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21/12/2021

Still with the old, bring in the new. Wales update and preview.

Our grateful thanks to Mike Norman of Harrow Law Centre for the following post on the position – current and to come – on housing law changes in Wales.

Notice Seeking Possession

It has been now over a year since the previous article substantially updating Welsh possession notices. Somewhat fortunately from an updater’s perspective, it that is possible to state that this is still accurate (er, to the extent that it was accurate originally) as each update to the regulations has simply extended the original application.

For brevity, here are the regulations in relation to the first extension (to 30th June 2021), second extension (30thSeptember 2021), third extension (31st December 2021) and mostly recently number 4, to 24th March 2022.

The consequence, of course, is that Welsh notice periods have not altered substantially in over 12 months. This becomes an interesting comparator to the English position, especially when borne in mind that for for ‘rent-based’ possession notices there was no different treatment to start with in respect of rent arrears cases, in terms of shortcutting the standard six month notice (though of course the Court guidance for COVID cases at the time giving priority to particular levels of rent arrears once proceedings were issued, applied as much to Welsh courts as it did to English courts).

Renting Homes

Keen observers of Welsh law are likely to note the context here, that the issue of length of notices  is to be considered in light of the hugely significant developments with progress of the Renting Homes (Wales) Act 2016. This sets its own regime for notice length.

Implementation requires a six-month notice phase, and at the point when the extension regulations are coming up for renewal, expectations had been mounting as to whether the six-month implementation date will be commenced. At this point however, it still has not, and it therefore remains possible that a fifth extension to the NOSP periods might be granted in March, depending on whether the Welsh government would want to have any alteration in notice periods before introducing its long-waited Act. So far, it has chosen consistency.

With the original Act at over 250 sections and 12 schedules, and even an amendment Act at 20 sections and 6 schedules (despite the original 2016 Act still waiting implementation), the amenity as a bedtime reading tool, frankly, is perhaps one for committed readers only.

More to follow, but perhaps the most headline-grabbing matters include:

  1. Ending of the secure and assured (including assured shorthold) tenancy regimes. Councils and Housing Associations to be defined as ‘community’ landlords and for the main part, occupiers of their properties will hold ‘secure contracts’. This will mean Council and Housing Association occupiers will hold the same type of contract. Private occupiers will generally hold ‘standard contracts’, with other standard contract variants as applicable, such the ability to create a ‘supported standard contracts’ for those in supported accommodation.
  2. There is to be a significant element of levelling between tenancies and licences, such that the distinction will become less crucial than previously applied. Tenants and licensees will now usually be known as ‘contract-holders’, with a few exceptions. The various contracts will have a default ‘model contract’ applicable to their type of contract which can be altered in some situations. Generally, there will be a requirement for landlords to give written contracts, otherwise there will be contract-sanctions, including compensation. This might be particularly welcome given reported problems e.g. for UC claimants finding it difficult to evidence a rent liability.
  3. Law around joint occupancies will be changed, with the prospective law being clear that one occupant cannot end a contract on behalf of all contract-holder unilaterally or without their permission. They can only end ‘their’ particular rights and responsibilities under the contract (and for example, notice by a joint contract holder which purports to be a ‘contract notice’ will instead be treated as treated simply as a ‘withdrawal’ notice, end only their occupancy). ‘Splitting’ of contracts is therefore possible, and this could be particularly relevant for relationship breakdown cases.
  4. For the first time, Wales will requirement that residential property be ‘fit for human habitation.’ A new discretion will be available to courts deciding on standard contract no-fault eviction notices, where ‘retaliatory eviction’ applies. Where it differs to England, is that the court will need only to consider that the contract-holder has relied on landlord’s obligations for disrepair or human habitation, and the possession claim is intended to avoid complying with these provisions. That is both wider in legal terms scope than in England, and also evidentially won’t appear to require a specific Local Authority relevant notice (English law, mutually exclusive) to have been served, which otherwise makes the viability of such a defence reliant on local Environmental Health provision.

As well as a implementation date for the Act itself, updates and formal setting of the draft model contractsregulations and fitness for human habitation regulations (original consultation here, see draft regs page 11) are also waited. Much excitement for next year.

And finally- right to adequate housing

Tai Pawb, CIH Cymru and Shelter Cymru have released a report, commissioned by Alma Economics, in respect of the draft bill on the Right to Adequate Housing in Wales, report here.

The draft bill itself is mercifully short: it plans to introduce a ‘Due Regard’ duty to consider the right to adequate housing, adopting the definition of the International Covenant on Economic, Social and Cultural Rights. Welsh Ministers are to set a ‘Housing Rights’ scheme to discharge that duty. The bill anticipates there will be a justiciable right for affected persons, in the event of failure of a ‘relevant authority’ to have regard to the right to adequate housing.

However, it is subservient to primary legislation, in that a ‘relevant authority’ will not have acted unlawfully, where ‘compelled’ to have acted in such a way due to primary legislation.

The report draws comparisons between other countries who have a right to adequate housing, and tracks where they are at in terms of implementation, most notably Finland, Canada and South Africa.

It notes that Finland, for example, has the right to adequate housing written into its constitution; Canada has significant governance of the issue with three separate accountability monitoring bodies,  and South Africa has a greater emphasis on direct justiciable rights. The report notes the varying degrees of success this has, and things Wales will look to focus on particularly.

With ‘progressive realisation’ a lesson particularly learned from the Finnish model, it anticipates more of a continuous consistent change than the Renting-Homes style ‘Big Bang’ (implementation date awaited).

It is somewhat refreshing to see specifically housing as a human right being considered important…and in the context of other legislative proposals elsewhere in the UK, that human rights generally are considered as important.

 

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.

4 Comments

  1. Claire Pearce-Crawford

    QUESTION: one occupant cannot end a contract on behalf of all contract-holder unilaterally or without their permission. They can only end ‘their’ particular rights and responsibilities under the contract. Meaning they are only giving notice of their non occupation. What does this mean for rent arrears? if one gives notice, whist there are arrears on the account, where does this leave the other tennt legally.
    Whats happens if there is a SPO in situ?

    Reply
    • Giles Peaker

      I would presume (without knowing) that rent and thus arrears are to be apportioned.

      Reply
  2. Spike Norman

    On the transferring obligations and rent arrears q, the Renting Homes Act has explanatory notes alongside it. Explanatory note 218 addresses how they consider rent arrears before a transfer date (also s70(4), where transfer is authorised)

    Reply

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