22/10/2020

Updates on possession notice requirements in Wales

We are once again very grateful to Mike Norman (now of Harrow Law Centre) for the following guest post updating the position on possession claims and notice periods in Wales. Keeping up with England has been more than enough for me…

A careful observer might note that our last Welsh update was written at a somewhat convenient time, that is to say, Welsh possession notices were still far more straightforward than their English equivalent, even while we acknowledged that it might start to look complicated very, very quickly.

We were right; new regulations, The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Wales) Regulations 2020 came into effect 29th September 2020, for notices served after that date. The regulations are currently set to have effect until the 31st March 2021.

As a handy shortcut for anyone who has got around the changes in England – see Understanding the Possession action Process: Guidance for Landlord and Tenants – the Welsh possession notice periods are, mainly, working in a fairly similar way to the English ones.

Starting from a default notice period of six months, all lesser periods relate purely to cases where (i) antisocial behaviour grounds or (ii) domestic violence grounds are relied on, i.e. there is no reduction in notice period for rent arrears-only cases.

In keeping with the previous Welsh update, hopefully it is helpful to describe this recent tranche of notice requirements in Wales following 29th September as being in ‘phase 4’.

Phase 4 Notice periods (licences, and tenancies not under assured, secure or regulated regimes, are not addressed by the latest regs):

Possession proceedings can be lodged immediately after notice G14 (sch 2 HA 1988, Assured) with or without other grounds specified unless G7A (see 1)

 

G2 (sch 2 HA 1985, Secure) with or without other grounds specified

Notice needs to give two weeks G14A (sch 2 HA 1988, Assured- social tenancies only; no other grounds specified) (2)
Notice needs to give four weeks G2A (sch 2 HA 1985, Secure- no other grounds specified) (2);

s128 (HA 1996, Intro Tenant, ASB reason given) (3*);

s143E (HA 1996, demoted, ASB reason given) (3*);

Case 2 (sch 15, Rent Act 1977, regulated tenancy);

G7A mandatory (Assured, sch 2 HA 1988, periodic tenancy) (1);

S84A(3) to (7) mandatory (Secure, sch 2A HA 1985, periodic tenancy).

Notice needs to give one month G7A mandatory (Assured, sch 2 HA 1988, during fixed term tenancy) (1)
Notice needs to give six months All other tenancy grounds, including rent arrears and section 21 notices.
  • In respect of cases where G7A schedule 2 HA 1988 is specified, the notice must give the prescribed period for G7A in all circumstances, including where the ‘immediate notice’ ground is used.
  • In respect of G14A and G2A, these timescales are only relevant where these grounds are specified with no other grounds. The inclusion of other grounds, therefore, would be a significant disincentive for a landlord e.g. inclusion of rent arrears. An ‘exception within an exception’ is where the immediate notice grounds apply – i.e. G14 and G2 respectively (unless (1) also applies). Note ground 14ZA, rioting, is not a possession ground in the Wales at present.
  • With ‘ASB reasons’ the regulations confirm in order to use the shorter timescale, the landlords for both Demoted or Introductory Tenancies would need to set out reasons of antisocial behaviour which meet the same standard as per shorter notices for Secure tenancy possession notices, that is to say, ground 2, 2A, or section 84A(3) to (7).

Tenant advisors will no doubt wish to be scrupulous in such cases, in ensuring the allegations stated in the notice would indeed meet these specified grounds, and utilise the review mechanisms to articulate challenges on evidence and standard of proof accordingly.

Prescribed notice – update

The regulations also update the requirements of prescribed forms in respect of both Secure and Assured tenancies in Wales. They also update the Notices to Quit etc. (Prescribed Information) Regulations 1988 in respect of the Regulated tenancy ground case 2.

The regulated tenancy form itself will not require alteration, as the regs directly allow the 1988 regs to ‘be read as’ if the new regs were directly inserted.

The Welsh prescribed notices are updated far less regularly than their English equivalents. The Secure Tenancies (Notices) Regulations 1987 (SI 1987/755) appears to have previously only been updated once (SI 2005/1226) prior to the primary legislation updates in schedule 29 Coronavirus Act 2020, now updated.

In respect of assured tenancies, it appears the Assured Tenancies and Agricultural Occupancies (Forms) (Regulations) 1997 (SI 1997/194) had not been updated in Wales at all since its inception save for the Coronavirus Act, albeit having had at multiple updates in England (as discussed in Baz v Steele in 2019, NL report here)

When they arrive, the updated prescribed forms should therefore be of greater assistance in terms of explaining the grounds currently available and the appropriate timescales which are required in Wales. Ground 7A in respect of Assured Tenancies will now appear in a Welsh prescribed form for the first time.

Until they are updated, the existing published notices for Secure and Assured tenancies do not therefore reflect the actually current Welsh regulations. An update is anticipated shortly. Principles of Baz v Steele, referenced above (albeit only a County Court level judgment) is relevant to the subject of a notices validity on the old form, where served between 29th September and any update to the formal notice.

Acting on notices and Renting Homes (Wales) Act 2016 proposed amendments – ‘RH(W)A 2016’

The Welsh regs, unlike in England, currently have no time limit within which landlords must issue possession claims on section 21 notices once they become actionable.

The Welsh Government have long planned upon implementing RH(W)A 2016 to remove the ‘Sword of Damacles’ of section 21 notices being held over tenants, albeit it seems unlikely the Act will now be implemented until 2022. When it is, it is currently set to operate:

  • first, by putting a not-so-long stop on notices: for example, just 2 months from the date a landlord notice becomes ‘actionable’ on a section 21 notice (new s173 periodic phase/s186 within fixed period), or 6 months from the date a standard/introductory/prohibited conduct standard/secure contract ground-based notice becomes ‘actionable,
  • secondly, and unlike currently in England, by proscribing landlords from serving repeat ‘section 173’ notices within 6 months of a previous notice (section 7 of the amendment bill which substitutes s.177(2) is here)
  • A grace period to permit landlord to ‘withdraw’ the notice, presumably in case of a notice being found to be invalid, or even to resolve the problem which led to the notice being served. Currently planned at 14 days, the scrutiny committee has recommended to Welsh Government to increase this to 28 days, along with other recommendations (see para 159 of the report, which is here).

This is perhaps intriguing and important in equal measure: any move to reduce the casual use of Notices Seeking Possession is surely a ‘good thing’, protecting tenants from unnecessary upset and worry, let alone litigation. The stakes will be raised where a notice is actually served and the withdrawal period has ended; those seeking to dissuade landlords in Wales from enforcing a notice may find addressing possible resolutions would be looked on far more favourably in the initial phase whilst the landlord ability to withdraw subsisted.

 

 

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.

1 Comment

  1. Spike Norman

    I should say that in relation to the prescribed Notices above, SI 2020/778 (the previous set of regs, covering ‘phase 3’) had also made an additional minor change to assured/assured shorthold tenancy prescribed forms – but only by allowing forms to ‘be read as if’ they said six months, rather than the form actually needing to be changed itself (a problem will still arise were a landlord to forget to wait for the longer period of time before issuing).

    As at 8th November 2020 it appears that some published notices e.g. on the UK gov website, unsurprisingly, will link to England-specific notices or those which have not have been updated since 29th August 2020. There remains the risk of unupdated notices failing to meet current welsh regs and being at risk of invalidity, particularly where not ‘substantially to the same effect.’

    Reply

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