1. Purpose
This guidance note is intended to provide the framework for Registered Building Inspectors when inspecting a change of use of a dwelling house so that after the work has been completed the building will contain Rooms for Residential Purposes, more commonly referred to as House in Multiple Occupation (HMO). The guidance given within is not a statement of law but is intended to help you understand the main requirements with regard to the Building Regulations 2010 (as amended) only. For further information regarding compliance with the Building Regulations 2010 (as amended), you should contact Bracknell Forest Building Control.
Furthermore, for more specific advice on HMOs, you should also contact Bracknell Forest's Planning, Environmental Health and Housing departments.
2. Introduction
If a residential dwelling is to be converted so that it is no longer occupied by a single-family, it is no longer considered to be a dwelling house and as such the building work will be deemed to be a ‘change of use’. For this ‘change of use’, an Application for Building Control Approval with Full Plans would be required to be submitted, prior to the commencement of work. This is required because the property will no longer fall under the category of a single domestic dwelling.
Furthermore, as the property will include common/communal areas (i.e. hallways, bathrooms, common rooms, etc.) the Regulatory Reform (Fire Safety) Order 2005 (RRFSO) also needs to be considered, and Bracknell Forest Building Control will liaise with the Fire Authority to ensure compliance with these Regulations. In addition, the application will be assessed against the functional requirements of the Building Regulations 2010 (as amended) to ensure the proposals meet the required minimum standards. These have been summarised in Appendix A of this policy.
3. HMO definition
This policy provides guidance as to what Bracknell Forest Council considers as being a House in Multiple Occupancy (HMO). It should be noted that the information given is not definitive and is to help understand specific responsibilities with regard to the Building Regulations 2010 only. For further information you should contact Bracknell Forest Building Control.
A 'House in Multiple Occupation', (HMO) is defined in Section 254 – 260 in the Housing Act 2004 as a building, or part of a building such as a flat:
- which more than one household occupies and share an amenity such as a bathroom, toilet or cooking facilities
- is occupied by more than one household and which is a converted building, which does not entirely comprise of self-contained flats
- which comprises entirely of converted self-contained flats and the standard of conversion does not meet, at a minimum, that required by the 1991 Building Regulations and more than one third of the flats are occupied under short tenancies
To further clarify this definition, Regulation 2 of the Building Regulations 2010 made under the umbrella of the Building Act 1984, describes a room for residential purposes (RRP), into which category an HMO falls into, as:
- room or suite of rooms, which is not a dwelling house or flat and is used by one or more persons to live and sleep
Furthermore, Regulation 2 goes on to clarify RRPs to include rooms in hostels, hotels, boarding houses, halls of residence and residential homes. To further define RRPs, it stipulates that if these rooms are separated from the rest of the building by a door designed to be locked and the dwelling is not to be occupied by a single household, the property is then indeed an RRP.
To be categorised as an HMO under the Housing Act 2004, the property in question must also be occupied by more than one household and meet one of the criteria listed below:
- as their only or main residence
- as a refuge by persons escaping domestic violence
- by students undertaking a full-time course of further or higher education
- for some other purpose that is prescribed in the Housing Act 2004
A household is defined in the Housing Act 2004 as being a building which is shared by:
- families, (including single persons and co-habiting or sharing couples whether or not of the opposite sex)
- any other relationship that is prescribed by regulations, such as domestic staff or fostering or carer arrangements
4. Exemptions from HMO definitions
Certain types of buildings are not considered to be a HMO’s for the purpose of the Housing Act 2004 and include buildings that are:
- managed or owned by a public body (such as the police or the NHS) or a Local Housing Authority or a Registered Social Landlord
- where the residential accommodation is ancillary to the principal use of the building (for example religious establishments, conference centres etc.)
- entirely occupied by freeholders or long leaseholders and their households
- occupied by no more than 2 households, each of which comprise a single person (for example 2-person flat shares)
- buildings owned or managed by educational establishments and occupied principally by full-time students (for example halls of residence) may be specified as exempt by order
- buildings regulated otherwise than under the Act, such as care homes, bail hostels etc. where descriptions of uses to be exempt can be specified in regulations
- buildings occupied by long leaseholders and their households, with 2 or fewer additional residents (for example lodgers)
5. Guidance summary
There appears at first glance to be contradictions between the Building Act 1984 and Housing Act 2004. For example, halls of residence may be exempt from being an HMO under the Housing Act 2004 and are still indeed considered to be RRP under the Building Act 1984. However, halls of residence would definitely not be deemed to be an HMO under the Building Act 1984 to which the Building Regulations 2010 apply. Scenarios such as this are few and far between and the standards required to demonstrate compliance with the Building Regulations 2010 would be identical to if the halls of residence, or indeed any similar scenario, were defined to be an HMO for the purposes of Building Regulations 2010. Therefore, the difference in terminology used between the 2 separate enforcing bodies, in cases such as this would not detract from the level of compliance required by either.
There are obvious similarities between the definitions of a HMO in the two pieces of legislation, and the basic principles are indeed the same. If a property is to be converted so that it is no longer occupied by a single-family, as defined in Section 3, and does not meet the exempting criteria in Section 4, it is considered to be a house in multiple occupation (HMO).
For this ‘change of use’ an Application for Building Control Approval with Full Plans is required to be submitted to your Local Authority Building Control, prior to the building undergoing the ‘change in use’. This process is necessary as the property will no longer fall under the category of a single domestic dwelling. Furthermore, the property will comprise of common, communal, shared areas (for example hallways, bathrooms, and shared common rooms) and as such The Regulatory Reform (Fire Safety Order) 2005 (RRFSO) also needs to be considered. Your building control team will liaise with the Fire Brigade to ensure compliance with this order on your behalf. As of the 1st October 2018, all HMOs with 5 people or more sharing a kitchen and bathroom (irrespective of the number of storeys) will require a mandatory HMO license. In addition, your application will be assessed against the functional requirements of the Building Regulations 2010 to make sure that your proposals meet the required minimum standards, of which your principle obligations are shown in this guidance note.
6. Reporting and communicating an unauthorised change of use
Bracknell Forest Council departments communicate regularly regarding all matters in relation to HMOs, to make sure they are correctly licensed and compliant. Regular audits of information held is carried out between Planning, Building Control and Private Sector Housing and Council Tax to make sure all HMOs have followed the correct requirements for compliance and licensing.
Bracknell Forest Council will also record and act on any ad-hoc reports of properties being used as HMOs from sources such as members of the public, tenants, Ward Councillors, MPs, and local estate agents.
HMO licensing
Prior to making any changes, you are advised to check if an HMO licence is required Houses in Multiple Occupation (HMO) - Public Protection Partnership.
Planning Permission
If you are considering creating or changing an HMO, and are unsure whether planning permission is required, you are advised to apply for pre-application advice Planning advice services.
7. Enforcement action
Bracknell Forest Building Control will consider each property and the level of unauthorised building work (including ‘change of use’) individually on a risk-based approach to determine the route of enforcement to take (i.e. informal or informal).
Initially the Registered Building Inspector will thoroughly inspect any evidence provided from Planning, Private Sector Housing or other sources, to determine if a property has undertaken an unauthorised ‘change of use’ to an HMO. This will then be discussed with the Head of Building Control.
Once determined, if informal enforcement is considered appropriate, the legal owner will be contacted to confirm the unauthorised ‘change of use’ to an HMO. They will then be invited to submit a Regularisation Application to Bracknell Forest Building Control and provide all necessary evidence and documentation to demonstrate compliance with the Building Regulations 2010 (also see Appendix A). The Regularisation Application will be charged as per the published fee charge or otherwise as determined by the Head of Building Control, and the Registered Building Inspector will carry out a Fire Consultation with the Fire Authority accordingly.
If formal enforcement is considered appropriate, the legal owner will be contacted, and a legal notice will be served. Formal enforcement will also be considered if the legal owner fails to submit a Regularisation Application and/or is unwilling to carry out necessary actions to make sure the property is compliant with Building Regulations 2010. Formal enforcement will likely result in a fine and/or criminal prosecution.
The Council will also record the ‘change of use’ as unauthorised works and seek to notify any third parties with an interest in the property such as insurance and/or financial interest.