HMO law in practice: Unmarried partners in shared accommodation

One of the benefits of providing legal training is the questions course delegates will ask – questions which experienced practitioners might not think to ask.

During the pandemic, I had been presenting online courses for MBL seminars (most recently on HMOs and Property Licensing), as well as delivering some bespoke webinars for agents, housing advisers, and trading standards officers. One question which was raised more than once by delegates was whether or not couples living in shared accommodation will always count as one household for the purposes of HMO law. This topic always leads to an interesting discussion because while the legal definition of a ‘household’ can be explained fairly quickly, real-life relationships are not so easily classified.

For landlords and agents, this is not merely an interesting abstract issue – the case study I mention below is not a hypothetical question from one of my delegates, it is a real situation which was dealt with by the Property Ombudsman.

Jump to the relevant section:

1. What is a Household, as per HMO?
2. What does it mean to be ‘living together as a married couple’?
3. What does the HMO Law mean for non-traditional domestic arrangements?
4. What should agents do about this?

What is a Household, as per HMO?

A property occupied by just two individuals is never a house in multiple occupations (“HMO”), so a couple living together cannot be an HMO. However, if there are more than two people living in the property and the occupiers are more than one household, the property will be an HMO.

For the purposes of HMO and property licensing law in England, the term ‘household’ is defined in section 258 of the Housing Act 2004 and the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006, SI 2006/373.

Essentially, two people are in the same household if they are in the same family or one is occupied as a live-in carer (or similar domestic role). Couples can count as a family whether formally married or not, and where two people are not related to each other, they will count as being in the same family if one is related to one member of a couple and the other is related to the other.

A ‘couple’ means, according to section 258, persons who are in a civil partnership or are married to each other or are living together as if they are civil partners or a married couple. This is a definition which invites bad jokes about what it means to live together as a married couple – the Act does not offer any further explanation about what this phrase means.

What does it mean to be ‘living together as a married couple’?

At first, it seems obvious what living together as a married couple or as civil partners are intended to mean – unmarried partners living together in a durable relationship are almost certainly living together as a married couple – even if they consider their relationship to have a difference nature from marriage or civil partnership.

There are no case authorities directly addressing the definition of couple in the Housing Act 2004, but in other areas of law there has been more attention from the courts about the nature of relationships ‘akin to marriage’.

In immigration law, there are several routes to qualifying for rights to enter or remain in the UK on the basis of a relationship with an unmarried partner. In Fetle (Partners: two year requirement) [2014] UKUT 00267 (IAC) the Upper Tribunal adopted a broad interpretation of a rule that required evidence of the partners “living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more”.

The Tribunal accepted that the two years could include periods when the couple lived apart – demonstrating that the concept of living together as a married couple or civil partners is flexible, and not necessarily tied to traditional ideas of what marriage looks.

Government policy guidance to decision makers for social security entitlement gives detailed advice on how to determine whether or not a couple are living together as married couple (“LTAMC”). The guidance is a fascinating document which attempts to distil the nature of marriage; at points, it has a rather poetic quality, but this is juxtaposed with the clinical precision of guidance drafted by bureaucrats:

“To be treated as LTAMC the relationship has to be the same as that of a married couple. Marriage is where two people join together with the intention of sharing the rest of their lives. There is no single template of what the relationship of a married couple is. It is a stable partnership, not just based on economic dependency but also an emotional relationship of lifetime commitment rather than one of convenience, friendship, companionship or the living together of lovers. If the evidence does not suggest that it is more likely than not that the relationship between two people has the particular emotional quality that characterizes a married couple’s partnership, the DM should find that they are not LTAMC.”

Crucially, that guidance considers the intention that the relationship be long term is fundamental: “two people who are LTAMC would be expected to have the intention of sharing their lives together in the long term”.

This is Government guidance for benefits decision-makers, not commentary on the Housing Act, but I do think it demonstrates well that the concept of ‘living together as a married couple or civil partnership’ is complex and open to different interpretations.

What does the HMO Law mean for non-traditional domestic arrangements?

The Property Ombudsman, one of the two redress schemes available to landlords and agents, recently published a case study about a polyamorous ‘throuple’ who were refused accommodation by agents who told them that the local authority would treat them as forming more than one household, making the property an HMO, and that this would not be allowed at that property.

The Ombudsman made no criticism of the agent’s advice that the tenants would not have been treated as a single household (although no view on the issue was provided). The Ombudsman was critical of the unprofessional tone of some communication with the prospective tenants and supported that part of the complaint while making no financial award.

This was an interesting case study, and agents are quite like to start to encounter this sort of issue slightly more often. The TPO’s case study does not attempt to offer any legal analysis, and we may be waiting some time for any authoritative case law on how to apply the Housing Act’s concept of ‘household’ to polyamorous groupings.

The authors of the Government benefit guidance take the view that persons living together in a non-monogamous relationship will not be living together as a married couple because exclusivity is a key element of marriage. That conclusion will not be universally accepted, and in any case, this is guidance from another area of law.

The Housing Act definitions do not recognise any category of ‘throuple’ – ‘couple’ is expressly defined at section 258(4)(a) as being two people. However, the Act does not expressly say whether a particular individual can be a member of two couples simultaneously. Section 258 can be interpreted in different ways, but if it is possible to be a member of more than one couple, the members of the ‘throuple’, and any relatives of those persons, might be regarded as members of the same family, and hence one household.

What should agents do about this?

The only part of the complaint upheld by the Property Ombudsman related to customer service – agents are a frontline service dealing with the public, and they should remain professional even when confronted by lifestyles they find unusual or surprising.

Where unusual issues like this arise, the standard legal helplines are not likely to be able to assist and more specialist assistance will be required. Anthony Gold Solicitors is one of the firms which participates in the Landlord Law HMO Hotline Service which provides a quick route to specialist advice on any HMO issues.

Where prospective tenants state that they are one household, agents should ensure that they understand what the relationships are, and then record this in writing. If there are ‘red flags’ suggesting that the tenants’ relationships might not be as claimed, it is very risky to ignore this. However, agents must also be mindful of their duties not to unlawfully discriminate while they conduct any investigations.