Court of Appeal Determines Section 7/ Section 8 Notice Point
Jarvis v Evans [2020] EWCA Civ 854
Jarvis v Evans was heard by the Court of Appeal on 16.06.2020, deciding an important point arising from the interpretation of Housing (Wales) Act 2014.
A quick outline of the law: most private tenancies are assured shorthold or assured tenancies. Only a Court Order can bring the tenancy to an end when the tenant does not surrender the tenancy. The only ways to get a court order are known as the “section 21” route or the “section 8” route. This refers to the type of notices which the Landlord has to serve at the start of the process. The notices themselves do not bring the tenancy to an end- only the Court Order at the end of the process does that.
Section 21 is specifically addressed in the Housing (Wales) Act 2014 at Section 44, which explicitly says that a Landlord must be registered or must be licensed or use a licensed agent to serve a Section 21 notice. The use of the word “or” was resolved in Evans v Fleri in April 2019, when Rachel Anthony successfully represented the tenant on Appeal to HHJ Jarman QC. The Court found that the Landlord must be registered and either be licensed or use a licensed agent.
Section 8 notices are not referred to explicitly in the Welsh Act. The argument has centred on Section 7 Housing Wales Act 2014, which requires a landlord to be licensed to carry out property management activities. Subsection 2 (f) states that a Landlord must be licensed or use a licensed agent to serve notice to terminate a tenancy.
In Jarvis v Evans, the Landlord Mr Jarvis was not licensed himself at the material time but was the landlord. He served a section 8 notice on Grounds 8, 10 and 11 which relate to rent arrears. Possession was granted by the District Judge. Rachel Anthony was then invited to represent the tenant on a direct access basis on appeal to the Circuit Judge. She was successful, the Learned Judge agreeing that because the Landlord was not licensed and had not used a licensed agent, he was not permitted to serve a Section 8 notice- it being a notice to terminate a tenancy within the meaning of Section 7 Housing (Wales) Act 2014.
Off then to the Court of Appeal. The Landlord argued that a section 8 notice does not terminate a tenancy, therefore is cannot be included within Section 7. Further, that the only sanction arising from an unlicensed landlord serving a Section 8 notice, if it was prohibited, was a criminal sanction- it did not cause the notice to be void itself. Rachel Anthony, presenting written submissions on behalf of Shelter Cymru, argued that if the Landlord’s representations were correct, there would be no force at all to Section 7. Further, that it would be perverse if the Court were to allow a Section8 notice to remain valid despite the criminal force to the prohibition.
The Appeal was heard by Lord Justices Hickenbottom, Newey and Baker. LJ Newey, with whose Judgment the other Lord Justices agreed, found that a Section 8 notice does indeed constitute notice to terminate tenancy and therefore falls within Section 7 Housing (Wales) Act 2014. Further, at para 42, that service of a notice by a landlord who is not licensed and does not use a licensed agent, renders the notice invalid. The Court of Appeal upheld HHJ Garland Thomas’ decision.
Comment by Rachel Anthony: had Section 7 not extended to Section 8 notices, there would have been a gaping hole in tenants’ protection in Wales. The clear intent of the Welsh Government was that all Landlords would either be licensed themselves or use a licensed agent. It should be pointed out that the explanatory notes on the legislation expressly include solicitors as being people who can serve a Section 8 notice on an unlicensed landlord’s behalf. There remain some interesting points which would benefit from clarity in the Welsh Act- the Court of Appeal touched on the issue of whether rent could be demanded or received by an unlicensed landlord, and how the repairing obligations interact with the Act. I suspect that these may be the next issues to tackle. And then we have the prospect of everything changing with Renting Homes Wales. Interesting times lie ahead!