Licensing of Houses in Multiple Occupation - Transitional Guidance for local
authorities
May 2011
Background
1
This guidance is issued to assist local authorities in managing the transition
from the current HMO licensing regime under the Civic Government (Scotland) Act
1982 (Licensing of Houses in Multiple Occupation) Order 2000, as amended, to the
new regime under Part 5 of the Housing (Scotland) Act 2006, as amended, on the
transition date of 31 August 2011.
2
It is intended to assist local authorities in their interpretation of the relevant
legislation, specifically the Commencement Order which brings Part 5 into effect,
The Housing (Scotland) Act 2006 (Commencement No. 8, Transitional Provisions
and Savings) Order 2010i. The guidance has been prepared in good faith, but does not
take precedence over the actual legislation.
3
If there are areas that remain unclear, or if local authorities have further
questions they should contact,
Peter Reid
Senior Policy Officer – HMO licensing
Private Housing Services Policy Branch
T
E
0131 244 7686
peter.reid2@scotland.gsi.gov.uk
4
Mandatory HMO licensing has operated under the Civic Government
(Scotland) Act 1982 since 2000. Part 5 of the Housing (Scotland) Act 2006 brings
HMO licensing into housing legislation. Both regimes are broadly similar, but some
important differences have been introduced under Part 5,
o More punitive enforcement options are available
o Local authorities have to take account of the new statutory guidance issued by
Scottish Ministers
o Amendments were made in the Private Rented Housing (Scotland) Act 2011,
particularly in relation to the giving of reasons for decisions and increasing the
penalty for operating an unlicensed HMO.
5
Landlords may have concerns about the transition. Therefore it may be
beneficial to engage with landlords to address any concerns and raise awareness.
Scottish Government officials will be willing to assist in this. However, it is expected
that the vast majority of compliant landlords will probably not notice any significant
difference between the two regimes.
6
The planned implementation of Part 5 has drawn upon the views and expertise
of local authorities;
o that it should not place undue burdens upon local authorities
o that it should be as clear as possible for HMO landlords and tenants, and
1
o that landlords should not be deprived of rights of appeal under the current
Civic Government licensing regime.
7
The Commencement Order that sets out the transition therefore explains that,
o in the main, on 31 August 2011 licences in force under the old regime will
become licences under the new regime, with the original expiry date and
conditions the same,
o local authorities must advise all their licence holders of the impending change
of licensing regime, and
o existing rights of appeal under the Civic Government regime are preserved
where a licence applied for prior to 31 August 2011 is pending or specific
proceedings are ongoing.
Introduction
8
In most cases, licences granted under the Civic Government regime will
become licences under the Part 5 regime, with identical expiry date and conditions.
No additional fee is required for any existing licence that moves onto the Part 5
regime. There are a limited number of exceptions to this automatic transition at the
transition date and these are consideration of a pending application, and cases where
there are actual or potential appeals, suspensions, and variations. Further details are
provided at para 14 onwards. These are designed to ensure that ongoing procedures
continue under the Civic Government regime, and preserve landlords’ rights of appeal
under the Civic Government regime.
9
Any ongoing prosecution under the Civic Government (Scotland) Act 1982
would continue as a prosecution under that Act. Both the Civic Government Act and
the 2000 Order continue to apply for the purposes of ongoing prosecutions, although
after the transition date the majority of licences will be under the Part 5 regime. The
fact that a licence has transferred to the new regime has no effect on an ongoing
prosecution under the previous Civic Government regime.
10
In practical terms, local authorities may well find it useful to anticipate the
impact of the transition date by carrying out a review of licences to minimise
outstanding casework in the run up. This should help to reduce the number of cases
that will not move onto the new regime at the transition date and this is likely to
simplify ongoing administration.
Procedure to follow –
11
At least a month before the transition date of 31 August 2011, the local
authority are required, where it is practical to do so, to write to every HMO landlord
who appears likely to be the holder of a licence on the transition date. This
communication can be by email. Local authorities may find it useful to engage with
landlords earlier than this.
12
This notice is to advise the recipient of
o the transition date
o the consequences in general terms of the implementation of the provisions
under the 2006 Act
o Where further guidance is available
2
13
If the local authority fails to provide notice, then it does not affect the
transition itself.
Specific Exemptions –
14
The vast majority of valid HMO licences will move on to the Part 5 regime on
the transition date of 31 August 2011. However, in order to ensure a smooth transition
for all parties the following procedures are to be allowed to continue until conclusion
under the Civic Government regime;
o consideration of a pending application,
o appeals,
o suspensions, and
o variations.
Prosecutions also continue under the Civic Government regime, though the licence
itself will move on to the Part 5 regime.
15
The Commencement Order clarifies this by setting out in specific legal terms
when an HMO licence becomes a licence under the Part 5 regime.
16
The only exceptions to the general principle that all valid licences move over
to the new regime on 31 August 2011 are listed below. The Civic Government regime
will continue to operate in relation to these until the point indicated.
17
A local authority or sheriff’s decision is deemed to have become final when
the time within which an appeal may be made has elapsed, or where an appeal is
lodged when the appeal is abandoned or determined.
18
For ease, the lettering below duplicates the lettering within the
Commencement Order article 6(1).
3
(A)
Application Pending at 31 August 2011
19
If an application for an HMO licence is pending on 31 August 2011, it will
continue to be considered under the Civic Government regime.
20
If the application is granted then it will become a licence under the new
regime when that decision becomes final.
21
The local authority decision to grant a licence becomes final when the time
within which an appeal may be made has elapsed, or where an appeal is lodged, when
the appeal is abandoned or determined.
22
Any right of appeal, for example by neighbours against the decision to grant,
or by the landlord to the conditions applied, would therefore continue to be under the
Civic Government regime.
23
If the application is refused then the applicant retains rights of appeal under
the Civic Government Regime. The appeal would be by summary application to the
sheriff. The sheriff might
 Maintain the original decision to refuse the application – so there is no
licence. After 31 August 2011 the applicant would have to apply for a new
licence under the new Housing (Scotland) Act 2006 regime (unless the
applicant successfully appealed the sheriff’s decision).
 Uphold the appeal –
o Remit the case to the local authority for reconsideration – this would
be done under the Civic Government regime, and where the decision
on reconsideration becomes final, (as per para 21 above,) any licence
granted would be under the Housing (Scotland) Act 2006 regime.
o Reverse or modify the decision of the local authority – where any
licence granted becomes final, (as per para 21 above,) it would be
under the Housing (Scotland) Act 2006.
24
Both regimes include restrictions on further applications where a licence
application has been refused. If the application has been refused under the Civic
Government regime, the landlord would not normally be able to re-apply for a
calendar year from the date of refusal. Under the Part 5 regime there is a similar
restriction on successive applications, unless the local authority is satisfied that there
has been a material change of circumstances. However as these are different licensing
regimes, local authorities are therefore advised that where they have refused a licence
application under the Civic Government regime, they should consider a successive
licence application under the Part 5 regime even where it falls within a year of the
refusal under the Civic Government regime. This is not expected to impose an undue
burden.
4
Application Pending at 31 August 2011 – flow chart
At 31 August 2011, where an application
for a licence is pending
The application remains under Civic
Government regime
Is it decided to
grant the
licence ?
Yes
No
The local authority decision to grant a
licence becomes final when the time
within which an appeal may be made has
elapsed, or where an appeal is lodged,
when the appeal is abandoned or
determined.
The licence is deemed to
be a licence under the
Part 5 regime
5
See following page
No
Is there
an appeal
There is
no
licence
Yes
Maintain
Does the
Sheriff
Maintain the
decision to
refuse
There is
no licence
No
The Sheriff upholds the
appeal
Remit
Does the
Sheriff - Remit
the case to LA
or reverse or
modify
Reverse or
modify
Reverse or modify the decision of
the LA – once any decision to
grant a licence becomes final the
licence is under the Part 5 regime.
6
Remit the case for
reconsideration under
the Civic Govt regime,
once any licence
becomes final – it is
under the Part 5
regime
(B)
Application already refused at 31 August 2011
25
Where an HMO licence application is refused under the Civic Government
regime, then any appeal would remain under that regime.
26
The same approach would exist as at para 23 above, and where the appeal
against refusal to grant an HMO licence is successful and a licence is granted, it
would become a licence under the Part 5 regime when it becomes final.
27
Local authorities should also be aware of the guidance on successive
applications that is provided at para 24.
7
(C)
Decision taken to suspend the licence before 31 August 2011 and that
suspension is not spent
28
A suspension under the Civic Government regime can be made under either
the Civic Government (Scotland) Act 1982, Schedule 1 para 11 or para 12 (as below).
Para 11 is the more rigorous process and allows for a longer period of suspension,
while para 12 is less rigorous and provides for a shorter period of suspension. A
suspension might initially be sought under para 12, to be followed by a suspension
under para 11. The licence will cease to be in effect during the period of the
suspension. While suspended, the licence would be suspended under the Civic
Government regime.
Extract from the Civic Government (Scotland) Act 1982, schedule 1
11(1)A licensing authority may, whether upon a complaint made to them or not, suspend a
licence in accordance with the provisions of this paragraph.
(2)A licensing authority may order the suspension of a licence if in their opinion—
(a)the holder of the licence or, where the holder is not a natural person, any director of it or
partner in it or any other person responsible for its management, is not or is no longer a fit and
proper person to hold the licence;
(b)the activity to which the licence relates is being managed by or carried on for the benefit of a
person, other than the licence holder, who would have been refused the grant or renewal of the
licence under paragraph 5(3) above;
(c)the carrying on of the activity to which the licence relates has caused, is causing or is likely
to cause undue public nuisance or a threat to public order or public safety;
(d)a condition of the licence has been contravened.
(3)A licensing authority may make an order under sub-paragraph (2)(d) above in respect of a
contravention of a condition of a licence notwithstanding that there has been no conviction in
that respect.
(4)In considering whether to suspend a licence the licensing authority may—
(a)have regard to—
(i)any misconduct on the part of the holder of the licence, whether or not constituting a breach
of any provision of Part I or II of this Act or this Schedule, which in the opinion of the authority
has a bearing on his fitness to hold a licence;
(ii)where the licence relates to an activity consisting of or including the use of premises or a
vehicle or vessel, any misconduct on the part of persons frequenting or using the premises,
vehicle or vessel occurring there or any misconduct in the immediate vicinity of the premises,
vehicle or vessel which is attributable to those persons;
8
(b)make such reasonable inquiries as they think fit and, subject to sub-paragraph (5) below,
include the results of their inquiries in the matters to which they have regard in such
consideration.
(5)Where a licensing authority intend to include any of the results of their inquiries under subparagraph (4)(b) above in the matters to which they have regard for the purposes of subparagraph (4) above, they shall notify the holder of the licence of that intention.
(6)A licensing authority may, whether upon an application made to them or not, recall an order
made under this paragraph.
(7)A licensing authority in considering whether or not to suspend a licence may, but before
deciding to do so shall, give—
(a)the holder of the licence;
(b)any person who has made a complaint relevant to the matters to be considered at the
hearing;
(c)the chief constable; and
(d)where the licence relates to an activity wholly or mainly carried on(a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the
enforcing authority,
(b) in any other premises, the appropriate relevant authority,
an opportunity to be heard by the licensing authority.
(8)The licensing authority shall have complied with their duty under sub-paragraph (7) above if
they have caused to be sent to the persons entitled under that sub-paragraph to an opportunity
to be heard, not later than 14 days before the hearing, notice in writing that the authority
propose to hold a hearing, together with a copy of any complaints relevant to the matters to be
considered at the hearing and a note of the grounds upon which the suspension of the licence
is to be considered and, where they decide to exercise their power under that sub-paragraph,
they shall cause such notice, copy and note to be sent to those persons not later than that
time.
(9)Where a licensing authority decide to order the suspension of a licence, the suspension
shall not, subject to sub-paragraph (10) below, take effect until the expiry of the time within
which the holder of the licence may appeal under paragraph 18 below against the suspension
or, if such an appeal has been lodged, until it has been abandoned or determined in favour of
the suspension.
(10)If, in deciding to order the suspension of a licence, a licensing authority determine that the
circumstances of the case justify immediate suspension they may, without prejudice to their
other powers under this paragraph, order that the licence shall be suspended immediately.
9
(11)The period of suspension of a licence under this paragraph shall be the unexpired portion
of the duration of the licence, or such shorter period as the licensing authority may fix; and the
effect of suspension shall be that the licence shall cease to have effect during the period of the
suspension.
(12)A licensing authority shall, within 7 days of their decision under sub-paragraph (1) above,
send written notice of their decision to the persons referred to in sub-paragraph (7)(a), (c) and
(d) above in relation to the licence and to any person who, in pursuance of sub-paragraph
(7)(b) above, was heard by the authority before they reached that decision.
12(1)A licensing authority shall, whether upon a complaint made to them or not, order the
suspension under this paragraph of a licence if they are of the opinion that the carrying on of
the activity to which the licence relates is causing or is likely to cause a serious threat to public
order or public safety.
(2)In considering whether to suspend a licence under this paragraph, a licensing authority may
make such reasonable inquiries as they think fit and include the results of their inquiries in the
matters to which they have regard in such consideration.
(3)Where a licensing authority intend to include any of the results of their inquiries under subparagraph (2) above in the matters to which they have regard for the purposes of this
paragraph they shall notify the holder of the licence of that intention.
(4)A licensing authority shall, before reaching a decision on the question whether or not to
suspend a licence under this paragraph, consult the chief constable and, where the licence
relates to an activity wholly or mainly carried on(a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5)
applies, the enforcing authority;
(b) in any other premises, the appropriate relevant authority.
(5)An order under this paragraph suspending a licence shall have effect from the date on which
it is made until whichever is the earlier of the following two dates—
(a)a date six weeks after the order was made;
(b)the date of any decision of the licensing authority whether or not to suspend the licence
under paragraph 11 above.
(6)A licensing authority may, whether upon an application made to them or not, recall an order
made under this paragraph.
(7)A licensing authority shall, within 7 days of their decision under sub-paragraph (1) or (6)
above, send written notice of their decision to the holder of the licence, the chief constable and,
where the licence relates to an activity wholly or mainly carried on(a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5)
applies, the enforcing authority;
(b) in any other premises, to the appropriate relevant authority.
.
10
29
Under para 12 the suspension will take effect on the date it is made until the
earlier of six weeks after the order was made, the date of any decision whether or not
to suspend the licence under para 11, or the date the decision is recalled. The
maximum possible length of a suspension under para 12 is therefore six weeks.
30
Under para 11 the suspension can, if the circumstances justify it, have
immediate effect but otherwise will take effect once the time period for appeal has
expired, or an appeal has been abandoned or determined in favour of the suspension.
The suspension under para 11 can be the entire unexpired portion of the HMO
licence, or such shorter period as the licensing authority determines.
31
If there is a suspension under para 12 that is shorter than the unexpired
proportion of the licence and it is not immediately followed by a suspension under
para 11, then at the end of that para 12 suspension, the licence would become a
licence under the Housing (Scotland) Act 2006.
32
If there is a suspension under para 11 that is shorter than the unexpired portion
of the licence, then at the end of that suspension, the licence would become a licence
under the Housing (Scotland) Act 2006.
33
If there is a suspension under para 11 or para 12 that continues until the expiry
of the original licence then it would be for the applicant to apply for a completely new
licence under the Housing (Scotland) Act 2006 once the suspension concludes.
34
If the licensing authority recalls a suspension (Schedule 1, 11(6) and 12(6),
then once the decision is final, then the licence will be under the Housing (Scotland)
Act 2006.
35
Under the Part 5 regime local authorities may revoke an HMO licence under
the procedures within s139 however they do not have powers of immediate revocation
or to suspend a licence.
11
Suspension under Para 12 – diagram
Takes effect
on the date
made
Date of any decision
under para 11
Lasts until the earlier of
6 weeks after the
order was made
(unless recalled)
Suspension under Para 11 – diagram
Takes effect
In cases which justify it –
immediately
In other cases – when time
period for appeal has expired
Or when appeal is abandoned
or determined in favour of
suspension
Lasts for
The entire unexpired proportion of
the licence
Or, such shorter period as the local
authority may determine (either at
outset, or by recalling the decision)
12
Suspension under Para 12
Is it shorter than the
unexpired portion of
the licence ?
No
At expiry of
the
suspension it
becomes a
new licence
under Part 5.
Yes
Is it followed immediately
by a Para 11 suspension ?
No
Yes
Does the para 11
suspension run until
licence expires ?
Yes
No
At expiry of the suspension, it becomes a
licence under Part 5.
13
At expiry of
the
suspension, it
becomes a
licence under
Part 5.
At expiry of
the
suspension
apply for a
new licence
under Part
5.
(D)
Suspension under consideration
36
Where a licensing authority has served notice on the holder of a 2000 Order
licence that it proposes to hold a hearing at which suspension under para 11 of
Schedule 1 to the 1982 Act will be considered,
or is considering whether to order suspension under paragraph 12 of that schedule, but
o It has not yet decided whether or not to order such suspension; or
it has decided not to order such suspension and that that decision has not yet
become final.
Then the licence will remain under the Civic Government regime until a decision is
made.
37
If it is decided to suspend, then the licence would continue to be suspended
under the Civic Government regime as per (C) above.
38
If it is decided not to order or give effect to a period of suspension, whether on
appeal or otherwise, then when the decision becomes final the licence will become a
licence under the new Part 5 regime.
14
Suspension under consideration – flow chart
At 31 August 2011, where a licensing
authority has
o served notice on an HMO
licence holder that it will hold
a hearing to consider
suspension under para 11, or
o is considering suspension
under para 12 and
o has not yet decided or
o has decided not to
order such suspension,
but that decision has
not yet become final
Is it, or has
it been,
decided to
suspend the
licence
Yes
No
Once the decision to
suspend becomes final, the
licence would remain
suspended under the Civic
Government regime
15
Once the decision not to
suspend becomes final, the
licence will be deemed to
be under the Part 5 regime
(E)
licence granted, but the decision is not yet final (decision still within the
potential appeal period)
39
Where the licence is granted before 31 August 2011 but is not yet final on 31
August, then the licence will remain under the Civic Government regime until the
decision becomes final, at which point the licence will be deemed to be a licence
under the new regime under the Housing (Scotland) Act 2006.
40
This preserves rights of appeal under the Civic Government Act regime.
16
(F)
licence granted but has not yet come into force due to suspensive
conditions
41
It is possible to grant a licence, but with conditions that mean that it cannot
come into effect until a certain date, or specified action has been completed. During
this period the inactive licence would remain as a licence under the Civic Government
regime. When the licence comes into force it will be deemed to be a licence under the
new regime under the Housing (Scotland) Act 2006.
17
(G)
variation under consideration
42
Where a licensing authority has served notice on an HMO licence holder that
it proposes to consider a variation of the licence (in terms of paragraph 10 of schedule
1 to the 1982 Act) and either
o It has not yet decided whether or not to vary the terms of the licence
o It has decided to vary the terms of the licence, but the variation has not yet
come into force
It has decided not to vary the terms of the licence, but that decision has not yet
become final. Then once the decision (including any appeal) not to vary the licence
becomes final then the licence will be deemed to be under the Part 5 regime.
43
If the variation is agreed, then once the variation comes into force the licence
will be deemed to be under the Part 5 regime.
18
variation under consideration – flow chart
At 31 August 2011, where a licensing
authority has served notice on an HMO
licence holder that it proposes to consider a
variation of the licence and either
o It has not yet decided whether or not
to vary the terms of the licence
o It has decided to vary the terms of the
licence, but the variation has not yet
come into force
o It has decided not to vary the terms of
the licence, but that decision has not
yet become final
Yes
Is it or has
it been
decided to
vary the
licence ?
Once the decision to
vary becomes final,
the licence will be
deemed to be under
Part 5
No
Once the decision not
to vary becomes final,
including any appeal,
the licence will be
deemed to be under
Part 5
19
Combinations of the above
44
It would be possible for a decision not to have become final and for it to
impose suspensive conditions. In which case the guidance under (E) would apply, not
(F). In this situation the decision has not become final on 31 August 2011 and it
therefore does not fall within (F), which requires a decision that has become final.
When the licence becomes final then it would be a licence under the Part 5 regime,
along with the suspensive conditions, which would be deemed to be suspensive
conditions within that regime.
When does a decision become final
45
For the purposes of the above scenarios (A) to (G) a decision will become
final when the time within which an appeal may be made has elapsed, or where an
appeal is lodged, when the appeal is abandoned or determined.
Other implications,
46
After 31 August 2011, where premises remain licensed under the Civic
Government regime they do not require to be licensed under Part 5.
47
Other than in relation to the savings provisions described above, the 2000
Order and the related amending Orders in 2002 and 2003 are revoked. The following
legislation is also repealed on 31 August 2011
o Part 8 of, and Schedule 11 to, the Housing (Scotland) Act 1987
o This relates to discretionary registration schemes for HMOs.
These require to be confirmed by the Scottish Ministers and
this legislation has been little used.
o Section 78(5)(f) of the Fire (Scotland) Act 2005
o This makes reference to notices that could be issued in relation
to the above discretionary registration scheme.
Scottish Government
May 2011
20
Questions and Answers – for local authorities and landlords
When does the new Part 5 regime come fully into effect ?
For most landlords the Civic Government regime concludes at midnight on Tuesday
30th August, with the new regime starting at the beginning of Wednesday 31st August
2011.
Their licence under the Civic Government regime will automatically become a licence
under the Part 5 regime. In a small number of cases the licence will remain as a
licence under the Civic Government regime until ongoing matters is resolved.
Which HMO licences will not move over to the new Part 5 regime on 31 August
2011 ?
Where there is a process ongoing, such as consideration of a pending application,
appeal, suspension or variation, then the application or licence will remain under the
Civic Government regime until the procedure is resolved.
Where landlords are already being prosecuted at 31 August 2011, can a local
authority ask the procurator fiscal to seek the increased penalties available
under Part 5 ?
No. The prosecution must continue under the terms of the Civic Government regime.
What are the key differences between the Civic Government regime and the Part
5 regime ?
Both the Civic Government and the Part 5 regime are actually quite similar. The Part
5 regime does however provide local authorities with greater enforcement options
against non compliant landlords, requires local authorities to take account of the
guidance issued by Scottish Ministers and will include amendments from the Private
Rented Housing (Scotland) Act 2011 including increasing the penalty for operating an
unlicensed HMO.
Will things like licensing conditions, duration and physical standards change ?
When a licence under the Civic Government regime becomes a licence under the Part
5 regime it will retain the same conditions attached and the same duration.
However the guidance for local authorities on the operation of HMO licensing has
been updated to reflect legislative changes and bring it more up to date. The
opportunity has also been taken to further protect tenants through raising standards
such as licensing conditions and physical standards. Any such changes will not take
effect in relation to individual licences on 31 August 2011, but might be applied when
a landlord subsequently applies for a fresh licence.
What difference does it make that guidance for local authorities will become
statutory guidance ?
For the first time the guidance for local authorities on HMO licensing will become
statutory. That is it will be issued by Scottish Ministers and local authorities will have
to have regard to it in exercising their functions under the legislation. The Scottish
Government has worked closely with local authorities in developing this guidance,
and consulted on it between 7 February and 21 March 2011.
21
Can people still make appeals, objections or representations ?
Yes – existing rights of appeal are preserved for landlords and other persons with such
rights, therefore if a licence application is still being considered on 31 August, any
appeal will be considered under the Civic Government regime. If granted the licence
would, when the decision is final, become a licence under the Part 5 regime.
Applications made after 31 August would attract rights of appeal under Part 5.
When does a decision become final ?
For the purposes of the specific exemptions from automatic transfer a decision will
become final when the time within which an appeal may be made has elapsed, or
where an appeal is lodged, when the appeal is abandoned or determined.
What does a landlord need to do ?
Nothing. A landlord should receive notice from their local authority advising when
their licence is expected to become a licence under the Part 5 regime. They don’t need
to do anything.
How will landlords find out about the change ?
The local authority must write to each landlord who it thinks will hold an HMO
licence at 31 August 2011 advising of the transition date, the consequences in general
terms and that guidance is available. That guidance should be available from the local
authority and the Scottish Government.
What should a landlord do if they don’t hear anything ?
If a landlord does not hear from their local authority, then they should get in touch
with the local authority to ensure that they hold the correct details. However nonreceipt of notification will not stop a licence from becoming a licence under the Part 5
regime.
Does a landlord need to complete a new application form ?
No. The previous licence conditions and licence duration will just continue to apply.
Can a local authority refuse to continue an existing licence under the new Part 5
regime when it comes into force at 31 August 2011?
No. The transition at 31 August is automatic. It is not an opportunity for local
authorities to review or refuse licences.
Why isn’t the Housing (Scotland) Act 2006 in force already ?
Although the Housing (Scotland) Act 2006 gained Royal Assent back in 2006,
individual parts of the Act require to be commenced to take effect. Part 5 is being
commenced to take effect from 31 August 2011, after a period of consultation with
local authorities and others to ensure its smooth introduction. The changes introduced
by the Private Rented Housing (Scotland) Act 2011 in part implement issues raised in
that consultation.
What difference will landlords notice ?
Most landlords will not notice any difference, although the Part 5 regime does provide
local authorities with increased enforcement options against non-compliant landlords.
When current licences come to an end, it is possible that local authorities will seek to
impose more onerous licensing conditions.
22
Can a local authority charge for the existing licence moving over to the Part 5
regime ?
No. Although the landlord will now have a licence under the Part 5 regime it will
have the same conditions attached, and the same duration. A local authority cannot
charge for transfer to a Part 5 regime licence.
Will the new licensing regime mean that licence fees go up ?
It remains for local authorities to determine their own licence fees. However the
statutory guidance clearly sets out that this should cover, but not exceed, their costs
for HMO licensing.
Will this affect landlord registration ?
No, landlord registration is a separate regime, under Part 8 of the Antisocial
Behaviour etc. (Scotland) Act 2004.
How can landlords find out more ?
Landlords should get in touch with their local authority. The Scottish Government
will produce further national guidance for Local Authorities, Landlords, Tenants, and
neighbours. These will be available at
http://www.scotland.gov.uk/Topics/BuiltEnvironment/Housing/privaterent/government/hmo
Alternatively contact
Peter Reid
T
0131 244 7686
E
peter.reid2@scotland.gsi.gov.uk
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SSI 2010/159
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