A groundbreaking time for housing law in Wales

2015 was a ground-breaking year for housing law in Wales. With the coming into force of the Housing (Wales) Act 2014, for the first time Wales had its own primary legislation in the sphere of housing law. It had begun to cut its own course with the manner in which housing should be provided and managed. Since then the divergence with England has been underlined with the passing of the Renting Homes (Wales) Act 2016 although that Act is not yet in force.

It was (and is) inevitable that there are issues of construction and interpretation of the legislation which need clarifying by the courts.

We became aware of one such point last year when the decision of Her Honour Judge Garland-Thomas (who was considering an appeal from the District Judge) was handed down in Jarvis v Evans. The Evans’, are assured shorthold tenants who had fallen into arrears of rent had received a notice seeking possession from their landlord, Mr Jarvis. Mr Jarvis then obtained a possession order to evict the Evans’. However, when he had served the notice, Mr Jarvis was not licenced as he should have been under the provisions of the Housing (Wales) Act 2014. He was not registered either. The Evans’ appealed; Her Honour Judge Garland-Thomas held that the notice was invalid and so overturned the possession order. The Landlord decided to take the case to the Court of Appeal. This is the first time Welsh primary legislation in the sphere of housing law has reached the Appellate Courts.

The case is of huge significance for the private rented sector, in order to clarify the relative rights and obligations of private sector landlords and tenants. Hence when Mr Evans approached us to ask us to represent him and his wife we decided to do so on a pro bono basis, to ensure that the case was fully and properly argued before the Court of Appeal and not to risk such an important point being decided without a detailed submission. Without our assistance, the Evans’ would have been litigants in person arguing their case against a Landlord with full legal representation. We worked with our partner Chambers, Field Court and with specialist housing counsel Sarah Salmon and Christopher McCarthy (who also acted pro bono).

For well over 40 years Hugh James has acted for the social housing sector in Wales, and over the course of that time, the existence of a thriving well managed private rented sector has become more and more important to the whole housing picture in Wales. Social landlords now regularly work with private landlords in the provision of housing. Having well-managed properties available in the private sector eases demand on the social sector and it is important that the two can complement each other. So, we felt that helping a tenant underline the need for the private sector to be properly run and managed was a good fit.

The 2014 Act makes it an offence for a landlord to do a number of things in the course of letting or managing a property if he or she is not registered and/or licenced. S7 makes it an offence to serve a “notice to terminate a tenancy” if the landlord is not licenced. So the first question was whether a notice seeking possession, (ie a notice served under s8 of the Housing Act 1988) was a “notice to terminate a tenancy”. The Court of Appeal held that it was.

The second question was whether, when making it an offence to have served the notice, the Welsh Government also intended that the notice should be ineffective. Again, the Court of Appeal said yes.

Had the Court of Appeal accepted the landlord’s submission, it would have meant that a private sector landlord who is not licenced could serve notice – and commit an offence in doing so – yet still evict a tenant. The prosecution of the offence is down to the local authority, it is not within the control of the tenant and in any event would not stop an eviction. In other words without the protection this decision gives tenants, they have little recourse for the Landlord’s failure to be licenced.

This does not create an insurmountable difficulty for landlords. They have options – to become licenced, to appoint a licenced agent, or in the case of service of a notice they can instruct a solicitor to serve it.

It does create a slightly curious situation that it appears that a landlord may be unregistered (and so commit an offence) yet validly serve a s8 notice via an agent or solicitor, because the relevant provision of the act is all about licencing and not registration. Perhaps it is hoped that the licenced agent or solicitor would strongly advise (or require) the landlord to become registered as soon as practically possible once they are instructed.

Of course, it is also an offence for an unlicensed landlord to collect rent – hence another interesting question arises – about whether Mr Jarvis was liable for a substantial repayment of rent which had been paid to him. This issue was not before the Court of Appeal, which was only considering the case which had been put before Her Honour Judge Garland-Thomas on the first appeal.

We are also acting in another case which is currently on appeal in the County Court, this time about whether the prohibition on a landlord serving a s21 notice when unregistered applies to social landlords (who of course are not otherwise required to be registered by the Act).

It is an exciting time to be a housing law expert in Wales. There are bound to be further challenges on the 2014 Act and even more so when the Renting Homes (Wales) Act 2016 comes into force. We look forward to working with the social rented sector in gearing up for and dealing with those challenges when they arise.