Tenant Eviction Advice
Housing (Wales) Act 2014
You might think that evicting a tenant who is causing you problems should be fairly straightforward. And some would say that it is. Much is made of the three step procedure that is: serving an eviction notice; issuing proceedings for eviction and obtaining an eviction order; and if necessary, instructing bailiffs to execute the warrant or writ of eviction.
You can even buy d.i.y. kits on the internet where a firm sells you the eviction forms, (which can be downloaded for free anyway), and possibly some tenant eviction instructions. The quality of these d.i.y. kits can be a bit hit and miss. Nevertheless, it appears cheaper so why don’t more people do it themselves?
Well, firstly, because tenant eviction is not as simple as it looks. There are several different kinds of eviction notice, three different types of eviction proceedings, and two different types of eviction enforcement.
Secondly, you are attempting to deprive a tenant of their home; judges can be exceptionally pernickety about minor details (no matter how much the tenant deserves to be evicted). It is easy to get your tenant eviction case adjourned or even thrown out.
Thirdly, we rarely see a tenant eviction case that doesn’t have an interesting twist of one sort or another. For example, there is a tenancy deposit issue or there is no written agreement or a potential counter claim, or the current tenant is not the one named on the tenancy agreement or one of countless other complications.
Fourthly, the cost of getting tenant eviction wrong can be significant. Not only might you have wasted all your fees and time, you may have to start again with notice and that could lose another three or four months rent if the tenant isn’t paying rent.
Given the size of the issue fee charged by the court for possession claims, recently increased for £100 to £280 almost unbelievably (and we understand that a further increase to £355 is on the way), what you pay to a solicitor to evict a tenant for you is not all that much. Given that many firms, this one included, will evict your tenant in return for a fixed fee, there is a strong argument in favour of saving yourself the risk and hassle when it comes to removing a problem tenant.
Incidentally, do use a proper tenant eviction solicitor, rather than a non solicitor “eviction specialist.” It’s not so much that solicitors are properly qualified (though they are of course) as that they are highly and independently regulated. There is an ombudsman scheme and solicitors have to have very extensive (and hugely expensive) insurance against things going wrong. There is always redress when something goes wrong, if it’s appropriate.
Landlord’s lives were recently made more complicated by the tenancy deposits debacle. For years, many landlords have had to pay substantial penalties to tenants (who hadn’t suffered any loss whatsoever) for infractions of the tenancy deposit requirements even though nobody (including the lawyers and the courts) understood the rules.
Well, here comes another brand new layer of perplexing complexity for those who want to evict tenants in Wales; courtesy of the Welsh Assembly. Until now, evicting a tenant in London, or Manchester, or Liverpool has been no different to a tenant eviction in Cardiff, Swansea or Newport.
Recently, a special Welsh s. 8 eviction notice was introduced, it is virtually identical and to exactly the same effect as the English s. 8 eviction notice. An apparently pointless complexity!
And now, letting a property in Wales is going to be hugely more complicated than doing so in England. There is a layer of additional cost, and all manner of new ways in which landlords can be penalised and generally bossed about. And of course, a whole new layer of bureaucracy and bureaucrats.
Don’t rely on what follows, it is just some points that stood out to us on first reading of the act. There are still things we don’t quite understand. However, just to give you feel for the new Welsh legislation, hang on to your hat and read on.
Part 1 Regulation of Private Rented Housing
The act has nine parts, dealing with Homelessness, Gypsies & Travellers, Standards in Social Housing, Housing Finance, and other related matters. This note is concerned with part 1 – Regulation of Private Rented Housing.
The new act received royal assent on 17.09.14. The Private Rented Housing provisions are expected to be brought into force over 2015 / 2016. Requirements for landlords and agents to register and be licensed are expected to be in force in the autumn of 2015.
The key points are:
- All landlords and their properties must be registered. Landlords will have to pay a fee for registration and must renew every 5 years. Landlords will be obliged to keep the registration up to date with information including the identity of the landlord and identity of the licensed person appointed to manage the property;
- All agents and any landlords who want to manage their property must be licenced to do so. Licensing will include training, checks on suitability (including the suitability of anyone a landlord is or has been associated with). Licenses may be granted with conditions. Landlords and agents will have to pay for their licences.
- As a condition of your licence, you agree to obey whatever codes of practice the Welsh ministers may or may not issue in the future.
- The fit and proper test for licensing, will ask if the landlord or anyone associated with landlord, or formerly associated with the landlord, has been convicted of offences including fraud or dishonesty, violence, firearms, drugs, sexual offences. Further, the test will ask about issues of discrimination, harassment, or contravention of any law relating to housing in the applicant’s background.
- If the landlord or agent isn’t licenced, they will be unable to carry out what the act refers to as “certain kinds of lettings activities” which include arranging or conducting viewings; referencing or interviewing prospective tenants; preparing or arranging the preparation of the tenancy agreement; preparing or arranging the preparation of an inventory or schedule of condition. Presumably, an unlicensed landlord will be unable to serve an eviction notice, or issue proceedings for tenant eviction.
- A landlord or agent may not even check his or her property after a tenancy has ended unless she or he is licensed. The only step an unlicensed landlord may take is to instruct a licenced agent to inspect the property, save that it seems an unlicensed landlord may be able to publish an advert for a tenant as long as they don’t do anything else.
- It is an offence for a landlord to appoint or continue to instruct an unlicensed agent.
- There are two kinds of licence, one for landlords and one for “persons acting on behalf of landlords.”
- Contravention of the licencing requirements is a criminal offence.
- The Welsh Assembly have also created a number of enforcement powers; i.e. criminal sanctions, fixed penalty notices; rent stopping orders, rent re-payment orders, as well as borrowing from the tenancy deposit rules, the sanction of invalidating s. 21 notices during noncompliance. The licencing authority is also empowered to demand information from landlords and agents, and of course, to revoke their licences.
- Local Authorities will have new enforcement powers and be able to issue fixed penalty notices for certain offences alleged to have been committed by the landlord, currently the fines are £150 or £250 depending on the offence. The licencing authority keeps it’s fixed penalty receipts.
- The licensing authority has a new method of penalising a landlords, in that it may make an application to a residential property tribunal for a rent stopping order. This means that for a specific period, no rent is payable for the property. Any rent paid during this time must be re-paid to the tenant and is a debt recoverable through the court.
- The licensing authority, a housing authority and even the tenant will have another new method of penalising landlords. They may also apply for a rent repayment order. A residential property tribunal may order the return of rent for a period during which certain offences are committed.
- The landlord may be further penalised for non-compliance as no s. 21 notice may be given if a landlord is not registered, licenced or has appointed a licensed agent. This doesn’t apply if the notice is served within 28 days of the landlord acquiring the property.
- A person authorised by the licencing authority may demand documents or other information from landlords or agents. Not to provide the documents demanded or to destroy them is a criminal offence.
- It is a defence to a registration offence to have a reasonable excuse for not being registered.
- Exceptions to registration and licencing requirements are: that there is an a pending application; it is within 28 days of the landlord owning the property; as long as possession proceedings are continuing if the landlord commenced proceedings within 28 days of acquiring the property; registered social landlords; mutual housing associations are exempt.
- The act invents some new terms. For example “Domestic tenancies” which includes assured and assured shorthold tenancies; “Lettings Work,” which includes interviewing and referencing potential tenants; “Property Management Work,” which might be collecting rent, being a point of contact, making arrangements for repairs or maintenance, checking the condition of the property or make arrangements for the condition to be checked; or serving any notice to terminate the tenancy.
It’s interesting that there is nothing whatsoever in the act to help landlords deal with tenants who are not paying rent and / or abusing the property. These situations are extremely expensive to landlords, and our crumbling “civil justice” system takes an inordinate amount of time to deliver a solution to the landlord, via proceedings for eviction, by which time the landlord’s loss has increased exponentially.
The cost of producing and implementing this legislation, and the cost of operating it are and will be huge. It is really not justified, when taken together with the significant interference with the landlord’s property rights, to impose this burden on all Welsh landlords in order to reign in a small number of rogue landlords. Local authorities have plenty of power to deal with rogue landlords, and it would be much more effective and equitable to increase those powers if necessary.
Given the shortage of housing to rent, especially at the lower end of the market, is it wise to impose significant additional overhead, bureaucracy, and compliance risk on Welsh landlords, the vast majority of whom are perfectly decent people? There is likely to be less property available in Wales due to letting being a less attractive proposition than it is in England. Shortage of supply and additional overhead seem likely to make affordable housing in Wales something of a rarity.
It is well known and accepted amongst housing lawyers that housing law is ridiculously and unnecessary complex. As long ago as 1999, Lord Woolf expressed his view in these terms.
“. . . procedural reform can have only a limited impact on [housing law] . . . reform of the substantive law on housing could do more than anything to reduce cost and delay . . . the main source of difficulty is the complexity of the substantive law itself. . . . The Department of the Environment should look at this as a matter of urgency. The Law Commission should be invited to carry out a review of housing law with a view to consolidating the various statutory and other provisions in a clear and straightforward form.” (Access to Justice, Final Report, pages 197-9)
Since then, housing law has become even more complicated, not less so. This new legislation from the Welsh Assembly dramatically accelerates the scattered and diverse sources of housing law and represents, in our view, a significant deterioration in the quality housing law in Wales.
And by the way, in Wales, another significant additional piece of legislation, currently known as the Renting Homes Bill, is on its way. This one insists on a written tenancy agreement, tells you what to put in it, and then makes evicting problem tenants more difficult.
Simon Vollans LL.M. (Bristol) Barrister and Practicing Solicitor – 22.07.15.
Areas Covered by our Tenant Eviction in Wales service include; South Wales, South West Wales, South East Wales, West Wales, East Wales, Mid Wales & North Wales.