MD-H-2021-0057
Residential Tenancy (Amendment) (Jersey) Law 201- | Endnotes |
Report
INTRODUCTION
P.74/2009, the Residential Tenancy (Jersey) Law 201- (“the principal Law”) was adopted by the States on 14th July 2009 and subsequently sent to the Privy Council for sanction.
The Privy Council sanctioned the principal Law on 16th November 2011. The lengthy delay was largely due to the fact that Ministry of Justice (“MoJ”) officials reviewing the principal Law noted and pointed out some provisions which might not have been entirely compatible with the European Convention on Human Rights. Having further considered these matters, the Law Officers’ Department agreed with the assessment. It was therefore subsequently agreed with MoJ that the principal Law could be submitted for Royal sanction but some fairly minor amendments would be made, on human rights compatibility grounds, to some provisions regarding notice periods and eviction processes, and that the provisions affected would not be brought into force before having been amended.
Hence, the draft Residential Tenancy (Amendment) (Jersey) Law 201- (“the Amending Law”) has been prepared to effect the necessary amendments. The opportunity has also been taken to introduce some additional amendments to the principal Law as explained below.
It is not intended to bring any part of the principal Law into force until such time as the Amending Law is also brought into force; firstly, because it is not felt appropriate to introduce the principal Law until all parts can be implemented and secondly, because delaying commencement enables a co-ordinated approach to be taken with regards to the potential introduction of a number of Orders and Regulations that may be introduced under the provisions of the principal Law as explained below.
THE PROPOSED AMENDMENTS OF THE PRINCIPAL LAW
During the time that the principal Law has been awaiting sanction further progress has been made in connection with the general programme of work that is being undertaken in the area of landlord and tenant legislation.
This includes the drafting of Regulations to introduce a Tenants’ Deposit Scheme and the compulsory use of condition reports; the issue of a standard form of tenancy agreement and standard forms of notice to be used in connection with the principal Law; and the addition of some further landlord/tenant obligations to the principal Law.
A need to make additional amendments of the principal Law has arisen as a result of the progress of this ongoing work and both these amendments and those arising from the MoJ comments, are included in this Amending Law and their background is explained below.
Article 1:
The draft Residential Tenancy (Jersey) Law is defined for the purposes of the Amending Law as “the principal Law”.
Article 2: amendments to Article 1 of the principal law
Further clarity is added to the principal Law by these amendments and, in particular, they will assist with the introduction and management of any Tenants Deposit Scheme.
i) Two additional definitions are included to add clarification to the provisions of the principal law:
A “deposit” is defined as being
“a payment of money intended to be held (by the landlord or otherwise) as security for, or for guaranteeing or ensuring the performance of any obligation of the tenant or the discharge of any liability of the tenant arising under or in connection with the residential tenancy agreement”.
This means, for example, that deposit monies can be used to account for unpaid rent or damage to property and that they could be held by an agent or in accordance with any deposit scheme requirements.
The term “money” is defined to mean money “whether in the form of cash or otherwise.”
For example, a deposit must be paid in money, and, under this definition this would include, for example, a cheque or bank transfer. However, payment in kind, for example offering to do some housework or gardening in lieu of a payment of money, would not be covered by this definition.
ii) Two other amendments affect the previous definitions of “landlord” and “tenant”.
The first is the change to the definition of landlord and tenant to include persons acting on their behalf.
The second is the omission in the previous references to “landlord” and “tenant” to situations of sub-letting, because sub-letting is, for the purposes of the principal Law, indistinguishable from letting.
Article 3: amendment to Article 6 of the principal Law
The draft version of the principal Law that was released for consultation in April 2008 stated in Article 6(3)(d) that a landlord would need to give a tenant three months notice to terminate a periodic residential tenancy. As a result of feedback received during the consultation this provision was revised and in the final version of the principal Law debated by the States the Minister was given an Order making power enabling him to prescribe “some other period” which could be a period of less than three months.
However, the MoJ raised a concern that human rights issues[1] may arise if the Minister, using this Order making power, were to reduce the required notice period from a landlord to a tenant to a period of less than one month. Therefore the amendment in Article 2 of the Amending Law accordingly ensures that the Minister cannot prescribe a period of less than a month’s notice.
Article 4: amendment to Article 7 of the principal Law
This amendment simply makes a correction by inserting the missing word “the” before the word “Minister.”
Article 5: substitution of new Article 13 in the principal Law
The Viscount currently has the responsibility of carrying into effect eviction orders made by the Court[2] and this practice continues under the principal Law. The Viscount’s department acts in a manner consistent with human rights policies when carrying out eviction orders and the changes generally bring Article 13 into line with what the Viscount already does in practice in tenancy cases.
When reviewing the principal Law, the MoJ recommended that the process around gaining entry to premises should be clarified further and that the issue of repayment of tenants’ monies upon a Viscount’s sale of any movable property be further considered.
i) Powers of entry
Article 13(2) of the principal Law gave the Viscount “the same powers of entry in respect of the residential unit as he or she could if executing an order by the Court for distraint on movable property in the residential unit”.[3]
The actual power to enter premises remains the same, both in the principal Law and the Amending Law, in that a Court Order is needed, as is currently the case, to allow entry to premises to take place and for movable property to be taken. All such entries are carried out appropriately and reasonably by Viscount’s departmental officers and with human rights principles in mind.
However, the new drafting clearly sets out and confirms this process by specifying that when the Court makes an eviction order it may also, at the time of making the order or afterwards, make a further order, or orders, allowing the Viscount to:
a) enter the residential unit to execute the eviction or remove movable property;
and
b) use reasonable force if necessary to make the entry.
An additional provision relating to the Viscount’s costs is also included:
c) that the Court may make an order that the landlord and/or tenant under the tenancy pay the Viscount’s reasonable costs.
ii) Proceeds arising from sale of tenant’s property
The MoJ suggested that Articles 13(4) and 13(5) of the principal Law as originally enacted could potentially raise human rights issues[4] as, subject to the requirements stated in Article 13(4), there was no mechanism to allow for the proceeds of any sale of the tenant’s goods to be returned to the tenant. Article 13(5) instead allowed for any monies raised to be paid into the States consolidated fund.
Accordingly, Articles 13(4) and (5) of the Amending Law now specify a process for the handling of any monies raised by a sale of an evicted tenant’s discarded property by the Viscount.
The proposed changes to the principal Law are as follows:
i) Article 13 (4)(a)(i) makes it clear that the evicted tenant has a responsibility to pay the Viscount’s reasonable expenses incurred as a result of his duties arising from the eviction process, including removal and storage of the tenant’s movable property[5].
ii) As previously provided for in the principal Law, if the tenant does not pay these expenses or remove his movable property from storage within a period of 15 days from the date his property was removed and stored by the Viscount then the Viscount can dispose of the tenant’s property (so long as the landlord has not got a court order for outstanding rent against the tenant’s property in which case the landlord has first claim).
iii) Article 13(5) now adds clarity to the manner in which the Viscount may use his discretion to dispose of the tenant’s property. In recognition of the fact that movable property left behind by a tenant often has no value, the Viscount is given a discretion to distinguish between property that has a realizable value and that which has no value. When disposing of the former the Viscount should take reasonable steps to sell it whereas he can dispose of the latter as he sees fit.
Article 13(6) then allows the Viscount to retain from the proceeds of sale any of the Viscount’s reasonable expenses that have been incurred[6].
Article 13(7), in order to ensure compliance with human rights principles, places a new and specific obligation on the Viscount to take reasonable steps to pay the evicted tenant any monies remaining.
However, if the Viscount, having taken all these steps, cannot locate the evicted tenant then, at that stage, Article 13(8) provides that the Viscount must pay any monies remaining that belong to the tenant into the consolidated fund.
Article 6: amendment of Article 16 of the principal Law
The amendment of Article 16(2)(a) is included to improve and simplify the wording of the principal Law. This amendment does not result in any substantive change to the effect of Article 16 (1) of the principal Law, which already gives the Petty Debts Court jurisdiction over all matters relating to residential tenancies.
Article 16(2)(b) sub-paragraphs (i) – (iii) of the principal Law authorises the Court, when deciding any residential tenancy matter brought before it, to make orders on a number of matters such as rental arrears; deposit repayment and damages as well as adjusting the rights between the landlord and tenant to a residential tenancy agreement.
The proposed amendments in paragraphs (ia) and (ib) further authorise the Court to modify expressions of time, or to dispense with notice requirements, applying under the principal Law to a residential tenancy or to a residential tenancy agreement.
Therefore, for example, under amendment (ib), although the Minister cannot prescribe a notice period from landlord to tenant to be a period of less than one month[7] the Court, in exceptional circumstances, could.
It should be remembered that the Court must at all times apply human rights principles when making its decisions. Therefore, if a human rights issue regarding, for example, a right to respect for private and family life, arose in an eviction case, it would be for the Court to consider the application of human rights considerations.
The addition of Article 16(5) is a technical one that confirms that nothing in the principal Law confers any criminal jurisdiction on the Court. Any criminal matters will still fall to be heard in the Magistrate’s Court.
Article 7: amendment of Article 23 of the principal Law
The introduction of condition reports; standard forms of tenancy agreement and forms of notice to be used under the principal Law are all matters upon which consultation is has been undertaken. Looking ahead it is felt appropriate to make the proposed amendments to the principal Law in order to add clarity to the terminology used and to facilitate the introduction of any Orders made as a result of the consultation process.
Article 8: amendment of Article 24 of the principal Law
These amendments provide the necessary enabling powers for the Minister to introduce a scheme to safeguard deposits by Regulation, for example, concerning:
- the investment of deposits held;
- the use of interest on deposits held;
- provision to be made to ensure that only a deposit can be used as a security or guarantee against the performance of any obligations, or the discharge of any liability, of the tenant arising in connection with the tenancy agreement;
- unless the States agree otherwise, deposit monies held in a scheme are not available to pay the debts, expenses or obligations of the person administering the scheme.
- Exempting any person, deposit, residential tenancy, residential tenancy agreement or residential unit, or any class of persons, class of deposits, class of residential tenancies, class of residential tenancy agreements or class of residential units.
Financial and Manpower Implications
There are no anticipated financial or manpower implications arising from these proposed amendments to the principal Law.
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