Legal: Drafting issues with the Housing (Wales) Act 2014
Evans vs Fleri (2019)
Shelter Cymru represented Mr Evans in his appeal against an order of a district judge granting possession to his private landlord, even though the landlord was not licensed by Rent Smart Wales at the time he served Notice Requiring Possession.
This was a surprising decision given that the Housing (Wales) Act 2014 clearly requires a landlord to both register and hold a licence (or use the services of a licensed agent) in order to let a property. If the decision were correct, even though not binding on other courts, tenants of private landlords would be vulnerable to eviction by unlicensed landlords, a situation which would fly in the face of the whole purpose of the legislation.
The wording of s.44 of the Act, dealing with notices requiring possession under s.21 Housing Act 1988, gave rise to argument in this case before a district judge considering an application for possession by a landlord who was registered but not licensed at the time he served his tenant with a s.21 Notice.
S.44 states that a section 21 Notice may not be given…if a) the landlord is not registered in respect of the dwelling or b) the landlord is not licensed…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.
The landlord argued that the correct interpretation of the section was that a landlord must either be registered or licensed, not registered and licensed, in order to serve a s.21 Notice. The district judge agreed and made a possession order, but acknowledged he might be wrong and gave permission to the tenant to appeal.
On appeal, the Circuit Judge pointed out that the word “or” can either be used to separate two scenarios which are mutually exclusive so that only one can apply – which was the district judge’s interpretation of s.44 – or it can be used to separate two scenarios which are not mutually exclusive and which therefore can apply simultaneously. It is not the case that a landlord must either be registered or licensed. A landlord may be registered but not licensed or may be both. In s.44, due to poor drafting, the word ”or” is capable of having both meanings.
In order to determine the correct meaning, the judge then looked at other sections of the Act itself and at the intention of the Welsh Assembly when enacting the Housing (Wales) Act. The Act clearly requires landlords to be registered and licensed, or to use the services of an agent who is licensed, in order to carry out property management functions such as serving notice to terminate a tenancy.
The licensing requirements are rigorous, a landlord must show s/he is a fit and proper person to hold a licence, and must go on a course. Failure to register or hold a licence is a criminal offence punishable by a fine. The Communities, Equality and Local Government Committee of the Welsh Assembly recommended that an unlicensed landlord should be prevented from serving a ‘no-fault’ eviction notice (i.e. a s.21 Notice). As a result of that recommendation, s.44 was inserted into the Bill and became law.
The judge commented that it would be surprising if the Welsh Assembly’s 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 on such a notice. Equally, it would be surprising if an unlicensed landlord, (so a landlord who is not a fit and proper person and who has not undergone training,) could serve and rely on such a notice.
The judge therefore concluded that landlords must be both registered and licensed in order to serve a valid s.21 notice, and the possession order made by the district judge was quashed.
