This applies to properties in Wales only.

GUIDE TO REGISTRATION AND LICENSING IN WALESV1-JW-20151221

LICENSING

Who can apply for a licence to carry out lettings or management of privately rented properties let under domestic tenancies?

The landlord, or anyone acting as agent for the landlord, must be licensed. The landlord can decide that rather than letting or managing a property himself/herself the landlord will appoint a licensed agent. In all cases, whether the landlord is licensed or not, the landlord must not appoint an agent who is not licensed to let or manage a property. It is the person not the property as such who is licensed.

To be licensed you must be a "fit and proper person" and must undergo training. Licensing will regulate the way in which the property is let or managed through the Code of Practice and the conditions which are attached to the licence.

When should a landlord be licensed to carry out lettings activities?

If a privately rented dwelling is marketed or offered for let under domestic tenancies then the landlord has to be licensed if he/she does any of the following:

  • arranges a viewing or conducting a viewing with a prospective tenant
  • pulls together evidence to decide on the suitability of a prospective tenant (e.g. taking up references, carrying out a credit check or interviewing a prospective tenant)
  • prepares the tenancy agreement himself/herself or arranges for someone else to do so
  • prepares an inventory/schedule of condition for the property or arranges for someone else to undertake this

If the landlord does not wish to be licensed then he/she must instruct a licensed agent to undertake these activities on their behalf. In the case of preparing/arranging for a tenancy agreement alternatively a qualified solicitor can be instructed to draw up the tenancy agreement. This is all the unlicensed landlord can do so far as this list of prohibited activities is concerned.

Non-compliance is a criminal offence.

When does a landlord need to be licenced to carry out property management activities?

Where the privately rented property is subject to a domestic tenancy then the landlord must be licensed if he/she wishes to carry out management activities in respect of the property; otherwise the landlord must instruct a licensed agent to act on behalf of the landlord. The managing activities which require a licence are:

  • collecting rent
  • being the principal point of contact in relation to matters arising under the tenancy
  • making arrangements for repairs or maintenance to be carried out
  • making arrangements with the tenant (or occupier) to give access to the property for any purpose
  • checking the contents of the property or its condition or arranging for someone else to do so
  • serving notice to terminate the tenancy

Even once the tenancy has come to an end, unless licensed, the landlord must not check the contents of the property or its condition or arrange for anyone else to do so for the purposes of or in connection with the tenancy.

If the landlord is not licensed all he or she can do is arrange for a licensed agent to do these things on the landlord's behalf. In the case of serving notice to terminate a tenancy additionally a qualified solicitor can be instructed by the landlord to act to do so on behalf of the landlord.

Non-compliance is a criminal offence.

What are the exceptions to licensing for landlords?

There are exceptions so that no criminal offence is committed if a landlord is not licensed applies if:

  • the landlord has applied to be licensed and application is still outstanding.
  • the period of 28 days beginning on the date on which the landlord acquires the property. This is to give the landlord time to apply for a licence.
  • take steps to recover possession on the property within 28 days from the date the landlord acquires the property so long as the landlord is pursuing recovery of possession diligently.

Additionally, Welsh Ministers have power to prescribe additional exemptions.

When does an agent need to be licensed?

Anyone acting on behalf of a landlord of a property marketed or offered for let under a domestic tenancy i.e. agents must not carry out lettings work unless the agent is licensed.

For these purposes lettings work is very widely defined and is anything done by someone in response to instructions received from a prospective landlord seeking to find a tenant wishing to rent the dwelling or, once the tenant is found, to grant the tenancy. Likewise, if the agent operates a property finding service for prospective tenants again that agent must be licensed.

Who is exempt for the agent licensing requirement?

There are certain exclusions from the requirement to be licensed to carry out lettings work as an agent:

  • publishing advertisements/disseminating information or providing the means (such as a platform) for landlords/agents to make direct contact with the tenant in response to advertisements or information which is disseminated so long as no other kind of lettings work is performed and the person concerned carries out no property management work in respect of the property
  • arranging or conducting viewings for prospective tenants so long as the person concerned does nothing else in connection with the letting and is not undertaking property management work in connection with the property
  • preparing and arranging for the preparation of a tenancy agreement, again so long as no other lettings work is undertaken and the property is not managed
  • preparing or arranging for the preparation of an inventory/schedule of condition, again so long as nothing else is done in connection with lettings or in relation to the management of the property. This will exclude an inventory clerk from the need for a licence but only if they simply undertake the check in inventory (the check out is management work)
  • anything done by an employee of the landlord (or an apprentice working for the landlord)
  • anything done by an employee (or apprentice) of a licensed agent
  • anything done by a contractor appointed by a licensed agent. This, for example, would cover a self employed contractor such as a workman working on behalf of an agent. NB: There is no similar exclusion for contractors working on behalf of a landlord, whether licensed or not. If that contractor is engaged in lettings work then he/she must be licensed.

Agents are required to be licensed to carry out property management work

A person acting on behalf of a landlord of a property subject to a domestic tenancy must be licensed in order to carry out property management work.

For these purposes property management work means doing any of the following:

  • collecting rent
  • being the principal point of contact for the tenant
  • making arrangements for someone else to carry out repairs or maintenance
  • making arrangements for the tenant (or occupier) to obtain access or for any purpose
  • checking the contents/condition of the dwelling (or making arrangements for this to be done)
  • serving notice to terminate a tenancy

Additionally, if a tenancy has ended, the person acting on behalf of the landlord must not check the contents/condition of the dwelling (or arrange for this to be done) for any purpose connected to the tenancy unless the person concerned is licensed. However, this does not apply if the person acting on behalf of the landlord does not do anything else except preparing (arranging for the preparation of) any inventory/schedule of condition and so long as that person does not undertake any other management work in relation to the property.

Failure to comply is a criminal offence.

Exceptions to the requirement for agents to be licensed to carry out property management work

For these purposes property management work does not include doing any one of the listed items so long as the person concerned does not do any of the other things and has no involvement with the letting of the property.

Additionally, property management work does not include:

  • doing anything as an employee of the landlord (or the landlord's apprentice)
  • doing anything as an employee (or an apprentice) of an agent
  • doing anything as a contractor instructed on behalf of the licensed agent.*

* Again this exception for the contractor does not extend to the landlord (whether licensed or not) but only the contractor working on behalf of the licensed agent.

What are the training requirements in the licence?

All licence applicants will have to undergo training in order to receive a licence. There are two types of training: one for landlords and one for agents. The type of licence the individual is applying for determines the training requirement. However, in those cases where a professional agent is also a landlord managing their own personal property and applies for a landlord licence, the agent training will fill also meet the requirement for the landlord licence.

Letting agencies or other companies applying for a licence must ensure that their employees who perform lettings and/or management work undertake training in order for the company to receive its licence. This is a licence condition for all letting agencies. New staff have 12 weeks from the 1st day of employment to undertake training.

Landlord training is offered by Rent Smart Wales or through approved training providers which include the RLA.

Licence applicants have until the 23 November 2016 to become trained and licensed.

What happens when the landlord appoints and unlicensed agent?

Where a property is marketed, offered for let or actually let, the landlord must not appoint or allow an unlicensed agent to undertake lettings work or management work on behalf of him/her. It is a criminal offence if he/she does so where he/she knows (or should know) that the agent does not hold a licence. Landlords will have to check to make sure that any agent you may appoint is properly licensed. Appointing an unlicensed agent to undertake property management work can trigger a rent stopping order or a rent repayment order as well.

Types of licence

There are two types of licence:

  • A licence for a landlord to carry out lettings activities and property management activities.
  • A licence for an agent to carry out lettings work and property management work.

Applications for licences

Licence application forms have to be made in the required form. Applications can be made online or in paper format. At the moment the Licensing Authority, Rent Smart Wales, is only accepting paper applications, as the functionality for submitting applications online has not been established.

Landlord Licence Applications

In order to submit a valid licence application, landlords must submit the following:

  • Completed application with all required information;
  • Payment of £144 (£186 for paper applications);
  • Evidence of suitable landlord training; and
  • Completed "fit and proper person" declaration.

Agent Licence Applications

In order to submit a valid licence application, agents must submit the following:

  • Completed application with all required information;
  • Payment of the appropriate fee *;
  • Evidence of suitable agent training**; and
  • Completed "fit and proper person" declaration.

* The application fee depends on the number of properties the agent manages, if the agent employs staff, if the application is made online or in paper, and if the agent is a member of a professional organisation like ARLA. Please click here for the schedule of agent licensing fees: Rent Smart Wales Agent Fees.

** If the applicant is an individual or company that employs staff that perform letting and/or management work, then the employees must be declared on the licence application by the applicant, and all those staff engaging in lettings and/or management work must all complete agent training in order for the applicant to obtain a licence.

Fit and proper person requirement

This requirement is very much modelled on the existing requirement under HMO and selective licensing. The licensing authority can consider all appropriate matters. They must consider any evidence regarding the following:

  • Evidence that the applicant has committed any offence involving fraud or any other dishonesty, fines, fire arms or drugs or any sexual offence requiring registration on the sex offenders register.
  • The applicant has practiced unlawful discrimination, harassment or victimised another person.
  • The applicant has contravened any provision of the law relating to housing or landlord or tenant.
  • The evidence shows that any other person associated (or formerly associated) with the applicant has done any of the things set out in the last three bullet points if it appears that the evidence is relevant when considering whether the applicant is a fit and proper person.
  • Evidence to show that the applicant has previously failed to comply with a licence condition.

It is assumed that spent offences will be disregarded.

Issuing the licence

Once it is satisfied as to the requirements the licence must be granted. The licence holder will be assigned a licence number. There will be a maximum period laid down for deciding on the application. If the application is refused then the applicant must be told and given the reasons why, as well as being informed of their appeal rights.

Licence conditions

As well as undertaking training, licence applicants will have to be a 'fit and proper' person, abide by a Code of Practice (see below) and licensing conditions, and supply the necessary information to the 'licensing authority' (including ensuring the details provided remain up to date).

There is no uniform set of licence conditions that will apply to landlords. While some standard conditions, like abiding by the Code of Practice and keeping information current, will apply to all landlords, the Licensing Authority, Rent Smart Wales can and will tailor specific conditions to each landlord. Further, agents will have to follow a separate set of conditions. Landlords and agents may expect to have the following as conditions of their licences:

Landlord expected conditions

  • declared a Fit & Proper Person
  • abide by Code of Practice
  • obtain one day's training
  • follow terms of Rent Smart Wales branding guidelines
  • maintain updated information

Agent expected conditions

  • declared a Fit & Proper Person
  • abide by Code of Practice
  • obtain one day's training
  • have client money protection
  • personal indemnity insurance
  • member of Ombudsman/Redress Scheme
  • follow terms of Rent Smart Wales branding guidelines
  • must agree to NOT take-on unregistered landlords
  • maintain updated information

As a licence condition, agents are advised to NOT take on unregistered landlords. If an unregistered landlord retains the services of an agent, the agent is required to inform the landlord that they have 12 weeks to become registered. If the landlord does not, the agent MUST inform Rent Smart Wales, which will use its enforcement powers to go after the landlord. The agent will have access to the landlord register, which will be publically accessible online, to determine if the landlord has complied. The compliant landlord must furnish their registration number to the managing agent.

NB: Further conditions may be imposed as is appropriate by the licensing authority.

Licence holder's duty to update information

The licence holder must notify the licensing authority in writing within 28 days of a licence holder name change and other changes as prescribed. Failure to update information is a criminal offence.

Amendment of licences

The licensing authority can amend the licence. This can include imposing new conditions as well as changing existing conditions. The requirement to comply with the Code of Practice cannot be altered. Notification must be given of the opportunity to make representations, unless the licence holder consents to the amendment or the licensing authority considers that there are exceptional circumstances which means it needs to be made without delay. The licence holder must be informed of the changes. The changes to the licence do not take effect pending the outcome of any appeal.

Revocation of licences

The licensing authority has power to revoke a licence if:

  • The licence holder has breached a condition of his/her licence.
  • The licensing authority no longer considers that the licence holder is a "fit and proper person."
  • The licence holder has failed to update information.
  • The licence holder and licensing authority agree that the licence should be revoked, e.g. because someone is no longer managing properties.

Prior notification must be given and the opportunity to make representations, unless the licence holder consents or the authority consider that exceptional circumstances exist and it needs to be revoked without delay.

On revocation a licence holder must be told that the revocation has been made.

Revocation does not take effect pending any appeal.

Where an agent's licence is revoked the landlord must be told as must any tenants of a property registered in the landlord's name. Where an agent's licence is revoked this puts the landlord in difficulties because he is potentially instructing an unlicensed agent or may have to carry on management without himself/herself having a licence. The landlord in this situation will have to immediately instruct a licensed agent or apply for a licence himself/herself.

Expiry/renewal of licences

Licences last for five years. They will continue in force provided the licence holder applies for a renewal during the period of 84 days before the date of expiry. If the renewal application is made within this period then the licence continues in force while the application is dealt with by the licensing authority. It then only expires if renewal is refused. Similar requirements apply as for the original application. If renewal is refused then this does not take effect pending any outstanding appeal.

The licence also expires automatically if the licence holder dies or a limited company licence holder is dissolved.

Licensing Appeals

An applicant/licence holder can appeal licensing decisions to the First Tier (Residential Property Tribunal). This includes:

  • refusal of a licence
  • a licence condition (other than to comply with the Code of Practice)
  • amendments to a licence
  • revocation of a licence

An appeal must be made within 28 days of the date of notification of the decision which is being appealed. There is power for the Tribunal to extend this period for good reason.

Joint landlords and Trustees

If trustees are the landlord the trustees can collectively register or licence.

All joint landlords could be licensed. If there are joint landlords it appears that only one need be licensed. Cardiff Council have recently advised that the "lead" landlord, or the landlord who is responsible for overseeing lettings/management work for him/herself and on behalf of others would need to be licensed as an agent because the landlord who acts for all the unlicensed joint landlords would be registered as agent for them.

Limited Companies/Company Officers

A landlord or agent that operates through a limited company must be registered.

A person acting on behalf of a landlord, whether as an individual or for a company, must be licensed as an agent.

Individuals operating on a contract of service for a company, for example an agent formally employed by a professional letting agency, are excluded from the individual licensing requirement, as the employer's licence would cover the employee. The employee is not exempt from the training requirement.

The same licensing exclusion applies to individuals employed by a landlord if there is a contract of service in place establishing an employer-employee relationship between the individual and the landlord. In this scenario, the employee would be covered by the landlord's agent licence.

Directors and secretaries of limited companies that undertake lettings and/or property management activities who are not employees of the limited company are caught by the agent licensing provisions of the Housing Wales Act 2014, and must obtain an agent licence.

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