Unlicensed HMO as an eviction defence: what tenants need to know

If your home is a house in multiple occupation (HMO) that should be licensed but is not, this unlicensed status can be used as a defence to a section 21 eviction notice. It can also be grounds for a Rent Repayment Order (RRO). This article explains how the licensing rules interact with eviction, and what you can do.

What is HMO licensing?

Many HMOs require a licence from the local council. There are two types:

Mandatory HMO licensing: required for any HMO with 5 or more people from 2 or more households in a property of 3 or more storeys. This applies across England.

Additional licensing: many councils have introduced additional licensing schemes that cover smaller HMOs, for example, HMOs with 3 or 4 occupants. Check with your council whether additional licensing applies in your area.

An HMO that needs a licence but does not have one is being operated illegally.

How does unlicensed HMO status affect a section 21 eviction?

A landlord cannot serve a valid section 21 notice (no-fault eviction notice) in respect of a property that is subject to mandatory HMO licensing but has not been licensed. This is a complete bar on section 21 in that property until it is licensed.

This rule is set out in section 75 of the Housing Act 2004. If your landlord serves a section 21 notice on an unlicensed HMO that requires mandatory licensing, the notice is invalid and you can defend any possession proceedings.

Note: the mandatory licensing bar applies specifically to properties that require mandatory HMO licensing (the 5+ persons, 3+ storey rule). It may not automatically apply to properties that require only additional licensing (where the bar may depend on the specific scheme). Get legal advice on whether the bar applies to your property.

How does unlicensed HMO status affect a section 8 eviction?

Unlicensed HMO status does not automatically provide a defence to section 8 possession proceedings (which are based on specific grounds such as rent arrears). However, if you have rent arrears and your HMO is unlicensed, a Rent Repayment Order may be available to you, see below.

What is a Rent Repayment Order (RRO)?

A Rent Repayment Order can be awarded by the First-tier Tribunal where:

• The landlord has been convicted of operating an unlicensed HMO, or
• The landlord has committed the offence (regardless of conviction), the Tribunal can make an RRO even without a criminal conviction

An RRO can require the landlord to repay up to 12 months' rent. This is a significant financial remedy. If you have also been paying rent arrears that are the subject of Ground 8 possession proceedings, an RRO can reduce or eliminate the arrears in practice, even if it does not directly reduce the debt owed to the landlord.

How do I know if my HMO should be licensed?

Check:

• Whether your property has 5 or more people from 2 or more households and is 3 or more storeys, if so, mandatory licensing applies
• Whether your council has an additional licensing scheme, search your council's website or call them

You can also ask your council's HMO licensing team directly whether your property requires a licence and whether it has one.

What if my landlord has applied for a licence but has not received one yet?

Where a landlord has applied for a licence (a "temporary exemption notice" or a pending application), there may be a partial grace period. The legal position depends on the specific circumstances. Get legal advice if your landlord claims to have an application pending.

What should I do?

1. Check your council's licensing register: most councils publish their list of licensed HMOs. If your property is not on it and should be, it is unlicensed.
2. Seek legal advice: a housing solicitor can advise on whether the section 21 ban applies to your property and how to raise the defence in possession proceedings.
3. Consider an RRO application: a housing solicitor or housing adviser can help you apply to the First-tier Tribunal.

When should I contact Support for Tenants?

If your home is in disrepair and your landlord is also pursuing eviction, we can help with the disrepair element. Call us.

Call us on 0800 030 4669. No upfront cost. You only pay if you win, and the fee comes out of the compensation, not your pocket. If you don't win, you pay nothing.

Sources

• Housing Act 2004 (HMO licensing) (legislation.gov.uk)
• Housing and Planning Act 2016 (rent repayment orders) (legislation.gov.uk)