A family let with a new born baby is normally cause for celebration - it is a poor landlord who does not send chocolates/flowers for the new mum, a cuddly toy for the little ones and perhaps some rubber gloves or something equally suitable for dad. But what do you do if it is an HMO and it was already full before 'new mum-to-be' was unexpectedly invited in.....
Fortunately, it does - by their very nature HMO's are transient abodes occupied by people building their lives and looking for their place in society. It is thus no surprise that single people find partners and in some cases, create new life - but with people unable to be evicted due to Covid restrictions and moving home being more of a challenge than usual, I guess we should not be surprised.
Twice this year, members have come to us with near identical stories: In an HMO licensed for 5 occupants, a male tenant of good character has invited his girlfriend to move in without the landlords knowledge, said girlfriend subsequently becomes pregnant (or perhaps that had already happened, not our business) and then we are presented with potentially 3 people living in a room for 1 in an already full house. What do you do?
As the tenant told the landlord that it was his room and if he wanted to share it, it was his business and nothing to do with the landlord, we suggested that the landlord contact the PCC Licensing team for support in persuading the tenant that the room was let on the basis of single occupancy and he did not have the right to invite others to live with him and, in addition, the accommodation was not suitable for a mother and young baby.
Unfortunately, we can only assume PCC Licensing got the wrong end of the stick as they then proceeded to threaten the landlord with prosecution for over occupation under section 72 of the Housing Act 2004. The letter ended with the terse statement that, "If it is determined that the tenant who you have a legal contract with intends to over occupy the property and or their room, then a licence holder and or manager will be required to resolve the issue".
Fortunately, the situation resolved itself before any legal action was taken. The Polish couple in question found larger accommodation and moved out, having decided themselves that the accommodation was not suitable for a family of 3.
After our experience with Case Study 1, when this one came in we took a slightly different tack. The landlord of this HMO had a male tenant who had decided to invite his partner to move into his HMO room with him and they were now expecting. Knowing that there was little prospect of help from PCC the landlord told the tenant he was in breach of his AST and the property was now over occupied, and then issued a Section 21 which requested the tenant to move out within 3 months and advised the tenant to contact PCC Housing Options stating that he and his pregnant partner were about to be homeless.
Unfortunately the advice to the tenant from Housing Options was "When your Section 21 Notice expires your landlord cannot legally evict you on xx/xx/2020. He will firstly need to apply for a Possession Order and then a Bailiffs Warrant through the courts. It is only when the warrant has been executed you cannot remain in your property."
There are a couple of issues here: Firstly, with the current ban on evictions the landlord may have served a Section 21 but he was not able to enforce it until the current ban on evictions is lifted and he/she obviously needed to do something to solve the overcrowding issue. Also, whilst not saying 'sit tight until the bailiffs come' which PCC are no longer supposed to do as they have a duty to assist as soon as the appropriate notices are served and a S21 is an appropriate notice, their response was not far off of the 'sit tight' message.
Our advice to landlords faced with overcrowding due to uninvited partners (and especially pregnant ones) in their HMO's is as follows:
1- Keep records of all correspondence.
2- Make it clear to your tenant in writing (email) that he/she is in breach of their AST and you cannot be accommodating as the property is only licensed for 5 or whatever the appropriate number is
3- Make sure you have an acknowledgement of receipt of this email, and keep correspondence going.
4- Advise the tenant to tell the local authority housing team (Housing Options) that they are about to be made homeless as the property only has a licence for X and that no more occupants are permitted.
5- You cannot evict the tenant anyway at the moment, so PCC advising the tenant to stick it out is a bit of a red herring at this time. The temporary ban (stay) on possession proceedings has recently been extended to September 20th and then there will be a massive queue at the courts.
6- When they are made aware of the situation by the tenant, Contact Housing Options yourself. Let them know that you only have a licence for 5, that the AST is for one person and that you will not take legal action against him/her (for violation of AST) on the understanding that he/she understands the partner does not have any right of abode and is there as a temporary visitor and he/she is urgently seeking alternative accommodation. This may seem pedantic but will help should the Licensing Team take action against you.
7- If he is an otherwise good tenant suggest he uses PDPLA 'accommodation required' form (from website). This shows you have been active in helping them address the issue.
Written & oral information and advice from the Portsmouth & District Private Landlord's Association is given in good faith, but no responsibility whatsoever is accepted by the Association or it's officers for the accuracy of it's information & advice nor shall the Association be held responsible for the consequences of reliance upon such information.