Section 34: Power of tribunal to determine or vary lease

144.     Section 34 enables a lessor or lessee to apply to a tribunal for an order terminating or varying a lease on a property which is the subject of a prohibition order. Before making an order, the tribunal must take account of all the circumstances of the case, the respective rights and obligations of all parties to the lease and allow any sub-lessees to be heard.

Section 35: Power of court to order occupier or owner to allow action to be taken on premises

145.     Section 35 provides that, where an occupier, owner, person having control of or managing the premises, or licence holder under Part 2 or 3 of the Act is preventing the putting into effect of any action required by an improvement notice or necessary to give effect to a prohibition order, a magistrates' court may order that person to permit that which the court considers necessary or expedient to be done on the premises.

146.     Subsections (4), (5) and (6) make it an offence to fail to comply with an order of the court and provide penalties for non-compliance.

Section 36: Power of court to authorise action by one owner on behalf of another

147.     Section 36 enables a magistrates' court to make an order allowing an owner of premises to enter those premises and, within a fixed period of time, to take any action required by an improvement notice or prohibition order. Before making an order, the court needs to be satisfied that such an order is necessary to safeguard the interests of the applicant, and that the LHA has been given notice of the application. The purpose of this provision is to ensure that an owner or superior landlord is able to deal with a problem where they have reason to believe that the person served with the notice may not take the necessary action.

Section 37: Effect of improvement notices and prohibition orders as local land charges

148.     Section 37 provides that an improvement notice or prohibition order which is in operation or is suspended, and in respect of which there is no outstanding appeal, is a local land charge. Local land charges protect buyers of land, by ensuring they are not caught unawares by obligations enforceable against successive owners.

Section 38: Savings for rights arising from breach of covenant etc.

149.     Section 38 provides that nothing in Chapter 2 prejudices any rights of an owner of property arising from any breach of covenant or contract by the lessee. The effect of subsection (2) is that, even where the owner has to take possession in order to comply with an improvement notice or prohibition order, he can still sue the tenant for breaches of contract or covenant by the tenant that occurred before he took possession. This section also protects the rights of tenants against their landlords.

Section 39: Effect of Part 4 enforcement action and redevelopment proposals

150.     Section 39 provides that an improvement notice or prohibition order ceases to have effect where a management order under Part 4 comes into force in relation to the premises the subject of the notice or order. Nothing in this section affects any right acquired or liability incurred before the notice or order ceases to have effect.

151.     Under subsections (4) and (5) where land is in the process of being redeveloped in accordance with the owner's approved proposals (see further section 308 of the Housing Act 1985), the LHA is prevented from taking any action under Chapter 2 of Part 1 of the Act in relation to that land.

Chapter 3 - Emergency Measures

152.     The purpose of the emergency measures in sections 40 to 45 is to enable local housing authorities to take emergency enforcement action against hazards which present an imminent risk of serious harm to the occupiers of residential premises. Their effect is that LHAs will themselves be able to take remedial action to remove a hazard, or prohibit the use of all or part of a property. The owner of a property will be able to appeal, but such an appeal will not prevent the action or prohibition from being put into effect. Action may begin and be completed before a notice is served.

Section 40: Emergency remedial action

153.     Section 40 enables a LHA, if it is satisfied that a category 1 hazard exists on residential premises which are not the subject of a management order in force under Part 4 of the Act, and is further satisfied that the hazard involves an imminent risk of serious harm to the health or safety of any of the occupiers of those or any other residential premises, to enter the premises at any time in order to take emergency remedial action.

154.     Subsection (2) defines "emergency remedial action" as remedial action the LHA considers necessary to remove an imminent risk of serious harm. Where there is a category 1 hazard on premises which does not give rise to an imminent risk of serious harm, the LHA will need to consider taking one of the courses of action mentioned in section 5(2).

155.     Subsection (3) limits emergency remedial action to premises in relation to which action could be taken by an improvement notice under section 11. Subsection (4) allows action to be taken in respect of more than one category 1 hazard in the same premises. Subsection (5) applies paragraphs 3 to 5 of Schedule 3 (enforcement action by LHAs), subject to modifications, to emergency remedial action taken by a LHA, as they apply to an operative improvement notice which has not been complied with. The modifications are set out in subsection (6) and relate to the power of entry and the requirements as to the service of notice.

156.     Subsection (7) requires the LHA, within 7 days of taking the emergency remedial action, to serve a notice of emergency remedial action under section 41. Copies of that notice should be served on those persons on whom the authority would be required under Part 1 to serve an improvement notice and copies of it. Subsection (8) applies section 240 (warrant to authorise entry) to enable the LHA to enter premises to take emergency remedial action. The Justice of the Peace to whom a warrant application is made must be satisfied there are reasonable grounds to believe the LHA would not gain admission without a warrant.

Section 41: Notice of emergency remedial action

157.     Section 41 sets out the mandatory contents of the notice of emergency remedial action. Such a notice must include the details of the hazard, the premises in which the action has been or is to be taken and the nature of the remedial action, the date the action was or is to be started, and the right to appeal.

Section 42: Recovery of expenses of taking emergency remedial action

158.     Section 42 applies, with minor and technical modifications, paragraphs 6 to 14 of Schedule 3 for the purposes of allowing LHAs to recover certain expenses incurred in taking emergency remedial action. The modifications are set out in subsection (3).

Section 43: Emergency prohibition orders

159.     Section 43 enables an authority, if it is satisfied that a category 1 hazard exists on residential premises which are not the subject of a management order in force under Part 4 of the Act, and is further satisfied that the hazard involves an imminent risk of serious harm to the health or safety of any of the occupiers of those or any other residential premises, to enter the premises at any time in order to make an emergency prohibition order, prohibiting the use of all or any part of the premises.

160.     Subsection (2) defines an emergency prohibition order as an order prohibiting the use of any premises with immediate effect. Subsection (3) applies the provisions of subsections 3 to 5 of section 20 and subsections 3 to 5 and 7 to 9 of section 22.

161.     Subsection (4) applies Part 1 of Schedule 2 for the purposes of the service of copies of prohibition orders, with the modification that the order is to be served on the day it is made instead of within 7 days.

162.     Subsection (5) applies other provisions of the Act to emergency prohibition orders as they apply to prohibition orders, including revocation and variation, enforcement and appeals.

Section 44:Contents of emergency prohibition orders

163.     Section 44 sets out the mandatory contents of an emergency prohibition order, which include the details of the hazard, the remedial action which, if taken by the owner, would result in the revocation of the order, the date the order was made and the right to appeal against the order.

Section 45: Appeals relating to emergency measures

164.     Section 45 provides for an appeal against a notice of remedial action or an emergency prohibition order to a residential property tribunal. An appeal must be made within 28 days of the date specified in the notice of emergency remedial action or the date on which the emergency prohibition order was made, as the case may be, subject to the tribunal's discretion to extend the period for appeal where there is good reason for the delay.

165.     A tribunal may confirm, reverse or vary an emergency remedial action notice and may confirm, vary or revoke an emergency prohibition order.

Chapter 4 - Demolition Orders and Slum Clearance Declarations

Section 46: Demolition orders

166.     Section 46 substitutes a new section 265 of the Housing Act 1985 (power to make a demolition order). The new subsections (1) and (2) provide that if a category 1 hazard exists on any residential premises, making a demolition order is one of the courses of action available to an LHA in discharging its general duty under section 5 to take the most appropriate enforcement action to deal with a category 1 hazard.

167.     New subsections (3) and (4) provide a discretionary power for an LHA to make a demolition order if it is satisfied that a category 2 hazard exists on residential premises and if the circumstances of the case are specified or described in an Order made by the Secretary of State or, in relation to Wales, by the National Assembly for Wales.

168.     New subsection (5) prevents a demolition order from being made in respect of premises that are the subject of a management order in force under Part 4 of the Act. New subsection (6) prevents a demolition order from being made in respect of a listed building.

Section 47: Clearance areas

169.     Section 47 amends section 289 of the Housing Act 1985 (declaration of clearance area) in order to align it with the hazard assessment and enforcement provisions in Part 1 of the Act. The effect of this realignment is to retain the link between poor housing conditions and enforcement action and it does not introduce factors which fall outside this consideration.

170.     New subsection (2) provides that, if a category 1 hazard exists in each of the residential buildings in an area, and if the other buildings (if any) in the area are dangerous or harmful to the health or safety of the inhabitants of the area, declaring a clearance area is one of the courses of action available to an LHA in discharging its general duty under section 5 to take the most appropriate enforcement action to deal with a category 1 hazard.

171.     New subsection (2ZA) provides a discretionary power for an LHA to declare a clearance area if it is satisfied that the residential buildings in the area, as a result of their bad arrangement of the narrowness or bad arrangement of the streets; and any other buildings, are dangerous or harmful to the health or safety of the inhabitants of the area.

172.     New subsection (2ZB) provides that, if a category 2 hazard exists in each of the residential buildings in an area, and if the other buildings (if any) in the area are dangerous or harmful to the health or safety of the inhabitants of the area, the LHA may only declare the area to be a clearance area if the circumstances of the case are specified or described in an Order made by the Secretary of State or, in relation to Wales, by the National Assembly for Wales.

Section 48: Transfer of jurisdiction in respect of appeals relating to demolition orders etc.

173.     Section 48 amends a number of provisions in Part 9 of the Housing Act 1985 in order to provide for the transfer of jurisdiction of appeals relating to demolition orders to the Residential Property Tribunal. This ensures that all appeals relating to enforcement options under Part 1 are heard by the Tribunal.

Chapter 5 - General and Miscellaneous Provisions Relating to Enforcement Action

Section 49: Power to charge for certain enforcement action

Section 50: Recovery of charge under section 49

174.     Sections 49 and 50 provide powers for LHAs to charge, and to recover charges, incurred in respect of certain enforcement powers and duties exercised under Part 1. These provisions re-enact with modifications sections 87 and 88 of the Housing Grants, Construction and Regeneration Act 1996, which are repealed by Schedule 16 to this Act.

Section 51: Repeal of power to improve existing enforcement procedures

175.     Section 51 repeals section 86 of the Housing Grants, Construction and Regeneration Act 1996, which provides a pre-notice procedure enabling forewarning to be given of the enforcement action contemplated by an LHA. The Housing (Fitness Enforcement Procedures) Order 1996 (SI 1996 No 2885) requires an LHA to issue a "minded to take action" notice prior to taking enforcement action.

Section 52: Repeal of provisions relating to demolition of obstructive buildings

176.     Section 52 repeals the provisions in sections 283-288 of the Housing Act 1985 relating to the demolition of obstructive buildings.

Section 53: Miscellaneous repeals etc in relation to fire hazards

177.     Section 53 repeals certain provisions of the Building Act 1984 and in a number of local acts dealing with fire safety in buildings. These provisions are made redundant by Part 1.

PART 2 - LICENSING OF HOUSES IN MULTIPLE OCCUPATION

Section 55: Licensing of HMOs to which this Part applies

178.     Section 55 sets out the scope of the licensing provisions under Part 2 and the general duties on LHAs in relation to their licensing functions. The section provides that LHAs are required to license the types of HMOs prescribed in an order made by the appropriate national authority (that is initially to be those of 3 storeys and above occupied by at least 5 persons who constitute more than one household). It also provides that an LHA may license other categories of HMOs designated by it under an additional licensing scheme (see section 56).

179.     Under subsection (5) certain duties are imposed on the LHA in connection with its functions. The LHA is required to promote the implementation of licensing; to ensure that it deals with licensing applications promptly and satisfy itself that no Part 1 functions remain to be discharged in respect of licensed HMOs as soon as possible and in any case within 5 years of the first application for a licence.

Section 56: Designation of areas subject to additional licensing

180.     Section 56 permits an LHA to extend licensing beyond the scope of mandatory licensing (see section 55). An LHA can designate part or all of its area as subject to additional licensing for specified types of HMOs. An LHA must consider that a significant proportion of the HMOs (of the type it is considering licensing) are being managed ineffectively so as to give rise problems for the occupiers or members of the public. In considering the quality of management, LHAs must take into account the degree to which relevant codes of practice (if any) are being adhered to (see section 233).

181.     Before making a designation an LHA must consult with those likely to be affected by it and take account of any representations.

Section 57: Designations under section 56: further considerations

182.     Section 57 sets out further requirements that the LHA must consider before extending licensing to additional categories of HMO. These are:

• - ensuring the use of additional licensing is in accordance with the LHA's overall housing strategy and is part of a co-ordinated approach to deal with wider issues such as anti-social behaviour;

• examining whether there are other courses of action that could be used to deal with the problems identified (e.g. voluntary accreditation schemes) and

• concluding that additional licensing, whether on its own or in conjunction with other policies, will make a significant contribution to dealing with the problems.

183.     Subsection (5) provides a definition of anti-social behaviour for the purposes of the Act.

Section 58: Designation needs confirmation or general approval to be effective

184.     Section 58 provides that designations for additional licensing schemes need to be confirmed (unless covered by a general approval, see below) by the appropriate national authority. A designation comes into force no earlier than 3 months after it has been confirmed. The section also provides that the appropriate national authority may give general approval to certain types of designations or specified LHAs. Where a designation has been made under a general approval it cannot come into force until at least 3 months after the designation is made.

Section 59: Notification requirements relating to designations

185.     Section 59 requires an LHA to publicise an additional licensing designation in accordance with requirements contained in regulations.

Section 60: Duration, review and revocation of designations

186.     Section 60 provides that a designation must from time to time be reviewed and can be revoked following a review, but in any case must end 5 years after it has been made. When a scheme is revoked notice of the revocation must be publicised in accordance with requirements contained in regulations.

Section 61: Requirement for HMOs to be licensed

187.     Section 61 provides that every HMO to which this Part applies must be licensed unless a temporary exemption notice is in force or it is subject to an IMO or FMO. However, section 72(4) makes clear that if a valid application has been made for a licence or temporary exemption notice, that no offence is committed.

188.     An HMO is licensed for occupation by a maximum number of persons or households. An LHA is under a duty to take reasonable steps to ensure that applications for licences are made on behalf of all relevant HMOs in their area (that do not already have a licence).

189.     Subsection (5) provides that the appropriate national authority may make regulations setting out how licensing provisions apply in the case of certain converted blocks of flats (as defined in section 257).

     Section 62: Temporary exemption from licensing requirement

190.     Section 62 provides that an LHA may grant a temporary exemption from licensing for an HMO which would otherwise be required to be licensed, where the managers/owners intend to take steps to ensure that the HMO no longer require a licence. A temporary exemption notice lasts for 3 months but is renewable for another 3 months in exceptional circumstances. Where the exemption is refused there is a right of appeal to the RPT.

Section 63: Applications for licences

191.     Section 63 provides that an application for a licence must be made to an LHA in accordance with its particular requirements, which may include the payment of a fee. The appropriate national authority may prescribe by regulations various matters concerning applications, including the content and format of application forms, the manner in which applications are made and the maximum fees that an LHA can charge. Subject to these regulations, an LHA can take account of all its costs of running the licensing scheme when setting the licence fee.

Section 64: Grant or refusal of licence

192.     Section 64 describes the grounds on which an LHA must decide whether or not to grant a licence. A licence must be granted if:

• the house is suitable for occupation by a certain number of persons or households as specified in the application or by the LHA, or can be rendered suitable for that number by imposition of conditions in the licence (see section 65 for tests of suitability);

• the proposed licence holder is a fit and proper person (see section 66 for definition of 'fit and proper'), as well as being the most appropriate person to be granted a licence i.e. they have management responsibility and are locally resident - this is intended to ensure that unfit landlords cannot use "front men" to apply for licences;

• the proposed manager of the HMO is the person having control of the house or an agent or employee of that person and is also a fit and proper person; and

• the proposed management arrangements are satisfactory.

     Section 65: Tests as to suitability for multiple occupation

193.     Section 65 sets out what needs to be considered for a house to be suitable for occupation by a particular maximum number of households or persons. Regulations may prescribe minimum standards such as to the number, type and quality of toilets, washing facilities and food preparation facilities and certain other standards of facilities or equipment to be provided. An LHA may require different, but not lower, standards than those prescribed in the regulations when determining whether the HMO is reasonably suitable for the number of occupants.

     Section 66: Tests for fitness etc. and satisfactory management arrangements

194.     Section 66 sets out the evidence that must be considered in determining whether someone is a fit and proper person to be a licence holder or a manager. These include whether that person (or a relevant associate e.g. a spouse or business partner) has committed offences involving fraud, dishonesty, violence, drugs or sexual offences. Spent convictions are not, in this context, taken into account. Evidence of unlawful discrimination in business, contravention of housing law or breach of any applicable code of practice (see section 233) is also relevant.

195.     In addition the section sets out the matters to be addressed when considering whether or not the management arrangements for a HMO are satisfactory (in terms of the competence of the manager, management structure and funding).

     Section 67: Licence conditions

196.     Section 67 provides that an LHA may include conditions in a licence relating to its management, use and occupation and its content and condition. Such conditions may include:

• restrictions or prohibitions on the use of parts of the house by occupants

• requirements to take reasonable and practicable steps to prevent or reduce anti-social behaviour of the occupants or visitors

• installing and making facilities and equipment available in good working order to meet prescribed standards under section 65

• carrying out necessary works to such facilities and equipment within specified periods

197.     Any such conditions will be in addition to those laid out in Schedule 4 which sets out mandatory conditions.

198.     An LHA is required, as a general rule, to address health and safety issues through its Part 1 functions and not by means of licence conditions and it cannot set conditions which require changes to the terms or conditions of person's occupation of the HMO. For example, this means that a LHA would not be permitted to impose any condition limiting the level of rent payable.

     Section 68: Licences: general requirements and duration

199.     Section 68 provides that a person controlling or managing an HMO must have a separate licence for each property and that each licence is valid for maximum of five years. Licences are non-transferable. Upon the death of a licence holder, a 3-month temporary exemption is automatically granted. This may be renewed for a further 3 months and there is a right of appeal to the RPT against any refusal to renew it.

     Section 69: Variation of licences

     Section 70: Revocation of licences

200.     Normally the conditions of an HMO licence will remain the same for its duration. However, it may be necessary for the local authority to vary the licence in particular circumstances, particularly in relation to either to the maximum occupancy or the standards required for a particular number of occupants. Section 69 allows the local authority to vary a licence.

201.     Section 70 provides for the circumstances in which an LHA may revoke a licence. These are:

• with the agreement of the licence holder e.g. if the house is converted to single occupancy

• where the licence holder has committed a serious breach of a condition of the licence or repeated breaches of such a condition

• where the LHA no longer believes that the licence holder is a fit and proper person

• where the LHA believes the property is no longer meets the standards required for a licence

202.     There is also a power for the appropriate national authority to make regulations setting out other circumstances in which a licence may be revoked.

203.     Part 2 of Schedule 5 sets out the procedure to be followed in respect of a variation or revocation of a licence and Part 3 of Schedule 5 sets out the right of appeal to the RPT against variation and revocation decisions.

204.     A variation or revocation made with the agreement of the licence holder takes effect immediately. Otherwise it does not come into effect until the time for making an appeal has expired, or any appeal against it is disposed of or withdrawn.

205.     Section 71: Procedural requirements and appeals against licence decisions

206.     Section 71 gives effect to the procedural requirements and appeals procedure set out in Schedule 5.