When an ‘or’ is an ‘and’ in Wales

Evans v Fleri (2019) EW Misc 12 (CC)

A lesson in drafting from Wales. The Housing (Wales) Act 2014 provides at Section 7(1)

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 licenced to do so under this Part for the area in which the dwelling is located…”

Subsection (2) includes ‘serving notice to terminate a tenancy’.

And at section 44(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. (Our emphasis)

Mr F had sought possession against Mr E based upon a section 21 notice. At thetime of issue of the claim form, Mr F stated that he was a registered landlord, but was not licenced and he had not appointed a licensed agent. Mr F subsequently stated that

he had completed a certified landlord training course and paid the landlord licence fee in June 2016 and exhibited a confirmatory document for each of those assertions. He continued that thereupon he believed that he became a licenced landlord. However, when he contacted the authority designated by the Welsh Ministers as the licencing authority under section 3, Rent Smart Wales, to obtain his licence number to be inserted into section 9 of the claim form, he was told that he had not submitted his licence application and therefore was not licenced. He submitted this on 24 July 2018 and exhibited confirmation of receipt by Rent Smart Wales

At first instance, the Disrtict Judge held that a notice to terminate a tenancy should not be given by a landlord who is not licenced. But that there appeared to be a conflict between section 7 and section 44, as section 44 appeared to state as alternative requirements that the landlord should be registered or licensed, and, in the absence of authorities being argued before him, he would strike out the claim but also give permission to appeal.

On appeal, with Mr F in person and Mr E represented by Shelter Cymru, HHJ Jarman QC looked to a decision of Jackson LJ in Royal Devon & Exeter NHS Foundation Trust v Atos IT Services UK Ltd [2017] EWCA Civ 2196, at 37

The other word to which the judge attaches significance is “or” at the end of paragraph 9.2.1. In my view, that does not assist. Sometimes the word “or” is disjunctive in that it appears between two alternative scenarios which cannot both apply. But sometimes “or” is conjunctive, not disjunctive. It appears between two scenarios, both of which may apply. See for example the heading of Part 5 of this judgment. There are many reported cases over the years in which the courts have construed “or” conjunctively.

The ‘or’ in section 44 could not be said to be used disjunctively. With regard to enacting history of the 2014 Act and regulations, the requirements for licensing were far more stringent than those for registration, indicating that there were not alternatives.

While s.7 did not spell out that a s.21 notice served by an unlicensed landlord was not valid, section 7 had to be read in relation to the restrictions on terminating tenancies in section 44.

It would be surprising if the intention had been to make the serving of a notice to terminate a tenancy by an unlicensed landlord a criminal offence and yet allow that landlord to obtain a possession order in reliance upon such a notice. Moreover, it would be surprising if the intention were that a section 21 notice can be served by a landlord who is registered but not licenced. That would mean that a landlord who is not a fit or proper person and who has not undergone training could serve and rely upon such a notice. It would mean that a landlord who has committed offences, for example of violence or harassment, could serve such a notice. It does not mean that such a notice cannot be served on behalf of an unlicensed landlord, because section 44 (1)(b) makes it clear that the landlord may appoint a person who is licenced to carry out all property management work in respect of the dwelling on the landlord’s behalf.

Overall, the ‘or’ in section 44 was not a disjunctive ‘or’, it was more of a conjunctive ‘or’, in the sense of an ‘and’.

The appeal failed and the claim was struck out.

Comment

Drafting, drafting…

We haven’t done much on devolved Welsh housing law post-introduction. Partly because none of us are particularly involved in such cases, and partly because, it seems, no-one is. There is a startling lack of reported cases.

We will have to make a decision in the future as to whether this blog goes England only.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Possession and tagged , , , .

7 Comments

  1. Dear Giles, it would be an immense shame to restrict your blog to England only! Welsh law remains of interest. Also, I hope you don’t mind my saying, but the appeal successful. Kind Regards Rachel

  2. We have a volunteer for Wales Correspondent. If as and when there is more case law ;-)

    I see now that the appeal was by the defendant. This, I have to say, is confusing, as from the appeal judgment, I gathered that first instance went the defendant’s way?

  3. As to this case, it did have something of a history. Initially the claim was struck out because the claim form omitted the required information about licensing. Mr Fleri, the Landlord, successfully applied to set aside that decision. At the same hearing, F submitted that a landlord only need be registered, rather than licensed and was granted possession. The DJ also granted permission to Mr Evans to appeal at the same time. Thereafter, the tenant instructed Shelter Cymru who took the appeal forward. Blogging on Welsh housing law may become even more interesting if Renting Homes Wales Act comes into force: but I very much look forward to reading Nearly Legal’s invaluable updates!

  4. The Renting Homes (Wales) Act 2016 will completely rewrite the position in Wales in relation to residential tenancies. It is intended to entirely replace the secure tenancy and assured tenancy regimes which currently operate under the Housing Act 1985 and Housing Act 1988 respectively (this is the introductory text from this rather out-of-date Welsh Government note here https://law.gov.wales/publicservices/housing/renting-homes-wales-act-2016?lang=en#/publicservices/housing/renting-homes-wales-act-2016?tab=overview&lang=en). But that Act has not yet been brought into force, which explains why there has not been any litigation on that aspect of Welsh housing law at least. It does seem very unlikely that lawyers outside Wales are going to have the time or inclination to teach themselves the new law when it is eventually brought into force.

  5. I have just realised that the article I referred to in my comment above was written by David Smith of Anthony Gold in September 2017. It’s not a Welsh Government article at all. Many apologies for missing that, and for saying that it was out-of-date. It was of course bang up-to-date at the time it was written.

  6. Its worth noting that part 1 of the Housing (Wales) Act 2014 itself had a considerably delayed implementation date itself, i.e. significantly later than part 2 (the bit relating to Homelessness changes, which was used as the template for similar legislation in England. This alone, in my humble submission, should demonstrate why a general awareness of Welsh law is important).

    The reason for that delay was the licensing authority, Rent Smart Wales (RSW) required setting up and existing as a a ‘voluntary’ system for a year before it all became mandatory. Whilst part 2 became law in April 2015, the registration/licensing regime was introduced substantially later.

    Its also important to recognise that the opposite outcome in this appeal, i.e. the landlord winning, would have been a catastrophic result for any attempt to achieve ‘soft compliance’ with the regime, as the only way to otherwise achieve compliance would be prosecuting landlords. This judgment happily confirms that the tenant hasve a ‘direct defence’ mechanism is afforded to tenants with non-compliant landlords without having to rely on the resources of RSW .

    RSW obviously would struggle to prosecute everyone for non compliance (and probably wouldn’t want to anyway) so this judgment should be of considerable reassurance to RSW, the tenants of landlords whom haven’t followed the law, and indeed local authorities trying to ensure it is able to give accurate information in trying to discharge their own functions under the Housing (Wales) Act 2014. It also gives reassurance to those landlords whom have complied with the scheme and licensed themselves, or engaged a licensed letting agent, that they aren’t being undercut.

    Comparing Welsh to English developments is such a mine of interest, and important lessons might be well be learned from one jurisdiction to the other – please keep it in!!

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