Commentary on Parts Meaning of “house in multiple occupation”
152.An HMO is defined in section 125. The first requirement is that it is living accommodation occupied by three or more people, who are members of more than two families. The second is that those people share a house, or in other accommodation are required to share a toilet, personal washing facilities or facilities for the preparation or provision of cooked food. “Living accommodation” may include accommodation where the shared facilities are in different buildings, for example where there is a central refectory for several blocks. People count as occupants only if the accommodation is their only or main residence. However, accommodation occupied by a student during term time is regarded as that person’s only or main residence. Patients in hospital are not counted as occupants of the hospital.
153.Section 126 sets out seven types of exemption from the licensing requirement. The first relates to owner occupiers. An HMO is exempted if it is occupied only by the owners, members of their families, and any other persons who are not related to the owners and are members of no more than two other families. The second exemption applies where the HMO is provided as part of a service registered in certain categories under Part 1 of the Regulation of Care (Scotland) Act 2001. This excludes those categories of care accommodation where the Care Commission is responsible for inspecting the property as well as the service. The third exempts forces accommodation, and the fourth exempts prisons and related institutions. The fifth exemption is where the occupants are members of a religious order, mainly occupied in prayer, contemplation, education or the relief of suffering, plus no more than two people who are not members of the order. The sixth exemption is where the landlord’s rights and duties have been transferred to a local authority under section 74 of the Antisocial Behaviour etc (Scotland) Act 2004, in order that the local authority can take steps to prevent antisocial behaviour by the tenants. The final exemption is where the HMO is owned by a small housing co-operative. This removes an anomaly where, if a group of people own the house they occupy jointly, they are exempt from licensing, but if they form a corporate body which owns the house, they would otherwise require to be licensed. Ministers can by order add, remove or vary the descriptions of categories of HMOs which are to be exempt.
154.Section 127 allows Ministers to define by order specified types of HMOs which can be exempted from licensing by a local authority, on a discretionary basis. This would allow individual local authorities to continue licensing certain types of HMO if there was a particular problem with that type of HMO in particular areas.
155.Section 128 defines the meaning of “related” for the purposes of HMO licensing. The definition includes married, unmarried and same-sex couples, and stepchildren and foster children, as well as blood relatives.