MD-H-2009-0045
DRAFT RESIDENTIAL TENANCY (JERSEY) LAW 200-
European Convention on Human Rights
In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000 the Housing Minister has made the following statement –
In the view of the Housing Minister the provisions of the Draft Residential Tenancy (Jersey) Law 200- are compatible with the Convention Rights.
(Signed) Senator T. J. Le Main
REPORT
A] Introduction:
Over the last decade concern has been raised over the lack of clarity and public understanding concerning the legal position that tenants have in Jersey law. This draft Residential Tenancy (Jersey) Law 200- (“RTL”) is the culmination of the work that has been undertaken to review the position. The RTL is designed to provide a modern framework of principles which will provide a legal basis for the development of fair, transparent, well-regulated agreements between landlord and tenant.
This Report describes the background to the proposed legislation and demonstrates the extent to which the proposals of the Working Party, referred to below, and the results of the consultation have been incorporated into the law drafting.
B] Background:
i) Two Working Parties were established in the 1990’s. The Legislation Committee considered the report of the first Working Party in 1990 which dealt with Landlord and Tenant obligations. Subsequent to that Report in 1993 the Dwelling Houses (Rent Control)(Standard Tenancy Agreement) (Jersey) Regulations 1993 were introduced which set out a standard form of agreement, which if used, exempts landlords from rent control[1].
The second Working Party (“the Working Party”), set up by the former Housing Committee in 1996, looked at issues surrounding eviction procedures and security of tenure for tenants. The Working Party considered the “Loi (1919) sur la location des bien-fonds”[2] as amended (in which distinctions as to notice periods are dependent on rental value, type and size of property) and the “Loi (1946) concernant l’expulsion des locataires réfractaires” as amended[3] (which deals with eviction procedures). Both laws are short, written in French and not easily interpreted or understood without legal advice. However they are still applicable although since they came into force both Jersey society and the Jersey housing market have changed considerably.
Under the Chairmanship of Senator Corrie Stein the Working Party put forward a number of recommendations in P257 / 1998 Security of Tenure – Report of the Working Party[4] to resolve the issues. The key proposals are listed in Appendix 1. On p.18, at the end of its Report, the Working Party did express “a hope that further legislation may be considered ………..upon other aspects of the landlord /tenant relationship”. to resolve the issues. The key proposals are listed in Appendix 1. On p.18, at the end of its Report, the Working Party did express “a hope that further legislation may be considered ………..upon other aspects of the landlord /tenant relationship”.
ii) Subsequently, in 2002, Senator Stein lodged an amendment to P2/2002 requesting that the States agree to the setting up of a Tenants’ Deposit Scheme to assist tenants in getting back deposit monies paid to landlords at the commencement of tenancy agreements[5].
iii) In 2006 responsibility for progressing work on the RTL and the Tenant’s Deposit Scheme was taken on by the newly established Population Office. The Office is responsible for the management and administration of the Regulation of Undertakings and Housing Laws and the development of new mechanisms to replace these Laws. The Migration Advisory Group was formed in 2005 to direct the Population Office. It is chaired by an Assistant Minister, Chief Minister’s Department. Other members include the Minister for Economic Development and the Minister for Housing. The Migration Advisory Group have reviewed the development of the RTL.
iv) Public Consultation: 2008
In April 2008 a White Paper entitled “ Draft Residential Tenancy (Jersey) Law 200-: Consultation Report” was released for public consultation. Full copies of both the Consultation paper and the Consultation response document are available at
http://www.gov.je/ChiefMinister/PopulationOffice/
v) Current Economic Climate:
Over one third of the Island’s population lives in rental accommodation[6]. This high proportion may increase still further as a result of the recent downturn in the economy. A trend may be appearing whereby some with money invested in the banks choose to invest in property and enter the rental market as landlords whilst some, unable to afford to buy the property they wish, choose to enter the rental market as tenants. If this trend does develop the RTL will provide a framework of legal requirements and obligations for those who are inexperienced in the rental market as well as providing certainty for those already in it.
vi) The Working Party proposed the introduction of one law to deal with key issues affecting landlords and tenants entering into residential tenancy agreements. The RTL achieves this for it defines the essential provisions required of a tenancy agreement and it brings into the one law the notice and eviction procedures currently dealt with in the separate 1919 and 1946 laws.
C] Analysis of the draft Residential Tenancy (Jersey) Law 200- (“RTL”)
The Explanatory Note to the RTL provides a succinct explanation of the purpose of each article and this section further explains the provisions of the RTL which will regulate landlord and tenant relationships affected by the RTL.
I) Article 1 – Interpretation
A number of definitions warrant mention:
a) Authority to deal with all matters falling under the law is given to the Petty Debts Court.
The Working Party recommended that the Petty Debts Court (“the “Court”) be renamed “with all issues relating to eviction and payment of rental to be heard by a separate division of the Magistrates’ Court”.[7] In 2004 the responsibilities of the Court were divided into three separate divisions namely the Civil Claims Division ( dealing with petty debts issues) the Family Division and the Tenancy Division. Rental arrears actions remain to be heard in the Civil Claims division but cancellation and eviction cases are heard before the Tenancy Division.
Although the Court itself has not been re-named this provision substantially meets the recommendation of the Working Party.
The Working Party proposed that hearings of the Court involving tenancy matters be held in camera (in private). This proposal has not been adopted as the general rule is that courts sit in public but there is always an option to apply to the Court for a matter to be heard in camera.
b) The Minister responsible for matters arising under the law is the Housing Minister.
c) The law will apply to all residential tenancy agreements[8] for the exclusive occupation of a residential unit by one or more natural persons who are party to the agreement, for value (i.e. consideration or payment ) and for a period of 9 years or less and with or without a specified term.
Tenants in Jersey, as opposed to lodgers or licencees, occupy premises by virtue of a “periodic tenancy” agreement where rent is paid on a regular basis but the term of the tenancy is indefinite but subject to a period of notice or an agreement for a specified or fixed period of time, often referred to as “a lease”. (See C5) The term “residential tenancy agreement” used throughout the RTL includes reference to either fixed term agreements or periodic tenancies so long as the agreement entered into is one that satisfies the criteria of the RTL in Articles 1 and 2. (See C2)
The RTL will apply to periodic residential tenancy agreements that have lasted longer than nine years so long as the initial agreement was for not longer than nine years.
A lease for a term exceeding 9 years can only be created by a contract passed before the Royal Court (“a contract lease”) and such leases will remain, as at present, under the jurisdiction of the Royal Court and unaffected by the RTL.
A residential tenancy agreement “ for a specified term” means the same as an agreement for a fixed term. ( See C5)
Exceptions to the RTL are limited and are included at Article 3(4).
Article 1(1) states that a landlord means the “person who grants the right to occupy the residential unit”. The RTL will apply to residential tenancy agreements entered into not only by private landlords but also by Ministers of the States of Jersey; Housing Trusts or companies.
2) Article 2 - Premises to which this Law Applies
a) The RTL deals only with residential tenancies. The current 1919 and 1946 legislation will continue in force and apply, where applicable, to agreements that fall outside of the RTL, such as agreements relating to commercial or agricultural property.
A residential unit is interpreted as a “self-contained dwelling”. As such it must offer exclusive use to the inhabitants of a shower or bath; a washbasin; a kitchen; a sleeping space and a lavatory[9].
b) However, the RTL will only apply to those qualified under the Housing Law. It will not apply to those classified as lodgers because if lodgers were given the ability to enter into a residential tenancy agreement they would no longer be lodgers by legal definition. This cannot readily be remedied by amendment of the Housing Law, as the entire foundation of the Housing Law is the exclusion of unqualified persons from leasing and purchasing arrangements. Lodgers do not have security of tenure.
In other words, although a lodger may live in unqualified accommodation that satisfies the definition of a “residential unit” as described in Article 2 he or she will not be able to enter into a residential tenancy agreement for that accommodation.
The Working Party was of the view that new law should only apply to tenants[10] and not to lodgers or licensees. However, it is intended that the Housing Law will be replaced as part of the development of the Migration policy, which was adopted by the States in 2005. The provision of security of tenure for some unqualified persons is a clear objective of the new Migration Law, should that be at all possible. Consultation on Part 2 of the new Migration Law, which will deal with housing issues, is expected to begin in mid 2009 and final policy decisions will be made once consultation closes. The new Migration law will then be debated by the States.
c) The exemptions in Article 2(3) are included to exempt situations where a tenancy would not be expected to be granted for a part of the premises. For example, a resident of a residential home or club living in a unit of accommodation satisfying the criteria of the RTL or someone living in premises registered under the tourism law that satisfy the criteria of a residential unit but which are intended for use as tourist accommodation. However the law will apply if the unit of accommodation is used solely as a place of residence by an employee of the hotel, club or residential home.
3) Article 3 - Agreements to which this Law applies
These articles deal with the type of residential tenancy agreements that the RTL applies to.
a) Article 3(1) applies the RTL to all such agreements made after implementation of the RTL and those which, though made before implementation, are varied or renewed after the RTL’s implementation.
This means that although the RTL is not retrospective the provisions of Article 4 and Schedules 1 and 2 and also all the remedies in the RTL available to both parties will apply to any residential tenancy agreements created before the RTL came into force, if the agreement is varied or renewed after the RTL comes into force. For example, if a landlord agreed a tenancy agreement before the RTL came into force with a tenant and that agreement satisfies the criteria of the RTL, and he or she then includes a new term into the tenancy agreement after the RTL comes into force the landlord will have “varied” the agreement. As a result the tenancy agreement will fall under the RTL and the new agreement will have to comply with the terms of the RTL. Any terms of the former agreement that are not in compliance with the RTL will become void once the former agreement is varied.
Once the RTL has come into force any tenancy agreement made before the RTL came into force and that is allowed to continue, without express agreement, after its termination date has passed will not fall under the RTL until such time as it is varied or renewed.
b) Article 3(3) states that a residential tenancy agreement can be “partly or wholly implied, or partly or wholly oral”.
These provisions mean that an oral or implied agreement can be reached to enter into a residential tenancy agreement and that agreement is still valid until such time as the landlord provides the tenant with a copy of the written and signed agreement as required by Articles 4 and 19. Until such time the tenant can rely on the oral or implied agreement and seek the protection of the RTL if necessary[11].
c) Article 3(3) permits the parties to include additional provisions to those required by the RTL in a residential tenancy agreement so long as nothing in the agreement contravenes the RTL. For example, a clause stating that the RTL did not apply to the agreement would be in contravention of the RTL.
d) Article 3(4) makes it clear that the RTL does not apply to agreements for the sale or purchase of a residential unit when the tenant is a party to that agreement; to agreements for a residence contract in either residential or nursing home accommodation ( Article 2) nor to agreements for board or lodging or short lets.
4) Article 4 - Essential provisions
a) Article 4(1) states that the agreement must be in writing and signed by both parties (See C3b). Any variations to the agreement or renewals must also be in writing. These provisions meet with the proposals of the Working Party.
b) The provisions of Schedules 1 and 2 provide a clear framework of the essential information required by the RTL to be recorded in a residential tenancy agreement. The framework that is established will be of important benefit to both landlords and tenants with regards the structure and management of such agreements. The importance of these schedules is emphasised for Article 4(2) states that even if the provisions of Schedule 2 are not included in the written agreement they shall be taken to form part of it and Article 8(3) gives the tenant a specific right to seek the assistance of the Court if the details of Schedule 1 are not included.
c) The 1996 Working Party stated at paragraph 2.1 (e) of their Report that the main terms of a tenancy agreement should be those set out in the Report of the 1990 Working Party on Landlord and Tenant. The Working Party had suggested that such terms be prescribed by Regulation but the RTL is drafted in such a way that the majority of the provisions proposed by the 1990 Working Party are included in the law itself in Schedules 1 and 2.
Schedule 1 : what an agreement must specify:
- name and business address of the landlord or name of landlord and name and business address of the managing agent ;
- definition of the property comprising the residential unit;
- length of the term of the agreement;
- provisions on payment of rent; deposit and rates;
- provision of a signed inventory of landlord’s movables.
d) Schedule 2: provisions that an agreement must contain:
- allowing for a tenant to remove his own fixtures subject to making good any damage caused in so doing;
- allowing for the landlord’s consent not to be unreasonably withheld in circumstances where it is required;
- tenants not to be required to purchase any fixtures or fittings or pay any premium or key money in respect of the residential unit.
As a result of comments received the version of the RTL that was consulted upon has been changed so that the business address of the landlord is no longer required in cases where the landlord has appointed a managing agent to deal with the property. This retains the landlord’s privacy.
It is important to note that other issues that would normally be addressed in residential tenancy agreements are not included in the RTL. This is because the RTL is intended to provide a framework of essential provisions whilst allowing the parties to retain their freedom to negotiate upon other matters such as, for example, insurance of the premises; rent rebate provisions; sub-letting and assignments of the tenancy agreement; repairs and parking arrangements.
The parties to a residential tenancy agreement are free to include a term in the agreement that requires the landlord to give his or her consent before a tenant can do something affecting the premises. Paragraph 2 of Schedule 2 means that the landlord cannot unreasonably withhold that consent.
e) Article 23 gives the Minister an Order making power to introduce certain extra provisions into the RTL. The version of the RTL that was consulted upon had no provision for the Minister to make Orders. The issues now listed in Article 23(2) as being matters suitable for addressing by the making of an Order were previously subject to the need for a Regulation agreed by the States. However, on further consideration it is felt that an Order making power is more appropriate to deal with these issues.
The issues covered in Article 23 include provisions relating to:
- the completion of reports about the condition of the property prior to a tenancy commencing or terminating;
- the provision of information or documentation to the tenant prior to commencement of a tenancy;
- the maximum charge for the preparation of a tenancy agreement;
- the service; contents and form of any notices to be served other than court documents;
- provision of a standard form of tenancy agreement;
- the status of and rights relating to a) disposal of fixtures and fittings and b) tenants’ movables left in a residential unit once the tenant has
departed ;
- supply of services or imposing limits on charges for the supply of those services;
- requiring fees to be paid under the law and the amount and payment of such fees .
Issues raised during consultation included proposals that maximum charges be introduced for the preparation of agreements and for checks on charges made for the supply of services. Article 23 will enable the Minister to make Orders relating to such matters. Article 23(2)(f) refers to the possibility that the Minister can make an Order relating to the service and content of notices, other than court documentation, under the RTL. For example, there is at present no specific form that the notice to quit from a landlord to a tenant should take. Article 23(2)(f) would enable the Minister to specify the form a Notice to Quit should take.
f) Standard form of tenancy agreement
As advised above attention has been paid, when drafting the RTL, to the desire to introduce a minimum of bureaucracy into the framework of obligations and responsibilities to be placed on both landlords and tenants. The provisions deal with the fundamental aspects of the landlord and tenant relationship whilst still allowing the parties freedom to negotiate their own terms.
The 1990 Working Party proposed that a standard tenancy agreement, written in English, should be made widely available at low cost, as it considered that the legal expenses involved had previously acted as a deterrent to the preparation of proper tenancy agreements between landlords and tenants”.[12] The provisions of Schedules 1 and 2 together with the notice provisions in Articles 6 and 7 of the RTL effectively provide the basis for such a standard agreement.
It is believed that many landlords already use the Standard Form of Written Contract for Exemption from Rent Control (“the Standard Form Agreement”) issued under the terms of the Dwelling Houses (Rent Control) (Standard Tenancy Agreement) (Jersey) Regulations 1993. If used by the parties it exempts them from the provisions of the Dwelling Houses (Rent Control) (Jersey) Law 1946 which relates to the rent control tribunal.
The Standard Form Agreement is very comprehensive and includes the majority of the provisions in Schedules 1 and 2 of the RTL as well as some additional terms favoured by the 1990 Working Party relating to insurance; fixtures, fittings and contents; repairs; consent on sub-letting or assignment of a tenancy ; restrictive clauses eg “No children” and a “wind and watertight” requirement. In addition the agreement also includes additional covenants relating, for example, to the lopping of trees; ownership of pets; structural alteration of premises and the leaving of derelict vehicles etc.
The Standard Form Agreement is already essentially compliant with the requirements of the RTL although some revisions, in particular in relation to the notice period provisions, will be necessary in order to ensure compliance with the RTL when it comes into force.
Therefore it is proposed to present a Regulation to the States, which would come into force at the same time as the RTL, to introduce the necessary amendments to the Standard Form Agreement to ensure compliance with the RTL. Any of these Standard Form Agreements in force prior to the implementation of the RTL will continue as before. However, as with any other residential tenancy agreement, any variation or renewal agreed after the RTL comes into force will result in the agreement becoming subject to the terms of the RTL[13].
h) There are no current plans to introduce a further standard form of tenancy agreement under the RTL, nor to adopt the Standard Form Agreement as that to be used in connection with the RTL, using the Order making power in Article 23(2)(g). It is proposed that consideration be given to either possibility, if appropriate, at some point after the implementation of the RTL.
i) The tenancy agreement currently used by the Housing Department for States tenants occupying States rental accommodation managed by the Department is already essentially compliant with the terms of the RTL. However, the Department is already in the process of developing a new Tenancy Agreement and this will incorporate the provisions of the new RTL in respect of notice periods[14].
The Housing Trusts have also been consulted and they have not raised any objections to the requirements of the RTL.
5. Articles 6 and 7 – Termination of Periodic Residential Tenancies
a) There will be no requirement for notice to be given by either party to a residential tenancy agreement for a period of fixed duration to which the RTL applies.
A “fixed term tenancy”[15] is one entered into by both parties with no expectation of it lasting any longer than the initial agreed period. The RTL introduces no change with regards the notice required to be given in such circumstances as there is currently no need to give notice in the case of “fixed term tenancies”.
However, although the notice provisions of the RTL will not apply to fixed term residential tenancy agreements falling under the law, all other provisions of the RTL will be applicable to such agreements.
b) The RTL introduces new notice periods of three months from landlord to tenant and one month from tenant to landlord for all periodic tenancies to which the RTL applies.
A “periodic tenancy” is one which is for an indefinite period but which can be terminated by a period of notice. The word “periodic” refers to the recurrent interval on the basis of which the tenancy runs e.g. a “weekly tenancy” is one where rent is payable weekly; a “monthly tenancy” where rent is payable monthly and so on. Both parties expect such periodic tenancies to continue “rolling over” until notice is given so a periodic tenancy can last for years.
c) It should be noted that any fixed term residential tenancy agreement made after the RTL comes into effect and that continues after the due date of its expiry will become a periodic tenancy based on the ”recurrent interval” period and the notice provisions of the RTL will start to apply[16].
d) In order to give clarity and certainty to both landlords and tenants when entering into periodic residential tenancy agreements the provisions of the RTL adopt a “flat” policy towards notice periods i.e. notice periods are fixed without regard to the length of the tenancy; its recurrent interval or the type and size of the property.
The Working Party had proposed that landlords be required to give a new fixed period of notice of six months to all tenants who had been in their accommodation for a minimum of three months and that tenants be required to give their landlords a period of notice based on the length of their tenancy but with a maximum requirement for three month’s notice[17].
e) It is important to recall that the Working Party was considering the issue of notice periods at the time of the public protest in response to the threatened eviction cases at the La Folie and Troy Estates. At the time the lack of available public knowledge about eviction proceedings was a contributory factor to the distress caused and the proposal for longer notice periods was considered a step towards greater security of tenure for tenants. However the additional clarity surrounding eviction processes that is now provided by Articles 14 -15 of the RTL, including details of the issues to be considered in orders for stays of eviction, should afford a greater sense of security of tenure than previously.
f) The “flat policy” approach gives clarity to both landlords and tenants as to the minimum period of notice required of either. The difference between the minimum notice periods required of landlords and tenants proposed by the Working Party was felt to be onerous on landlords, and unnecessarily complicated for tenants. Consideration was given to introducing a different sliding scale of notice periods to those proposed by the Working Party and further research was carried out into the periods adopted in other jurisdictions[18]. The current proposals resulted and were supported by a majority of those who answered the relevant questions in the consultation process. However, other views were expressed during the consultation process with some respondents saying that three months was too long a period of notice for landlord to tenant and others that notice periods should be the same for both landlord and tenant.
g) In recognition of these comments the version of the RTL that was consulted upon has been revised so that Articles 6(3)(e) and 7(3)(f) state that the Minister can, by Order, prescribe a different period of notice from the three months for landlords or one month for tenants currently included in the RTL.
In addition the Minister can, by Order under Articles 6(5) or 7(4), exclude “particular classes of cases” from the notice periods. For example it may in future be decided that individuals living in certain types of lodgings should be granted security of tenure under the RTL but not all, so an exclusion from the RTL would be required. Currently the notice provisions apply even in the case of short lets but they could, for example, be exempted by the Minister in future using this Order making power.
h) Moreover, the RTL does give additional protection to both landlord and tenant to end a residential tenancy agreement without giving the three months or one month notice required by the RTL if either party is in breach of its terms. (See C8, C9 and C10) In addition, Article 20 does allow the parties to end a tenancy agreement by mutual agreement.
i) Some concern was raised during consultation that greater clarity as to what would happen at the end of a fixed term tenancy was needed. However, no additional provisions have been included as it should be clear when the agreement is entered into that a fixed term tenancy is for a specified duration. Either party wishing to extend a fixed term tenancy is free to try and negotiate a new agreement with the other party and in cases of breach or eviction Articles 10 -15 of the RTL now add clear guidelines as to the processes and considerations involved.
j) The proposed change in notice period provisions caused some respondents to the consultation to make suggestions and comments about the amount of deposit that could be asked for. Some landlords suggested that a “damage deposit” as well as a rental deposit might be necessary in recognition of the fact that if damage has been incurred the rental deposit is often insufficient to recoup reasonable costs. These comments have been noted but left over for further consideration until such time as a Proposition on a Tenants Deposit Scheme is prepared.
k) There is a requirement in both Articles 6 and 7 that a notice to terminate has to be signed by the person giving it, whether landlord or tenant. (Someone acting on behalf of a landlord, such as a managing agent, may sign for the landlord.) The provision has been included in order to clarify that such notice needs to be signed. The essential factor, so far as the RTL is concerned, is that there be a written record of the giving of notice that has been signed. Whether an electronic communication of the notice with a signature attached sent by text or e-mail is acceptable will be a matter left for the agreement of the parties.
The RTL provides that notice to terminate will be sent by the landlord to the tenant. This is a new practice for landlords as Article 1 of the 1919 law states that the owner of a property “shall have the right to have served on the tenant, through the Viscount’s department, a prior notice to retake”. (Under the 1919 law a tenant can notify a landlord of their intention to vacate either personally or by notice served via the Viscount’s Department.)
6. Article 8 - Termination if service element fails, agreement not in writing, details missing or opportunity to read denied
a) Article 8 deals with a number of matters including situations where the residential tenancy agreement includes a service element and that service element can no longer be provided. For example, if a tenant is removed from his job it may not be fair to expect the landlord to allow him to stay in his accommodation or, if a tenant was to be unable to carry out his or her employment which related to his accommodation it may not be reasonable for the landlord to serve the tenant with notice immediately. In either case the Court, upon the application of either party, can consider the matter and either vary or terminate the agreement if, in all the circumstances, it considers it just to so.
b) Article 8 also gives the Court, upon application by the tenant, powers to make an Order varying or terminating the agreement, if it considers it just to do so, where the residential tenancy agreement is not in writing, is not signed by or on behalf of the parties to the agreement or fails to contain the details specified in Schedule 1 of the RTL or where a tenant has not been allowed 24 hours to read a proposed tenancy agreement.
As a result of the consultation process the provision allowing for a 24 hours notice period before signing has been changed to refer to “a working day”. (Article 8(4)). This will enable a prospective tenant to get professional advice if needed before signing the agreement. As a result of another suggestion the RTL has been revised to include a definition of a “working day” (Article 8(6)).
7. Article 9 - Premises uninhabitable
The 1990 Working Party had suggested that “minimum conditions of habitation” should be “ laid down in the law over and above the wind and watertight” requirement.[19] The RTL does not refer to “minimum conditions of habitation” as this is felt to be a matter better dealt with under Planning and Public Health legislation. However, the RTL does grant protections to any tenant where his or her residential unit becomes uninhabitable through any event other than his or her own “malicious act”. In such circumstances Article 9(a) states the tenant will not be liable for rent and Article 9(b) allows for the Court to vary or terminate the agreement, upon application of either the landlord or tenant, if in all the circumstances it considers it just to do so[20].
8. Article 10 – Breaches by Landlord
A landlord has a requirement to give a tenant quiet enjoyment of the residential unit. Article 10 outlines for tenants what “ the right to quiet enjoyment” comprises. “Quiet enjoyment” includes not doing anything that would prevent a tenant from occupying the whole or any part of the residential unit or enjoying use of that unit so long as the tenant is not acting in breach of the residential tenancy agreement. Any breach of this requirement by the landlord is considered as a breach of the agreement and the tenant can apply to the Court for assistance under Article 10(4). In addition, anyone contravening this provision of the law will be guilty of an offence and liable to a fine. These provisions meet the recommendations of the Working Party.
9. Article 11 – Eviction where failure to give possession.
Articles 11 – 15 are those dealing with the issues raised by the Working Party on Security of Tenure. Paragraphs 9 -15 highlight how the legal position and eviction processes involved have been clarified for the benefit of all parties and clearly recorded in the RTL.
Article 11 makes provision for a landlord to go to the Court and seek an eviction order in circumstances where the residential tenancy agreement has ended because the termination date in the agreement has been reached but the tenant has not vacated the premises. These situations are not dependent on a breach taking place. They will arise either when a fixed term tenancy has reached its agreed termination date or when the landlord has served the correct notice on the tenant but the tenant has not vacated the residential unit.
10. Article 12 - Termination and eviction where failure to rectify breach
In contrast to Article 11 this article introduces a new power for a landlord to serve notice on a tenant who has breached the residential tenancy agreement asking him or her to cease the conduct that has caused the breach or to take reasonable steps to rectify it within 7 days. If the tenant has not complied within 7 days the landlord can ask the Court’s assistance and the Court can terminate the agreement and order the eviction of the tenant if the breach is sufficiently serious to warrant such action. This provision meets the recommendation of the Working Party.
Currently, in such circumstances, unless a landlord and tenant have included such a clause in their agreement, the only option that a landlord has is to start proceedings to terminate the agreement. This new provision effectively puts the tenant on notice that he or she might be in danger of being evicted.
If the Court does make an eviction order it will need to take into account the provisions of Article 14 relating to stays of eviction which are discussed at C12 below.
11. Article 13 - Execution of order for eviction
The RTL provides that eviction orders made by the Court will be served by the Viscount’s department, as is currently the case. However the provisions of the RTL clearly outline the Viscount’s powers in such circumstances including the manner in which any movable property left by the tenant on the property will be dealt with. This provision adds additional clarity to the position as described in the 1946 legislation. This provision meets the recommendation of the Working Party.
12. Article 14 – Stay of Eviction
Article 14 enables the Court to stay or postpone the implementation of an eviction order of its own accord or upon application by either the landlord or the tenant. If a stay is ordered the Court has the power to vary the rent payable or other conditions of the tenancy agreement as it considers just in all the circumstances. However, the Court cannot impose any condition that would be void or in breach of the RTL eg it could not vary a tenancy agreement by ordering the tenant to purchase any fixtures and fittings as this would be in contravention of Schedule 2 of the RTL.
13. Article 15 - Matters to be considered in deciding on stay
The Working Party made it very clear that any new law should provide tenants with a better understanding of the sort of issues that the Court might take into account when ordering an eviction. Such detail would also “assist in the provision of legal advice in advance of proceedings”[21]. A number of recommendations were made all of which have been included in Article 15.
The Working Party also made proposals in relation to the publication of judgments relating to tenancy matters. These proposals have not been adopted but it is felt that the provisions of Articles 11 – 16 of the RTL clearly set out the processes that will be followed when an eviction order is applied for.
In reality the recommendations are all of the type that the Court currently takes into consideration when dealing with eviction orders but individuals are not necessarily aware of these grounds as they are not published. By recording the considerations in this way in the RTL landlords, tenants and their legal advisers will have greater certainty as to their position in law and as to what might happen in any court proceedings. This provision meets the recommendation of the Working Party.
Indeed, the RTL has gone further than the Working Party proposed because Article 15 divides the list of recommendations into those matters which the Court shall consider before deciding whether to exercise its powers in Article 15(1) and, in Article 15(2), those matters that the Court may consider when considering an order to stay the execution of an eviction order.
Those matters that the Court shall consider include:
- whether any rent is outstanding;
- whether either party has breached any provisions of the tenancy agreement;
- whether they have continued or repeated the breach or taken reasonable steps to remedy the breach;
- if a stay were to be ordered, where the balance of hardship would fall as between landlord and tenant.
The issues that may be considered focus mainly on the practical and financial position of the parties were an eviction to be immediate and also on the behaviour of the parties generally during the tenancy agreement.
Articles 8(1) and 8(2) referred to in C6 relate to the situations where an employee lives on the landlord’s property.
14. Article 16 - Jurisdiction
Article 16 grants the Court exclusive jurisdiction of all matters relating to a residential tenancy or residential tenancy agreement.
The Court is also to be free of any financial limitations when dealing with such cases and has authority to make an order as to arrears of rent, repayment of rent or repayment of any deposit, or for damages for any breach of the relevant residential tenancy agreement, or to generally adjust the rights between the parties to the tenancy agreement. This provision meets the recommendation of the Working Party.
This provision will simplify current processes whereby the cancellation of a tenancy agreement with an annual rental of more than £15,000 has to be dealt with by the Royal Court which then refers the case back to the Petty Debts Court where all remaining matters relating to the eviction are dealt with. This provision has been introduced in recognition of the fact that many tenancy agreements incur annual rentals in excess of £15,000pa and that financial claims for arrears or damages can readily mount.
15. Article 17 - Appeals
Article 17 introduces a new right of appeal to the Royal Court by a party involved in proceedings concerning a residential tenancy agreement before the Court. Leave to appeal can be granted by either the Court or the Royal Court against any decision or order of the Court. If an appeal is made concerning an eviction order the Royal Court can stay execution of the eviction pending resolution of the appeal. This provision meets the recommendations of the Working Party.
16. Article 18 - Housing Law and other enactments
Article 18 makes it clear that the provisions of the RTL are not intended to displace the requirements of certain other laws relating to housing, planning and other matters.
17. Article 19 - Documents to be provided to tenant
Article 19(1) requires a landlord to provide a tenant with a signed copy of a residential tenancy agreement and a signed copy of any varied or renewed agreement. This provision meets the recommendation of the Working Party.
Article 19(2) also requires the landlord to provide the tenant with a receipt for any deposit paid which should be provided as soon as possible after payment. This provision meets the recommendation of the Working Party.
Article 19(3) makes it an offence for anyone to fail to comply.
Articles 19 of the RTL has been revised to take account of comments received during the consultation period. The original proposal was for a landlord to be under an obligation to provide a tenant with a statement at least once every six months during the duration of the residential tenancy showing the amounts and dates of payment of any monies paid to the credit of the landlord. Some respondents to the consultation felt this was an unnecessarily bureaucratic provision that might be difficult to put into practice dependent on the way in which landlords record receipt of monies. Also, it was felt to be potentially unfair on some landlords who do not employ management agents or have “office like” facilities for photocopying and so forth. It was also stated that the majority of tenants pay their rent by standing order and payments can be readily identified from the parties’ bank statements as a result. This was considered to be a change in practice from the mid 1990’s when the Working Party had considered the issues.
It is acknowledged to be normal practice in the commercial world now to provide regular statements to the payee when regular payments are made eg the Jersey Electricity Company sends out quarterly statements to all its customers who pay by direct debit showing the payments received by them. However, on balance it has been decided to remove this requirement from the RTL.
18. Article 20 - Termination by Agreement
Article 20 confirms that the parties are at liberty to agree to terminate a residential tenancy agreement by agreement of their own at any time. This is an exception to the general contracting out prohibition contained in Article 21.
19. Article 21 - Contracting out prohibited
Article 21 makes it an offence for anyone to try to enter into an agreement to avoid the provisions of the RTL.
20. Article 22 - General provisions as to offences
Article 22 makes those acting in certain capacities for limited liability partnerships or body corporates liable under the terms of the RTL for acts that they commit. Any such acts which are in breach of the RTL will be regarded as an offence.
21. Article 23 - Orders
This new article has been discussed at C4.
22. Article 24 - Regulations
a) Article 24 enables the States to make Regulations for the purpose of carrying the RTL into effect. It also allows for offences to be punishable by a fine not exceeding level 3 (£2,000 at current scale rates).
The Housing Minister advised on 10th October 2008 when the Consultation Findings Report was released that he thought it likely that he would be bringing forward proposals for a Tenants Deposit Scheme if the RTL was debated and adopted. Article 24 (a) – (e) deals with this issue specifically.
The issue of a Tenants Deposit Scheme attracted considerable comment during the consultation on the RTL. Some landlords felt that a scheme was unnecessary and would be overly bureaucratic whilst there was evidence from organisations such as the Citizens Advice Bureau and the Consumer Council and Jersey Rights Association that many tenants do encounter problems when trying to obtain the return of their deposit monies. However others felt that as long as a scheme was fair and not overly bureaucratic it would be acceptable.
Additional research was carried out through questions posed in the 2008 Jersey Annual Social Survey. The results did not support the view that the issue was of big concern with only 5% of people reporting an issue with the return of a deposit in the last five years[22]. However, on balance it is deemed appropriate that proposals for a scheme be brought to the States for a debate to establish a deposit scheme by means of a Regulation.
Although the current mediation facilities offered in the Petty Debts Court were commented on favourably by respondents there was a view that an independent scheme, with the possibility of an arbitrated settlement if mediation were to fail, was favoured. Respondents felt it important that any scheme should not be publicly financed.
Preparations are ongoing with a view to a Proposition for a Regulation to establish a Tenants Deposit Scheme being brought to the States upon implementation of the RTL, if the RTL is adopted. The present intention is that the scheme will be compulsory, managed by a third party and funded through interest received on deposits retained in the scheme albeit this funding proposal may need further consideration in the current economic downturn.
23. Articles 25 and 26 - These articles include provisions dealing with amendments to enactments and citation and commencement of the RTL. Schedule 3 refers to the amendments that will be necessary to the 1919 and 1946 legislation so that it is clear that those laws will now remain in force only so far as they relate to premises or tenancies not affected by the RTL.
Financial and Manpower implications
Financial and manpower implications for the States in connection with the RTL are expected to be minimal as this Law will introduce a framework for landlord and tenant relations without requiring any additional States administrative function. The Housing Department has already reviewed its tenancy agreements to ensure that compliance with the RTL will be possible and minor amendments will be needed to other housing department forms and to the Standard Tenancy Agreement issued under the terms of the Dwelling Houses (Rent Control) (Standard Tenancy Agreement) (Jersey) Regulations 1993.The Housing Department has already reviewed its tenancy agreements to ensure that compliance with the RTL will be possible.
European Convention on Human Rights
Article 16 of the Human Rights (Jersey) Law 200- requires the Minister in charge of a Projet de Loi to make a statement about the compatability of the provisions of the Projet with the Convention rights (as defined by Article 1 of the Law).
The Housing Minister has made the following statement –
In the view of the Housing Minister the provisions of the Draft Residential Tenancy (Jersey) Law 200- are compatible with the Convention Rights.
Report on draft Residential Tenancy (Jersey) Law 200- Appendix 1
Working Party on Security of Tenure
P257 / 1998
Summary of Proposals
Repeal of the existing 1919 and 1946 statutes in relation to tenancies.
A new fixed period of notice of six months for all tenants.
A requirement that all tenants be given a written statement of the main terms of their tenancy.
The renaming of the Petty Debts Court, with all issues relating to eviction and payment of rental to be heard by a separate division of the Magistrate’s Court.
Creation of a criminal offence and a tort (a civil wrong) to unlawfully exclude a tenant from premises that he is entitled to occupy.
New periods of notice that tenants are required to give to landlords.
Amended legal procedures for evictions.
A detailed statement of the factors which the Court may take into account when considering whether a stay from eviction should be awarded.
Creation of a right of appeal to the Royal Court.
Report on draft Residential Tenancy (Jersey) Law 200- Appendix 2
Summary of changes made to the draft law in response to comments received during consultation and further discussion
i) Article 4(1) and Schedules 1 and 2
Paragraph 4 of Schedule 1 has been changed so that the business address of the landlord is not required unless there is no managing agent in which case the landlord’s business address is required under Paragraph 5.
Paragraphs 1 and 2 referred to in Schedule 2 have been deleted as the provisions of the Rates (Jersey) Law 2005 establish criteria with regards payment of the foncier and occupiers rates.
ii) Articles 6 and 7
Articles 6(3)(e) and 7(3)(f) state that the Minister can, by Order, prescribe a different period of notice from the three months for landlords or one month for tenants currently included in the RTL.
In addition the Minister can, by Order under Articles 6(5) or 7(4), exclude “particular classes of cases” from the notice periods.
iii) Article 19
The requirement that a landlord be under an obligation to provide a tenant with a statement at least once every six months during the duration of the residential tenancy showing the amounts and dates of payment of any monies paid to the credit of the landlord has been removed.
iv) Article 23
Order making powers are introduced to deal with most of the issues previously listed as to be dealt with by Regulation.
[1] See Article 2(d) of the Dwelling Houses (Rent Control) (Jersey) Law 1946 and paragraph C4 of this paper.
[2] Translates as : “Law (1919) on the Letting of Property”
[3] Translates as “Law (1946) Concerning the Eviction of Refractory Tenants”
[4] http://www.statesassembly.gov.je/frame.asp Propositions /1998/257
[5] Housing Committee Strategic Policy Report 2002-2006 (P2/2002): Amendment Lodged au Greffe 23rd
April 2002
[6] Jersey in Figures, 2007 p33 States Statistics Unit
[7] Security of Tenure Law – Report of the Working Party P257/ 1998 p4
[8] for full definition see Article 1(1) of the RTL
[9] for full definition see Article 2 of the RTL
[10] Security of Tenure Law – Report of the Working Party P257/1998 p11
[11] For example, if the premises become uninhabitable the tenant could seek relief using Article 9 of the RTL, if appropriate.
[12] Security of Tenure – Report of the Working party P257/ 1998 p27
[13] see C3
[14] States tenants need take no action.
[15] The wording “specifed term” is used in the RTL to describe fixed term tenancies
[16] e.g. an agreement for a residential tenancy for a fixed term of three years with rent due on a weekly basis was entered into after the commencement of the RTL. Three years have past but the tenancy is continuing with rent still being paid weekly. The fixed term tenancy has ended but the tenancy agreement has now become a weekly periodic tenancy and three months notice will be required from the landlord to the tenant.
[17] Security of Tenure Law – Report of the Working Party P257/ 1998 Details of the Working Party’s proposals are contained in Appendix 1 paragraphs 2.1 (h-i).
[18] Research has been carried out in England; Scotland; Guernsey; France; America; Australia; New Zealand; Canada during the development of the RTL.
[19] Security of Tenure Law – Report of the Working Party P257/ 1998 p29
[20] Although the RTL does not make any reference to insurance requirements it is normal practice for a landlord to insure his property against risks that might affect its habitable state. Such insurance protection would normally allow for loss of rental income.
[21] Security of Tenure Law – Report of the Working Party P257/ 1998 p10
[22] Jersey Annual Social Survey 2008 p25 Jersey Annual Social Survey 2008 p25
Security of Tenure Law – Report of the Working Party P257/ 1998 p10
Security of Tenure Law – Report of the Working Party P257/ 1998 p29
Research has been carried out in England; Scotland; Guernsey; France; America; Australia; New Zealand; Canada during the development of the RTL.
e.g. an agreement for a residential tenancy for a fixed term of three years with rent due on a weekly basis was entered into after the commencement of the RTL. Three years have past but the tenancy is continuing with rent still being paid weekly. The fixed term tenancy has ended but the tenancy agreement has now become a weekly periodic tenancy and three months notice will be required from the landlord to the tenant.
The wording “specifed term” is used in the RTL to describe fixed term tenancies
States tenants need take no action.
Security of Tenure – Report of the Working party P257/ 1998 p27
Security of Tenure Law – Report of the Working Party P257/1998 p11
for full definition see Article 2 of the RTL
for full definition see Article 1(1) of the RTL
Security of Tenure Law – Report of the Working Party P257/ 1998 p4
Jersey in Figures, 2007 p33 States Statistics Unit
. However, on balance it is deemed appropriate that proposals for a scheme be brought to the States for a debate to establish a deposit scheme by means of a Regulation.
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. The RTL does not refer to “minimum conditions of habitation” as this is felt to be a matter better dealt with under Planning and Public Health legislation. However, the RTL does grant protections to any tenant where his or her residential unit becomes uninhabitable through any event other than his or her own “malicious act”. In such circumstances states the tenant will not be liable for rent and allows for the Court to vary or terminate the agreement, upon application of either the landlord or tenant, if in all the circumstances it considers it just to do so.
. The current proposals resulted and were supported by a majority of those who answered the relevant questions in the consultation process. However, other views were expressed during the consultation process with some respondents saying that three months was too long a period of notice for landlord to tenant and others that notice periods should be the same for both landlord and tenant.
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is one entered into by both parties with no expectation of it lasting any longer than the initial agreed period. The RTL introduces no change with regards the notice required to be given in such circumstances as there is currently no need to give notice in the case of “fixed term tenancies”.
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and not to lodgers or licensees. However, it is intended that the Housing Law will be replaced as part of the development of the Migration policy, which was adopted by the States in 2005. The provision of security of tenure for some unqualified persons is a clear objective of the new Migration Law, should that be at all possible. Consultation on Part 2 of the new Migration Law, which will deal with housing issues, is expected to begin in mid 2009 and final policy decisions will be made once consultation closes. The new Migration law will then be debated by the States.
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In 2004 the responsibilities of the Court were divided into three separate divisions namely the Civil Claims Division ( dealing with petty debts issues) the Family Division and the Tenancy Division. Rental arrears actions remain to be heard in the Civil Claims division but cancellation and eviction cases are heard before the Tenancy Division.
. This high proportion may increase still further as a result of the recent downturn in the economy. A trend may be appearing whereby some with money invested in the banks choose to invest in property and enter the rental market as landlords whilst some, unable to afford to buy the property they wish, choose to enter the rental market as tenants. If this trend does develop the RTL will provide a framework of legal requirements and obligations for those who are inexperienced in the rental market as well as providing certainty for those already in it.
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(which deals with eviction procedures). Both laws are short, written in French and not easily interpreted or understood without legal advice. However they are still applicable although since they came into force both Jersey society and the Jersey as amended (in which distinctions as to notice periods are dependent on rental value, type and size of property) and the “Loi (1946) concernant l’expulsion des locataires réfractaires” as amended (which deals with eviction procedures). Both laws are short, written in French and not easily interpreted or understood without legal advice. However they are still applicable although since they came into force both Jersey society and the Jersey
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