The Housing (Wales) Act 2015

The Housing (Wales) Act 2014 (“the 2014 Act”) includes provision for the regulation of landlords and their agents which has no parallel in England. Among other things, the regime requires landlords to be registered in respect of any dwelling let under a “domestic tenancy” and to be licensed to carry out either lettings activities or property management activities for dwellings the subject of “domestic tenancies”. The purpose of the 2014 Act was to improve the position of tenants, and deliver better housing and better management standards. Under the 2014 Act any private landlord who offers a ‘domestic tenancy’ for rent must be licensed under Part 1 or have appointed a licensed agent: s.4. A landlord who is not licensed and does not have a licensed agent may not serve a notice to terminate a tenancy and, if they do so without reasonable excuse, they commit an offence: s.7. Section 7(1) bars an unlicensed landlord of a dwelling subject to a domestic tenancy from himself doing any of the things described in s.7(2). Those things include, by s.7(2)(f), “serving notice to terminate a tenancy”. Further, by s.44, a notice under s.21 Housing Act 1988 cannot be given by an unlicensed landlord.

Background

Mr Jarvis granted Mr and Mrs Evans an assured shorthold tenancy on 1 December 2015. In October 2018, he served a notice on Mr and Mrs Evans under s.8 of the 1988 Act informing them that he intended to seek possession on grounds 8, 10 and 11. Possession proceedings followed, and a possession order was granted by a district judge. Mr and Mrs Evans appealed and asserted that Mr Jarvis “was not licensed or registered at the time that he served the s.8 notice relied upon” and that it “must follow that service of the same was ineffective”. A circuit judge allowed the appeal. She noted in her judgment that Mr Jarvis had not been registered as landlord of the property until July 2019 and had been licensed only “within the last few weeks”.

The appeal

Mr Jarvis appealed to the Court of Appeal. The appeal gave rise to two issues:

i) Did s.7(2)(f) of the 2014 Act (“serving notice to terminate a tenancy”) extend to the service of a notice under s.8 of the 1988 Act?

ii) If the answer to issue (i) was yes, was a notice served in breach of s.7 of the 2014 Act invalid?

On the first issue the Court of Appeal held, inter alia, that:

(1) The words “notice to terminate a tenancy” were perfectly capable of being understood as encompassing notices which are served in order to bring tenancies to an end but which do not achieve that of themselves [32]. (2) Section 7(2)(f) would be all but nugatory if it was limited to notices which themselves terminated tenancies. The provision would have no application to assured tenancies, which come to an end by the execution of orders for possession, not by the service of notices [33]. (3) The structure and purpose of the 2014 Act suggested that the Welsh Assembly would have wished to apply s.7 to the service of notices under s. 8 of the 1988 Act [34].

As to the second issue, the Court of Appeal held that a s.8 notice served in breach of s.7 of the 2014 Act was invalid [42]. The reasons for that decision included: (1) Nowhere in s.7 was it said that breach of subsection (1) was to have exclusively criminal consequences. (2) A provision stating that a landlord “must not” serve a notice must be capable of implying invalidity. (3) There was force in the observation that “it would be surprising if the intention had been to make the serving of a notice to terminate a tenancy by an unlicensed landlord a criminal offence and yet allow that landlord to obtain a possession order in reliance upon such a notice”. (4) Tenants would to a great extent be reliant on local authorities for enforcement of the system of registration and licensing introduced by the 2014 Act if notices served in breach of the regime were nonetheless effective.

Summary by Alice Richardson, barrister, Trinity Chambers.

For the judgment, click here.