Stay Lawful As Portsmouth HMO Tenants Come & Go
The problem: As soon as an HMO property drops below the C4 threshold it becomes a C3. No planning permission is required to go in this direction, but you will need it to go back to C4.
The Specifics
The threshold is 3 unrelated individuals or a household (family / couple) and one unrelated occupant who share basic amenities for cooking and/or personal hygiene – once this is met, it is C4. Below this, C3.
Even if a couple are renting a 2-bedroom flat and they take in a lodger it is classified as C4 use class. It is generally accepted that it needs planning permission for a C3 to C4 use change such as this or anything else which crosses the threshold.
A resident owner is not counted, so the owner can have 2 lodgers and it it still C3.
There are a couple of exceptions:
- Temporary occupants do not count.
- The property needs to be their main home (but this does not apply to students).
Local Authority officers can get confused as the detail is complicated. Unfortunately, this is the way the law is written and the Local Authority has no discretion.
Planning permission is required when there is a 'material' change of use.
The legal profession has made a lot of money over the years arguing over what is a 'material' change of use. It is still a grey area.
Remember it is not an offence not to have planning permission for your change of use. It can become an offence if the Local Authority take enforcement action. They have discretion and have to justify taking formal enforcement action.
PCC say you do not need planning permission if "there are other tenancy agreements in place for more occupants but only one or two are currently in residence or the landlord is actively seeking further tenants."
Our Advice
If HMO demand falls or you reduce occupancy levels in order to carry out works and you drop below 3 occupants-
•Keep evidence that you are advertising for tenants.
•Keep records of tenancies.
•If the occupancy level falls below 3 sharers beyond your control keep records of all communications. This may be due to abandonment, tenants leaving unexpectedly or new tenants not taking up places you have offered them. The current health crisis is likely to exacerbate this problem.
If you may wish to return to C4 shared / HMO use after a period of C3 use, as we discussed in last month's news and at our last meeting, another option is to apply for planning permission to change from C4 to mixed C3/C4 use. This will mean that the property can be used in either way. The fee for this application is £462. You will need evidence of continuous HMO use since November 2011. Some landlords applied for mixed C3/C4 use when we suggested doing so around 2012 when there was no charge.
After ten years the flexibility offered by a C3/C4 classification ends and the use becomes whatever use it is at at that time, so you will need to re-apply in 2022 if you followed our advice and gained C3/C4 in 2012. If you cannot show continuous C4 use you will be applying for a new C4 HMO and be subject to the HMO density restrictions and standards that this entails. i.e. If the HMO density in the vicinity of your property is over 10% you will not be allowed to continue HMO use and the value of your property could be reduced.
If my property is empty for a period of time will it lose its class C4 status?
A property won't lose its class C4 'status' if it's empty. If the property was used as a C4 HMO prior to it being empty (if this use was established prior to 1 November 2011 or if it was granted planning permission for C4 use after this date) then this will remain its lawful use.
PCC maintain a database of known HMOs. It is not reliable but if your HMO is on it you should have less aggravation. Planning officers may require evidence before you are added to the list. View PCC HMO Database
The form to have your property added to the database is here-
https://www.portsmouth.gov.uk/ext/documents-external/pln-hmo-registration-form.pdf
For more information on HMO planning permission see-
This is a complex area of law. We have attempted to condense what we feel landlords need to know, we have omitted much detail. We have tried to get our advice checked by the planning department but due to the current crisis officers have other priorities.