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HMO licences may limit occupation to students

10/10/18

The Supreme Court today confirmed that a condition imposed under Part 2 of the Housing Act 2004 on a licence to let a house in multiple occupation (HMO) may limit occupation to occupiers of a particular class, such as students.

The question arose from decisions made by Nottingham City Council in respect of two HMOs. In each case, the Council granted the licence on condition that the attic bedroom, which was small and had a sloping roof, was not used for sleeping unless and until altered to increase the usable floor space. The First-tier Tribunal varied the condition to permit the attic room to be used for sleeping, on the basis that the room’s small floor space was compensated for by the extra space available in a communal living room, given that student or similar cohesive living was envisaged. It imposed a condition that the room was occupied by a student for no more than 10 months per calendar year. The Upper Tribunal dismissed the Council’s appeal. The Court of Appeal dismissed the Council’s further appeal, but imposed a further condition requiring all occupants of the houses to be students.

On appeal to the Supreme Court the respondent landlord did not appear and the Court appointed an Advocate to the Court to make submissions on his behalf. In a judgment by Lord Lloyd-Jones with which the other members of the Court agreed, the Court accepted the submission of the Advocate to the Court that: (1) on a natural reading of s. 67 of the 2004 Act, a condition “regulating the occupation” of a house is apt to include one that governs how or by whom it may be occupied; and (2) the condition limiting occupation to students, as varied by the Court of Appeal, was a sufficiently precise proxy for cohesive living and was therefore not irrational. The condition limiting occupation to 10 months per year was, however, irrational and was deleted.

The Judgment is here

Martin Chamberlain QC appeared at the Court’s request as Advocate to the Court.