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Guidance on the Mandatory Licensing of Houses in Multiple Occupation

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Provisions of the Order

The following are, in question and answer form, the main points of the licensing system introduced by the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000. More detailed information on the Order’s provisions can be found in Appendix 1.

When does the scheme begin?

The scheme begins when the Order comes into effect (and so licensing authorities can consider applications over the summer), but the first licences will not be required to be in place until 1 October 2000. If an existing HMO which needs a licence under this Order at 1 October 2000 is above the initial occupation threshold for licensing before that date, the HMO operator should apply for a licence before then. (In this guidance, ‘HMO operator’ means a person who is required to apply for an HMO licence or who holds such a licence.) If that is done, that HMO will then be allowed to continue to operate until a decision is made on the application, without the operator committing a criminal offence. If the application is refused, three months grace is given to the operator. If the HMO operator appeals against the refusal, it will be open to the local authority to grant a temporary licence, pending the outcome of the appeal. Where a person holds a licence under the voluntary scheme, which is in force at the date when a licence under the new Order would otherwise be needed, no licence under the new Order will be needed for so long as that voluntary scheme licence remains in force.

What is a licensable HMO?

In practice, houses in multiple occupation are essentially shared accommodation including flats, bedsits, lodgings, bed and breakfast accommodation and other communal accommodation such as student residences and hostels. Houses within a building which, although otherwise separate, share use of a sanitary convenience or personal washing facilities or cooking facilities, are taken to form part of a single house. To be classified as a licensable HMO the accommodation must be the only or principal residence of a specified number of people who are not members either of the same family or of one or other of two families.¹ The specified number in the mandatory licensing scheme will start, on 1 October 2000, at six or more and reduce annually until it reaches its minimum level, ie three or more.

What constitutes a family?

The definition of family members is broadly the same as in section 83 of the Housing (Scotland) Act 1987, except that it has been expanded to include same sex couples. A full description of the relationships covered is in the Order.

What premises are exempted?

Premises registered as a nursing home under the Nursing Homes Registration (Scotland) Act 1938, as a residential establishment under section 62 of the Social Work (Scotland) Act 1968 or as a private hospital under the Mental Health (Scotland) Act 1984 will be exempt from HMO licensing. This is because they are already subject to inspections to ensure that they provide a satisfactory level of accommodation. Boarding schools are exempt because they are also subject to inspection. Monasteries, convents and similar religious communities are exempt because of their spiritual and voluntary nature. Patients in public hospitals do not count towards the licensing threshold because the premises are essentially a temporary residence for them, but staff for whom the premises are the only or principal residence do count. Houses in which each occupying person or at least one member of each occupying family has a heritable right of ownership are not regarded as HMOs.

What about students in term time?

Students in accommodation that is an HMO in term time are treated as being solely or principally resident there in order to calculate the number of occupiers of an HMO.

What about HMOs owned by local authorities?

HMOs owned by local authorities are included in the licensing system and local authorities have a responsibility to ensure that their own premises meet all of the conditions and standards of licensing applying to other HMOs of the same type in their area. Local authority accommodation that is exempt from registration under the Social Work (Scotland) Act 1968 is not thereby exempt from HMO licensing.

What is the licensable activity?

What is licensed by this Order is the giving of permission for a house to be occupied, where the permission is given knowingly by the owner of that house and where the house is a house in multiple occupation, within the meaning of the Order. This includes continuing to allow occupation once permission has been given. Although this will cover leases in the majority of cases, this wording is used so as to include arrangements that are not conventional leases, including situations where an employer provides accommodation for employees (provided that the accommodation meets the definition of an HMO). It is not necessary for any rent or other consideration to be due from or on behalf of the occupiers. A separate licence is required for each house occupied as an HMO.

Who needs to apply for a licence?

The applicant must be the owner of the property. The owner is any person who has a heritable right in the property capable of being registered in the Land Register or being recorded in the General Register of Sasines. Where there is more than one owner of an HMO, only one of them needs to obtain a licence. The licensee may be a corporate body.

When should the application be made?

Local authorities’ publicity for the scheme should make clear to operators that it would be sensible for the application to be made not less than twelve months before the licence is required, so as to ensure that the licence will be in place on the appropriate date (ie, on the date when existing HMOs meet the licensing threshold or when new licensable HMOs open). (Arrangements for HMOs above the initial threshold are described above.) This means that, until the system is fully in operation, local authorities will have to consider applications relating to HMOs where the number of occupiers is one less than the threshold current at the time. A new HMO cannot begin to operate until it has a licence. Where it is considered appropriate (such as where the property is sold and where the buyer wants to carry on use as an HMO), local authorities might consider granting temporary licences pending consideration of an application.

Are there any special arrangements for women’s refuges?

The posting of site notices when applying for a licence or the renewal of a licence, and newspaper advertising of applications, are not to apply when the application is in respect of a women’s refuge. The only publicity will be letters to neighbours. This is to protect the security of persons residing or working in such establishments. It is suggested that, in determining who are the neighbours, local authorities follow the procedure appropriate to planning applications.

What is the period for consideration of an application?

The maximum period allowed for consideration of an application is 12 months. However, it is expected that local authorities will normally deal with applications within six months (as is the case with the discretionary licensing system). The longer period is intended to allow applicants more time to obtain permissions and carry out work required before a licence is granted, if necessary.

What powers will a local authority have when it suspects that premises are being used as an unlicensed HMO?

The Order gives an authorised officer of a local authority the power to enter and search premises suspected of operating as an HMO without a licence. This is in addition to the similar power given to police officers by the 1982 Act, which also gives rights of entry and inspection of licensed premises to authorised officers of the licensing authority or the fire authority or a constable. Entry can be made without prior notice.

What are the sanctions against an operator who operates an unlicensed HMO?

In addition to other criminal offences at section 7 of the 1982 Act which will apply to HMOs as they apply to other licensing regimes under that Act, the maximum fine for operating an HMO without a licence is level 5 (£5,000).

Can a discretionary licensing scheme operate alongside the mandatory one?

If the discretionary scheme has a lower threshold than the mandatory one, the local authority should keep it in operation alongside the new scheme to avoid some HMOs escaping from licensing. It will be superseded by the mandatory system after one year when the latter’s threshold reduces to more than four. Licences granted under the discretionary scheme will however continue until their expiry at which point, in order to continue as an HMO, a licence under this Order will be needed. Special provision is made (until 30 September 2001) for certain voluntary scheme licences that expire before applications under this Order have had time to be dealt with.

Will operators with discretionary licences need mandatory ones?

The Order explains how operators will move from the old scheme to the new one, bearing in mind the different thresholds between the discretionary and mandatory schemes. The change in the definition of the licensable activity, from use as an HMO to the permitting of the occupation of a house as an HMO, should not, in practice, make any difference to an operator moving from discretionary to mandatory licensing.

An HMO with a licence issued under the discretionary scheme will need a licence under the mandatory scheme when the old licence expires, is surrendered or is suspended or revoked, if it meets the mandatory scheme’s threshold at that point. Otherwise it will continue within the discretionary system. An application for a mandatory licence must be made allowing time for it to be considered so that the licence will be in place when required.

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