Landlord and tenant – Possession – Notice – Respondents holding assured shorthold tenancy of property in Wales – Appellant landlord obtaining possession order – County court allowing appeal as appellant not registered under Housing (Wales) Act 2014 – Appellant appealing – Whether landlord to be licensed before serving notice under section 8 of Housing Act 1988 – Whether notice served by unlicensed landlord being invalid – Appeal dismissed
The appellant owned a house called “The Leys” in Saundersfoot, near Tenby in Pembrokeshire. In 2015, the appellant entered into a tenancy agreement granting the respondents an assured shorthold tenancy for a term of six months at a rent of £2,000 per month. When the term came to an end, the respondents became periodic tenants pursuant to section 5 of the Housing Act 1988.
The Housing (Wales) Act 2014 provided for the regulation of landlords and their agents. Landlords were required to be registered in respect of any dwelling let under a “domestic tenancy” and to be licensed to carry out either lettings activities or property management activities for dwellings subject to domestic tenancies. Under section 7, a landlord who was not licensed and did not have a licensed agent “must not serve notice” to terminate a tenancy.
A landlord under an assured shorthold tenancy might seek to recover possession by serving notice under section 8 of the Housing Act 1988 on grounds 8, 10 and 11 in schedule 2 for rent arrears; alternatively, by serving notice under section 21.
In 2018, the appellant served a notice on the respondents under section 8 of the 1988 Act informing them that he intended to seek possession on the basis that the respondents had not paid rent for four months and were now in arrears. The district judge made a possession order.
On appeal, the respondents argued that the appellant was not licensed or registered under the 2014 Act when he served the section 8 notice so that the service was ineffective. The county court allowed the respondents’ appeal on the basis that the appellant was not himself registered or licensed when the notice was served.
The appellant appealed, contending that, as a section 8 notice was not a notice to terminate a tenancy, it did not fall within section 7 of the 2014 Act.
Held: The appeal was dismissed.
(1) Section 7(1) of the 2014 Act barred an unlicensed landlord of a dwelling subject to a domestic tenancy from himself doing any of the things described in section 7(2), including serving notice to terminate a tenancy: section 7(2)(f). Had the Welsh Assembly intended to confine section 7(2)(f) to notices which themselves terminated tenancies, it could have said so more explicitly. The language used encompassed notices which were served in order to bring tenancies to an end but which did not achieve that of themselves, such as a section 8 notice. Section 7(2)(f) would be all but nugatory if limited to notices which themselves terminated tenancies. It would have no application to assured tenancies, which came to an end by the execution of orders for possession, not by the service of notices. The structure and purpose of the 2014 Act suggested that section 7 was intended to apply to the service of notices under section 8 of the 1988 Act. The 2014 Act regulated the management of dwellings subject to domestic tenancies and required landlords to be licensed to carry out certain kinds of property management activities. Service of a section 8 notice seemed to fall naturally within the scope of such property management activities.
A landlord applying for possession on some of the grounds in schedule 2 to the 1988 Act could invite the court to dispense with the requirement of a section 8 notice but the court would do so only if it considered that to be just and equitable in the particular circumstances. It was only in relatively exceptional cases that the court should be prepared to dispense with a notice. In all the circumstances, service of a notice under section 8 of the 1988 Act constituted “serving notice to terminate a tenancy” within the meaning of section 7(2)(f) of the 2014 Act.
(2) Section 7 stated that a landlord “must not do” any of the things described in subsection (2) unless licensed, arranging for an authorised agent to do something on his behalf or an exception applied. Subsection (5) provided for contravention of subsection (1) to be a criminal offence, but that need not detract from the general bar in subsection (1). It was common ground that section 44 of the 2014 Act rendered a section 21 notice ineffective if served by a landlord who was not registered or licensed. Failure to comply with a provision stating that a notice “may not be given” thus resulted in invalidity. Likewise, a section 21 notice given when there had been non-compliance with the regime governing tenancy deposits would be ineffective because section 215 of the Housing Act 2004 stipulated that “no section 21 notice may be given”. If a notice given when a statute had said that it “may not be” or no notice “may be given” could be nugatory, a provision stating that a landlord “must not” serve a notice was also capable of implying invalidity. Accordingly, a section 8 notice served in breach of section 7 of the 2014 Act was invalid.
(3) A section 21 notice served by an unlicensed landlord would be invalidated by section 7 as well as section 44. Section 44 addressed section 21 notices served by unregistered landlords as well as unlicensed ones. Moreover, it was to be found in a group of sections with the heading, “Supplementary”. It should not be inferred from its inclusion in the 2014 Act that a notice served in breach of section 7(2)(f) was intended to be effective. Section 44 was best seen as a “belt-and-braces” provision in so far as it related to unlicensed (as opposed to unregistered) landlords, rather than any indication that sections 8 and 21 were intended to be treated differently. Accordingly, the fact that the appellant was not licensed when he served the section 8 notice on the respondents rendered it invalid.
Justin Bates and Kimberley Ziya (instructed by Anthony Gold Solicitors) appeared for the appellant; Sarah Salmon and Christopher McCarthy (instructed by Hugh James) appeared for the respondents; Rachel Anthony (instructed by Shelter Cymru) appeared for the intervener (by written submissions only).
Eileen O’Grady, barrister
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