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  • Legal FAQs

    The legal principle of "Established Use"

    jakeh

    Is there a principle of "Established Use" specifically with regards to HMO licensing where if a house has been used as an HMO prior to any legislation which would then require it to be a licensed HMO that HMO with the "Established Use" cannot then either be required to obtain an HMO license or it cannot be refused a license?

    Does anybody know if this is the case?

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    of course there is the doctrine of established use...just google it.  however this is to do with planning law which is totally distinct from the additional licensing.  if for instance an article 4 direction is introduced removing PD rights, but the rental was in use as an hmo then for as long as that use continues you have an established use, so you have protection against planning enforcement.

    as said, licensing is completely separate from planning.  I understand that LA's will gladly take the licence fee for an HMO licence even if  their is no established use or planning permission for an hmo, or prospect of it being granted.  

    hope that answers your questions.  there is a lot of confusion and misunderstanding over this I think...  I think the effect has decimated the hmo sales market in LB Newham where there is blanket licensing, blanket article 4 direction and blanket policy against granting pp for new hmo's.  consequently most hmo's for sale can only be used for family housing if the property is empty as established use needs to be continuous.  thats my understanding.

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    Just one point, when a property is empty it is not considered a change of use. Your point of continuous use is correct. Therefore if an HMO in an Article 4 area was last used as a HMO before it became vacant it will still be classed as an HMO.

    Change of use occurs when it is let as a family dwelling (C3). Consequently if somebody was to purchase a property that was last used as a HMO before it became vacant it can be purchased and used as a HMO. What I suspect you may need in respect of Councils like Newham is evidence from the previous owner that it was used as an HMO eg previous tenancy agreements etc.

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    thanks Ian.  but how to you reconcile the agreed need for continuous use with what you say that becoming vacant does not invalidate the established use?

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    Joe; Continuous use for planning purposes, is the purpose for which the property is used vacant periods are not classed as changes of use, since the property is not being used. Consequently if a property becomes vacant it retains its last planning categorisation until its use changes.

    Thats one of the reasons old pub's are being converted into Convenience Stores, they both have the same planning category. Consequently a close pub can be re-opend as a convenience store without a change of use planning application being required

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    Will the 4 year rule apply in this situation or is it the 10 year rule for established use of an HMO?

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    Hi Joe

    Thanks Joe for stepping in and your answer does make things a bit clearer thanks, so I understand that article 4 direction is all about planning law eg c3 to c4 and therefore that makes sense about planning permission not being required so therefore that would mean regardless of a "license" being required or not then you cannot be refused permission to have an HMO and it becomes a question of just "doing the job properly and to the standards required" and making sure you apply for the required license and  a useful analogy would comparing the legal right to convert my garage to part of my house under permitted development rules and for this  don't require planning permission or any third party permission I just require "confirmation" that the jobs been done to the required standard set out by building control and building regulations meaning I buy the property in the knowledge that there's no chance it can be refused.

    I think I understand it correctly thanks. I'm wondering if council officers ever misunderstand and misinterpret the law as it must be extremely easy to do so considering the complexity of this area of law

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    Understanding the minutia of planning law was one of the drivers behind why the franchise chain "Subway" works so well because franchise owners don't need the same type of planning permission as other fast food take away outlets

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