Landlord and tenant – Notice to quit – Repossession – Tenant appealing against decision of district judge that landlord not required to be licenced under section 44 of Housing (Wales) Act 2014 before serving termination notice under section 21 of Housing Act 1988 in respect of assured shorthold tenancy of dwelling in Wales – Whether landlord who was registered but not licensed entitled to serve section 21 notice to recover possession – Appeal allowed
The respondent landlord issued a claim on form NWB Wales for possession of 19 Archer Road, Cardiff. The respondent sought to use a notice under section 21 of the Housing Act 1988 as against the appellant tenant. The respondent completed and signed the claim form himself. It stated that the section 21 notice was personally delivered by the respondent to the appellant. It showed that when the notice was given, the respondent was registered but not licenced, and had not appointed a licenced agent to be responsible for property management work in relation to the dwelling.
The respondent subsequently became licensed but his claim for possession was struck out on the basis that he was not licensed at the time of service of the section 21 notice. He applied to have the striking-out order set aside on the ground that a registered landlord could validly serve a section 21 notice.
The district judge considered that there appeared to be a conflict between section 7(2)(f) of the Housing (Wales) Act 2014, which provided that a landlord should not serve a notice to terminate a tenancy unless he or she was licensed, and section 44, which prohibited the service of a section 21 notice if the landlord was not registered in respect of the dwelling or was not licensed for the area in which the dwelling was located and had not appointed a licensed agent. The district judge decided that the word “or” between section 44(1)(a) and (1)(b) meant that the two conditions were alternatives. Therefore, he concluded that either registration or licensing was sufficient for the service of a section 21 notice.
The appellant appealed on the grounds that the district judge failed to apply section 7 and misinterpreted section 44.
Held: The appeal was allowed.
(1) It could not be said that the word “or” at the end of section 44(1)(a) was clearly used in the disjunctive sense, because the two situations it separated were not mutually exclusive. It was not the case that a landlord had to be either registered or licenced. A landlord might be registered but not licenced or might be both. Accordingly, the word “or” in that context was capable of two meanings, and its use did not, of itself, provide much assistance in determining the intention in enacting the 2014 Act as to which of the two meanings it should bear. It followed that the search for such intention had to be extended beyond section 44. Two rules of statutory interpretation were likely to be particularly pertinent in determining whether a disjunctive or conjunctive meaning of section 44 was intended: Regard should be had to other parts of the 2014 Act which had a bearing on the issue and to the enacting history: Royal Devon & Exeter NHS Foundation Trust v Atos IT Services UK Ltd [2017] EWCA Civ 2196 followed.
(2) The application process for a licence was far more stringent than that for registration. In respect of the former, there were additional requirements to show that the applicant was a fit and proper person and had undergone the necessary training. That was reflected in the fees charged for the respective applications and the Regulation of Private Rented Housing (Information Periods and Fees for registration and licencing) (Wales) Regulations 2015 imposed an unlimited fine for an unlicensed landlord who served a notice to terminate a tenancy. There was express provision of a defence of reasonable excuse for not been registered or not being licenced, as the case might be.
(3) In respect of a section 21 notice, section 7(2)(f) was intended to place restrictions on the terminations of tenancies in the circumstances described in section 44. As the heading to section 44 indicated, such a notice effected a termination of the tenancy. It would be surprising if the intention were that a section 21 notice could be served by a landlord who was registered but not licenced. That would mean that a landlord who was not a fit or proper person and who had not undergone training could serve and rely upon such a notice. It would mean that a landlord who had committed offences, for example of violence or harassment, could serve such a notice. It did not mean that such a notice could not be served on behalf of an unlicensed landlord, because section 44 (1)(b) made it clear that the landlord might appoint a person who was licenced to carry out all property management work in respect of the dwelling on the landlord’s behalf. On a reading of the 2014 Act, it was unlikely that such a result was intended. It was more likely that what was intended was that to be able to give a section 21 notice a landlord had to be both registered and licenced so as to give a higher degree of protection to the tenant than the low level of protection afforded by registration alone.
(4) It was clear from the enacting history that section 44 was intended to give further protection to tenants from the giving of such notice by unlicensed landlords. The Communities, Equality and Local Government Committee, reporting on the Housing Wales Bill in its March 2014 report, considered that the “fit and proper person requirement” was an essential element of the licencing process. It said that in the context of raising standards, the test would need to be applied rigorously to ensure that only suitable applicants were successful and to prevent disreputable landlords from re-entering the sector. It also considered that the training of landlords and agents would be essential to professionalise and improve standards within the private rented sector. In order to provide additional protection for tenants, an unlicensed landlord should be prevented from serving a “no-fault eviction notice”, as was currently the case for houses in multiple occupation licencing and selective licencing. The enacting history lent support to the conclusion that the intention was that to serve a section 21 notice a landlord had to be registered and licenced.
Rachel Anthony (instructed by Shelter Cymru) appeared for the appellant; the respondent appeared in person
Eileen O’Grady, barrister
Click here to read a transcript of Evans v Fleri
