The appeal distils to the following issue: should s7 of the Housing (Wales) Act 2014 (‘the 2014 Act’) be interpreted so as to require a Landlord of a property in Wales to be licensed in order to serve a valid notice pursuant to section 8 Housing Act 1988 (‘a section 8 Notice’)?
Our Owain Rhys James previously acted in this matter, drafting the grounds of appeal and skeleton argument ahead of the appeal before HHJ Jane Garland-Thomas. Our Rachel Anthony represented the tenant at Swansea County Court at that appeal. She now acts for Shelter Cymru as intervener in the Court of Appeal matter and is assisted by our Isabelle Knight.
This appeal will be an important step in the interpretation of this (relatively) new piece of legislation, the Housing (Wales) Act 2014, the result of which will be of great benefit to landlords, tenants, practitioners and District Judges, alike.
The appeal is due to be heard by the Court of Appeal in June 2020.
Background
The history of the case can be set out succinctly – the Appellant (A) is the landlord of a property in West Wales which he let to the Respondent (R). A served notice pursuant to Section 8 in his own name in October 2018, when he personally was not licensed.
DJ Jake Pratt at first instance granted possession. On appeal in Swansea County Court, HHJ Jane Garland-Thomas found that the failure to be licensed was fatal to the claim for possession.
The issue
Is it a requirement under the 2014 Act that a landlord be licensed in order to serve a valid section 8 Notice?
The Rent Smart Wales Scheme required all Landlords to be registered. Landlords must then either be licensed (if they intend to ‘self-manage’ their property) or appoint a licensed agent to carry out certain property management actions. Those actions are set out in section 7 of the 2014 Act, namely:
- “collecting rent;
- being the principal point of contact for the tenant in relation to matters arising under the tenancy;
- making arrangements with a person to carry out repairs or maintenance;
- making arrangements with a tenant or occupier of the dwelling to secure access to the dwelling for any purpose;
- checking the contents or condition of the dwelling, or arranging for them to be checked;
- serving notice to terminate a tenancy.”
In order to become licensed, rather than just registered, there is a higher fee to be paid and training to be completed. The full requirements are set out at section 19 of the 2014 Act.
The key issue in this case is whether a Section 8 notice is a ‘notice to terminate a tenancy’ under s.7 of the 2014 Act.
A will argue that such a notice is not a notice to terminate a tenancy.
R and Shelter Cymru as intervener, will argue the opposite. Indeed, our Rachel Anthony for the intervener will argue that such an interpretation fits with the requirement of section 7 of the 2014 Act, that every fundamental aspect of the management of the tenancy is only performed by a person who is licensed; thus providing essential protection for tenants who risk losing their homes.
Were it to be interpreted otherwise, an unlicensed landlord would be able to serve a section 8 Notice, but would not be able to collect rent or make arrangements with a tenant for repairs.
If a section 8 Notice is to be interpreted as a ‘notice to terminate a tenancy’, then an unlicensed landlord cannot serve such a notice. It is submitted, therefore, that any notice served whilst the landlord was unlicensed, is not valid.
A further update on this matter will be provided following judgment from the Court of Appeal.
Renting Homes (Amendment) (Wales) Bill
On 10 February 2020, the Renting Homes (Amendment) (Wales) Bill was introduced to the National Assembly for Wales (now known as Welsh Parliament / Senedd Cymru).
That Bill is in its infancy and the final shape of the amendments to Welsh Housing Law remain to be seen. Furthermore, the provisions will only come into play when the entire system of assured tenancies are abolished in Wales.
However, by s.6 (5) of the Bill, s.44 of the Housing (Wales) Act will be amended. As it currently stands, s.44 reads as follows:
“Restriction on terminating tenancies
(1)A section 21 notice may not be given in relation to a dwelling subject to a domestic tenancy which is an assured shorthold tenancy if—
(a)the landlord is not registered in respect of the dwelling, or
(b)the landlord is not licensed under this Part for the area in which the dwelling is located and the landlord has not appointed a person who is licensed under this Part to carry out all property management work in respect of the dwelling on the landlord’s behalf. […]”
That provision was utilised by A in the instant appeal in the lower courts to argue that given the lack of similar provision in relation to s.8 notices, a s.8 Notice served by an unlicensed landlord would not be invalidated.
Following the proposed amendment it will read:
“Restrictions on terminating standard occupation contracts
Schedule 9A to the Renting Homes (Wales) Act 2016 (anaw 1) makes provision relating to standard occupation contracts (within the meaning of that Act), preventing a landlord from giving a notice under section 173 or 186 of that Act, or under a landlord’s break clause (notices that contract-holder must give up possession) if—
- the landlord is not registered in respect of the dwelling, or
- the landlord is not licensed under this Part for the area in which the dwelling is located and the landlord has not appointed a person who is licensed under this Part to carry out all property management work in respect of the dwelling on the landlord’s behalf.”
Rachel Anthony has said this regarding the proposed change: “The Bill’s amendment is significant in indicating the Welsh Government’s intention that registration and licensing remain at the forefront in setting better standards for the rental sector in Wales.”
Civitas Law Housing Team
The Housing team at Civitas Law are specialists in matters regarding Welsh housing law. This case is testament to the divergence between England and Wales in this area of law.
The Civitas Law Housing Team include the barristers set out below and they are happy to advise at short notice if required.
Rachel Anthony
Owain Rhys James
Lucy King
Elizabeth Marshall
Victoria Hillier
Catherine Grubb
Dan Dyson
Ian Meikle
Alys Williams
Dominic Evans
Isabelle Knight