Letting property across the border

The Housing (Wales) Act 2014 is the first ever housing act passed by the Welsh government. The Act received royal assent on 17 September 2014 and deals with a whole range of issues, including the private rented sector, homelessness, and the provision of sites for gypsies and travellers.

The provisions of the Act are being introduced at different times, but those provisions dealing with the private rented sector are now fully in force. The purpose of this article is to highlight the obligations now placed upon private landlords of properties in Wales, and to stress the importance of any solicitor advising a landlord who lets a property in Wales to have a thorough working knowledge of the Act (irrespective of where that solicitor is based). Failure to do so could lead not only to dissatisfied clients but also to claims for negligence.

All private landlords who are involved in the letting of a property or properties in Wales must register themselves and their properties with an organisation called Rent Smart Wales. Private landlords who self-manage their properties in Wales must also apply for a licence, and before obtaining such a licence they must undertake the necessary training. Failure to register is an offence, with the landlord being liable on summary conviction to a fine as prescribed by the Act.

One of the important consequences of the landlord failing to register or the landlord not being licensed is that he or she cannot rely upon any notice to quit under section 21 of the Housing Act 1988. As a result, the courts in Wales are finding that very many applications for possession (especially using the accelerated possession procedure) are being struck out due to the failure by the landlord to comply with the Act’s requirements.

Private landlords who are registered are able to appoint agents to manage properties on their behalf, but such agents must then apply for and obtain a licence. Provided this has happened, such agents would then be in a position to serve a section 21 notice to quit. Failure to appoint an agent who is licensed will result in the landlord committing an offence and again being liable on summary conviction to a fine as prescribed by the Act.

Before granting any licence, the licencing authority must be satisfied that the applicant is a ‘fit and proper person to be licensed’ and that such person has been suitably trained (as provided in regulations made by Welsh ministers). Section 20 of the Act defines what is meant by a ‘fit and proper person’ and provides that a licensing authority must have regard to the following factors:

• Whether the applicant has committed any offence involving fraud or dishonesty, violence, firearms, or drugs, or any offence listed in schedule 3 to the Sexual Offences Act 2003;

• Whether the applicant has practised unlawful discrimination or harassment on the grounds of any characteristic which is a protected characteristic under section 4 of the Equality Act 2010 or victimised another person contrary to the Act; and

• Whether the applicant has contravened any provision of the law relating to housing or landlord and tenant matters.

The licensing authority would also have to have regard to any evidence that shows that a person associated or formerly associated with the applicant has done any of the things set out above.

Importantly, the licensing authority would have to have regard to any evidence that the applicant had previously failed to comply with any conditions attaching to any licence.

Licences are granted for a five-year term, but can be revoked earlier, and any such decision to revoke a licence can be appealed.

I hope that this article makes clear that the Act affects not only those living in Wales, but also those who live elsewhere but own property in Wales that is let to tenants. The article is no substitute for reading the Act and is only a summary of its main provisions affecting private landlords.

Solicitors would be well advised when applying for any possession order to familiarise themselves with the Act, and to file at court documentary evidence of registration and licensing if they are to avoid having their claim struck out.

District Judge Marshall Phillips is the president of the Association of Her Majesty’s District Judges. He sits at the Cardiff Civil and Family Justice Centre, where he is also the regional costs judge