Local authority powers in relation to HMOs

Local authorities have a very wide range of powers available to control and regulate HMOs. The departments of a local authority most relevant to such regulations are housing, planning, environmental health, and building control.

The Housing (Scotland) Act 2006 gives local authorities various powers to control and regulate houses in multiple occupation.

This content applies to Scotland

Licensing of HMOs

All HMOs must be licensed. [1] Local authorities also have to keep a register of all HMOs in their area and make it publicly available.

The Scottish Government has issued guidance to local authorities on the implementation of mandatory licensing. [2] Landlords are required to apply for a license, which councils may refuse if conditions and management of the property do not meet the minimum criteria. 

Local authorities can also refuse to grant an HMO license if there is already an overprovision of HMOs in that particular area, or where the granting of that HMO application would lead to an overprovision in that area. [3] They may also refuse to grant an HMO license where the granting of that license would constitute a breach of planning control. [4] These powers came into force on 31 January 2012 and have no effect in respect of HMO license applications submitted before this date.

What is a licensable HMO

Properties with three or more occupants from more than two families will require a license. The accommodation must be the only or principal residence of those occupying it. The definition of family member has been expanded to include same sex couples. Accommodation occupied by students during term-time is covered by the order and is therefore subject to licensing. [5]

Exemptions

It is not the case that all HMOs will require a license. There are a number of exemptions, mainly those that are subject to other forms of registration such as residential and nursing homes and boarding schools. Monasteries, convents and other religious communities are exempt. Houses where each occupying person or at least one member of each occupying family has a heritable right of ownership are not regarded as HMOs. [6]

Amenity notices

If a local authority or occupant/tenant believes a property is not in a satisfactory state, then the local authority can carry out an inspection. Following this the local authority can impose a amenity notice. [7] If the owner then does not carry out the work required to bring the property up to standard then the local authority can carry out the work and recover the costs.

If the local authority believes a HMO is not reasonably suitable for occupation it can serve a notice relating to factors such as lighting, ventilation, water supply or washing facilities, facilities for storage, preparation and cooking of food and the disposal of waste water. [8]  The notice should specify the time within which works are to be done, which will not be less than 21 days. It may also waive the requirement for work to be done if the number of persons living in the house is reduced below a specified number.

A local authority has the power to fix a limit on the highest number of individuals who can live in an HMO to prevent or reduce overcrowding. [9] This does not evict those living in the accommodation but means that nobody else can take up residence until the number of tenants falls below the maximum number.

An occupant could also report the landlord to the local authority stating that s/he believes the landlord to be in breach of the compulsory licensing scheme for HMOs.

Penalties

The maximum fine for operating an HMO without a license is £50,000. There are a number of other offences, such as failing to comply with licensing conditions, making false and reckless statements and failing to notify the licensing authority of a material change of circumstances. [10]

Last updated: 29 December 2014

Footnotes

  • [1]

    s.124 Housing (Scotland) Act 2006

  • [2]

    Guidance on the Mandatory Licensing of Houses in Multiple Occupation, Scottish Government, 2011

  • [3]

    s.131A Housing (Scotland) Act 2006 as inserted by s.13(4) Private Rented Housing (Scotland) Act 2011

  • [4]

    s.129A Housing (Scotland) Act 2006 as inserted by s.13(2) Private Rented Housing (Scotland) Act 2011

  • [5]

    s.125 Housing (Scotland) Act 2006

  • [6]

    s.126 Housing (Scotland) Act 2006

  • [7]

    s.151 Housing (Scotland) Act 2006

  • [8]

    s.147 Housing (Scotland) Act 2006

  • [9]

    s.146(2)(b) Housing (Scotland) Act 2006

  • [10]

    s.156 Housing (Scotland) Act 2006 as amended by s.14 Private Rented Housing (Scotland) Act 2011