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7 July 2020 | Comment | Article by Bethan Gladwyn

Hugh James wins test case in Court of Appeal – Historic Judgment Has ‘Major Implications for Private Landlords and Tenants in Wales’

An historic Court of Appeal judgment has been made today which has major implications for all private landlords and tenants in Wales.

The case centred on a landlord who wanted to evict tenants for non-payment of rent. Darryl and Karen Evans rented a property from Darren Jarvis in Saundersfoot, Pembrokeshire. It was the couple’s main home, but they were in rent arrears. The couple argued that they had spent significant sums of money on essential renovation works on the house and were entitled to credit.

In June 2019, a judge granted Mr Jarvis a possession order on the basis that, even taking into account the cost of the renovation work, Mr and Mrs Evans’ arrears were still well above two months’ rent.

The Evans’ appealed the decision in August 2019. Landlords must serve notice before issuing a claim for possession, and Mr and Mrs Evans’ case was that the notice they received (served under Section 8 of the Housing Act 1988) was invalid. This was because Mr Jarvis was not registered or licensed with Rent Smart Wales when he served the notice.

New legislation, introduced in Wales in 2014, requires all landlords to be registered and licensed. The registration and licensing scheme is run by ‘Rent Smart Wales’. It is designed to regulate private landlords and letting and management agents and protect tenants from unscrupulous landlords. The legislation was ground-breaking and sets Wales apart from England – where there is no such requirement to be registered and licenced. Under the Act, landlords cannot themselves serve notice to terminate a tenancy or indeed carry out other property letting and property management activities, including doing things like collecting rent, accessing the property for repairs or carrying out viewings if they are not both registered and licensed.

During the appeal, the landlord argued that the possession order was lawfully granted – because the 2014 Act did not affect the particular type of notice served here, namely a notice seeking possession (under Section 8 of the Housing Act 1988). He argued that the restrictions only applied to a “no fault” notice (Section 21 of the Housing Act 1988) and not this particular notice, which can only be used where there is some fault on the part of the tenant. The first appeal judge ruled in favour of the tenants.

Mr Jarvis took his case to the Court of Appeal which considered the fundamental question – whether Section 7(2)(f) of the Housing (Wales) Act 2014 Act (prohibiting unregistered and unlicensed landlords from serving notice to terminate a tenancy) extends to the service of a notice under Section 8 of the 1988 Act.

Today’s ruling by Judge, Lord Justice Newey – that the Welsh Law does indeed prevent an unlicensed landlord from serving a “fault based” notice seeking possession – is extremely significant for case law in Wales. Given the importance of the case, Solicitors at Hugh James, and their appointed Barristers at Field Court Chambers, decided to act for the tenants on a pro-bono basis – along with Shelter Cymru, who was granted permission by the court to appear as Intervener.

Speaking of today’s landmark decision, Partner at Hugh James, Bethan Gladwyn, said today:

“This was a case that couldn’t be ignored. Housing law in Wales and England has diverged, so much so, that the new Welsh primary housing legislation provides additional layers of protection for tenants. Welsh landlords cannot serve notice on tenants if they are unlicensed and unregistered. There are no longer any grey areas and this should be a warning to the thousands of other private landlords in Wales to comply with the rules.”

If you would like advice in relation to this case, please get in touch with our team.

Author bio

Bethan Gladwyn is head of the housing management team as a result of her capability and specialist knowledge in her field of law. A specialist in social housing law and practice, anti-social behaviour and landlord and tenant (residential), Bethan assisted in setting up Wales’s first anti-social behaviour unit at Hugh James.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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