Since the only writing I have done lately is to write up my notes from a student housing legal updates conference, I thought I may as well give you an insight into the exciting world of Student Housing and a few of the things we have to worry about!
Houses In Multiple Occupation (HMO's)
HMO's: When people hear the term 'HMO' they nearly ALWAYS think student housing. However the vast majority of HMO's are actually formed by professional sharers who cannot afford to buy their own places, which will increasingly be the case as councils focus on forcing smaller property landlords to register. This move towards extra licensing has been as a result of anti-HMO (usually residents) groups lobbying councils to see students/landlords penalised for 'studentification' of certain areas, blaming them for shops and businesses closing and schools not being built. Councils are often taking their word for it to win votes and hastily putting HMO schemes together without proper consultation, data and procedures, (or analysis as to whether these areas would go back to how the residents' groups claimed they used to be if the student population suddenly departed), leaving councils wide open to demands for a judicial review or public enquiry. Sometimes they are even refusing landlords who live abroad HMO status, although any 'most appropriate person' nominated should suffice. But as a first step the advice is not to challenge Article 4 (which empowers local authorities to remove permitted development rights in defined areas), but rather to challenge Councils to deliver on it. In addition with 1-2 enforcement officers per city, councils need to both identify HMO's which are not registering and then enforce registration/compliance amidst administering all the properties which have signed up and expect a service from their council in return. There is an argument that where Landlord Accreditation schemes exist, extending the HMO licensing as well is somewhat overkill as the first scheme should already be raising standards if raising standards is the aim. Many councils have insisted on expensive improvements to new HMO's above and beyond legal requirements, though they might argue that they are the law in their own jurisdiction, this should always be challenged as there is a suspicion they are trying to reduce the number of rented properties by making it economically unviable or forcing landlords to pass on the costs in rent hikes their tenants cannot afford.
As has been stated so many times at Landlord Forums I have attended, the responsible and good landlords feel they are being penalised with one cost and piece of red tape after another, but what is happening to the truly bad or slum landlords, those that the councils should be devoting the bulk of their time and resources to tracking and enforcing improvements or ensuring they cease operating in the area?
First check contract and ensure terms such as 'single occupancy' 'must not sublet', 'must not share occupation of' are contained within along with the limits for visitor stays.
It then becomes a 'breach of contract' if a visitor stays over the specified period for visitors and they effectively become a 'trespasser'. In addition while there, the visitor is also obliged to behave in a 'tenant-like manner' – ie not causing nuisance, harm or hazard to the other residents or the property.
Then check 'Protection From Eviction 1977' Section 3: List of excluded occupiers, to ensure you are acting properly.
Remedies: You may find you can write to tenant threatening a court injunction if visitor does not move out by specified date (will take several weeks, but often quicker if anti-social behaviour involved). You could further state that if the visitor is noted living there again the tenant themselves will be served with a Notice to Quit for breaching the terms of his/her tenancy agreement. Ensure the tenant contract contains a caveat whereby they sign permission that you can contact the guarantor in the event that breach of contract exposes the guarantor to financial risk, which can cover everything from utility bill default to court costs for eviction of illicit visitors or the tenant themselves. In this way you may be able to bring some pressure to bear by enforcing 'contractual rights and remedies.' Terms such as 'breach of your agreement', 'unfair to other occupants', 'contrary to the requirements of good faith' and 'we will go no further than necessary to protect our other tenants' may prove helpful.
If housemates complain that one of their number has moved someone else in who is using all their facilities/eating their food/not paying any rent/bills or is being anti-social, they must be prepared to jointly sign a house letter stating how long the illicit tenant has been there and how they are being affected by them or the only action which can be taken is if a Housing Officer visits the house and finds and photographs clear evidence of sharing – mattresses together on floor, two sets or sizes of clothing/shoes/possessions.
If an illicit tenant has moved into an empty room, it is permissible to change the locks as they are a 'trespasser', even if paying rent to one of the other occupants rather than to the legitimate landlord, but if they are sharing a room with a lawful tenant it would be unlawful to change the locks as that would exclude the lawful tenant as well.
If an illicit tenant is not paying rent – they are classed as not occupying for 'money or moneysworth' so it is worth using reasonable force to eject them before they become a 'residential occupier' as they have no protection from eviction although a notice of eviction still needs to go on the door.
SMOKING & DRUGS
If No Smoking signs are up, the owner/Manager of the property then has to enforce the ban as they will risk being sued by non-smoking housemates if they fail to. There is no human rights edict which says you have to allow smokers to smoke in their rooms or provide an enclosed area in the premises for them to use. Smoking materials may be confiscated where found in a non-smoking building and it is not unreasonable to ban all lighted materials from student premises on safety grounds unless they have a gas oven which will not light by any other means. Drugs: Work in pairs when looking for drugs and if you find or are made aware of drugs on the premises you then have a legal duty to act immediately. First take photographs. Then contact the Police for them to confiscate the contraband and arrest the occupant. Write incident up with all the details and be prepared to be asked to provide witness statement for the Police. Do not confiscate from room yourself as you could end up being arrested for 'possession'! It is particularly important to stamp out any drugs in Halls as this will quickly lead to dealing when a student realises what a large and captive market he/she has within the building. Sometimes dealing even happens accidentally when a student's friend sees for example that they have a joint, asks for a puff and then spreads the word that so-and-so can sell them a bit, so next thing, so-and-so is a drug dealer! CCTV footage can also help when it comes to tracking comings and goings through certain doors or corridors and unusually high footfall in certain areas. Watch out for any odd incidents such as a student being beaten up or apparently randomly attacked or robbed as this can often mean they've been annoying the local drug dealers by trespassing on their 'manor'. Aside from the legal penalties, most Universities still send students down for drug use and most certainly for dealing, as not to would be to condone (and even be an accessory to) illegal behaviour, which would then impact negatively on the University's reputation.
Educate both staff and students as to the seriousness of the penalties involved, even for cannabis.