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Part 2 - Licensing of Houses in Multiple Occupation
16. Houses in multiple occupation ( HMOs) are currently required to be licensed by the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000, as amended. This legislation will be replaced by Part 5 of the Housing (Scotland) Act 2006, when it is brought into force.
17. An HMO is a house that is occupied by three or more people, who are members of more than two families. As currently defined, the house has to be the only or principal residence of occupants for them to count towards the occupation level. Under the 2006 Act, it will have to be their only or main residence, but the effect is the same. A house that would otherwise be a licensable HMO is not one if a sufficient number of residents have a main residence elsewhere, possibly including people based outside Scotland who are working here for an extended period.
18. Some local authorities have expressed concern that some landlords are avoiding HMO licensing because - or because they are claiming that - occupants are living in the premises for only a short time and that they have a principal residence elsewhere. There are particular concerns that this could be the case where migrant workers are living in sub-standard and overcrowded conditions, and that landlords may frequently move them about among different premises, each being described as a short-term let.
19. We therefore consider that there may be a case for changing the definition of an HMO in the 2006 Act to bring some short-term lets within the scope of licensing. HMO licensing is not intended to cover premises occupied by people visiting an area on holiday - it is intended to set reasonable standards in accommodation for people working and living in an area and other groups, such as homeless people - so there would be an exemption for holiday lets, as with landlord registration.
20. One option would be to include all short-term lets, apart from holiday lets. This would bring within the scope of licensing houses occupied by people who were visiting an area for a short time to work or carry out research, for example, whether or not they had a main residence elsewhere. However, in order to avoid an anomalous situation regarding properties on long-term lets occupied by people who have a main residence elsewhere, this option would mean scrapping the main residence qualification altogether. This would mean, for example, that a house occupied by people who were on a long-term contract to work in the area, but returned to their main homes at weekends and during holidays, would become a licensable HMO.
21. Another option would be to add the words "in the UK" to the term "only or main residence". This would mean that an HMO, whether on a short-term or long-term let, would count as the only or main residence of any occupant whose only or main residence was outside the UK (apart from people on holiday). It would thus bring HMOs occupied by foreign migrant workers within the scope of licensing, but also those occupied by people from outside the UK who were visiting for short periods for purposes such as short-term study. However, people who have a main residence within the UK would continue not to count for HMO licensing purposes.
22. There may be other implications of changing the definition of an HMO, for example, bringing premises such as backpacker hostels within HMO licensing.
Question 2.1: Do you consider that Part 5 of the Housing (Scotland) Act 2006 should be amended to expand the definition of a licensable HMO to cover short-term lets? If so, should this be done (a) by counting for the purpose of licensing all occupants who have a main residence elsewhere, or (b) by counting occupants who have a main or only residence outside the UK, or (c) by some other way?
Question 2.2: What implications of any such changes do you think should be taken into account before deciding whether to amend the definition of an HMO?
23. A planning authority may decide that HMOs in its area require planning permission. Some local authorities have stated that they are experiencing the problem that some HMOs which meet licensing requirements and have licences do not have planning permission and are operating in breach of planning law. They have either been refused planning permission, or would have been refused planning permission had an application been made, because of their effect on the local amenity.
24. It has therefore been suggested that obtaining planning permission (where it is required), or confirming that planning permission was not required, could be made a requirement for the granting of an HMO licence. This would avoid the anomalous position of a local authority having to grant a licence to premises that are operating in breach of planning control.
25. It has been suggested that current legislation may not allow planning permission to be taken into account when considering an application for an HMO licence, and that provision to allow this may have to be made in primary legislation, such as by making an amendment to Part 5 of the 2006 Act. However, the closure of existing HMOs could lead to many occupants becoming homeless, so it may be that any such provision should relate only to new applications for licences, not to applications for renewals.
Question 2.3: Do you consider that there is a problem with licensed HMOs operating without planning permission?
Question 2.4: Do you consider that having planning permission (where it is required) should be a requirement for the granting of an HMO licence?
Question 2.5: If so, should it be a mandatory requirement, or left to the discretion of each local authority?
Question 2.6: If such a requirement were in place, do you consider that this requirement should relate only to new applications for licences, not to applications for renewals?
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