire safety advice?

[PhilB]

Sounds to me like all 11 living there regard the house as their dwelling and so there is only one dwelling. Basically for most of the RRFSO the house is simply a shared house and outside scope of the Order. The exception may be article 31 (prohibition). The test for that is going to be whether the house is a single private dwelling. That's one for ther lawyers.

Housing law is by far the safer bet and the FRS should by rights refer the case to Housing by way of complaint. The HA can then do an HHSRS and if necessary serve a prohibition.

Andy this premises is in Scotland and the legislation is slightly different. The RRFSO has no relevance. From my limited knowledge of Scottish law I believe it would be classed as an HMO and therefore relevant premises for both the Civic Government (Scotland) Act 1982 and the Fire Safety (Scotland) Act 2005.

I don't know if Scotland has adopted the HHSRS but I do agree this is more appropriately dealt using housing law...but someone must act.

[Midland Retty]

Sounds to me like all 11 living there regard the house as their dwelling and so there is only one dwelling. Basically for most of the RRFSO the house is simply a shared house and outside scope of the Order. The exception may be article 31 (prohibition). The test for that is going to be whether the house is a single private dwelling. That's one for ther lawyers.

Housing law is by far the safer bet and the FRS should by rights refer the case to Housing by way of complaint. The HA can then do an HHSRS and if necessary serve a prohibition.

Regardless of what the tenants regard it as this is a HMO and not a single dwelling or shared house. Shared house isnt a term I've ever heard of before and it isntmentioned in the RRFSO

The local Housing team should strictly speaking deal with this as an agreement signed by most LHA and FRA states that LHA will deal with fire safety in HMO's the FRA will enforce fire safety standards in mixed use buildings - ie HMO with shop underneath.

If something needs to be done straight away then FRA should issue a prohibition notice.