I have spent the past few days ploughing through all the rules in the new Welsh legislation on the condition of the property.
Mostly it is the same as in England, but I have spotted a few differences which may or may not turn out to be significant in the long run.
Spoiler alert – this is a bit of a nerdy lawyer post but may be useful if you rent property (either as a landlord or tenant) in Wales.
Licenses and tenancies
Probably the biggest difference is that the new rules will apply not only to tenancies but also to residential licenses.
This is because one of the aims of this new legislation is to eliminate the difference between the two, which is done mostly by focusing on the contract rather than the legal status of the occupation type.
So now, residential licensees will (in the main) be entitled to the protections previously given only to tenants, and they will be legally entitled to insist that their landlords deal with disrepair and keep the property ‘fit for human habitation’. Well, most of them will.
Renters’ organisations may not be entirely delighted though as there is still one big exception – lodgers.
This is because of schedule 2 of the act, which sets out various types of accommodation which do not fall under the rules. One of these is the ‘shared accommodation’ exception which is where
- The lodger shares accommodation with the landlord, and
- The dwelling was the landlords ‘only or principal home’ both immediately before the agreement was made, and
- The exception lasts so long as the landlord continues to occupy the dwelling as their only or principal home
A lodger agreement can be converted to an occupation contract by the landlord serving notice to this effect. But why would a landlord want to do that?
So what do the new rules say?
Pretty much the same as the old rules in Wales for disrepair and the newer English fitness for habitation rules.
There are a few differences, though.
The smoke and Carbon monoxide alarm rules are more stringent – which is probably a good thing bearing in mind that these are there to save occupiers’ lives and the landlord’s property.
There is a grace period for these rules up to 14 July 2023, but in view of galloping inflation you may want to consider getting the work done now.
Interestingly the wording setting out the obligations for disrepair has different wording when it comes to the limitation of landlords’ obligations.
- In the 1985 act s11(3) it refers to the “age, character and prospective life of the dwelling-house and the locality in which it is situated“.
- The Welsh legislation wording (s92(3)) states that repairs have to be carried out to a standard which is “reasonable having regard to the age and character of the dwelling and the period during which the dwelling is likely to be available for occupation as a home“.
So the locality is no longer an issue. Maybe it is subsumed into the wording ‘age and character of the dwelling‘.
As we have said on this blog many times, landlords’ statutory rights of access (e.g. under s11(6) of the 1985 act) cannot override tenants’ rights under the covenant for quiet enjoyment. Which is a common-law right all tenants have.
It looks as if the Welsh legislators have tried to replace this by regulation 54 which says that landlords must not interfere with contract holders’ rights to live in the dwelling.
However, this then goes on to say
(2) The landlord does not interfere with the contract-holder’s right to occupy the dwelling by reasonably exercising the landlord’s rights under the contract.
So as regulation 98 provides for landlords to be able to enter for the purpose of inspection and repair and other works, upon giving 24 hours’ notice – does this mean that landlords can enter without permission?
My view is that the answer is still ‘no’. But it would be interesting to see what the courts make of this.
Can the covenant of quiet enjoyment be extinguished by s54? And if not, this would be a difference between Welsh tenancies and licenses despite the legislator’s attempts to eliminate all differences – as the covenant of quiet enjoyment does not apply to residential licenses.
Incidentally, don’t read anything into the fact that the statute does not require notice to be in writing, as it is a fundamental term under the occupation contracts (terms 55 or 82) that notices must be in writing. This, we are told by footnote #34, is because of regulation 236, which provides for Welsh Ministers to provide for the form of notices.
I can’t say I have seen any regulation specifically relating to landlords’ notices for access, but if I have missed it, no doubt someone will let me know in the comments.
A few other things struck me.
For example, permitted occupiers are specifically allowed, under regulation 99, to bring a claim against the landlord for personal injury or loss or damage to possessions, even though they do not have a direct contractual relationship with the landlord.
So they will no longer have to rely on the various ‘tortious’ remedies (ie remedies under the laws of tort).
However, this is only if they are permitted. So unauthorised lodgers will presumably not be able to sue landlords if they break a leg falling down the stairs because there is no bannister. Or if part of the roof falls on their head. Not under this legislation anyway.
I also see that regulation 100 provides for specific performances to be used ‘for breach of a repairing obligation under an occupation contract,’ going on to say ‘despite any equitable rule limiting the availability of that remedy.’
There are quite a few equitable rules, known generally as ‘maxims’, perhaps the best-known being that if you come to equity, you must come ‘with clean hands’. Meaning that if you have behaved properly yourself if you are asking the court to award an equitable remedy.
Equitable remedies being those developed under the old Court of Chancery, which I discuss here.
Well, those are a few of the things that struck me about the new Welsh rules on the condition of the property. We will have to see over the coming years whether these, or any other points of difference between the English and Welsh law, result in any significant differences in landlord and tenants’ rights and obligations.
If you have any thoughts or comments, please put them in the comments section below.
Landlord Law members will find my article on this here.
If you are interested in the new Welsh legislation and my ramblings on this, you can sign up for my Welsh Law Updates.