Under the Renting Homes (Wales) Act 2016 (“the Act”), various legislated terms contain a prohibition except with the landlord’s consent.
Furthermore, under the Consumer Rights Act 2015, a term must be fair. Often some prohibitions will only be acceptable if the thing may be allowed with the landlord’s consent. For example, an absolute ban on all pets would be an unfair term (and unenforceable against the contract-holder). Still, the same term prohibiting pets except with the landlord’s consent would be fair as long as consent was reasonably considered.
The Act introduces a new requirement for any term of an occupation contract which permits something to be done only with the landlord’s consent; the landlord may not unreasonably refuse consent or consent subject to unreasonable conditions (s.84).
To decide reasonable consent, Schedule 6 of the Act must be considered. Parts of schedule 6 apply to specific transactions, and those specifics are outlined in their relevant section (for example, consent to add a joint contract-holder). Circumstances which may generally be applicable to reasonableness include (not exhaustive)-
The dwelling
- The size and suitability of the dwelling affected by the transaction.
- Whether, as a result of the transaction, the dwelling will be overcrowded, provide substantially more extensive accommodation than reasonably required, or provide accommodation that is not suitable to the needs of the persons.
Circumstances of landlord
- The landlord’s interests, including financial interests.
- Whether (and if so, when) a person would obtain a dwelling (or a similar dwelling) from the landlord if the transaction did not occur.
Circumstances of contract-holder and other occupiers
- The probable effect of the transaction on the parties and any other person who occupies the dwelling.
- The financial interests of the contract-holder.
- The conduct of the contract-holder (mainly whether they have been in breach of the occupation contract).
- Whether, if the landlord asked for information to deal with the request, the contract-holder provided that information.
The contract-holder must request in writing to obtain consent from the landlord (s.84(3)).
Within 14 days, the landlord may ask for information to enable the landlord to deal with a request (s.84(4)). But, that requested information must be reasonable, and if it isn’t, the landlord is treated as not having asked for that information (s.84(5)).
The landlord must give or refuse consent within one month of the later of-
- the day on which the request for consent is made, or
- if the landlord asks for information, the day the information is provided.
If the landlord does not give or refuse consent in writing before that date, the landlord is treated as having consented without conditions (s.84(6)).
If the landlord consents subject to conditions, the landlord must give written notice of the conditions at the same time as consent is given. If the landlord does not do so, the landlord is to be treated as having consented without conditions (s.84(8)).
If the landlord refuses to consent or consents subject to conditions, the person who made the request may ask for a written statement of the landlord’s reasons. If the landlord does not give a written statement of reasons within one month, the landlord is treated as having consented without conditions (s.84(10)).
The person who requested consent may apply to the court on the ground that the refusal to consent was unreasonable or the conditions are unreasonable (s.85).
If the contract-holder is in breach of the occupation contract when they request the landlord’s consent, it is reasonable for the landlord to impose a condition that-
- the landlord’s consent is to take effect only after the contract-holder ceases to be in breach, or
- despite anything in the occupation contract, the person, or all the persons, who will be contract-holders after the transaction are to be liable in respect of the breach (para.6, Sch.6).
