Our very grateful thanks for the following (and hopefully Part 2) to Mike Norman of Harrow Law Centre, who has been appointed, whether he likes it or not, as our Wales correspondent – NL.
Followers of the updates under Renting Homes (Wales) Act 2016 (‘the Act’) will be well aware of many of the changes implemented in the Welsh housing law ‘big bang’ on the 1st December 2022 (‘the appointed day’), most recently written about on Nearly Legal here.
My primary focus in this post focuses particularly on those developments affecting ‘converted contracts’ – those contracts which had moved over from one of the previous tenancy regimes on the appointed day.
Converted contracts are a somewhat complicated cousin to their non-converted counterpart; weaved into the design of the Act via their own schedule have been concessions in implementation of some of the Act’s effects, intended to soften the transition and give landlords with the additional regulatory burden more time to prepare. It is important to note several ‘sunset’ clause dates were set as part of this process, and now been reached.
Areas of distinction
The main areas of the sunset-clause distinction have been:
- reduced timescales on the notice requirements which are the successor to section 21 – (‘Landlord’s Notice’)
- the ability to continue to rely on those notices served prior to the appointed day
- implementation of ‘statement of contract’ provision requirements (‘the Information Provision Period’) and
- implementation of some of the human habitation obligations.
The Welsh government have also – at somewhat short notice- considered further clarity is required for changes within the Information Provision Period (between the appointed day and 1st June 2023) in two situations:
- Change of contract-holder, where the contract still remains ‘converted’ (e.g. succession)
- Substitute contract (e.g. either a new fixed-term is signed, or the contract goes from ‘fixed term’ to ‘periodic’)
‘Landlord’s Notice’ period
Given the proposals on ending section 21 in England’s Renters Reform Bill, I hope it’s not too boring to consider the Welsh Government’s route to it’s current position. Considering notice-only (as opposed to grounds-only) evictions as the ‘Scottish model’, the Welsh government set out an explanatory memorandum to it’s amendment bill in 2020.
Pages 29 to 37 of the memorandum are worth a look to see the reasons they decided against it, particularly paragraph 7.10, referencing the potential for abuse within the grounds. This may well strike a chord with critics of aspects of the Renters Reform Bill.
The Welsh government were at pains to express concern that additional grounds to replace ‘notice-only’ may still be ‘no-fault’, and may require short notice periods. The compromise it reached was that for contracts commencing after the appointed day, a ‘Landlord Notice’ can be served, but now needed to give 6 months notice.
The differences in the types of ‘Landlord Notice’ which can be served are set out below. The Welsh government will be hoping that contracts over 2 years will become far more common; the schedules often won’t otherwise apply, although does seem to be a risk that fixed term contracts could fall out of fashion in respect of non-converted contracts entirely.
The original plan for all converted contracts was to leave the ‘Landlord Notice’ period at 2 months after the appointed day. A delay to implementation last year however led to further consultation, and finally regulationchanging the section 173 notice period from 2 months to 6 months for converted contract-holders, bringing equivalent security between periodic converted and non-converted contract-holders, assuming no Landlord-notice had been served.
Even so, at a time when the ending section 21 is being pursued afresh in England, the call for ending Landlord-notice eviction in Wales is likely to remain strong.
Pre-Renting Homes notices and enforceability
The Welsh government had also introduced regulations addressing Notices Seeking Possession served prior to the appointed day.
These notices continued to be enforceable until whichever occurs first:
- Former Assured tenancies – 12 months from the date of service
- Former Demoted, Introductory or Secure tenancies – 12 months from the notice becoming enforceable, or
- In all cases, 6 months from the appointed day.
Between the appointed day and 1st June 2023 then, Welsh courts have been applying two sets of law in respect of possession proceedings – ‘old’ regime or ‘new’ regime – depending on when the notice was served (not the date the claim commenced).
Old-style possession notices can no longer be acted upon, including those claims issued on grounds which had been ‘mandatory’ under the old regime but not carried over to the new regime (hwyl fawr, ground 8 for Housing Associations…)
In respect of section 21 HA 1988 notices, those cease to be enforceable either 2 months from the appointed day (i.e. 1st February 2023) or 2 months from the date the notice became enforceable, whichever is later.
Logically, most cases in the Welsh county courts will probably remain those commenced under the ‘old’ regime, but this seems likely to substantially shift in coming months. Even so, a combination of procedural matters, court delays and of course enforcement will mean that knowledge of the old regime will be required for some time yet.
In part 2, I will attempt the updates to the ‘Information Provision Period’.