Sections246 - 248: Service of documents and things done electronically

569.     Sections 246 - 248 make provision for the service of documents, including the service of documents in electronic form.

Section 249: Proof of designations

570.     Section 249 makes provision regarding proof of designations made by an LHA under Part 2 or 3 stating that a certified copy of the scheme is prima facie evidence that the scheme has been made.

Section 250: Orders and regulations

571.     Section 250 makes provision in relation to orders and regulations made under the Act. Any power of the Secretary of State or the National Assembly for Wales to make orders or regulations under the Act is exercisable by statutory instrument. Under subsection (3), the Secretary of State must consult the National Assembly for Wales before making any regulations under Part 5 which relate to residential properties in Wales.

572.     The section provides for different procedures to apply in different cases. Commencement powers, as is usual, have no form of Parliamentary procedure. Detailed and technical orders and regulations will be subject to the negative resolution procedure. Orders and regulations listed in subsection (5) are subject to the affirmative resolution procedure.

Section 251: Offences by bodies corporate

573.     Section 251 makes provision in respect of offences by a body corporate, for example, a limited company. It provides that a representative of an organisation, that is a director, manager, secretary or other similar officer of the body corporate, is capable of being liable as well as the organisation itself.

Section 252: Power to up-rate level of fines for certain offences

574.     Section 252 allows the Secretary of State to change the fines for certain offences in line with inflation.

Section 253: Local inquiries

575.     Section 253 allows the appropriate national authority to require a local inquiry to be held in connection with the carrying out of its functions under the Act, if it considers that it is appropriate to do so.

Section 254: Meaning of "house in multiple occupation"

576.     Section 254 provides a definition of a "house in multiple occupation". To fall within that definition a privately rented building must be

• a block of flats within the meaning of section 257; or

• be subject to an HMO declaration; or

• meet one of the three tests set out in the section.

577.     The standard test in subsection (2) requires that unrelated occupiers of the building share basic amenities in living accommodation that is not a self contained flat or flats, or that the living accommodation lacks one or more of those amenities. Subsection (3) provides that a self contained flat can be an HMO if unrelated occupiers share basic amenities, or the flat lacks one or more of those amenities.

578.     Subsection (4) applies to private rented converted buildings which meet the shared or lack of facilities tests in (2) and also buildings that include flats where the basic amenities for the exclusive use of the occupant are located outside of the main living accommodation.

579.     Section 254 also contains definitions of "self-contained flat", "converted building" and "basic amenities". In addition it exempts those buildings in Schedule 14 from the definition and provides regulation making powers for the appropriate national authority to amend this section and related provisions as they relate to the definition of HMO.

Section 255: HMO declarations

580.     Section 255 provides that where an LHA is satisfied that although not exclusively occupied by people as their main or only home, a building is occupied to a significant degree by such persons (and otherwise the occupation and building satisfies the HMO tests) it may issue a declaration that the building is an HMO. This could be used, for example, where it is not entirely clear that a building was being predominantly used as a hotel catering for short term guests or as a hostel accommodating permanent residents. An HMO declaration puts beyond doubt that such a building is to be regarded as an HMO. It must serve the declaration on the relevant persons as defined in the section and they have a right of appeal against the making of a declaration. The declaration does not come into force until the appeal process is finished, if on appeal the decision to make it is confirmed.

Section 256: Revocation of HMO declarations

581.     Section 256 provides that when an HMO declaration is in force and the LHA is satisfied that the test for making an HMO declaration is no longer satisfied, it can revoke the declaration and the building will cease to be an HMO. An LHA can revoke the declaration on its own volition or upon an application from a relevant person. If it decides not to revoke the declaration where it has been asked to do so, it must tell the applicant the reason for its decision. If the applicant is not satisfied with that decision there is a right to appeal. On appeal the tribunal may confirm the LHAs decision not to revoke the declaration or may reverse that decision and revoke it.

Section 257: HMOs: certain converted blocks of flats

582.     Section 257 defines the "converted blocks of flats" that are classified as HMOs. These are blocks that have been converted into self-contained flats that did not comply with the 1991 Building Regulations when they were converted and where less than two-thirds of the flats are owner-occupied.

Section 258: HMOs: persons not forming a single household

583.     Section 258 provides that persons do not form a single household for the purpose of section 254 unless they are members of the same family or they form a prescribed relationship under regulations made by the appropriate national authority. The section defines "family" for these purposes.

Section 259: HMOs: persons treated as occupying premises as only or main residence

584.     Section 259 sets out that in certain circumstances persons are to be treated as occupying accommodation as their only or main residence (notwithstanding they may have a home elsewhere) for the purpose of section 254. These are students and those in refuges fleeing domestic violence. The appropriate national authority may by regulations prescribe other descriptions of circumstances for the purpose of this section.

Section 260: Presumption that sole use condition or significant use condition is met

585.     Section 260 provides that in any legal proceedings it is presumed in respect of a building that the sole use condition or the significant use condition is met, unless there is evidence to the contrary.

Section 261: Meaning of "appropriate national authority", "local housing authority" etc.

586.     Section 261 gives the meaning of appropriate national authority. In relation to England, the expression means the Secretary of State. In relation to Wales it means the National Assembly for Wales. The section also defines the expression local housing authority.

Section 262: Meaning of "lease", "tenancy", "occupier" and "owner" etc.

587.     Section 262 gives the meaning, for the purpose of the Act, of "lease", "tenancy", "occupier" and "owner", and derivations of those terms. In particular subsection (4) provides that the definition of "lessee" includes a statutory tenant. The expressions include lettings granted by the LHA, but the definition of "occupier" does not apply where any different definition is provided elsewhere in the Act for specific purposes.

Section 263: Meaning of "person having control" and "person managing" etc

588.     Section 263 defines for the purpose of the Act that "person having control" is the person who receives (directly or as an agency or trustee) the market rents from the tenants for a given premises or is otherwise entitled to receive the rents if the premises were let (i.e. an owner) "Person Managing" is someone who receives the rents directly from the occupier (but "rent" includes ground rent), so such a person could be a managing agent.

Section 264: Calculations of numbers of persons

589.     Section 264 provides that that the appropriate national authority can prescribe rules with respect to the calculation of numbers of persons for the purposes of any provision of the Act, any provision made under the Act or any order or licence made or granted under the Act.

Section 265: Minor and consequential amendments

590.     Section 265 gives effect to Schedule 15 to the Act which contains minor and consequential amendments. Subsection (2) enables the Secretary of State to make supplementary, incidental and consequential provisions by order for the purposes of the Act. Subsection (3) allows such an order to modify any Act or subordinate legislation for those purposes. Any order made under subsection (3) is subject to the affirmative resolution procedure. The power in subsection (2) is also exercisable by the National Assembly for Wales in relation to provisions dealing with matters with respect to which the functions are exercisable by the Assembly.

Section 266: Repeals

591.     Section 266 gives effect to Schedule 16 to the Act which contains repeals.

Section 267: Devolution: Wales

592.     Functions of the Secretary of State under the Housing Acts of 1985, 1988 and 1996 are exercisable, as respects Wales, by the National Assembly for Wales, pursuant to the National Assembly for Wales (Transfer of Functions) Order 1999. This section provides that the reference in that Order to those acts is to be treated as a reference to those acts as amended by the Act.

Section 268: The Isles of Scilly

593.     The Act applies to the Isles of Scilly, but section 268 allows the Secretary of State to make modifications as to how the Act applies, by order.

Section 270: Short title, commencement and extent

594.     Section 270 provides that in general the Act extends to England and Wales and makes provision for commencement. Details of commencement of each of the provisions of this Act are set out in a separate section at the end of these notes.

595.     Subsection (9) enables the Secretary of State, by order, to make transitional provisions in connection with the coming into force of any provision of this Act and subsection (10) enables the National Assembly for Wales to make such provision for matters with respect to which functions are exercisable by the Assembly.

SCHEDULES

Schedule 1: Procedure and appeals relating to improvement notices

596.     Schedule 1 sets out the procedures for serving, revoking and varying improvement notices, and the procedures and time limits for appeals against such notices.

Schedule 2: Procedure and appeals relating to prohibition orders

597.     Schedule 2 sets out the procedures for making, revoking and varying prohibition orders, and the procedures and time limits for appeals against such orders.

Schedule 3: Improvement notices: enforcement action by local housing authorities

598.     Schedule 3 enables enforcement action in respect of an improvement notice to be taken by LHAs either with or without agreement. It also enables authorities to recover the expenses they incur in taking such action without agreement, and provides a right of appeal by persons from whom they have sought recovery of expenses.

Schedule 4: Licences under Parts 2 or 3: mandatory conditions

599.     Schedule 4 sets out mandatory conditions to be attached to licences granted under Parts 2 or 3. Paragraph 1 sets out the conditions that LHA's are required to include in all Part 2 and 3 licences. Paragraph 2 sets out a condition that only applies to Part 3 licences. Paragraph 3 enables the appropriate national authority by regulations to amend paragraphs 1 or 2 by adding or removing conditions.

Schedule 5: Licences under Parts 2 and 3: procedures and appeals

Schedule 6: Management orders: procedure and appeals

600.     Schedule 5 sets out the procedures and appeal mechanisms in relation to licences under Parts 2 and 3. Schedule 6 does so for management orders under Part 4. In each Schedule, Part 1 sets out the procedure the LHA must adopt in granting or refusing a licence, or in the case of Schedule 6, the making of orders. Part 2 of the Schedules are concerned with procedures relating to variation or refusal to vary and revocation and refusal to revoke licences and management orders. Part 3 of both Schedules sets out the rights to appeal against decisions and the mechanisms, which apply.

Schedule 7: Further Provisions regarding empty dwelling management orders Paragraph 1 - Operation of interim EDMOs

601.     An interim EDMO comes into force as soon as it is made and can normally last for a maximum period of 12 months.

602.     Paragraph 2 - General effect of interim EDMOs

603.     When an interim EDMO is in force, the LHA takes over most of the rights and responsibilities of the relevant proprietor including (subject to the rights of existing occupiers) the right to possession of the dwelling. It does not, however, become the legal owner of the dwelling. With the consent of the relevant proprietor, the LHA may grant occupation rights. Where the relevant proprietor is a leaseholder, any grant must be for a term that is less than the relevant proprietor's lease.

604.     A LHA (or an agent appointed by the authority) is not liable to any person with an estate or interest in the dwelling for any act or omission done in the performance of its duties under an interim EDMO, unless it is due to negligence.

605.     An interim EDMO is a local land charge and the LHA may apply to have a restriction entered on the Land Register. This is to prevent any unauthorised dealings and to ensure the Land Register accurately reflects the status of the property.

606.     Paragraph 3 - General effect of interim EDMOs: leases and licences granted by authority

607.     A tenancy or licence granted by a LHA is to be treated as if it were a legal lease or a licence granted by a legal owner.

608.     Paragraph 4 - General effect of interim EDMOs: relevant proprietor, mortgagees etc

609.     A relevant proprietor is not entitled to receive any rent or other payments from persons occupying the dwelling and may not exercise any rights to manage the dwelling whilst an interim EDMO is in force. However, the relevant proprietor retains their rights to dispose of their interest in the dwelling (e.g. by selling it).

610.     The validity of any mortgage or superior lease of the dwelling and any rights or remedies available to the mortgagor or lessor are unaffected, save where they would prevent the LHA exercising its power to grant a right of occupation. Paragraph 5 - Financial arrangements while order is in force

611.     Rent collected by a LHA from persons occupying the dwelling may be used to meet the costs incurred in performing duties in respect of the dwelling or to pay compensation payable to a third party or a dispossessed landlord or tenant. The authority must pay any remaining balance, plus interest (where appropriate), to the relevant proprietor.

612.     The LHA must keep full accounts of income and expenditure and allow the relevant proprietor opportunity to inspect the accounts. The relevant proprietor may apply to a RPT to make an order declaring expenditure to be unreasonable and to require appropriate adjustment of the accounts.

613.     Paragraphs 6, 7 and 8 - Variation or revocation of interim EDMOs

614.     A relevant proprietor or someone else with an interest in the dwelling is entitled to ask the LHA to vary or revoke an interim EDMO at any time.

615.     The terms of an interim EDMO may be varied if the LHA considers it appropriate to do so.

616.     A LHA may revoke an interim EDMO if:

• it concludes that there are no steps it can take to secure occupation of the dwelling;

• it is satisfied that the dwelling will become or continue to be occupied following revocation;

• it is satisfied that the dwelling is to be sold;

• a final EDMO has been made to replace the order;

• it concludes that it should revoke the order so it does not interfere with the rights of a third party; in any other circumstance it considers it appropriate to do so.

617.     However, if the dwelling is occupied at the time the revocation is proposed, the LHA may only revoke with the consent of the relevant proprietor (unless the revocation is necessary so that a final EDMO may be made). This restriction is provided so that the relevant proprietor can not be required to manage tenancies he did not enter into. Therefore, if the LHA decides to revoke the order and hand back responsibility for the dwelling to the relevant proprietor, the relevant proprietor may request the LHA to bring to an end any occupation, before the relevant proprietor is willing to consent to the order being revoked.

618.     The LHA may make revocation subject to payment of any expenditure incurred by it that has not already been recouped from rental income. It is entitled to refuse to revoke the order on the grounds that the property would be likely to be left unoccupied.

619.     Paragraph 9 - Operation of final EDMOs

620.     A final EDMO comes into force when the time for appealing against it expires or, if an appeal is made, only when the RPT upholds it. The effect of this is that the relevant proprietor has the opportunity to prevent any final EDMO coming into force until either he accepts all the terms, or they have been considered by a RPT.

621.     A final EDMO ceases to have effect after 7 years, unless:

• the order provides for it to cease to have effect earlier; or

• the order provides for it to cease to have effect later and the relevant proprietor consents;

622.     Paragraphs 10, 11 and 12 - General effect of final EDMOs

623.     The general effect of a final EDMO is largely the same as for an interim EDMO. The principal difference being that a LHA does not require the consent of the relevant proprietor to grant occupation rights. Any occupation rights granted cannot be for a fixed term expiring after the order is due to expire or terminable by notice of more than 4 weeks, without the consent of the relevant proprietor. But consent to create a tenancy equivalent to an assured shorthold tenancy is not needed, provided it is created more than 6 months before the expiry of the order.

624.     Paragraphs 13 and 14 - Management scheme and accounts

625.     A final EDMO must contain a management scheme setting out how the LHA intends to carry out its duties and how it will account for monies expended and collected whilst it is operative. The LHA must keep full accounts of income and expenditure and provide anyone with a relevant interest in the dwelling reasonable access to inspect them.

626.     The management scheme must include details of the following:

• Work the LHA intends to carry out to the dwelling and an estimate of expenditure;

• The rent the dwelling might be expected to fetch on the open market and the rent the LHA will seek to obtain;

• Any compensation payable to third parties;

• Where the amount of rent payable is less than the open market rent, the management scheme must account for the difference. For example, the LHA is permitted to charge a sub market rent, but it must make up any shortfall out of its own resources.

627.     The management scheme must also include details of how the LHA intends to pay the relevant proprietor any surplus remaining after deduction of its relevant expenditure and any compensation payable. The management scheme may also state if the LHA intends to carry over any surplus to a subsequent final EDMO or, where there is a deficit, how it intends to recover the deficit under a subsequent final EDMO.

628.     A person affected by a management scheme who considers the LHA is not managing the dwelling in accordance with the management scheme may apply to a RPT for an order requiring the LHA to do so.

629.     Paragraphs 15, 16 and 17: Variation or revocation of final EDMOs

630.     The rules on variation and revocation of final EDMOs are similar to those for interim EDMOs (see explanatory note on paragraphs 6, 7 and 8).

631.     Paragraph 18: Effect of EDMOs: persons occupying or having a right to occupy the dwelling.

632.     Paragraph 18 provides that a person who, prior to the making of an EDMO, had the right to occupy the dwelling retains the same legal status once the order is made.

633.     Paragraph 19: Effect of EDMOs: agreements and legal proceedings.

634.     Paragraph 19 provides for agreements relating to the management of the dwelling or the provision of services or facilities to it, in force at the time the EDMO is made and to which the relevant proprietor was a party, transfer to the LHA if it serves notice to that effect. The LHA can also take over certain legal proceedings commenced against the relevant proprietor on the service of notice to that effect.

635.     Paragraphs 20: Effect of EDMOs: furniture

636.     Paragraph 20 provides that any right to possession of furniture in the dwelling vests in the LHA whilst the EDMO is in force.

637.     Paragraph 21: EDMOs: power to supply furniture

638.     A LHA may supply furniture to a dwelling subject to an EDMO and can recover the cost of it as relevant expenditure.

639.     Paragraph 22: Power of a residential property tribunal to determine certain leases and licences

640.     A RPT may, on application from a LHA, make an order determining a lease or licence in respect of a dwelling if it is satisfied that the dwelling is not being occupied and the local authority requires possession to secure occupation of it. In making an order determining a lease or licence, a RPT may require the LHA to pay compensation.

641.     Paragraph 23: Termination of EDMOs: financial arrangements

642.     On termination of an interim EDMO, the LHA must pay to the relevant proprietor any balance of rent left after deduction of its relevant expenditure and any compensation payable to a third party or a dispossessed landlord or tenant. However, it is not required to pay any balance to the relevant proprietor where the order is followed by a final EDMO and the final EDMO provides for this.

643.     On termination of a final EDMO, the LHA must pay any balance owed to the relevant proprietor, a third party or a dispossessed landlord or tenant in accordance with the management scheme.

644.     If, on termination of an EDMO, there is a deficit after deduction of relevant expenditure, the LHA may be required to meet the deficit out of its own resources (unless it subsequently recovers the deficit under a final EDMO). The LHA may only recover the deficit from the relevant proprietor if:

• the relevant proprietor has agreed to pay it;

• it relates to a service charge paid by the local authority;

• in the case of an interim EDMO, if the relevant proprietor unreasonably refused to consent to the grant of occupation rights;

645.     Any sum recoverable is, until recovered, a charge on the dwelling.

646.     Paragraph 24; Termination of EDMOs: leases, agreements and proceedings

647.     When an EDMO ceases to have effect the LHA ceases to be a party to a lease or licence to which it became a party under the order. The relevant proprietor takes over the LHA rights and obligations. The LHA may cease to have rights and liabilities under any other agreement or legal proceeding by serving a notice on the other party.

648.     Paragraph 25: EDMOs: power of entry to carry out work

649.     A LHA has the right to enter a dwelling subject to an EDMO to survey its condition or to carry out works. Any occupier who prevents an officer, employee, agent or contractor of a LHA from carrying out their duties may be ordered to stop by a magistrate's court. Failure to comply with an order of the court is an offence. A LHA may apply to a court for a warrant to authorise entry to a dwelling subject to an EDMO.

650.     Paragraphs 26 to 37; Appeals

651.     A person who is affected by an EDMO may appeal to a RPT against:

• a decision of a LHA to make a final EDMO;

• the terms of a final EDMO (including the terms of a management scheme);

• the terms of an interim EDMO on the grounds that they do not make provision regarding the interest or on the intervals at which surplus monies received by the LHA under the order are to be paid to the relevant proprietor;

• a decision of the LHA to vary or revoke an interim or final EDMO or its refusal to vary or revoke an interim or final EDMO.

• a decision of the LHA as to whether compensation should be paid to a third party in respect of interference with his rights in consequence of a final EDMO.