Hearings in important test case on fitness for human habitation within rented premises in Wales
Today the Divisional High Court of Wales begins three days of further hearings on a landmark test case concerning the Renting Homes (Wales) Act 2016.
In November 2024, Mr Justice Griffiths and His Honour Judge Jarman KC handed down judgment in Coastal Housing Group Ltd & Ors v Mitchell & Ors. This was the first case to consider the 2016 Act, which introduced major changes to Welsh landlord and tenant law from December 2022. The judgment confirmed that:
- Welsh landlords are under an obligation to provide copies of electrical condition reports (“ECRs”) to their tenants, now known in Wales as “contract-holders”;
- At any time when a landlord has failed to comply with that obligation, the premises are deemed to be unfit for human habitation even if they remain in a safe condition throughout; and
- At any time when the premises are deemed to be unfit for human habitation, rent is not payable. The (future) rent falling due will become payable again once landlords have belatedly complied with the duty to supply a copy of the ECR.
The court will now hear a trial of counterclaims for restitution brought by three contract-holders against their landlords as test cases. They seek repayment of rent paid during the period when they had not received copies of their ECRs, on the basis they were unaware their rent was not payable. Amongst other issues the court will hear arguments on:
- Whether the contract-holders can make out claims in restitution for unjust enrichment on the basis of mistake;
- If yes, whether the contract-holders can exercise rights of set-off to recover the disputed sums by withholding future rent as it falls due;
- If yes, whether the scheme created by the 2016 Act and its associated Regulations is incompatible with landlords’ rights under ECHR Article 1 Protocol 1; and
- Whether ECRs provided by landlords must cover electrical installations which “directly or indirectly serve the premises” even though they are located in common parts of blocks of flats.
Ranjit Bhose KC, Tara O’Leary and Hannah Taylor from Cornerstone Barristers represent the contract-holders, instructed by Liam Hale from Winckworth Sherwood’s Housing Management Team.
