If a landlord or the occupants of a potential HMO claim they are all related, what is the legal position? 

As colleagues will know, there are five categories of houses in multiple occupation (HMOs) under the Housing Act 2004. Three are listed under section 254(2)–(4), and one each under sections 255 and 257. Except for section 257 HMOs (buildings converted into self-contained flats), all the other definitions are qualified as containing ‘persons who do not form a single household.’

Following problems caused by this phrase (first introduced in the Housing Act 1969), this has been defined in section 258(2) as only excluding situations where either all the occupants are members of the same family or they are covered by relevant regulations. Sub-sections (3) and (4) make it clear this includes cohabiting couples, and some (but not all) blood and half-blood relatives. It is questionable whether it would cover great-uncles/aunts and great-nephews/nieces and great-grandparents/great-grandchildren. However, the situations where there are no intermediary generations living with them are likely to be rare. Step-children are included, but the position of step-grandchildren is also unclear. 

The relevant regulations are the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (SI 2006/373). Under Regulation 3, certain live-in employees are included, and under Regulation 4, carers and foster parents are covered. 

The irony for those interested in the history of housing legislation is that the definition in the Housing Act 1961 (which introduced wider controls for dealing with HMOs) was based on the occupants not being members of the same family. This approach can be traced back to the Public Health Act 1875 – so is of 150 years’ vintage! Under section 87 of that act, the onus was on the occupants to prove they were members of the same family. Under the current provisions, councils should be prepared to disprove any such claim when prosecuting for the relevant offences, such as for an unlicensed HMO. The ‘family’ approach was changed due to case law (Holm v RB of Kensington & Chelsea [1967] 1 All ER 289), which made it clear that parts of the same family living as separate households would not trigger the HMO definition.

In many ways, establishing whether all the occupants have the relevant degree of family relationship should be easier. This is because it is based on facts rather than having to assess the way in which the different occupants live together when they are occupying the same house or flat. In practice, however, this can be anything but.

I can find no directly relevant case law, but it is worth mentioning O’Halloran v Cornwall Council [2024] UKUT 403 (LC). That case was about the sole or main residence criteria. However, the Upper Tribunal judge made it clear that it was not unusual for the FTT to have evidence from some but not all the occupants, and that direct evidence was not essential as inferences based on other evidence was acceptable (see paragraph 13). That case referred to an earlier one: Opara v Olasemo [2020] UKUT 96 (LC). This highlighted that in the absence of the occupants’ co-operation, cast-iron evidence was not going to be achievable but was not necessary to meet the ‘beyond reasonable doubt’ test (see paragraph 31 of that judgment). 

As all the occupants would have to be members of the same family, as defined, for the premises not to be an HMO (unless covered by the exemption for owner occupiers with up to two lodgers), it is necessary only to prove at least one of them is not, to set up this status and to be able to invoke the relevant licensing and other powers. If interviews fail to give a clear answer, the council has powers under section 235 of the 2004 Act to require, by notice, that the individuals produce the relevant documents, which could include things like birth certificates. This power covers all those involved in the ownership and management of the premises, as well as the occupiers (see sub-section (7)). Where it is the landlord who is making this claim, they could still be asked to provide the evidence – as anyone can obtain copies of such public documents. Failure to produce the documents required by a notice under section 235 is an offence under section 236(1). It is also an offence to alter, suppress or destroy such a document, with both offences potentially carrying an unlimited fine.

Asking people for what they may regard as personal or sensitive information always needs to be handled appropriately, and for those born outside the UK, other documentary evidence may be needed. The number of occupants may be a factor, but colleagues should be aware of making assumptions, as some extended families living in the same dwelling may be large and have a number of different surnames. 

For a more detailed analysis of the relevant clauses under the 2004 Act, I recommend reading ‘Houses in Multiple Occupation – the New Definition’ by Andrew Dymond in the Journal of Housing Law (JHL 2006 9(3) 50–54). 

For practical guidance refer to the RIAMS procedures Definition of Houses in Multiple Occupation (HP19) and Declaring a Building a House in Multiple Occupation (HP13), both available on RIAMS Libraries.