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Housing Act 2004


The editor of this section is edited by James Driscoll, Trowers and Hamlins.


Introduction

This massive measure received Royal Assent on the 18 November 2004. Most of the provisions affect social housing - although there are other features to the Act. The Act includes new powers for local authorities to deal with substandard dwellings, a new requirement to licence houses in multiple occupation and a power to licence private landlords and to take over the management of private rented accommodation in certain cases. There are also changes to the right to buy and other rights of tenants in the social rented sector. As to private rentals, new provisions dealing with tenants deposits enforceable by preventing landlords from recovering possession from an assured shorthold tenant if the landlord fails to comply with the new requirements. New measures too for mobile home occupiers and on the owner-occupier front, the much-criticised new home information packs.

Housing Act 2004.

(See also the Explanatory notes to the Act).

Many of the provisions of the Act came into force on the 18 January 2005. Many other provisions of the Act have now also been brought into force. See further below.

There are seven parts to the Act:
    Part 1 - Housing conditions.
    Part 2 - Licensing of houses in multiple occupation
    Part 3 - Selective licensing of other residential accommodation
    Part 4 - Additional control provisions in relation to residential accommodation
    Part 5 - Home information packs
    Part 6 - Other provisions about housing
    Part 7 - Supplementary and final provisions

Dealing with housing conditions (Part I)

Local housing authorities (LHAs) have for more than 80 years had powers to deal with poor quality housing. The present provisions - contained in the Housing Act 1985 are changed by Part 1 of the 2004 Act: It replaces the existing housing fitness standard with a new Housing Health and Safety Rating (HHSR) system. This places the emphasis on the effects on occupiers rather than the building itself. LHAs will, under the HHSR system, assess the rating of hazards in the building and use this to assess what action needs to be taken. There are new enforcement powers such as improvement and prohibition notices with powers to deal also with emergencies in the case of urgent hazards. And amendments are made to the current powers on demolition orders and clearance areas to accommodate the HHRS.

Much of the practical detail will appear in Regulations coupled with Enforcement Guidance to be published by the Office of the Deputy Prime Minister both of which will appear shortly.


The Licensing of houses in multiple occupation (Part 2)

The term HMO applies to a wide range of housing types, mainly in the private rented sector, that young lower-income single people, including some particularly vulnerable and disadvantaged groups, typically occupy. Physical and management standards in HMOs are often low. LHAs have had powers over HMOs for decades. But under Part 2 of the 2004 Act the licensing of many HMOs those over three stories or more with five or more occupants will be mandatory. These licences will last for five years. LHAs also have wide enforcement powers and they can also apply to the Secretary of State to extend HMO licensing to other types of HMO or to specific areas. There is a new definition of what is a HMO, essentially where living accommodation if occupied by persons who do not form a single household (2004 Act, s 254). LHAs considering an application for a licence must consider not only the conditions in the building but also the suitability of the applicant.


Licensing of other residential accommodation (Part 3)

Another innovation is the introduction of a new power for LHAs to introduce selective licensing of private rented accommodation in their area. The aim is to empower LHAs to deal with specific problems in an area where there is low housing demand, the area is likely to fall into this category and for other areas suffering such problems as anti-social behaviour.

According to the government there is evidence that low house prices in areas of low demand have resulted in an influx of
    ..unprofessional landlords purchasing properties to rent. These people frequently show no interest in managing their properties properly, often letting to anti-social tenants who cause a range of problems. This, in turn, can create misery for the local community and cause further destabilisation of these areas..
And so LHAs now have a discretion to license all private landlords in a designated area in order to ensuring that a minimum standard of management is met. However, approval of the Secretary of State must be sought after local consultation and the LHA will have to show that such a selective licensing scheme will be co-ordinated with an authority's wider strategies to deal with anti-social behaviour and regeneration in the area.


Additional control provisions in relation to residential accommodation (Part 4)

There are new LHA powers to take action over properties which should be licensed under either Part 2 or Part 3 and which do not have a licence. These are the new interim and final management orders. Action can also be taken over other dwellings as well, but an order has to be obtained from the Residential Property Tribunal. LHAs will also be able to take over the management of long-term empty properties and to bring them back into occupation. There are also provisions on overcrowding in non-licensable HMOs.


Home Information Packs (Part 5)

Click here.


Other provisions about housing (Part 6)

Anti-social behaviour

The Act gives LHAs further powers to tackle anti-social behaviour in social housing following those introduced by the Anti-social Behaviour Act 2003 and which came into force in 2004. LHAs which operate introductory tenancy schemes, under which new tenants are on probation for the first 12 months of the tenancy agreement, will have a discretion to extend the probationary period. Measures too allowing landlords to refuse to agree to an exchange of tenancies, and suspending the right to buy in cases of anti-social behaviour.

The right to buy (RTB)

There are also some important changes to the Right to Buy (RTB) scheme, the statutory scheme in the Housing Act 1985 which allows secure tenants to buy their homes from their LHA at a discount. [Registered social landlords (and certain other social landlords) may also have tenants who have the RTB, or preserved RTB, usually as the result of large-scale voluntary transfers of properties from LHA ownership]. Provisions in the Act will amend the RTB scheme with a view to tackling exploitation of the present rules by property developers and tenants. To summarise the most important changes:
  • extending for new tenants the qualifying period from 3 5 years
  • extending the discount repayment period from 3 5 years
  • suspending the RTB where the landlord intends to demolish buildings
  • penalising tenants who enter into agreements to resell after the RTB purchase
  • giving the landlord a right of first refusal if the dwelling is sold within 10 years of the RTB purchase
Miscellaneous provisions

These include new measures aimed at providing protections for mobile home users by deterring the exploiting or harassment of such home occupiers on sites (with Secretary of State power to make further changes to the implied terms of occupation agreements)

Changes have been made to bring the treatment of local authority owned gypsy and traveller sites into line with that for privately owned caravan sites with regard to protection from unlawful eviction and harassment.

The powers of the Housing Corporation and the National Assembly for Wales under the Housing Act 1996 are extended to allow them to give grants to persons other than registered social landlords for specified purposes (see the accompanying article in this issue)

Disabled facilities grant will also be available to those occupying caravans as their only or main residence.

A new duty has been introduced requiring LHAs to carry out assessments of the accommodation needs of Gypsies and Travellers residing in or travelling to their district, when they undertake a review of housing needs in the district.

A new office of Social Housing Ombudsman for Wales to investigate complaints against social landlords in Wales has been established.

A notable change which will affect private landlords is a new tenancy deposit schemes to protect tenants' deposits which are usually taken by landlords against possible damage to the premises. Many tenants complain at the problems of recovering these deposits at the end of the tenancy and the new scheme is there to provide a remedy probably through a form of mediation. Landlords who fail to join such schemes will be unable to recover possession under the mandatory two-month notice ground (in the Housing Act 1988, s 21) until they join the scheme.


Commencement orders

First - England only

This commencement order brought the following provisions into force on 17 February 2005:
  • s 220 which extends the powers of the Housing Corporation to give grants to persons other than registered social landlords;
  • s 221 which extends the right to acquire in relation to a dwelling provided by means of a grant to a person other than a registered social landlord;
  • s 227 which removes the duty on local housing authorities to send annual reports to tenants.
The Housing Act 2004 (Commencement No.1) (England) Order 2005 (SI 2005/326)


Second - England only

This Order brings section 223 of the Housing Act 2004 into force. Section 223 amends s167(2)(d) of the Housing Act 1996 which provides that a local housing authority's scheme for allocating housing accommodation must be framed so as to secure that reasonable preference is given to people who need to move on medical or welfare grounds. The amendment provides that "medical or welfare grounds" include grounds relating to a disability.

In force 27 April 2005.

Housing Act 2004 (Commencement No 2) (England) Order 2005 (SI 2005/1120.)


Third - England only

This commencement order brought various provisions into force on 6th June 2005 relating to anti-social behaviour
  • s179 (amends the Housing Act 1985 by inserting new sections 125A and 125B which allow an introductory tenancy to be extended by up to six months);
  • s191 (amends Schedule 3 to the Housing Act 1985 by inserting a new ground 2A which allows a landlord to withhold consent to a mutual exchange of secure tenancies if a specified type of injunction, a demotion order, an anti-social behaviour order or a possession order granted on the grounds of nuisance is in force or if court action to obtain such an order is pending);
  • s192 (amends the Housing Act 1985 by inserting a new s121A which enables landlords of secure tenants to seek an order from the court suspending the right to buy for a specified period on the grounds of anti-social behaviour);
  • s193 (amends s138 of the Housing Act 1985 by inserting new subsections (2A) to (2D) which prevent a tenant being able to compel completion of a right to buy sale if an application is pending for a demotion order, a suspension order, or a possession order sought on the grounds of anti-social behaviour); and
  • s194 (which allows any person to provide relevant information to the landlord of a secure tenant to enable the landlord to exercise functions connected with the provisions inserted by ss 191 to 193 of the Act).
The following provisions were also brought into force on 15 June 2005
  • s55 (subsections (1) and (2) of which set out the scope of the licensing provisions for houses in multiple occupation ("HMOs") under Part 2 of the Act);
  • s56 (which enables local authorities to designate an are to be subject to additional licensing in respect of specified HMOs);
  • s 57 (which sets out the matters that a local housing authority must consider before exercising the powers in section 56 of the Act);
  • s79 (which sets out the scope of the licensing provisions for houses in Part 3 of the Act);
  • s80 (which enables a local housing authority to designate an area as subject to selective licensing if it is, or may become, in area of low housing demand or has a significant and persistent problem with anti social behaviour);
  • s81(which sets out the matters the local housing authority must consider before exercising the powers under section 80 of the Act); and
  • s237(which enables a local housing authority to use information which it has obtained for housing benefit or council tax purposes in order to carry out its functions under Parts 1 to 4 of the Act).
The Housing Act 2004 (Commencement No.3) (England) Order 2005 (SI 2005/1451)


Fourth England only

This Order brings the following provisions of the 2004 Act into force in England on 4 July 2005:
  • s181, which amends paragraph 11 of Schedule 5 to the Housing Act 1985 by providing that applications questioning the exclusion of a property from the right to buy on the ground that it is particularly suitable for elderly persons shall be determined by a residential property tribunal instead of the Secretary of State; and by providing that section 231 of the 2004 Act does not apply to any decision of a residential property tribunal in relation to such applications;
  • s229, which provides that jurisdiction given under the 2004 Act or any other enactment to a residential property tribunal shall be exercised by a rent assessment committee constituted under the Rent Act 1977;
  • section 230, which confers a general power on residential property tribunals to give directions by order;
  • s231, which sets out the right of appeal from a decision of a residential property tribunal to the Lands Tribunal;
  • Schedule 13, which confers on the Secretary of State power to make regulations relating to the procedure of residential property tribunals (see The Residential Property Tribunal (Right to Buy Determinations) Procedure (England) Regulations 2005 (S.I.2005/1509)).
The Order includes transitional provisions.

The Housing Act 2004 (Commencement No.4 and Transitional Provisions)(England) Order 2005 (SI 1729)

Wales - First commencement order

This Order brought into force the following provisions of the Housing Act 2004 in relation to Wales on 14 July 2005:
  • New grounds upon which consent to assignment of a secure tenancy by way of exchange may be withheld by reason of anti-social behaviour (section 191 of the 2004 Act inserts a new Ground 2A into Schedule 3 of the Housing Act 1985);
  • Removal of the duty on local housing authorities under section 167 of the Local Government and Housing Act 1989 to send annual reports to tenants (section 227 of the 2004 Act); and
  • Creation of the office of Social Housing Ombudsman for Wales (section 228 of the 2004 Act inserts new sections 51A, 51B and 51C into the Housing Act 1996 and Schedule 12 to the 2004 Act inserts a new Schedule 2A into that 1996 Act).
Various consequential amendments are also brought into force (see article 2(f) of the Order).

The Housing Act 2004 (Commencement No.1) (Wales) Order 2005 (SI No 1814; W.144)


Wales - second commencement order

The following provisions of the 2004 Act came into force in Wales on 25 November 2005:
  • section 4 (which allows a local housing authority to inspect residential premises in their district with a view to determining whether any category 1 or 2 hazard exists on those premises);
  • section 55 (subsections (1) and (2) of which set out the scope of the licensing provisions for houses in multiple occupation ("HMOs") under Part 2 of the 2004 Act);
  • section 56 (which enables local authorities to designate an area to be subject to additional licensing in respect of specified HMOs);
  • section 57 (which sets out the matters that a local housing authority must consider before exercising the powers in section 56 of the 2004 Act);
  • section 79 (which sets out the scope of the licensing provisions for houses in Part 3 of the 2004 Act);
  • section 80 (which enables a local housing authority to designate an area as subject to selective licensing if it is, or may become, an area of low housing demand or has a significant and persistent problem with anti social behaviour);
  • section 81 (which sets out the matters the local housing authority must consider before exercising the powers under section 80 of the 2004 Act);
  • section 179 (which amends the Housing Act 1996 by inserting new sections 125A and 125B which allow an introductory tenancy to be extended by up to six months);
  • section 192 (which amends the Housing Act 1985 ("the 1985 Act") by inserting a new section 121A which enables landlords of secure tenants to seek an order from the court suspending the right to buy for a specified period on the grounds of anti-social behaviour);
  • section 193 (which amends section 138 of the 1985 Act by inserting new subsections (2A) to (2D) which prevent a tenant being able to compel completion of a right to buy sale if an application is pending for a demotion order, a suspension order, or a possession order sought on the grounds of anti-social behaviour);
  • section 194 (which allows any person to provide relevant information to the landlord of a secure tenant to enable the landlord to exercise functions connected with the provisions inserted by sections 191 to 193 of the 2004 Act); and
  • section 237 (which enables a local housing authority to use information which it has obtained for housing benefit or council tax purposes in order to carry out its functions under Parts 1 to 4 of the 2004 Act).
The Housing Act 2004 (Commencement No.2) (Wales) Order 2005 (SI 2005/3237 (W.242) (C.138))


April 2006 - SI's - England - HMO's, Licensing, Management orders, Empty Dwellings

The implementation of the Housing Act is now entering its next phase with a large number of statutory instruments being put to Parliament. They all come into force on 6 April 2006. The SI�s relate to the powers contained in Parts 2-4 and 7 of the Housing Act 2004, ie relating to:
  • Licensing of houses in multiple occupation (HMOs);
  • Management standards for HMOs;
  • Selective licensing;
  • Special interim management orders;
  • Empty dwelling management orders.
The best way to access these SI�s is to go to the website of the Office of Public Sector Information. This page contains a link to each SI in web or pdf format and an explanatory note for each. The ODPM press release also provides a brief explanation of each SI. The SI�s are as follows:

The Housing (Empty Dwelling Management Orders) (Prescribed Exceptions and Requirements) (England) Order 2006 (SI Number: 2006/367)

The Housing (Management Orders and Empty Dwelling Management Orders) (Supplemental Provisions) (England) Regulations 2006 (SI Number: 2006/368)

The Housing (Interim Management Orders) (Prescribed Circumstances) (England) Order 2006 (SI Number: 2006/369)

The Selective Licensing of Houses (Specified Exemptions) (England) Order 2006 (SI Number: 2006/370)

The Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 (SI Number: 2006/371)

The Management of Houses in Multiple Occupation (England) Regulations 2006 (SI Number: 2006/372)

The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (SI Number: 2006/373)


Fifth - England only

Commencement provisions dealing with
  • Part 1 � new powers for local housing authorities to assess housing conditions and enforce standards.
  • Part 2 � licensing of housing in multiple occupation
  • Part 3 � selective licensing
  • Part 4 � management orders, empty dwelling management orders, overcrowding notices
  • Part 7 � supplementary provisions
  • Consequential amendments.
In force 6 April 2006. Remaining provisions of Parts 2 and 4 brought into force on 6 July 2006. England only.

The Housing Act 2004 (Commencement No.5 and Transitional Provisions and Savings) (England) Order 2006 (SI No.1060 (C.34))

Wales - 3rd commencement order and other regulations

The Housing Act 2004 (Commencement No.3 and Transitional Provisions and Savings) (Wales) Order 2006 (SI No. 2006/1535 (W.152) (C.54)) - Brings into force various provisions relating to amongst others: Part 1 (housing conditions), Part 3 (licensing of houses in multiple occupation), Part 3 (selective licensing of other residential accommodation), Part 4 (management and empty dwelling management orders and overcrowding notices), Part 7 (residential property tribunals). In force 16 June 2006.

The Housing (Interim Management Orders) (Prescribed Circumstances) (Wales) Order 2006 (SI No.1706 (W.168)) - Prescribes the category of circumstances that need to be satisfied before a residential property tribunal can authorise a local housing authority to make an interim management order in respect of a house to which section 103 of the Act applies - In force 30 June 2006

The Houses in Multiple Occupation (Specified Educational Establishments) (Wales) Regulations 2006 (SI No. 2006/1707 (W.169)) - Specified certain education establishments for the purposes of para 4 of Sched 14 to the 2004 Act - In force 7 July 2006

The Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (Wales) Order 2006 (SI No. 2006/1712 (W.174)) - Prescribes a description of a house in multiple occupation to which Part 2 of the 2004 Act applies. In force 30 June 2006

The Management of Houses in Multiple Occupation (Wales) Regulations 2006 (SI Number: 2006/1713 (W.175) - These regulations impose duties on persons managing HMO�s other than converted blocks to which s257 of the 2004 Act applies - In force 30 June 2006

The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Wales) Regulations 2006 (SI No. 2006/1715 (W.177)) - These Regulations make provision in respect of a number of miscellaneous matters relating to provisions of the Housing Act 200: Part 2 (licensing of HMOs), Part 3 (selective licensing), Chapters 1 and 2 of Part 4 (management orders) and section 254 (meaning of HMO) of the Act - In force 30 June 2006

HMO's - educational establishments - England

Houses in multiple occupation (HMOs) are defined by section 254 of the Housing Act 2004. Schedule 14 to the Act describes buildings that are not HMOs for the purposes of the Act.

Paragraph 4 of Schedule 14 to the Act provides that a building is not an HMO for the purposes of the Act (excluding Part 1) if it is a building which is occupied solely or principally by persons who occupy it for the purpose of undertaking a full-time course of further education at a specified establishment or at an establishment of a specified description, and where the person managing or controlling it is the establishment in question or a specified person or a person of a specified description.

Houses in Multiple Occupation (Specified Education Establishments) (England) (No.2) - The list of educational establishments that are not HMO�s.


Wales: EDMO's and selective licensing

Housing (Management Orders and Empty Dwelling Management Orders) (Supplemental Provisions) (Wales) Regulations 2006 (SI No 2822; W.245) - Supplementary provisions where the local housing authority is to be treated as the lessee under a lease of premises that are subject to an interim or final management order made under Chapter 1 of Part 4 of the 2004 Act or an interim or final empty dwelling management order made under Chapter 2 of Part 4 of the Act. In force 26 October 2006

The Housing (Empty Dwelling Management Orders) (Prescribed Exceptions and Requirements) (Wales) Order 2006 (SI No 2823) - Prescribes the exceptions where a residential property tribunal will not authorise the making of an interim EDMO (s133 of the 2004 Act). Also prescribes the additional requirements that a local housing authority must comply with when making an application to a residential property tribunal for authorisation of an interim EDMO. In force 26 October 2006

The Selective Licensing of Houses (Specified Exemptions) (Wales) Order 2006 (SI No. 2824; W.247)). - Specifies the descriptions of tenancies and licences of houses, or of dwellings contained in houses, that are exempt tenancies or licences for the purposes of Part 3 of the 2004 Act. In force 26 October 2006

The Selective Licensing of Houses (Additional Conditions) (Wales) Order 2006 (SI No. 2825 (W.248)). - Sets out the additional conditions which must be met before a local housing authority can designate an area of their district or an area in their district as subject to selective licensing. In force 26 October 2006.

Gypsies

The Housing Act 2004 (Commencement No.6)(England) Order 2006 (SI No.3191) - Brings into force s225 of the Act that relates to duties of local housing authorities in relation to accommodation needs of gypsies and travelers � In force in England on 2 January 2007.

Houses in multiple occupation

New regulations to deal with the licensing regime that will apply under s257 of the Housing Act 2004 to blocks of self-contained flats. Both in force on 1 October 2007.

The Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007 (SI No.1903)


The Houses in Multiple Occupation (Certain Converted Blocks of Flats) (Modifications to the Housing Act 2004 and Transitional Provisions for section 257 HMOs) (England) Regulations 2007 (SI Number: 2007/1904)



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