Renting Homes Wales


  • Supported Accommodation

    Isabelle Knight explains how the Renting Homes (Wales) Act 2016 facilitates the provision of accommodation to some of the most vulnerable people, by way of supported standard contracts. Pointing practitioners where they will find the detail they are likely to nee day-to-day.

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    The Senedd’s Memorandum to the Renting Homes (Wales) Bill described the provisions regarding supported housing in the following way: 

    The Bill recognises the specific needs of people who live in supported housing and the providers of such accommodation. There are many types of supported housing, which are home to some of the most vulnerable people. It is also fair to say, when an individual needs to be temporarily excluded in order to protect other residents and staff, supported housing providers are at the very least testing the boundaries of current law. The Bill will establish, for the first time, a legal framework for supported housing. This recognises the particular challenges faced but also ensures residents of supported accommodation cannot be left indefinitely in an unjustifiably insecure situation.”

    The Renting Homes Wales Act, in particular Part 8 and Schedule 2, part 5, has created this new legal framework. 

    Supported accommodation: special rules & extensions

    Schedule 2, Part 5 sets out the special rules that apply to supported accommodation.  

    In a nutshell, where a landlord provides supported accommodation, they will not have to issue an occupation contract for the first six months of occupancy. After six months, the person(s) will become entitled to a supported standard contract which will operate in a similar way to a standard contract. However, specific additional terms may be included within the contract.

    The landlord may (on one or more occasions) extend the relevant period (the six months) by giving the tenant or licensee a notice of extension in accordance with paragraph 15 of Part 5 of Schedule 2

    Certain requirements set out in paragraph 15 must be met to extend the relevant period. They include: 

    • The relevant period may not be extended by more than three months on any separate occasion;
    • The notice of extension must be given at least four weeks before the date on which the relevant period would end (per paragraph 15(3));
    • Before giving a notice of extension, the landlord must consult the tenant or licensee;
    • A landlord (other than a local housing authority) may not give a notice of extension without the consent of the local housing authority in whose area the accommodation is provided;
    • In the notice of extension, the landlord must set our prescribed information (per paragraph 15(6)); and
    • The notice of extension must also inform the tenant or licensee that he or she has a right to apply for a review in the county court under paragraph 16, and of the time by which the application must be made.

    Paragraph 15(8) sets out that in making a decision to extend the relevant period, the landlord may take into account the behaviour of the tenant or licensee

    Paragraph 16 takes us through the procedure where a tenant or licensee wants to apply for a review of the decision to extend. In brief, the tenant has 14 days from the day the landlord gives the notice of extension to make an application to the county court. A tenant can make an application after this time with the permission of the court and if they have good reason(s).

    On hearing an application, the county court may (per paragraph 16(5)) —

    1. confirm or quash the decision, or
    2. vary the length of the extension (subject to paragraph 15(2)).

    In considering whether to confirm or quash the decision or vary the length of the extension, the county court must apply the principles applied by the High Court on an application for judicial review.  

    What is supported accommodation?

    Supported accommodation is defined in section 143 (2) – (5) of the Act. The provisions are: 

    (2) For the purposes of this Act accommodation is “supported accommodation” if—

    (a)it is provided by a community landlord or a registered charity,

    (b)the landlord or charity (or a person acting on behalf of the landlord or charity) provides support services to a person entitled to occupy the accommodation, and

    (c)there is a connection between provision of the accommodation and provision of the support services.

    (3) Accommodation in a care institution (within the meaning of paragraph 4 of Schedule 2) is not supported accommodation.

    (4) “Support services” include—

    (a)support in controlling or overcoming addiction,

    (b)support in finding employment or alternative accommodation, and

    (c)supporting someone who finds it difficult to live independently because of age, illness, disability or any other reason.

    (5) “Support” includes the provision of advice, training, guidance and counselling.

    Mobility

    Another aspect addressed in the new legal framework is mobility. 

    Section 144 of the Act provides that supported standard contract can include provision about ‘mobility’. This enables a landlord to relocate a contract-holder to a different dwelling within the same building without the need to end one contract and make another. 

    Temporary exclusion

    Temporary exclusion is governed by section 145 of the Act

    This provision allows the landlord (including persons designated by the landlord to act on the landlord’s behalf) to require a contract-holder to leave the dwelling for up to 48 hours where the landlord reasonably believes the contract-holder has engaged in certain kinds of behaviour. 

    That behaviour is set out at section 145 (2):

    (a) using violence against any person in the dwelling,

    (b) doing something in the dwelling which creates a risk of significant harm to any person, and

    (c) behaving in the dwelling in a way which seriously impedes the ability of another resident of supported accommodation provided by the landlord to benefit from the support provided in connection with that accommodation.

    A contract-holder cannot be excluded for more than 48 hours at a time and cannot be excluded more than three times in any six month period. A landlord must give notice to the contract-holder being excluded, explaining why he or she is being excluded. This notice should be given when the contract-holder is required to leave or as soon as possible afterwards.

    Civitas Law is running seminars for Community Landlords on 5th and 6th April 2022. To book your place please contact clerks@civitaslaw.com

    Isabelle Knight was part of the legal team intervening on behalf of Shelter Cymru in the case of Jarvis v Evans [2020] EWCA Civ 854. She brings added depth of experience to her housing practice, having previously worked for NHS Continuing Healthcare Department at Hugh James Solicitors before taking up pupillage and tenancy at Civitas chambers

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  • Occupation Contracts

    Occupation Contacts

    Cathrine Grubb provides guidance on which agreements will be occupation contracts under the Renting Homes (Wales) Act 2016 and which will not.

    The Renting Homes (Wales) Act 2016 (‘RH(W)A 2016’) implements a number of changes. The most significant of which is the abolition of many of the old forms of tenancy replacing these with statutorily regulated occupation contracts.

    General Rule

    From 15th July 2022, most tenancies and licences under which people rent their homes will be occupation contracts. Unless certain exceptions apply, the tenancy or license will be an occupation contract if:

    1. it is made between and landlord and at least one individual over the age of 18;
    2. the contract gives at least one of the individuals who are party to the contract the right to occupy a dwelling as a home; and
    3. someone is paying rent or other consideration in exchange for the individual’s right to live in the dwelling.

    This general rule set out in section 7 of the Act, is subject to certain exceptions/ modifications.

    • Some agreements not meeting all of the criteria above can still be occupation contracts provided the landlord chooses to make it an occupation contract by giving notice [Exception 1].
    • Some agreements meeting all of the criteria above are automatically excluded from being occupation contracts, unless the landlord gives notice. [Exception 2];
    • Some agreements meeting all of the criteria above can never be occupation contracts [Exception 3].
    • Some agreements meeting all of the criteria can be occupation contracts, but special rules apply [Exception 4].

    In all cases, the landlord’s notice that the agreement is to be an occupation contract needs to be given on or before the contract is made.

    Exception 1: Agreements not meeting the requirements of 7(1) – (3) that can still be Occupation contracts if notice is given:

    Contracts where no rent/consideration is payable or where the contract gives rights to occupy the dwelling on an individual (‘beneficiary’) other than the person with whom the contract is made, will not automatically be an occupation contract. Such agreements will only be occupation contracts where the landlord chooses to give notice that they shall take effect as such: para 1(2) Sched 2. This landlord’s notice stating the agreement is to be an occupation contract has to be given to the contract holder on or before the agreement is made to be effective: para 1(3) Sched 2.

    Notice will not be sufficient to make an agreement an occupation contract which both confers rights on a beneficiary and there is no rent/consideration payable in exchange for the right to occupy: para 1(2) Sched 2.  

    Where an occupation contract involves a beneficiary, fundamental provisions can generally only be modified or not incorporated if the beneficiary also agrees and the change is to their benefit: para 2(4) Sched 2. The notice specifying the agreement to be an occupation contract can also ensure that certain provisions should apply as if references to the contract-holder were references to the beneficiary by stating that in the notice.

    Exception 2: Contracts meeting the requirements of Section 7 that will not be occupation contacts unless notice is given:

    Paragraph 3(2) of Schedule 2 RH(W)A 2016 sets out the tenancies and licences which, are not occupation contracts unless notice is given by the landlord, notwithstanding that it otherwise meets the requirement of s. 7:

    The landlord’s notice stating the agreement is to be an occupation contract has to be given to the contract holder on or before the agreement is made to be effective.

    Exception 3: tenancies and licences that can never be occupation contracts

    The following can never be occupation contacts:

    • Long leases, including:
      • A tenancy that was agreed at the outset to be for more than 21 years.
      • Where there is an obligation /covenant to perpetually renew the lease.
      • Unless it is a tenancy that can be terminated by notice after death.
      • Shared ownership tenancies: where a dwelling is owned by a registered social landlord and the tenant has purchased a percentage of the property on a leasehold basis and pays rent on the un-owned share. Further shares of the un-owned part can be purchased until potentially the tenant owns the entirety of the interest.
    • Agricultural Occupancies are a specialised and particularly complex area, with a unique political history. A particular feature of the system is the inter-relationship between the tenure scheme and regulations of agricultural wages, which makes their inclusion as occupation contract inappropriate. The following are excluded from being occupation contracts:
    • A tenancy of an agricultural holding defined by the Agricultural Holdings Act 1986.
    • A farm business tenancy within the meaning of the Agricultural Tenancies Act 1995, land must be farmed throughout the life of the tenancy to qualify.
    • A protected occupancy or a statutory tenancy within the meaning of the Rent (Agriculture) Act 1976.
    • Tenancies under the Rent Act 1977 (protected tenancy, statutory tenancy or secure housing association tenancy). Logically there is little reason why these tenancies should not also be included in the reform. With rare exceptions, no new Rent Act protected tenancy has been able to be created since the Housing Act 1988 came into force (15th January 1989). With the population of these tenants ageing, those representation these tenants were very vocal in their concerns that tenants may become confused about their rights and landlords may take advantage. The decision to exclude these forms of tenancy was largely a political one. 
    • Armed forces accommodation: accommodation provided to a member of the armed forces, to a family member of a member of the armed forces or to a civilian subject to service discipline for the purposes of any of the armed forces.
    • Direct access accommodation: accommodation provided by a community landlord or a charity registered with the Charity Commission, which is provided for 24 hours or less to people who satisfy criteria set by the landlord. This will commonly require the person to have an immediate need for accommodation.

    Exception 4: Homelessness and Supported Accommodation

    Homelessness

    Interim accommodation provided by a local housing authority in accordance with duties to house homeless persons under s. 66 of the Housing (Wales) Act 2014 cannot be an occupation contract: para 11 Sched 2 RH(W)A 2016. This interim duty under s. 66 arises while the local authority carries out an assessment under s. 62 Housing (Wales) Act 2014 to consider whether the applicant is actually owed a full duty to be provided with accommodation under s. 73.

    Once the authority is under a full duty to secure accommodation on a long term basis this will be by way of occupation contract: para 11 Sched 2. The contract holder will continue to occupy the premises under an application contract where the s. 73 duty comes to an end where s. 75(1) applies: para 11 Sched 2.

    Paragraph 12 Sched 2 sets out the rules that apply where a local housing authority enters into arrangements with another landlord in discharging its homelessness functions.

    Supported Accommodation

    This is accommodation provided either by a community landlord, registered charity or accommodation in a care institution and connected to support services received by that person: s.143. Usually the occupation will be intended to last for no more than 6 months. Supported services include support in controlling or overcoming addiction, finding employment or alternative accommodation and supporting someone who finds it difficult to live independently.

    If the landlord intends the accommodation to not be provided under an occupation contract, it will not be an occupation contract: para 13(1) Sched 2. It is worth noting that, unlike the rules in the other exceptions, paragraph 13 does not set out a notice requirement. Landlords may nonetheless consider that giving notice would insulate against any legal risk.  

    Supported accommodation will automatically become an occupation contract six months after the tenant is first entitled to occupy the dwelling, unless the landlord chooses to extend the initial 6 month period under para 15 Schedule 2.

    Civitas Law is running seminars for Community Landlords on 5th and 6thApril 2022. To book your place please contact clerks@civitaslaw.com

    Cathrine Grubb is on the Lexis Nexis panel of experts for Wales. Her Practice note on secure contracts will be published on Lexis PSL in the next few months. 

    For more updates, sign up to our Renting Homes Wales Newsletter:

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  • Renting Homes Wales: What’s occurring?

    Cathrine Grubb provides a summary of the changes being brought about by the Renting Homes (Wales) Act 2016. This is a first article in a series from Civitas Law to help you navigate the biggest change to welsh housing law in decades.

    On 12th January 2022, Julie James MS announced that the long-awaited Renting Homes (Wales) Act 2016 (‘RH(W)A 2016’) will be brought into force on 15th July 2022. At the same time a suite of complimenting regulations made under the act will also be implemented. 

    Welsh Government has published a helpful summary for landlords of what is changing here.  

    The coming into force of the RH(W)A 2016 marks the end of a long journey which formally began at the end of March 2001 when the Law Commission commenced one of the largest consultations exercises it had undertaken to date. The terms of reference were to review the law in relation to the domestic rental market with a view to providing a simple and flexible statutory regime for both social and private housing sectors. The Welsh Government largely adopted the recommendations in the Law Commission’s reports of 2003, 2006 and 2013 culminating in the RH(W)A 2016 and its accompanying regulations. 

    The Act represents the biggest change to housing law in Wales for decades. It abolishes many of the old forms of tenancy replacing these with statutorily regulated occupation contracts. Under the old scheme, certain types of landlord are precluded from using certain types of tenancy. The Act provides greater flexibility by breaking the link between the identity of the landlord and the statutory regime that applies. 

    An anticipated benefit of regulating different forms domestic lettings more flexibly in one statute is that this will better facilitate the development of new partnerships between social and private sector landlords and provide greater scope for the development of new housing initiatives.

    Although the new scheme recognises a convergence and overlap between providers of rental housing, the Act still distinguishes between two paradigms of provision: market provision and social provision and so makes the distinction between:

    • private landlords and community landlords; and 
    • standard and secure occupation contracts modelled on the current assured and secure tenancy respectively.  

    In the standard contract, the security of the contract holder is principally determined by the contract – a pre-requisite of a market system. A secure contract will offer greater security to the contract holder. 

    In general, community landlords will be required to enter into secure contracts and contracts made or adopted by private landlords will be standard contracts: s. 2. The Act however does provide for circumstances where the general rule can be dis-applied. 

    The distinction between tenants and licensees will have less importance than at present. In effect, the occupation contract, with all of its rights and obligations, will sit on top of the tenancy or licence. Tenants and licencees will all be referred to as ‘contract-holders’ under the Act.

    Recognising that market mechanisms cannot redress imbalances in the bargaining power of landlords and occupiers, the Act takes a ‘consumer protection’ approach. It ensures that all landlords provide contract holders with written contract (s. 31), which complies with statutory requirements and accurately reflects the legal position between them and the contract holder. Model contracts are available but not mandatory.

    All occupation contracts will contain four types of terms:

    • Key provisions: terms unique to the contract, such as the amount of rent and the address of the property. Whilst they cannot be statutorily prescribed, the Act provides that such terms must appear in the contract: s. 32(1)(a).
    • Fundamental provisions: set out the essential rights and obligations of landlords and contract holders. They include grounds for possession, repairing obligations, the requirement that the landlord provide his or her name and address. For the first time, it will be a legal requirement that these rights and obligations are set out in the contract. Most fundamental terms can be modified or varied, but only in favour of the contract holder: ss. 20, 106 & 125.
    • Supplementary provisions:: deal with the practical matters needed to make the contract work, so, for instance, they cover the provision of receipts for rent, permission to change utilities suppliers, alterations to the dwelling. They are set out inThe Renting Homes (Supplementary Provisions) (Wales) Regulations 2022, made under section 23 of the Act. As with fundamental provisions, they are automatically incorporated as terms of all occupation contracts to which they apply but can be modified and varied: s. 24, 107 & 125. There is no requirement that modification or omission of a supplementary provision improves the position of the contract-holder; the only limit is that a change to a supplementary provision must not render the occupation contract incompatible with any relevant fundamental term of the contract.
    • Additional provisions: these terms relate to any other matters that have been agreed between the landlord and contract holder such as the keeping of pets: s. 28 & 32 (2)(d).

    This standardisation of contract terms also brings with it a standardisation of approach in relation to obtaining possession, with some differences operating between standard and secure contracts to account for the greater security to be offered by the latter. For example, in a standard contract after any fixed term has expired, the landlord will generally be able to evict the contract holder provided they have given six months’ (s. 173) notice. In secure contracts the landlord can generally only terminate the contract if the contract holder is found by a court to be in breach of the terms of the agreement, and eviction is determined by the court to be reasonable and proportionate. 

    Security in occupation contracts is further enhanced by the possibility of succession to family members or carers and allowing 2 successions: first to a ‘priority’ and then to a ‘reserve’ successor; ss. 73 – 83. 

    The Act fortifies the duty on landlords, to  keep the premises in good repair (s. 92) and ensure the property they rent is fit for human habitation (s. 91) including the installation of smoke and carbon monoxide alarms, and regular electrical safety testing: s. 94 in conjunction with The Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022.

    The Act implements safeguards against retaliatory eviction.  The Welsh approach is less prescriptive than its English counterpart under s 33 of the Deregulation Act 2015. Under s. 217 RH(W)A 2016 the court may refuse to make a possession order where it considers it to be a retaliatory claim. 

    Under the Act contract holders can be added or removed from occupation contracts without the need to end one contract and start another: s. 52. This should make managing joint contracts easier and help victims of domestic abuse by enabling the perpetrator to be targeted for eviction.

    Landlords are able to repossess an abandoned property without needing a court order, after serving a four week warning notice and carrying out investigations to satisfy themselves the property is abandoned: s. 220

    The need for landlords and letting agents to be registered and licences Rent Smart Wales and deposit protection rules continue to apply.

    Civitas Law is running seminars for Community Landlords on 5th and 6thApril. To book your place please contact clerks@civitaslaw.com

    Cathrine Grubb is on the Lexis Nexis panel of experts for Wales. Her Practice note on secure contracts will be published on Lexis PSL in the next few months. 

    For more updates, sign up to our Renting Homes Wales Newsletter:

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