Rent Smart Wales licensing and Section 8 Notices

For assured shorthold tenancies, a landlord has two routes by which he may recover possession of his property by way of serving notice.

A landlord can serve notice under section 21 of the Housing Act 1988 (“the HA 1988”). Alternatively, a landlord can serve notice under section 8 of the HA 1988 and this includes cases where rent arrears exceed a certain amount (2 months’ if rent is paid monthly). Whichever route is pursued the landlord will still need to obtain and (if necessary) enforce a possession order in order to regain possession of the premises (if the tenant fails to vacate in accordance with any served notice). 

In Wales, private landlords (and letting agents) must be registered and licensed in accordance with Part 1 of the Housing (Wales) Act 2014 (“the HWA 2014”). In particular, any private landlord in Wales offering a domestic tenancy must be licensed or must have a licensed agent for their property (section 6, the HWA 2014). If a landlord is not licensed or does not have a licensed agent appointed for the property they cannot serve a valid notice to terminate a tenancy pursuant to section 7 of the HWA 2014. Similarly, section 44 of the HWA 2014 states that a landlord cannot serve a valid section 21 notice under the HA 1988 if they are not registered and licensed.

In the recent case of Jarvis v Evans [2020] EWCA Civ 854 the Court of Appeal considered whether a landlord who is unlicensed under the HWA 2014 can serve a valid section 8 notice for possession.

In this case, the tenants fell into arrears and the landlord proceeded to serve notice under section 8 of the HA 1988 to regain possession. At the time the landlord served the section 8 notice he was not licensed under Part 1 of the HWA 2014. Possession proceedings were issued and the court at first instance held that the landlord could not serve a valid section 8 notice under the HA 1988 due to the fact that he was unlicensed. On appeal, the landlord argued that a section 8 notice was not a notice to terminate a tenancy, so was not caught by section 7 of the HWA 2014. The landlord argued that this was supported by the fact that section 44 of the HWA 2014 specifically prevented reliance on section 21 notices, but did not refer to section 8 notices.

The Court of Appeal dismissed the appeal, finding that section 7 of the HWA 2014 applies to any notice served for the purpose of enabling a landlord to regain possession of a property. Section 7 of the HWA 2014 therefore applies to both section 21 and section 8 notices.

The outcome of this case makes clear to those landlords with properties in Wales that the requirements under the HWA 2014 apply to both section 8 and section 21 notices. 

The difference of the requirements for notices in both England and Wales may seem unclear to landlords and tenants and we would recommend you speaking to us for some initial advice and to see what options are available to you.   Please do not hesitate to contact us to find out how we can assist you.

Jonathan Flynn is an Associate Solicitor in our Property Litigation team and has experience in dealing with a wide range of property disputes including landlord and tenant issues. For further support, contact Jonathan by email on jonathan.flynn@jcpsolicitors.co.uk.