Do brothers count for HMO? URGENT

[bureaucrazy]

Hello,

I need to let my house by monday to get C4 use when the use classes order takes effect on 6th April, so I need some urgent advice to confirm my understanding of the law.

Therefore, I must let it out by 5th April in a way that is compatible with the existing C3 use but also will be classed as C4 use from the 6th April.

I have been approached by three brothers plus one friend of theirs making a group of 4. They want to share my 2 storey house as one group on a joint AST but under the housing act 2004 they will be deemed 2 seperate households as the related brothers will be 1 and the friend will be the other 1. My confusion lies in the fact that I read somewhere that people of the same family only count as 1 person and I need officially 3 or more persons.

Could someone who knows please clarify this . Thanks in advance...

[schocca]

Have a look here:


Section 258 of the 2004 Housing Act:
http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/2004/cukpga_20040034_en_23#pt7-pb9-l1g258

258HMOs: persons not forming a single household

(1)This section sets out when persons are to be regarded as not forming a single household for the purposes of section 254.

(2)Persons are to be regarded as not forming a single household unless—


(a)they are all members of the same family, or

(b)their circumstances are circumstances of a description specified for the purposes of this section in regulations made by the appropriate national authority.

(3)For the purposes of subsection (2)(a) a person is a member of the same family as another person if—


(a)those persons are married to each other or live together as husband and wife (or in an equivalent relationship in the case of persons of the same sex);

(b)one of them is a relative of the other; or

(c)one of them is, or is a relative of, one member of a couple and the other is a relative of the other member of the couple.

(4)For those purposes—


(a)a “couple” means two persons who are married to each other or otherwise fall within subsection (3)(a);

(b) “relative” means parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew, niece or cousin;

(c)a relationship of the half-blood shall be treated as a relationship of the whole blood; and

(d)the stepchild of a person shall be treated as his child.

(5)Regulations under subsection (2)(b) may, in particular, secure that a group of persons are to be regarded as forming a single household only where (as the regulations may require) each member of the group has a prescribed relationship, or at least one of a number of prescribed relationships, to any one or more of the others.

(6)In subsection (5) “prescribed relationship” means any relationship of a description specified in the regulations.
Annotations:
Commencement Information

I1S. 258 wholly in force; s. 258 in force at Royal Assent for specified purposes otherwise at 18.1.2005 see s. 270

-------------------------

Looking at the above - the 3 brothers are relatives under the definition of the HMO legislation, therefore deemed as "one household". That's my interpretation of that part of the legislation (I'm not a lawyer, but it's meaning looks pretty clear to me).

Considering that, it looks likely that you won't have enough households to meet the C4 designation.

Schocca.

----------------
Note - All my comments here are my views and opinions. I'm not a lawyer, so my legal knowledge is limited at best (which is why I hire professionals when it hits the crunch point).

[mind the gap]

Presumably it also means that if if the three brothers move out at some point and 3 or more unrelated sharers move in, OP will have to apply for change of use to meet the new criteria?

[red40]

I have been approached by three brothers plus one friend of theirs making a group of 4. They want to share my 2 storey house as one group on a joint AST but under the housing act 2004 they will be deemed 2 seperate households as the related brothers will be 1 and the friend will be the other 1.

You will have 3 persons (the brothers) and 1 household because they are related, plus the friend who is a seperate household and 1 person. Therefore you will have 4 persons in 2 seperate households, which under the Housing Act 2004 it is a HMO to which section 254 of the aforementioned Act and consequently will require planning permission for a change of use from the 6th April 2010.


My confusion lies in the fact that I read somewhere that people of the same family only count as 1 person and I need officially 3 or more persons.

This only applies to resident landlords and their families (even if there are 20 of them!) which are counted as 1 household and 1 person.

[schocca]

Households vs persons...

Hmm, this is why I'm not a lawyer! :-)

So the OP may be ok and meet C4 requirements...

But then it also tells me that a 5 bedroom house let to a family (say 2 adults and 2 children) cannot then sublet a spare bedroom out as this will then need immediate planning approval. Is this right?

[red40]

But then it also tells me that a 5 bedroom house let to a family (say 2 adults and 2 children) cannot then sublet a spare bedroom out as this will then need immediate planning approval. Is this right?

No your above quote wouldn't need planning permission as schedule 14 of the Housing Act 2004 states:-

Schedule 14
Buildings which are not HMOs for purposes of this Act (excluding Part 1)

Buildings occupied by two persons

7 Any building which is occupied only by two persons who form two households.

You will need 3 people in 2 households to qualify to be a HMO, which is what the OP has. In fact he/she would have 4 persons in 2 households and will ned to apply for planning after the 6th April.

[schocca]

Er, my example is about two households, one household of 4 people and 1 subtenant. So does not fit the Schedule 14 exclusion and would need planning approval (if we followed your point of view).

But this is ignoring the current issue of the OP. In some respects, the OP has some comfort here, it's possible that the proposed tenancy arrangement may automatically meet the C4 criteria prior to the 6th April. On the other hand it may be in the OP's interest to find an independent third party right now (friend of the brothers?) and be sure that the C4 criteria is achieved prior to the 6th.

Either way, this C4 change is a nonsense and we shall see how messy it gets in the next year or so when local councils get difficult and enforce on situations that have nothing to do with studentification...

[mind the gap]

Er, my example is about two households, one household of 4 people and 1 subtenant. So does not fit the Schedule 14 exclusion and would need planning approval (if we followed your point of view).

But this is ignoring the current issue of the OP. In some respects, the OP has some comfort here, it's possible that the proposed tenancy arrangement may automatically meet the C4 criteria prior to the 6th April. On the other hand it may be in the OP's interest to find an independent third party right now (friend of the brothers?) and be sure that the C4 criteria is achieved prior to the 6th.

Either way, this C4 change is a nonsense and we shall see how messy it gets in the next year or so when local councils get difficult and enforce on situations that have nothing to do with studentification...

My understanding my be flawed but is it not the case that this is simply a power being given to local authorities/councils to enforce as and where they see fit?

[red40]

Schoca, I would re-direct you to the my previous post whereby a resident landlord and their family is classed for the purposes of the Housing Act, as one household and ONE person, and therefore the question you asked about a family of (say 2 adults and 2 children) subletting one room would be 1 household and 1 person (the family) and 1 lodger (sublet tenant). Which would for the purposes of the Act would be 2 persons and 2 households and therefore falling into the remit of schedule 14.

Hope that helps you (not the OP) understand the requirements of the Housing Act 2004 and the definitions of persons, households and the annoying issue of a resident landlord and their families. I wont go into the other combinations that can happen with HMO's and resident landlords.

Hopefully the origianl poster has the answer they required. Their arrangement does fall into the C4 category as of the 6th April.

[bureaucrazy]

I have done some more research and with regard to the example of the resident family subletting, I think that if the original family of 2 adults and 2 children are renting then they count as 2 persons (2 adults) and the lodger would make 3 persons and 2 households in which case it would need C4.

If however a member of the original family were owner occupiers of the property then they would not be tenants in which case all other members of the family are disregarded unless the lodger threshold of >2 is breached it would fall under the exemptions of Schedule 14. If however, they took in 3 lodgers, the other persons threshold would be exceeded and the house would then be an HMO.

I am worried now that if i am wrong about the above, the 3 brothers may be considered 1 person and the friend 1 person making 2 persons and 2 households???

see below schedule 14:

Buildings occupied by owners.6
(1)
Any building which is occupied only by persons within the following paragraphs— .
(a)
one or more persons who have, whether in the whole or any part of it, either the freehold estate or a leasehold interest granted for a term of more than 21 years; .
(b)
any member of the household of such a person or persons; .
(c)
no more than such number of other persons as is specified for the purposes of this paragraph in regulations made by the appropriate national authority. .
(2)
This paragraph does not apply in the case of a converted block of flats to which section 257 applies, except for the purpose of determining the status of any flat in the block. .
Buildings occupied by two persons.7
Any building which is occupied only by two persons who form two households.



the number of other persons in 6(1)(c) has been set to two somehow so an owner occupier would need 3 lodgers in addition to his family to need C4.

[bureaucrazy]

Back to my original question, since schedule 14 part 7 says:

"Buildings occupied by two persons.7
Any building which is occupied only by two persons who form two households. "

exempts properties occupied by only 2 people from being an hmo.

In my case there are 3 brothers plus one friend and that makes 4 physical people which is more than 2 so I should be ok for C4??

I am still unclear of whether there is any circumstance where the 3 brothers could be considered only one person given that none are owner occupiers as stated in schedule 14 part 6 in my previous post.

Surely for any AST, they must count the number of physical persons otherwise, if it was the case that 3 brothers = 1 person and 1 friend = 1 person is exempt as above then it would be neccessary to have:

1. Have more than 2 persons, physically = minimum 3 persons AND
2. All 3 persons must not be related

If that was the case then it follows that you would need a minimum of 3 households, since the three persons must not be related.

BUT the housing act 2004 says that any house with more than a single household is an HMO therefore housholds minimum = 2.

Therefore I deduce that since the households threshhold is 2 and there is an exemption for houses with only 2 occupiers physically, any requirement to have more than 1 person who was not related to the others would also make it a requirement to have at least 3 seperate households! All physical occupiers must be counted unless disregarded as members of an owner occupier's household(schedule 14 part 6).

I am 90% sure that three brothers count as 3 physical persons and 1 household plus the friend which makes 4 persons ans 2 households = HMO

Is that right? Because that 10% doubt is making me sick with worry (physically)

also look at the direct gov page on hmos (google direct gov hmo)

[red40]

the three brothers count as 3 physical persons and 1 household plus the friend which makes 4 persons and 2 households.

Is that right?

Perfectly correct, so yes you are right :D


Therefore you will have 4 persons in 2 seperate households, which under the Housing Act 2004 it is a HMO to which section 254 of the aforementioned Act and consequently will require planning permission for a change of use from the 6th April 2010.

[bureaucrazy]

So the 3 brothers plus 1 friend = 4 persons and 2 households = HMO!:)

If I get 'em in tommorrow is it the case that I automatically get established C4 use? and won't need planning permission?

Should I apply for a certificate of lawful use and how do I do that?

[schocca]

the number of other persons in 6(1)(c) has been set to two somehow so an owner occupier would need 3 lodgers in addition to his family to need C4.

This is defined in the SI here :
http://www.opsi.gov.uk/SI/si2006/20060373.htm


Statutory Instrument 2006 No. 373

The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006

Cut'n'paste of the relevant bit:

Buildings that are not HMOs for the purposes of the Act (excluding Part 1)
6. —(1) A building is of a description specified for the purposes of paragraph 3 of Schedule 14 to the Act (buildings regulated otherwise than under the Act which are not HMOs for purposes of the Act (excluding Part 1)) where its occupation is regulated by or under any of the enactments listed in Schedule 1.

(2) The number of persons specified for the purposes of paragraph 6(1)(c) of Schedule 14 to the Act is two.

(a nice lady from CLG pointed me to this SI a few weeks ago).

[red40]

If you get them in tomorrow or I would take an educated guess if you got the tenancy agreement/s signed and dated tomorrow you would fall outside the new requirements of planning.

I am not sure you would have to get a certicate of lawful use, perhaps it is something that you could ask in the planning thread.