by Richard Jones
From July 1 wide-ranging obligations have been placed on both landlords of houses in multiple occupation (HMOs) and their agents as a result of the coming into effect of the new management code for HMOs contained in The Housing (Management of Houses in Multiple Occupation) Regulations 1990 (the regulations)(1). As a result of amendments made to the Housing Act 1985 the regulations will automatically apply to all HMOs(2). The previous regulations(3) were applied individually only by the local housing authority making a management order when they considered this to be necessary. A breach of the regulations can be a criminal offence, so in future the criminal law will be available universally to enforce proper standards of management for bed-sitters, hostels, flatlets and other similar accommodation. The regulations also apply to self-contained flats in converted houses.
Residents of this kind of accommodation will now have a greater degree of protection without their having to resort to civil proceedings to enforce their rights under tenancy agreements. The opportunity has been taken to update the regulations themselves. They apply both to private- and public-sector landlords throughout England and Wales.
The regulations will apply to a particular property where two conditions are met. First, the property must be an HMO; second, the property must have a manager. The basic definition of an HMO is a house which is occupied by persons who do not form a single household(4). The term “house” has not only its ordinary meaning but includes any part of the building which, although not regarded as a house, was originally constructed, or has been subsequently adapted, for occupation by a single household(5). Thus, while a purpose-built block of flats is not within the definition, an individual flat can be if it is in multiple occupation. It is unlikely that a purpose-built hotel which has been converted to a hostel is within the definition. On the other hand if a hotel, which is in a converted house, is further converted to a hostel then it will be within the scope of the regulations.
The manager is the owner of the freehold of the property (or a lessee) who receives rents or other payments from persons who are tenants of parts of the house or from lodgers, whether payment is received directly or through an agent or trustee(6). Further, a person who as an agent (or trustee) receives such payment is also the manager. Managing agents who collect rents for HMOs will be the manager for the purposes of the regulations, alongside the landlord of the property(7). So far as licensees are concerned the present view of the courts is to treat them as lodgers(8). It does not matter if payment is not actually made by the tenants or lodgers but is instead paid on their behalf, for example by way of housing benefits(9). If the whole of an HMO is let out on a single tenancy to a number of occupants who are joint tenants, then effectively the house is outside the scope of the regulations because there is no one who falls within the definition of the manager for the property as there is no letting of parts of the property. The landlord of a shared house let out in this way could therefore avoid the regulations, but not if it is let to lodgers or licensees.
Various obligations are placed upon the manager by the regulations. They are detailed and comprehensive, but unfortunately do not distinguish between different types of accommodation. The basic responsibility of the manager is to ensure that various parts of the house, as well as the living accommodation and installations in it as specified in the regulations, are both in and are maintained in repair. Where appropriate they must also be kept in a clean condition, good order, and proper working order. In deciding on the standard of repair regard must be had to the age, character and prospective life of the house as well as its locality. These repairing obligations extend to the means of water supply and drainage; shared parts of the house (eg kitchens and bathrooms); installations for the supply of gas and electricity, lighting, space heating and for sanitation; shared baths, sinks and washbasins; shared installations for cooking or storing food; any other installations in shared kitchens, bathrooms, lavatories or washbasins; letterboxes; the internal structure of living accommodation; all windows and other means of ventilation; and every shared outbuilding, yard etc, together with boundary walls, fences and railings.
One question left unanswered is whether the manager must carry out the works himself, even where under the terms of the tenancy or other agreement the occupant is responsible for repairs. Section 11 of the Landlord and Tenant Act 1985 requires a landlord to repair the structure and exterior of a dwelling and various installations in it where a tenancy is for a term of less then seven years. Generally a landlord cannot contract out of this obligation. Otherwise repairing responsibilities are a matter for agreement. If the occupant is liable, since the regulations use the word “ensure” it would seem that the manager’s responsibility is one of making sure that the occupant carries out his responsibilities.
In addition to these various repairing obligations further responsibilities are placed on the manager. He must not unreasonably cause the supplies of water, gas or electricity to be interrupted. Water fittings must be protected against frost. Staircases, landings, corridors and entrances must be kept reasonably clear from obstruction. All handrails and banisters must be kept in repair. Any that are missing must be replaced and additional ones supplied if necessary for safety. Stair coverings must be safe and safely fixed. Installations for lighting parts of the house, including staircases and entrances, must be readily available for use. Living accommodation must be in a clean condition at the beginning of any occupancy. The manager must ensure that all means of escape from fire and all fire precautions are kept in repair. Any shared garden must be maintained in a reasonable condition. Any part of the house not in use (including any which is subject to a closing order) must be kept clean and free from rubbish. The manager must not allow refuse and litter to accumulate in the house and is obliged to provide suitable dustbins on an adequate scale.
The manager is also placed under a duty regarding the general safety of residents. He must ensure that such precautions are taken as are reasonably required to protect residents from injury as a result of the design of the house or its structural condition. Access must be prevented to any roof or balcony which is not in all respects safe, or it must be made safe. Safeguards must be taken to avoid the danger of accident on staircases where window sills are at or near floor level (eg by the provision of safety bars).
The regulations also require the display of certain notices in the house in suitable positions where they are readily visible. Notices must be displayed so as to show the means of escape in case of fire. This would even include the situation where, as is usually the case, the main staircase is the way out. The manager must also display a notice containing his name and address and telephone number (if any). He must describe himself on the notice as manager and, where appropriate, as agent (or trustee) for the receipt of rents.
The regulations provide for various exemptions relating to the manager’s duties. Nothing need be done relating to water, drainage, gas or electricity supplies where this would not comply with any relevant regulations, nor if it would be the responsibility of a local authority or the supply authority. The manager must, however, bring the matter promptly to the attention of the relevant authority. A manager is not required to repair anything which a resident is entitled to remove from the house, or any damage resulting because a resident has not used his living accommodation or any windows or other means of ventilation in a tenant-like manner. The manager is liable only to repair or clean those parts of the premises which are actually outside the house to the extent that he either has the power to do so or is liable anyway for such matters.
The regulations not only apply to the landlord or his managing agent but also place duties on residents with a view to ensuring that the manager can effectively carry out his duties. For these purposes “resident” includes any tenant, lodger or other person living in the house. Residents are required to take reasonable care not to hinder or frustrate the performance by the manager of his duties. They must allow the manager, at all reasonable times, to enter into any room which they occupy and, on request, provide information where this is for the purpose of performing his duties. The residents must comply with any reasonable arrangements made by the manager relating to means of escape from fire, fire precautions, or the storage and disposal of rubbish. Residents must take reasonable care to avoid causing damage to anything which the manager is obliged to keep in repair under the regulations.
So far as enforcement of the regulations is concerned a criminal offence is committed by any person (whether he is the manager or a resident) if he knowingly contravenes the regulations. Alternatively it is an offence, without reasonable excuse, to fail to comply with the regulations(10). The maximum fine is currently £400. Prosecutions can be initiated by the local housing authority or privately. Additionally, the local housing authority are also empowered to serve a notice on the manager specifying works which the authority considers are required to make good any neglect to comply with the regulations(11). There is a right of appeal to the county court on various grounds against such a notice within 21 days of the date of its service(12). Appealing against the notice effectively puts it into suspense pending the determination of the appeal(13). Failure to comply with a notice which is effective is also a criminal offence and the maximum fine is £1,000(14). The local authority have the power to enter and carry out the works themselves in default of compliance with such a notice and may recover the expenses of doing so(15). The Department of the Environment have advised local authorities that they should take care in enforcing the regulations to establish whether poor standards are due to management neglect or to misuse of the premises by the residents. Where works are required the DOE expect that local authorities should normally serve notice requiring the carrying out of works before considering a prosecution(16).
The local housing authority have statutory powers of entry to inspect a property without giving any prior notice in order to see whether there has been a breach of the regulations(17). If necessary a warrant to authorise entry can be obtained from a magistrates’ court(18). It is a criminal offence, with a maximum penalty of £400, to intentionally obstruct an officer of the local authority who is authorised to enter the premises in this situation(19). If so required, by written notice given by the local housing authority, the manager must provide the authority with information which they may request, concerning the number of individuals accommodated, the number in each household and the purpose for which any room is being used(20). Failure to comply is itself a breach of the regulations and is punishable accordingly.
Landlords should now take immediate stock of all the properties which they own to ensure compliance with the regulations, and managing agents will wish to review the properties which they manage. Managing agents will also wish to reconsider their management agreement with their clients to decide who is to be responsible, as between the owners and themselves, for complying with the regulations. A managing agent may well wish to retain sufficient funds to ensure that he can comply with any notice requiring works, or at least ensure that a suitable indemnity is obtained. It must be remembered, however, that generally no indemnity can be enforced against the consequences of a breach of the criminal law. It can be envisaged that as the existence of the regulations becomes more widely known residents will make complaints to the local authorities which will result in action by them to enforce the management code.
References
(1) SI 1990 No 830
(2) Section 369, Housing Act 1985 (“1985 Act”), as amended by Local Government and Housing Act 1989 (“1989 Act”) Sch 9, para 56
(3) The Housing (Management of Houses in Multiple Occupation) Regulations 1962, revoked by the 1990 regulations, para 17
(4) 1985 Act, section 345(1)
(5) 1985 Act, section 345(2) as inserted by 1989 Act, Sch 9, para 44
(6) 1985 Act, section 398(6)(a)
(7) 1985 Act, section 398(6)(b)
(8) Aslan v Murphy (No 1) [9] 2 EGLR 57; [1989] 38 EG 109, CA
(9) 1990 regulations para 2(1)
(10) 1985 Act, section 369(5)
(11) 1985 Act, section 372
(12) 1985 Act, section 373
(13) 1985 Act, section 375(2) as inserted by 1989 Act, Sch 9, para 61
(14) 1985 Act, section 376
(15) 1985 Act, section 375 and Sch 10
(16) DOE Circular 5/90 Houses in Multiple Occupation, paras 21 and 22
(17) 1985 Act, section 395
(18) 1985 Act, section 397
(19) 1985 Act, section 396
(20) 1990 regulations, para 15
