HMO and AST

Marple

My son is sharing house with 3 other students. Lots of problems with Landlord and getting building work finished. Environmental Health Officer visited premises and made various recommendations but said the house is not HMO as there is a single tenancy agreement between 4 students.

The lease agreement has 4 named tenants with 'joint and several liability', however, the 4 guarantors are guaranteeing 'only the person to whom they are indicated' so the guarantors do not have joint and several liability. A solicitor indicated that this means that the Lease may not be considered a single lease as they are being treated individually plus they are all paying their rent individually and the Lease also shows a breakdown of the rent 'per person'.

If this is the case, should the council consider the house to be HMO? Has anyone had similar experience or offer advice as the tenants want to move out because of lots of problems but the landlord wont release them from the lease. If house is made HMO, one of the bedrooms would be classed as too small and the landlord might then change their mind and let them leave.

jjlandlord

Marple wrote: »

The lease agreement has 4 named tenants with 'joint and several liability', however, the 4 guarantors are guaranteeing 'only the person to whom they are indicated' so the guarantors do not have joint and several liability.

I'm not a lawyer but reading this I think that either the guarantee was badly drafted and executed and might be void, or guarantors are in fact jointly and severally liable.
Indeed if one guarantees the liability of someone who is jointly and severally liable for something he takes on that liability.

In addition, I am far from certain that the terms of the guarantee can impact the terms of the tenancy, which is an independent contract.

clutton_2

it would take you so long to get a council to reclassify a property as a HMO and for a council to force a Landlord to comply with those regulations, if he is reluctant to do so, that the students will be on summer vacation 2012 by the time anything sensible happens.

IF the EHO only issued "reccomendations" as opposed to compulsory repairs, in his view the property is not in an uninhabitable condition.

Re bedroom size - presumably you all saw the size of it before signing the Tenancy agreement.

your question is.. can they get out of the agreement.. the answer is no. - unless the landlord agrees. They have signed a fixed term agreement and have agreed to pay the rent for that period. If they can find someone else to take their place, they could ask the LL for a release.

IF they got the property off the university recommended landlords list.. then tell the housing officer so that he can take the LL off. Talk to the housing officer anyway, they may be able to help.

If the real issues are around repairs.. then read Shelters website as to how tenants can commission repairs and pay for them themselves and deduct it from the rent, but it is a specific procedure which you must adhere to.

Bottom line ? as a LL of 12 years i think you are clutching at straws.


RE HMOs - the 2004 Housing Act was extremely clear as to what was a HMO - local authorities throughout the land have interpreted these regs in wide and diverse ways, and no one here can advise what your council will say or do in regard to HMO regs.

There are HMOs which need to be licensed, (generally 3 storey ones) and those which dont.

not what you want to hear i guess.

Marple

Thanks for info. Not what I wanted to hear but is what I expected.

Still 18 months to go on lease. Unusual for students I know. Although recommendations made regarding Health and Safety there are other issues which Landlord keeps ducking. House had required a lot of work prior to students moving in which hasn't been done and/or completed as described. Building regs not followed (currently under investigation by Council). It seems that this landlord can breach the Contract and tenants still have to continue with Lease unless Landlord releases them (he is unwilling). Seems only option is for tenants to leave and take Landlord to Court but still risk losing and having to pay for remainder of Lease. Doesn't seem fair.

BitterAndTwisted

Were any of these building-works mentioned as a condition of the rental agreement being signed?

clutton_2

but what would you take the LL to court FOR ?

why did they sign a 2 year agreement ? this is most unusual in my experience, even for students....

Getting repairs done yourselves and taking it out of the rent seems the only way forward... he will have foisted himself with his own petard (by issuing a 2 year agreement) if you do this.. as he will not get the income he wants, and the tenants will get a better standard home. But DO stick to the protocols Shelter advise.

BitterAndTwisted

Actually, it's "hoist with his own petard". Apart from that I agree with you Clutton, I can't see what exactly would the tenants be taking the landlord to court for. Perhaps the OP could explain what these building-works are that have not been completed.

red40

The HMO definition under the provisions of the Housing Act 2004 makes no reference to tenancy agreements, so in your case the council are providing incorrect information. A HMO is formed once there are at least 2 unrelated persons in 2 seperate households occupying a residential premises, as long as one of those persons pays 'rent' or another consdieration, this is subject to section 254 of the above Act.

There is no actual statutory size for any type of room under the 04 Act, it is subject to, as most things nowadays, a risk assessment and I assume as it is only used for a bedroom and not a bedsit the room may well be adequate for the purpose if the person has access to lounger, kitchen, dining room, etc.

It sounds as though the EHO part of the council dont want to become involved with regards to the items of repair, if they are related to the building regs breaches.

clutton_2

there is no claim that i can see against the landlord.. the tenants can do their own repairs, and deduct the cost from the rent - but taking someone to court for money means yo have to prove a Consequential Loss - that you have lost money as a result of anothers' actions.. i cannot see that here....

BT - Foisted/hoisted... well.. i'll go to the foot of our stairs.... i never knew that !!!

BitterAndTwisted

Foist is to pass something off as something that it is not. Hoist is to raise it.

I wonder if these "building-works" are not actually some form of construction but decorating or maintenance of some description.

tbs624

As red40 says, determination of a property as an HMO is not carried out by the type of tenancy agreement signed up to so EHO is incorrect in his/her assertion.

OP - was this property advertised on the Uni's accoms lists? If it was it is likely that the LL will have had to sign up to a Code of Conduct/Practice so that may be worthwhile checking.

Can you give more specific info about the repairs/maintenance issues? If there is BR work that is incomplete then chase the appropriate Council dept.

Has the house being assessed under HHSRS (Housing Health & safety Rating System)?