By Katie White and Alison Jones
Unlicensed landlords in Wales cannot serve a section 8 eviction notice, following our successful intervention in a Court of Appeal case. This case law brings much-needed protection for tenants and clarity on a contentious issue.
Since 2016 it has been illegal in Wales to act as a landlord or agent unless you are licensed. A licence shows that you are a fit and proper person and that you have undergone essential training to understand the responsibilities of managing people’s homes.
Far from being just an administrative burden, it provides important basic protections for tenants and helps to make the private rented sector more professional.
Compliance with the scheme is considered so important that the Housing (Wales) Act 2014 removed the ability for unlicensed landlords to use eviction powers. However the Act’s wording was unclear, and this has caused difficulties for tenants ever since. Courts have interpreted the Act in different ways, meaning there has been a lack of consistency across Wales.
The problem lies with the wording of section 44 of the Act, which refers specifically to section 21 ‘no fault’ eviction notices but is silent on section 8 eviction notices. As a result, some landlords and some judges have taken the view that unlicensed landlords can still legally evict as long as they rely on section 8 notice rather than a section 21 notice.
Shelter Cymru and the tenants we represent, have long challenged this view. We have argued that section 8 notices are included , in that they are covered in section 7 of the Act which provides that landlord cannot serve a notice to terminate a tenancy whilst unlicensed. and should have the benefit of the protection afforded by the legislation.
Rachel Anthony from Civitas Chambers represented Shelter Cymru who acted as Court of Appeal intervener in the case of Jarvis v Evans. The much-anticipated Judgment has been handed down this week.
The appeal, brought by the Landlord against the decision of Her Honour Judge Garland-Thomas, was dismissed . Her Honour Judge Garland-Thomas had decided that the landlord was not able to rely on a section 8 notice as he was not licensed with Rent Smart Wales at the time of the service of the notice. Giving his judgment Lord Justice Newey stated, ‘I agree with Judge Garland-Thomas that the fact that Mr Jarvis was not licensed when he served the section 8 notice on Mr and Mrs Evans rendered it invalid.’
The appeal focussed on two issues: –
- Does section 7(2)(f) of the 2014 Act (‘serving notice to terminate a tenancy’) extend to the service of a notice under section 8 of the 1988 Act?
- If the answer is yes, is a notice served in breach of section 7 of the 2014 Act invalid?
The Court of Appeal answered affirmatively to both.
It was clear from the submissions made by the Respondent’s Counsel and by Rachel Anthony’s written submissions that the purpose of the Housing (Wales) Act 2014 and the subsequent licensing regime is to protect tenants, and that if a section 8 notice is excluded from the protection it makes a mockery of the intent of the Welsh Government.
Whilst the landlord in this case was claiming substantial rent arrears, the issues regarding a landlord’s ability to collect rent when unlicensed were not dealt with in the appeal. However, some interesting comments were made at paragraph 42 (v) of the Judgment: this issue in particular is likely to be the subject of further litigation.