I was recently instructed to attend a repossession hearing in Wrexham following the service of a Section 8 notice.
The Landlord (who was based in Wales) had instructed a letting agent, based in England. He also had the benefit of Rent Guarantee Insurance with a separate insurance company (RGI). They were also based in England. The terms of the RGI were that if the tenant went into arrears by two months, the RGI would serve the S.8 notice on behalf of the landlord and seek possession of the property. The RGI would also arrange the issuing of proceedings and representation at the hearing. The letting agent would continue to manage the property on behalf of the landlord in the normal manner. The property was in Wales.
For those who have kept up to date with the Housing (Wales) Act 2014 (and I admit I hadn’t), you will know that since 23 November 2016, it has been a requirement for landlords and letting agents, who have or manage property in Wales to be registered and licensed with Rent Smart Wales and unless they are licensed, they may not carry out ‘lettings activities’, ‘property management activities’ or ‘property management work’.
In this case, the Landlord had become licensed in October 2018, the letting agent in July 2017 and the RGI in September 2018. A S.8 notice was served in August 2018 on the basis of Ground 8 (amongst others), because the rent in arrears by two months. It was served by the RGI (who at the time of service were not licensed but had applied to be).
At the hearing, the tenant who was represented sought an order for strike out on the basis that the RGI, nor the landlord were licensed at the time of the S.8 Notice and therefore, the S.8 notice was invalid. They sought to rely on the County Court decision of Jardine v Reece, a decision of DJ Sandercock where it was held that the service of a S.8 notice was “property management work” under the provision of S.12(1)(f) deeming that a S.8 notice was a “notice to terminate a tenancy”.
There was a discussion in my case as to whether a S.8 notice was a “notice to terminate a tenancy”. The S.8 notice was compared to a S.21 notice which is indeed a notice to terminate and the service of such a notice is “property management work”. The Judge however considered the wording of S.8(3)(a) Housing Act 1988 which reads:
(3)A notice under this section is one in the prescribed form informing the tenant that—
(a)the landlord intends to begin proceedings for possession of the dwelling-house on one or more of the grounds specified in the notice
The Judge of course was not required to follow the judgment in Jardine given it was a District Judge decision but did find it persuasive. However, the Judge intimated that the S.8 was not a “notice to terminate” but rather a “notice of intention to begin proceedings for possession”. However no clear decision was reached as the Judge stated, “There is some doubt about the legal position arising out of the ambiguous drafting of the legislation”
If it was found that the S.8 notice was a “notice to terminate”, I submitted two arguments:
- That RGI had applied to be licensed by the time they had served the S.8 notice and subsequently been granted a licensed and therefore the S.8 notice was validly served. (It should be noted that S.8(a) Housing (Wales) Act 2014 provides exemption for a landlord to be licensed but there is no such exemption for letting agents shown in the Act. I therefore added that the exemption should also apply to the RGI).
Or
- If not validly served, that service of the S.8 notice should be dispensed of in accordance S.8(1)(b) Housing Act 1988 given that the arrears were, at the time of the hearing, 4 months in arrears and it was just and equitable (I do not include my reasons for this for purposes of confidentiality) to set it aside. This argument would result in the notice been deemed not to exist and my client still being able to obtain possession under the mandatory ground 8.
In giving Judgment, the Court considered in detail the arguments and full chronology and circumstances of the case and considered it just and equitable to dispense with the S.8 notice.
If you are involved in seeking possession of properties in Wales under S.8 Housing Act 1988, in order to give you the best chance of obtaining a possession order, I would suggest that the advocate should, in the first instance be instructed to argue that the S.8 notice is not a “notice to terminate” and in the alternative argue the above. In preparation, you should ensure that you are fully aware of the dates (with evidence) that the landlord, letting agent and any other party:
- Applied to be licensed with Rent Smart Wales;
- Became licensed with Rent Smart Wales