Upper Tribunal rules HMO licence condition on tenancy terms went beyond Schedule 4

The Upper Tribunal (Lands Chamber) has decided a landlords' appeal against conditions Portsmouth City Council put in an HMO licence, affecting licence holders, councils and occupiers of houses in multiple occupation.

Background

Part 2 of the Housing Act 2004 requires every house in multiple occupation (HMO) to which it applies to be licensed. Section 67(3) and Schedule 4 set out conditions that every licence must contain. Under section 67(1), the local housing authority may also include other conditions it considers appropriate.

Portsmouth City Council granted Simon and Iva Fletcher a licence for 1 Sheffield Road, Portsmouth on 29 January 2024. It contained 36 conditions. The First-tier Tribunal (Property Chamber) heard evidence that the conditions were in a standard form used across the city, reached after consultation. The Fletchers challenged many of them. The First-tier Tribunal varied some, in a decision reviewed and dated 30 June 2025, but left most unchanged. The Upper Tribunal gave permission to appeal on six grounds.

The decision

His Honour Judge Johns KC decided the appeal on 26 June 2026, after a hearing on 21 April 2026, taking the grounds one by one.

Condition 18. This condition dealt with the terms of tenancies, including an inventory of contents and condition at the start of the tenancy. The Tribunal held that it went to the substance of the arrangements between licence holder and tenants. Paragraph 1(5) of Schedule 4, it said, concerns only a requirement to supply a written statement of terms, not the substance or scope of those terms. So the condition was not justified by the mandatory list. For the same reason it offended section 67(5) and (6). Separately, the Tribunal did not accept that the condition could be read as applying only to new lettings, because nothing in its wording confined it in that way. The Tribunal said the First-tier Tribunal went wrong in dealing with it, and that condition 18 will be varied to mirror the mandatory wording: the licence holder must supply the occupiers with a written statement of the terms on which they occupy the house.

The Tribunal would not go so far as to say any extension of the mandatory conditions is illegitimate. Further requirements may be appropriate under section 67(1) and (2) if they have their own justification. It did not decide whether referring to "tenants" rather than "occupiers" was fatal. It also left for another case an argument, raised at the hearing without permission, that the condition fell outside "the management, use and occupation of the house".

Conditions requiring documents on demand. Conditions 18, 20 and 32 required documents, such as tenant references and inspection records, to be given to the Council on request or on demand. The Fletchers said this subverted section 235 of the 2004 Act, which provides a right to demand documents with specified safeguards. The Tribunal said conditions requiring production on demand outside section 235 need particular justification, and none was shown. It said it would expect the First-tier Tribunal on appeal to strike down at least those parts of the conditions. It agreed with the First-tier Tribunal that requiring records to be kept makes sense, but said that did not meet the section 235 point.

Sources

• Simon Fletcher & Anor v Portsmouth City Council [2026] UKUT 234 (LC), Upper Tribunal (Lands Chamber), 26 June 2026: https://caselaw.nationalarchives.gov.uk/ukut/lc/2026/234