Landlord Notice (Rent Arrears and Other Breach)

Under the Renting Homes (Wales) Act 2016, possession under an occupation contract for breaches, including rent arrears, is changed, although some principles of assured shorthold tenancies have been imported.

The notices concerning breaches in this guidance can be served during a fixed term or periodic (but see later for relying on events that occurred during a fixed term after the term has ended).

This page has information about the following prescribed notices:

RHW20
RHW23
RHW32
RHW33

Serious rent arrears

A landlord can serve a specific notice where the contract-holder is seriously in arrears with their rent.

Seriously in arrears means (s.181 for periodic and s.187 fixed-term):

where the rental period is a week, a fortnight or four weeks if at least eight weeks’ rent is unpaid;
where the rental period is a month if at least two months’ rent is unpaid;
where the rental period is a quarter if at least one quarter’s rent is more than three months in arrears;
where the rental period is a year if at least 25% of the rent is more than three months in arrears.

Before making a claim, The landlord must serve a notice prescribed form “RHW20” (s.182 periodic and s.188 fixed-term).

The landlord may not make a possession claim before 14 days from giving the notice. There is a 'use it or lose it' provision, and the notice must be acted upon (issue a court claim) within six months of the notice. Issuing of a claim is when made to the court and not when a solicitor has been instructed.

The court must make an order for possession of the dwelling if it is satisfied that the contract-holder-

was seriously in arrears on the day the landlord gave them notice and
is seriously in arrears on the day of the hearing.

If the contract is in a fixed term and notice for rent arrears is served, it is best to allow a new periodic contract to arise via section 184(2) (similar to statutory periodic) instead of issuing any substitute (renewal) contract. Section 183 expressly allows a claim to be made after the fixed term based upon that notice and to rely on events (e.g. rent arrears) during the term even though the fixed-term contract has ended. The position is unclear if a substitute contract is issued after the fixed term ends. This is one of the primary reasons why a periodic contract from the outset might be a better option for many landlords.

The court may not postpone the giving up of possession to a date later than 14 days after the making of the order unless it appears that exceptional hardship would be caused if possession were not postponed to a later date.

But, the giving up of possession may not, in any event, be postponed to a date later than six weeks after making the order (s.219(3)).

The giving up of possession may be postponed by the order for possession or by suspending or staying execution of the order for possession.

Breach of contract

If the contract-holder under an occupation contract breaches the contract (except for serious rent arrears dealt with above), the landlord may, on that ground, make a possession claim.

A landlord must serve a notice under section 159. The prescribed form is “RHW23”.

The form is used for various purposes (not just breach of contract), so it must be identified by a checkbox when used for a breach.

Details about the breach must be clearly stated, and in particular, it must indicate whether section 55 (anti-social behaviour and other prohibited conduct) is relied upon.

Suppose the contract-holder induced the landlord to make the contract because of a false statement (or another person acting at the contract-holder’s instigation). In that case, the contract-holder is to be treated as in breach of the occupation contract, and the landlord may accordingly make a breach-of-contract claim (s.158).

You can use the breach of contract procedure for rent arrears of less than two months (i.e. not serious rent arrears as described earlier).

The landlord can claim possession on or after the day the notice is given if the breach relies upon anti-social behaviour or other prohibited conduct as per section 55 (s.159(2)). The landlord cannot start a claim for any other breach until one month from when the notice is given (s.159(3)).

The landlord must act on the notice (make a claim) within six months of giving the notice. Otherwise, you will need a new notice (s.159(4)) ('use it or lose it').

Suppose the contract is in a fixed term and notice for breach of contract is served. In that case, it is best to allow a new periodic contract to arise via section 184(2) instead of issuing any substitute (renewal) contract. Section 183 expressly allows a claim to be made after the fixed term based upon that notice and to rely on events (e.g. pet without consent) during the term even though the fixed-term contract has ended. The position is unclear if a substitute contract is issued after the fixed term ends.

A breach of contract claim is discretionary, and the court may not order possession on that ground unless it considers it reasonable to do so (s.209(2)). But, the court is not prevented from making a possession order merely because the contract-holder ceased to breach the contract before the landlord made a claim (s.209(3)).

Schedule 10 determines the reasonableness for making an order under a discretionary ground.

Some of the things the court must consider include (not an exhaustive list):

the nature, frequency or duration of the breach or breaches,
the degree to which the contract-holder (or a permitted occupier of the dwelling) is responsible for the breach,
how likely it is that the breach will recur,
any action to end or prevent a recurrence of the violation taken by the landlord before making a possession claim,
if the claim relies on a breach of section 55 (anti-social behaviour and other prohibited conduct), the general public interest in restraining the conduct prohibited by that section,
the probable effect of not making the order or the decision on the landlord’s interests, including the landlord’s financial interests,
the probable effect of the order or decision on the contract-holder (and any permitted occupiers of the dwelling),
if the case is one in which the court may decide to postpone the giving up of possession, the likelihood that the contract-holder will comply with any terms that the court may impose,
the probable effect of the order or decision on-
contract-holders and permitted occupiers of other dwellings of the landlord,
persons who have asked the landlord to provide them with housing accommodation and
persons living, visiting or otherwise engaging in a lawful activity in the locality (and persons who wish to live, visit or engage in lawful activities in the locality).

The court may adjourn proceedings for such periods as reasonable (s.211(1)).

The court may also postpone giving up possession for such periods as it thinks fit (s.211(2)).

However, on an adjournment or postponement, the court must impose conditions as regards-

payment by the contract-holder of rent arrears (if any),
continued payment of rent,
or any other conditions it thinks fit.

The court doesn’t have to impose those conditions if it considers that it would cause exceptional hardship to the contract-holder or otherwise be unreasonable.

If the contract-holder complies with the conditions, the court may discharge the order for possession.

Joint contract-holder anti-social behaviour

Suppose the landlord under an occupation contract believes that a joint contract-holder breaches section 55 (anti-social behaviour and other prohibited conduct). In that case, the landlord may end the joint contract-holder’s rights and obligations under the contract by the procedure in section 230.

The landlord must give the joint contract-holder a notice-

stating that the landlord believes they are in breach of section 55,
specifying particulars of the breach, and
stating that the landlord will apply to the court for an order ending their rights and obligations under the contract.

The notice is by prescribed form “RHW32”.

In addition, the landlord must give notice to the other joint contract holders stating that the landlord-

believes that the joint contract-holder is in breach of section 55 and
will apply to the court for an order ending that contract-holder’s rights and obligations.

The notice to the other joint-contract-holders is prescribed form “RHW33”.

The landlord may apply to the court for an order ending the joint contract-holder’s (who is in breach) rights and obligations under the contract before the end of six months from when the landlord gave notice to the contract-holder who is in violation.

The court may make an order as if the circumstances were:

The joint contract-holder who is in breach of contract was the sole contract-holder under the contract and
The landlord had made a possession claim based upon anti-social behaviour or prohibited conduct.

If the court makes the order, the joint contract holder ceases to be a party to the contract on the date specified in the order.

Serving the notice

The notice may be delivered personally to the contract-holder, left at or posted to the dwelling or delivered electronically (s.237).

It can only be given electronically if –

The person has indicated a willingness to receive the notification or document electronically,
The person receives the text in legible form and
The text is capable of being used for subsequent reference.

In addition, regarding delivery electronically, it must also have the certified electronic signature of each person by whom it must be signed or executed (s.236(4)).

Please see the service of documents section (within the start of the tenancy section) for more details.

Converted tenancies where a section 8 notice had been given

Where an assured or assured shorthold tenancy is converted, and the landlord had served a notice under section 8 of the Housing Act 1988 before the Act started, the notice remains valid. Possession is sought under the earlier rules.

However, once the Act commences, the notice only has a shelf life of 12 months from service or six months from commencement, whichever comes first (reg.3(2) The Renting Homes (Wales) Act 2016 (Saving and Transitional Provisions) Regulations 2022). A new notice under the Act would need to be served if proceedings are not commenced within this time.

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