In Jarvis v (1) Evans and (2) Evans [2020] EWCA Civ 854 the Court of Appeal held that in Wales a landlord must be licensed to serve a notice under section 8 of the Housing Act 1988 (the 1988 Act) and that such a notice served by an unlicensed landlord is nugatory.
The law governing private rented housing in England and Wales has diverged in recent years. The Housing (Wales) Act 2014 (the 2014 Act) passed by the National Assembly for Wales includes provision for the regulation of landlords and agents which has no parallel in England. One of the requirements is that landlords must be registered in respect of any dwelling let under a “domestic tenancy” and be licensed to carry out lettings activities or property management activities for dwellings the subject of “domestic tenancies”. Section 7 of the 2014 Act precludes an unlicensed landlord of a dwelling subject to a domestic tenancy from doing several things, one of which is “serving notice to terminate a tenancy”.
Mr Jarvis, the appellant landlord (the landlord), owned a house (the house) called “The Leys” in Saundersfoot, near Tenby in Pembrokeshire. Since 2012, Mr and Mrs Evans had been the tenants. On 1 December 2015, the parties entered into a tenancy agreement granting the tenants an assured shorthold tenancy for a six-month term at a rent of £2,000 per month. Upon the expiry of that fixed term the tenants became periodic tenants pursuant to section 5 of the 1988 Act.
In October 2018, the landlord served on the tenants a notice under section 8 of the 1988 Act. It informed the tenants that he intended to seek possession on grounds 8, 10 and 11 of those specified in schedule 2 of the 1988 Act. Possession proceedings were commenced in December 2018, with the landlord alleging that there were four months of rent arrears.
When the matter came before the district judge, the tenants asserted that they had undertaken significant works on the house for which they were entitled to credit. The district judge found that there was no realistic prospect of that counterclaim reducing the arrears below two months’ worth and so made a possession order on the mandatory ground 8, giving directions for the tenants’ money claim.
The tenants appealed, taking a new point that, as the landlord was not registered or licensed at the time the section 8 notice was served, he could not rely upon it. The appeal was heard in August 2019 by Her Honour Judge Garand-Thomas, who noted that the landlord had not been registered as landlord of the house until July 2019 and had only been licensed “within the last few weeks”. She found that section 7 of the 2014 Act precluded the serving of section 8 notices under the 1988 Act and therefore the section 8 notice was ineffective.
The Court of Appeal upheld the decision of Judge Garand-Thomas, rejecting the landlord’s appeal. It observed that the explanatory notes to the Bill which gave rise to the 2014 Act showed that it was clearly intended to improve the position of tenants. The Court of Appeal was not persuaded that a notice under section 8 of the 1988 Act was not a notice to terminate a tenancy. It considered that if an unlicensed landlord served such a notice, it was not only a criminal offence but was invalid. Lord Justice Newey observed that the 2014 Act did not prevent an unlicensed landlord from arranging for an authorised agent to serve a section 8 notice on his behalf and that in this particular context an authorised agent can be a solicitor.
At the time the section 8 notice was served, a company of which the landlord was director was licensed. However, the landlord himself was not registered or licensed. Plainly, the capacity in which contracts are made and licences held must be carefully checked.
Elizabeth Haggerty is a barrister at Lamb Chambers
