We are very grateful to Mike Norman of Bristol Law Centre for the following guest post on the current position on possession claims and notice periods in Wales. Keeping up with England has been more than enough for me, so this is extremely welcome.

The intricacies of devolution mean that despite the Welsh Government’s ability to set its own agenda on matters purely in relation to housing law, it is still subject to the common jurisdiction on reserved matters of both justice and benefits.

The practical effect of this is that although lawyers practising housing law in Wales still have to work with and around the various Civil Procedure Rule alterations (e.g. the further extensions to CPR 55.29 and delay in implementing CPR 55C until 20^thSeptember) they are – probably – relieved to not have to work through the somewhat headsplitting changes coming into force in England over the weekend, and having to consider, at least for now, matters such as ‘which ground can go with what.’

The following is a – hopefully – helpful summary of the current position. At least, until the regulations replacing the snappily-titled ‘Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods)(Amendment)(Wales) Regulations 2020’ come into force – which is likely at some point this month, because they are currently due to expire 30^th September 2020 along with the Coronavirus Act itself.

Pre-Coronavirus Act differences/phase 1 (pre-26^th March)

I apologise for describing the Welsh law and the current notice ‘phases’ through the prism of a comparator to the English position though I hope this is a useful tool. Before COVID: the differences were mostly contained to Assured and Assured Shorthold tenancies. For example:

1. ASTs – landlords in Wales did not have to serve ‘prescribed information’ such as Energy Performance Certificate, Gas Safety Certificate, and certainly not a ‘How to Rent in England’ leaflet at any point, in order to rely on a section 21 notice
2. ASTs – Wales does not (for now) have a defence for ‘retaliatory eviction’ to section 21 notices (many will say of course it has little effect in England either)
3. ASTs – Wales did not amend section 21(4) Housing Act 1988 following the decision in Spencer v Taylor. This means that in the somewhat niche, but not impossible, situation that a contractual periodic tenancy is in place (whether from the outset, or because the fixed term contract provided for a contractual periodic tenancy) – the tenant can still joyously assert the defence on a notice’s validity, where the landlord has failed to use a savings clause and the 2-month notice did not ‘end on the last date of a tenancy period.’
4. ASTs – Wales does not have the rules about being unable to serve a section 21 notice within the first four months of a tenancy; neither are there rules around the landlord having to enforce the notice within a particular period of service (e.g. six months from service/four months from expiry).
5. AT/ASTs – Wales has not adopted the ‘hostile environment’ meaning that there is no requirement to undertake the ‘right to rent’ checks for tenants, and despite references by counsel and the Court of Appeal in Jarvis to ground 7B (disqualification from holding tenancy as result of immigration status) this ground actually is unable to be used in Wales.
6. AT/ASTs – somewhat topically, landlords in Wales looking to serve notices seeking possession, whether section 8 or section 21 notice, would be prudent to ensure that the appropriate registration/licensing requirements have been addressed before their service, as this is mandatory for all landlords unless an exemption applies.
7. Secure tenancies – there are some subtle differences between grounds 15A (England) and ground 16 (Wales) in respect of notices for succession to tenancies where accommodation is under-occupied, though very similarly worded.

Otherwise, the rules have been pretty much the same. Flexible tenancies and Family Intervention tenancies were never implemented in Wales. I apologise for any differences I’ve missed.

So what’s changed since COVID? Initial response/phase  2 (26^th March to 23^rd July)

Wales moved at exactly the same pace as England initially; the day before the Coronavirus Act 2020 was implemented on 26^thMarch 2020, the housing minister Julie James released a statement to the effect that Wales would be following England and therefore, unusually, the Westminster government was legislating on a ‘devolved matter’ for the first time in the best part of a decade.

This meant that on 26^th March, all Notices Seeking Possession for the ‘defined regimes’ (Secure, Assured, Assured Shorthold, Protected, Demoted and Introductory)  all immediately required three-month notices, for notices served after 26^th March. Pre-26^th March notices remained valid as per the law that subsisted at the time of their service, albeit of course in practical terms all have been subject to the moratorium.

So what’s changed since COVID? Secondary response/phase 3 (24^th July onward)

The Welsh Government updated the law via regulations coming into force from 24^th July. This third phase has NOT affected secure, introductory or protected (Rent Act) tenancies, which therefore remain subject to the rules in the Coronavirus Act. Welsh-specific regulations specifically alter only Assured and Assured Shorthold tenancy regimes.

The notice period for the latter regimes extended from three months to six months for notices served after that date – with the exception of specific circumstances, ie where possession notices include grounds 7A and/or ground 14 which were kept at three month notices.

I spent some time wondering if a Demoted tenancy would be included within the extension of notice from three months to six months; whilst a rare beast anyway in Wales, I think it remains at three months as not counted as an Assured Shorthold tenancy.

Summary

The current position for notices on residential tenancies, therefore:

Phase 1 Notices served pre-26^th March – law subsisting at the time as described

Phase 2 Notices serve 26^th March to 23^rd July – three month notices for Protected tenancies, Secure or Introductory tenancies, Assured and Assured Shorthold tenancies, and Demoted tenancies, regardless of reason/ground. Notices in relation to licences and tenancies outside the above regimes are unaffected by the changes, i.e. subject to either basic protection (where Protection from Eviction Act applies) or no protection other than reasonable notices (where Act does not apply).

Phase 3 Notices served 24^th July to date and until regs changed again: Protected tenancy – 3 months Notice to Quit (all grounds); Secure tenancy – 3 months Notice Seeking Possession (all grounds); Introductory tenancy – 3 months Notice Seeking Possession (specified ground not needed); Demoted tenancy – 3 months Notice Seeking Possession (specified ground not needed); Assured tenancy – 3 months  Notice Seeking Possession (grounds 7A and 14), 6 months (all other grounds); Assured Shorthold – 6 months (section 21 notice).

Notices in relation to licences and tenancies outside the above regimes are unaffected by the changes, i.e. subject to either basic protection (where Protection from Eviction Act applies) or no protection other than reasonable notice (where Act does not apply).

‘Just and equitable’ to dispense with notice is still – technically – included at several points, one can imagine that this might be a very unusual circumstance in which it could be granted.

Analysis and comparator

Eagle eyes will no doubt spot that there is no (current) circumstance in which the Welsh tenant can receive a lesser notice than his English counterpart. The English updates will allow for immediate notice in antisocial behaviour cases, whether mandatory or discretionary; the Welsh law maintains a minimum three-month notice period in such cases where a current regime applies.

What Wales may now have to decide, following the English changes, is (i) whether it would want to follow suit in terms of working out which types of ground it will allow to be ‘grouped’ or ‘claimed’ together, without invalidating the ability to rely on a shorter notice (if the landlord wanted to rely on more than one ground, and (ii) the best mechanism to do that, given that the English regulations may already be being considered for challenge.

Similarly, current Welsh law not seek to draw any form of line in the sand for longstanding rent arrears cases (described by the English Housing minister as ‘the most egregious’) by differentiating on the amount of arrears.

We wait more from the Welsh Government. Once the regular legislative timetable is up and running again, the long-awaited implementation Renting Homes (Wales) Act will mean that such future comparators, unfortunately, will tax the patience of its readers even further, regardless of its interest to the enthusiastic writers.