Why is there regulation of HMOs?

Standards of physical accommodation and management in multiple occupied housing have been an issue of concern for many years, and a variety of schemes were implemented in an attempt to control and improve those standards. In 1991, local authorities in Scotland were given discretionary powers to introduce licensing of houses in multiple occupation (HMOs) under the Civic Government (Scotland) Act 1982. In 2000, a new Order under that Act was made, making it mandatory for all authorities to introduce an HMO licensing regime.

1.1.6   The 2006 Act moves the regulation of HMOs into the mainstream of housing legislation, ensuring it has better strategic links with other housing policy, locally as well as nationally. While aspects remain similar to the previous regime, there are notable differences such as additional enforcement powers for authorities and increased penalties for criminal offences. An overview of the new regime, and specific guidance on enforcement powers, is provided within this guidance. 

How was this guidance developed ?

1.1.7   Scottish Government officials worked with a subgroup of the Scottish Houses in Multiple Occupation Network Group (SHMONG), a national group of local authority staff working on HMO licensing.

1.1.8   Scottish Government officials agreed with SHMONG members to use the existing non statutory local authority guidance as a platform from which to prepare this statutory guidance. The draft guidance was the subject of a full public consultation between February and March 2011. The issues raised during the consultation and at a series of interviews with owners of HMOs were fully considered in finalising the guidance.

What does the guidance contain ?

1.1.9   The guidance relates to the procedures and activities involved in the exercise by local authorities of their functions under Part 5 of the 2006 Act in respect of HMO licensing.

Part 1 introduces the regime and the guidance

Part 2 outlines key provisions within Part 5 of the 2006 Act.

Part 3 deals with operation of the licensing regime by local authorities, offering guidance in areas such as internal co-ordination and fees.

Part 4 discusses the assessment of the applicant and the living accommodation, and imposing licence conditions.

Part 5 deals with the enforcement of the licensing regime.

Annex A contains specifications relating to physical standards.

Annex B gives details of membership of the SHMONG sub group.

PART 2          OVERVIEW OF THE LEGISLATION AND APPLYING FOR AN HMO LICENCE

2.1       OVERVIEW

What is the licensable activity?

2.1.1   A licence is required for the occupation of living accommodation as an HMO.  The application for a licence must be made by the owner of the living accommodation. The details of any agent authorised to act for the owner in relation to the occupation of the living accommodation must be specified in the application.

2.1.2   Section 164 of the 2006 Act provides for situations of joint ownership.  The licence may be applied for and held by any one of the owners or jointly.

2.1.3   Where there are joint owners but the application is made by only one of them, there is no requirement for the consent of other joint owners.  Neither is there any requirement for other joint owners to be assessed as a fit and proper person.

What is the definition of an HMO?

2.1.4   Living accommodation is an HMO within the meaning of the 2006 Act if it is:

• occupied by three or more persons from three or more families, and
• occupied by them as their only or main residence or in some other manner specified by the Scottish Ministers by order, and
• either a house, premises or a group of premises owned by the same person with shared basic amenities, or some other type of accommodation specified by the Scottish Ministers by order.

2.1.5   The legislation covers not only ordinary houses, flats and bedsits, but also other types of residential accommodation including hostels, student halls of residence, and staff accommodation in hotels or hospitals. Accommodation within a building which, although otherwise separate, shares use of a toilet, personal washing facilities or cooking facilities, is taken to form part of a single HMO. The accommodation must be licensed regardless of the type of owner (e.g. private individual, Registered Social Landlord etc.) as long as it is not otherwise exempt (see section 2.1.8 below).

2.1.6   As referred to in 2.1.4 above, additional types of accommodation may be specified by the Scottish Ministers as HMOs by order, under section 125(1)(b) of the 2006 Act (inserted by section 13(1) of the Private Rented Housing (Scotland) Act 2011).

2.1.7   The definition of “family” is set out in full in section 128 of the 2006 Act. The definition includes married, unmarried and same-sex couples and stepchildren and foster children, as well as certain close blood relatives.