Serving a Section 8 Notice in Wales

Under the Housing (Wales) Act 2014, all landlords in Wales must be registered. In addition, if the landlord wants to carry out property management activities, the landlord must be licensed. 

Alternatively, as long as the landlord is registered, the landlord may employ a licensed agent to carry out property management activities (our highlights):

The landlord of a dwelling subject to a domestic tenancy must not do any of the things described in subsection (2) in respect of the dwelling unless— 

(a)the landlord is licensed to do so under this Part for the area in which the dwelling is located, ...

Property management activities are (our highlights):

• collecting rent;
• being the principal point of contact for the tenant in relation to matters arising under the tenancy;
• making arrangements with a person to carry out repairs or maintenance;
• making arrangements with a tenant or occupier of the dwelling to secure access to the dwelling for any purpose;
• checking the contents or condition of the dwelling, or arranging for them to be checked;
• serving notice to terminate a tenancy.

Section 44 restricts serving a section 21 notice where the landlord is not registered or licensed:

(1) A section 21 notice may not be given in relation to a dwelling subject to a domestic tenancy which is an assured shorthold tenancy if— 

(a) the landlord is not registered in respect of the dwelling, or (b) the landlord is not licensed under this Part for the area in which the dwelling is located and the landlord has not appointed a person who is licensed under this Part to carry out all property management work in respect of the dwelling on the landlord's behalf.

It’s clear, therefore, that where a landlord is not registered or licensed, no section 21 notice can be served in respect of the tenancy. But, what is the position regarding a section 8 notice being served by an unlicensed landlord? 

There’s no provision like the one above specifically for section 8 notices. 

This was the question in Jarvis v Evans & Anor [2020] EWCA Civ 854 (07 July 2020). 

A six-month assured shorthold tenancy was granted by the landlord to the tenant from 1 December 2015. Upon expiry of the term, the tenancy became periodic. 

In October 2018, the landlord, Mr Jarvis, served a section 8 notice under grounds 8, 10 and 11 on the tenants, Mr and Mrs Evans. 

By the time of the first hearing for possession in December, it was alleged by the landlord that arrears had accrued to £8,000, representing four months of unpaid rent. 

At the first hearing, possession was ordered, but Mr and Mrs Evans then appealed, asserting that the landlord was not registered nor licensed with Rent Smart Wales when the section 8 notice was served, and as such, the notice was ineffective. 

At the first appeal, the possession order was quashed, and it was held that the section 8 notice was ineffective because it was not allowed to be served under section 7 Housing (Wales) Act 2014 due to being prohibited under property management activities by an unlicensed landlord. 

It was common ground that a company for which the landlord was a director was licensed, but in this case, the company was not the landlord. Mr Jarvis, the landlord, appealed to the Court of Appeal and argued:

1. A section 8 notice is not a notice to terminate a tenancy and therefore is not a notice covered by the prohibitions in the list of property management activities. 
2. Furthermore, why does the Act specifically restrict the service of section 21 notices but not specifically refer to a section 8 notice? Had the intention been to restrict service of the section 8 notice, surely the Act would have said so.

On the first point, although it is technically accurate, the notice itself doesn’t terminate the tenancy - it is the following court order and execution of the warrant which achieves termination. 

As such, it was held to be a notice covered by the management activities and therefore must not be served by an unlicensed landlord.

... the words "notice to terminate a tenancy" are apt to refer to a section 8 notice. Had the Assembly intended to confine section 7(2)(f) of the 2014 Act to notices which themselves terminated tenancies, it could have said so more explicitly, by speaking, say, of "notice terminating a tenancy" or "notice which terminates a tenancy". It did not do so. The language it chose to adopt instead is perfectly capable of being understood as encompassing notices which are served in order to bring tenancies to an end but which do not achieve that of themselves. A section 8 notice is of that kind.

And continued later in the judgement:

... a section 8 notice served in breach of section 7 of the 2014 Act is invalid ...

On the point questioning why section 44 specifically restricted a section 21 notice being served with no similar provision for section 8, the court said:

It is fair to say, as Mr Bates did, that section 44 of the 2014 Act overlaps section 7 to an extent if the latter provision is interpreted in the manner for which Miss Salmon contended.

 A section 21 notice served by an unlicensed landlord will, I think, be invalidated by section 7 as well as section 44. That prompts the question: why was section 44 inserted into what became the Act? 

As, however, Miss Salmon pointed out, section 44 addresses section 21 notices served by unregistered landlords as well as unlicensed ones. It is, moreover, to be found in a group of sections with the heading, "Supplementary". 

On top of that, as Mr Bates recognised, the report of the Assembly's Communities, Equality and Local Government Committee which recommended provisions to the effect of what is now section 44 does not explain the Committee's reasoning in any detail. 

In the circumstances, section 44 is, as it seems to me, best seen as a belt-and-braces provision in so far as it relates to unlicensed (as opposed to unregistered) landlords.

 I do not think it should 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.

The landlord's appeal was dismissed as the section 8 notice served was invalid due to it being served by an unlicensed landlord. 

There is also a good analysis of this case on the Nearly Legal blog here.