House in multiple occupancy guide

Housing (Scotland) Act 2006, Private Rented Housing (Scotland) Act 2011, Licensing of Houses in Multiple Occupation ("HMOs") - Guidance Notes

These notes are designed to help you. They are only for guidance and do not set out the detailed legal provisions nor do they attempt to interpret these. The Council can accept no responsibility for anything in or omitted from these notes. The Licensing legislation is complex, and we strongly recommend that you consult an independent Solicitor on the application and on the legislation prior to completing it.

These notes are in 2 parts:

A. Information on the HMO Licensing system

B. Applying for a Licence

The main legislation on HMOs is the Housing (Scotland) Act 2006. This Act was amended by the Private Rented Housing (Scotland) Act 2011.

The Acts are available on a public website:

• https://www.legislation.gov.uk/asp/2006/1
• https://www.legislation.gov.uk/asp/2011/14

The Law defines an "HMO" as Living Accommodation occupied by 3 or more persons:

(a) who are not all members of the same ‘family’ (as defined) or of one or other of two families, if

(b) its Occupants share one or more of the 'Basic Amenities' with each other.

The 'Basic Amenities' are—

(a) a toilet,

(b) personal washing facilities, and

(c) facilities for the preparation or provision of cooked food.

No. An HMO does not need to be licensed if

(a) it has a Temporary Exemption Order (TEO) (see Paragraph 4 below), or

(b) one of the exemptions set out in Section 126 of the 2006 Act applies.

A TEO is an Order which the Council can grant if it is satisfied that the Owner will take steps, within 3 months, to mean that the HMO stops being one that needs a Licence. There is no fee for applying for a TEO but the Council can put conditions on it requiring the Owner to improving the safety or security of the Occupants during that period (See Sections 142 and 143).

If you do not intend to apply for a Licence, you should apply for a TEO.

You should use the same Application Form that you would use to apply for a HMO Licence, but you would complete Parts B,C,G & H of the Form. You need to tell the Council:

• What steps do you intend to take with a view to securing that, within 3 months of the TEO being granted, the Living Accommodation stops being an HMO which requires to be licensed?
• What work in the HMO do you propose to do for the purpose of improving the safety or security of its Occupants during the TEO period?

Before you apply, you should:

1. Read the Application form and the Licence conditions.
2. Prepare to keep records.
3. Check under other regulation systems.
4. Prepare a Layout Plan and Location Plan.
5. Get your title deeds
6. Collect Safety Certificates and other documents

You can download both these things from the same website that these Notes are on.

The Application form sets out the information that the Council needs from you to deal with your Licence Application.

You will have to pay a fee when you apply for the Licence. It is important that you supply all the information, as the fee is not refunded if the Application is refused or if the Council refuses to consider it because it involves a "Breach of Planning Control".

The Licence will have conditions and you will have to know what the Council expects you to do.

If you break the conditions:

• the Council can make a "Rent Suspension Order" against you. This would mean that you would not be able to charge rent or claim Housing Benefit, but you couldn't evict the tenants for 'rent arrears' either;
• you could be prosecuted;
• the Council might refuse to grant a new Licence to you after the current Licence expires (you will have to apply for a new Licence at least every 3 years).

When the HMO is operating, you will need to keep records of everyone in the Living Accommodation - not just the Main Occupier, but everyone who lives there. For example, if a parent is a Tenant of the Living Accommodation or any part, and lives there with a partner, children and other relatives, the parent is the "Main Occupier" and the partner, children and other relatives are all "Occupiers". You will need to keep records of everyone. The details of the records you need to keep are set out in the Licence Conditions. Any Council Officer can ask to see the records.

You should read these to see what is expected. You might decide to keep the records on a computer system, such as a spreadsheet, and so you will want to set this up first.

The decision to grant a Licence does not mean that you have permission under other regulation systems, so you should discuss your proposals with other offices in the Council -

• Development Management (Planning)
• Protective Services (Building Standards)

You might be told that, as well as applying for a Licence, you will need to apply for things like:

• Planning Permission
• A Certificate of Lawfulness of Use or Development Building Warrant

It is very important that you check your position under the Planning laws before you apply for a Licence.

This is because if your proposal would involve a "Breach of Planning Control", the Council is allowed to refuse to even to consider your Licence Application. This means that your proposal would be rejected and you would have to deal with your Planning position if you wanted to apply again for a Licence.

So when you apply you will have to give us documents from the Council showing that you have either Planning Permission or "A Certificate of Lawfulness of Use or Development".

We need a detailed Layout Plan showing:

• locations of Fire Alarm and Detection System, Fire Fighting Equipment, and Fire Exits
• locations of shared areas, showing what appliances (like cookers and fridges) are available for common use;
• the location of the residents' rooms. Each room must be numbered on the Plan. When you apply for the Licence you will have to say how many Occupiers will be in each room, as well as the total number of Occupiers in the whole Living Accommodation.

The plan should be drawn at 1:100 scale or larger. A plan prepared by an architect or surveyor is likely to be enough to start the Application process. You may be asked for more information later.

We also need a Location Plan, showing the Living Accommodation's position in relation to neighbouring properties, boundaries and roads.

By Law the only person who can apply for an HMO Licence is the owner of the Living Accommodation concerned, so we need to see evidence that you are the owner. This could be

• a Land Certificate
• a Deed recorded in the Register of Sasines

The documents you need are listed in Part H of the Application Form.