Landlord Licensing in Wales: Defining a ‘notice to terminate a tenancy’, & effect of service by a landlord unlicensed & unregistered in Wales (Evans v Jarvis, Shelter Cymru intervening – 2020)

How is a ‘notice to terminate a tenancy’ defined with reference to the Housing (Wales) Act 2014, and is the notice invalid to prevent a landlord taking possession if served by a landlord who is unlicensed in Wales?

The background

Evans v Jarvis, Shelter Cymru intervening [2020] concerned tenants occupying a property under an assured shorthold tenancy from the landlord. They had occupied the property from around 2012, the AST commencing in late 2015. The landlord served notice seeking possession under s.8 of the Housing Act 1988 in respect of rent arrears. The landlord was not licensed at the date of service of the notice.

A possession order was granted at first instance, where the validity of the notice was not raised as an issue. The tenant respondents’ first appeal was allowed, finding that the appellant landlord was not registered or licensed under the Housing (Wales) Act 2014 at the date of service of the notice, and that the notice served by the landlord fell within s.7 of the H(W)A 2014 meaning that as a landlord of a property subject to a domestic tenancy, he could not serve notice to terminate the tenancy.

S. 7 contains provisions:

“(1) The landlord of a dwelling subject to a domestic tenancy must not do any of the things described in subsection (2) in respect of the dwelling unless –

1. the landlord is licensed to do so…for the area in which the dwelling is located,
2. the thing done is arranging for an authorised agent to do something on the landlord’s behalf,…

(2) The things are –

(a) collecting rent;

…

(f) serving notice to terminate a tenancy”

The landlord appealed to the Court of Appeal.

The decision

The Court of Appeal found that the notice was invalid. The court considered two issues:

1. Whether ‘service of notice to terminate a tenancy’ under the H(W)A 2014 fell within s.8 of the Housing Act 1988; and
2. If it did, was the notice invalid if it breached H(W)A 2014?

The landlord argued that a notice served under s.8 of the Housing Act 1988 was not a ‘notice to terminate a tenancy’ but was instead an application to the court for a possession order. The court rejected this argument; ‘notice to terminate a tenancy’ wording did apply to a s.8 notice, and s.8 was not limited to specific notices of termination.

The landlord further argued that s.7 H(W)A 2014 did not affect validity of a notice, instead focusing only on criminal liability of the landlord. The court also rejected this argument. The Act specifies that a landlord ‘must not do any of the things described in subsection (2)’, which included at point (f) serving notice to terminate a tenancy.

Where a landlord is not registered or licensed, a notice served by him is ineffective. Where that landlord ‘must not’ serve notice, the notice is invalid. Referencing a previous unreported case from 2019, the court noted that it would be unusual for a landlord to face criminal liability for service of the notice but nevertheless was able to obtain a possession order.

Advice and action

An important point of reference for landlords of domestic properties in Wales, and the interaction between the Housing Act 1988 and Housing (Wales) Act 2014 in respect of licensed and registered landlords.

Clearly, landlords must ensure that the relevant registrations and licenses are in place in order to effectively manage their properties, this case confirming that possession will not be a remedy available to landlords who do not comply with the legislation, even where there are arrears or other defaults by the tenant.