On Appeal: Cases for landlords to look out for in 2020

2020 looks set to be a busy year for private sector landlords in England and Wales. In England, key pieces of legislation that came into force in 2019: the Homes (Fitness for Human Habitation) Act 2018 and the Tenant Fees Act 2019 will start to apply to more tenancies as the transitional arrangements come to an end. The Senior Courts will also be busy with a number of key cases due to be heard. This blog summarises three Court of Appeal cases that landlords should look out for in 2020.

Right to Rent Appeal

The Queen on the application of Joint Council for the Welfare of Immigrants v The Secretary of State for the Home Department (C4/2019/0660).

This case concerns the Government’s controversial Right to Rent scheme rolled out across England in 2016. Earlier this year, the scheme was declared by the High Court to be incompatible with the European Convention on Human Rights (ECHR). The High Court held that the scheme was unlawful on the basis that it inevitably led landlords to discriminate due to the pressure on them and the way the advice from the government was structured.

The Secretary of State appealed, and the case is now due to be heard by the Court of Appeal on 14 or 15 January 2020. In the Court of Appeal, the government appears to be taking a line from the High Court and amplifying it further on the basis that any discrimination is being carried out by landlords contrary to government advice. Ultimately, the question for the Court of Appeal is whether that guidance is sufficient to help landlords avoid discrimination and whether it will remain sufficient going forward.

Gas Safety and Section 21 Notices in England

Trecarrell House Limited v Patricia Rouncefield (B5/2019/0499).

This is the appeal of HHJ Carr’s decision in Truro County Court concerning gas safety certificates and section 21 notices. The key issue to be determined is whether a landlord can serve a valid section 21 notice where they have not given the tenant a gas safety certificate before they occupy the property. In his judgment, HHJ Carr referred to the earlier county court appeal case of Caridon Property Limited v Monty Schooltz, where HHJ Jan Luba QC concluded that a landlord who has not given a tenant a gas safety certificate before they moved in cannot rectify this later and is prevented from ever serving a valid section 21 notice during that tenant’s occupation. Further commentary on the background to the case and the issues before the Court of Appeal have been covered in my previous blog here.

The appeal is due to take place on 28 or 29 January 2020. The Court’s decision is highly anticipated by landlords and their advisers who have been grappling with the complexities of section 21 notices since the Deregulation Act introduced changes to the procedure in England in 2015.

Section 8 notices and landlord licensing in Wales

Jarvis v Evans & Evans (B5/2019/2258)

This case concerns section 8 notices and landlord licensing in Wales. It is still at permission to appeal stage and follows the decision of HHJ Garland-Thomas in the Swansea County Court. In the county court appeal, the circuit judge overturned a possession order on the basis that the section 8 notice was ineffective because the landlord was not registered or licensed pursuant to the requirements set out in The Housing (Wales) Act 2014 (HWA).

Since November 2015, landlords in Wales have been required to register and obtain a licence if they carry out letting activities and property management work. Unlicensed landlords face a number of sanctions ranging from criminal prosecutions and financial penalties to rent repayment orders and rent stopping orders. Unlicensed landlords are also restricted from serving section 21 notices to terminate assured shorthold tenancies. The key issue in this case is whether a failure to register and/or obtain a licence also prevents a landlord from serving a notice under section 8 Housing Act 1988, for example, if the tenant is in rent arrears.

The landlord, Mr Jarvis, had completed the relevant training course but had registered and obtained a licence in the name of his company, and not in his personal capacity. The tenants argued that as Mr Jarvis was the landlord and as he was not registered or licensed the section 8 notice was invalid. The landlord argued that the restrictions on terminating tenancies set out in the HWA did not apply to section 8 notices. HHJ Garland-Thomas disagreed concluding that serving a section 8 notice was ‘serving notice to terminate a tenancy’ which is a prescribed property management activity under s7. HWA 2014 and which can only be carried out if landlord is licensed. HHJ Garland-Thomas allowed the tenants’ appeal and overturned the possession order.

Mr Jarvis has now requested permission to appeal from the Court of Appeal. Among the arguments to be considered is whether the HHJ Garland-Thomas’ interpretation of the HWA amounts to a disproportionate interference with a landlord’s right to regain possession of their property when there is a legitimate reason for doing so, in this case, significant rent arrears.  If permission to appeal is granted, it is likely that any hearing will be listed towards the second half of 2020.

There is therefore plenty to look out for in 2020 and further developments on the above cases will be covered by our housing team in future blog posts.

Anthony Gold are acting in all three of the above appeals: in the first case on behalf of the Residential Landlords’ Association (RLA), who is one of the interveners, and in the second and third case on behalf of the landlords who are being supported by the RLA.