Jungle Property Blog

  • Is there a minimum size for a room that is to be used as a bedroom?

    What is a bedroom?

    A bedroom is a room that is available as sleeping accommodation if it is of a type normally used in the locality either as a living room or as a bedroom. {Housing Act 1985, Chapter 68, Part X}

    The answer to the topic question is dependent on a number of factors including:

    * Number of occupiers using the bedroom
    * Age of occupiers using the bedroom
    * Whether the property is a licensed HMO
    * Type of occupant

    Number and age of occupants
    One of the criteria for assessing overcrowding under the Housing Act 1985 is the floor space based on the number and age of occupants.

    For a child aged under 1 there is no minimum space standard.

    For a child aged 1 or over but under 10 the floor are of the room must be at least 50 sq. ft. (4.65 sq. metres).

    For two children aged 1 or over but under 10 sharing a bedroom or 1 person aged 10 or over the floor area of the room must be at least 70 sq. ft. (6.51 sq. metres).

    For two adults living together as a couple the floor area of the room must be at least 110 sq. ft. (10.22 sq. metres).

    {Housing Act 1985}

    HMO

    In 2018 the government announced that it will proceed with introducing a national minimum room size for bedrooms in licensed HMOs:

    Rooms used for sleeping by 1 person over 10 will have to be no smaller than 6.51 square metres, and those slept in by 2 people over 10 will have to be no smaller than 10.22 square metres. Rooms slept in by children of 10 years and younger will have to be no smaller than 4.64 square metres


    Type of occupant

    The type of occupant has also been shown to be relevant in room size cases. This was illustrated in the case of Nottingham City Council v Dominic Parr and Trevor Parr Associates Ltd [2017] EWCA Civ 188 which was heard last year in the Court of Appeal. The Council’s guidance suggested that 8 sq. metres was an acceptable bedroom size and the licences issued prohibited the use of two attic rooms until the usable floor space had been increased. The First-Tier Tribunal had deleted the condition and imposed an alternative condition that the rooms could be used by full-time student who resided in the room for a maximum of 10 months of the year. This was upheld by the Upper Tribunal and the Court of Appeal concluded that there was nothing unlawful about a HMO licence restricting occupation of a bedroom to students only. The Supreme Court has granted permission to Nottingham City Council to appeal the decision.

    Further Reading

    Shelter – Overcrowding
    HMO National Minimum Room Size and Suitability {Anthony Gold blog}
    Housing Act 1985, Chapter 68, Part X
    When is a bedroom not a bedroom {Jungle Property blog}

  • Can an agent refuse to provide tenant referencing reports to the landlord?

    No – probably not…


    Fiduciary relationship


    The agent is contracted by the landlord to act on behalf of the landlord (the principal). Agents have what is known as a ‘fiduciary relationship’ with the landlord. Data collected, or artefacts created, by the agent in performance of the contractual obligations is collected or created on behalf of the landlord.


    If the landlord signs a contract which specifically states that he will not have access to the tenant’s reference report, he will probably be bound by this but where the contract is silent, it is the property of the landlord as it was obtained by the agent for the purpose of the landlord’s property, in his capacity as agent for the landlord.


    Data protection


    Agents will sometimes argue that passing the reference report on will be in breach of the Data Protection Act. Guidance from the Information Commissioners Office (ICO) here states:


    Can landlords see references which were provided to the letting agents?
    The agent can pass this information to the landlord, as long as, when the reference is asked for, they make clear to the tenant and the referee that this will happen.


    This ICO guidance is not entirely consistent with the opinion of many legal experts who see passing on the reference report as an automatic right as the agent is an extension of the landlord.


    Duty of obedience


    An agent has a duty of obedience – express instructions are paramount and this duty takes precedence over the duty to exercise all reasonable care and skill.


    Tenant referencing reports belong to the landlord not the agent and the agent should not disobey the landlord’s instructions to provide them.


    Why a landlord should see reference reports


    There are two important reasons why the landlord should be entitled to see the reference reports if he wishes, before the tenancy is granted:


    1. Landlords can suffer massive losses through bad tenants being allowed into their property, both through unpaid rent and through the tenant damaging the fabric of the property itself.


    2. The landlord may want to check that the agent has carried out any referencing at all. Sadly, it is not unknown for agents to pocket the reference fees and not actually obtain references. There have been many cases where the referencing carried out was grossly inadequate for the type of property being let and as a result the landlord suffered great losses (see Saul Shevlin v. Sequence (UK) Limited below).


    If the agent is able to say “sorry, we can’t tell you anything about the references we have because of the data protection”, how can the landlord be sure that this important part of the agent’s job has been done properly?


    Saul Shevlin v. Sequence (UK) Limited


    This case heard in June 2016 in Colchester County Court found Sequence to be negligent as they had referenced a (bad) tenant and granted a tenancy, refusing to pass on the reference report to the landlord (they had done so previously). The landlord approached the company commissioned to carry out the referencing directly and was emailed the report. The reported highlighted a number of ‘red flags’ which the agent should have investigated.


    This case is interesting with regard to this topic question because a). the company who were commissioned to compile the reference report provided it to the landlord directly after the agent refused b). had the landlord been provided with a copy of the report when it was first compiled, the tenancy would almost certainly not have been granted.


    Advice for landlords


    Make it very clear, when you instruct an agent, that you will want to see the reference reports, before the tenant’s application is approved.


    Make it clear to the agent that it is the agent’s responsibility to take such steps as are necessary (i.e. tell the tenants and the reference company) in order to prevent their being in breach of data protection legislation in passing reference reports to the landlord.


    Further Reading


    Landlord wins long-running case against agent after tenancy went wrong (Property Industry Eye article)


    Can an agent withhold part payment of 6 months rent in advance?
    (Jungle Property blog article)


    Are landlords entitled to see tenants references obtained by their agents? (The Landlord Law Blog article)

  • Do guarantor agreements need to be executed as a deed?

    No but there are many reasons why deeds are used over a simple contracts:

    1. Deeds do not need a consideration unlike a simple contract.

    2. The obligations are enforceable for 12 rather than the usual 6 years years applicable under a simple contract.

    3. The law may require it.

    4. A deed is an instrument in solemn form and any party to it is estopped from denying the truth of any assertion he has made in it.