Model clauses: Wales harmonises with England
On 1st November 2019 a new set of model repairing and insuring clauses will come into force in Wales and apply automatically to many of the Welsh tenancies governed by the Agricultural Holdings Act 1986 ("AHA 1986"). Depending on the wording of the relevant tenancy agreements they may also apply to some farm business tenancies (“FBTs”) in Wales.
The coming into force of the Agriculture (Model Clauses for Fixed Equipment) (Wales) Regulations 2019 (WSI 2019/1279 (w.223)) will bring Wales more or less back into line with England, which introduced new regulations in 2015. We highlight how the changes affect Welsh tenancies and the differences between the English and Welsh provisions.
Which Welsh tenancies will be affected?
The new Welsh model clauses are likely to apply automatically to tenancies governed by the AHA 1986, unless the relevant written tenancy agreement contains alternative repairing obligations. For items not covered by the old regulations or by the written tenancy agreement, the new regulations should apply.
For farm business tenancies, the position is slightly more complicated, as the new model clauses will only apply if the written tenancy agreement specifically refers to the new regulations or, for existing tenancies, provides for the new regulations to supercede the ones current at the start of the FBT. In the case of existing FBTs which incorporate the 1973 regulations, care will need to be taken to check whether the small print in the tenancy agreement, which applies to update all statutory references, applies to update the 1973 obligations to the new 2019 ones automatically.
What the changes mean for Welsh tenancies
The new Welsh model clauses make some significant changes for Welsh tenancies including:
- The list of items falling within the landlord obligations has been extended and includes items such as the electrical supply system
- The list of items for the tenant to repair and replace has also been extended to cover a number of new items, including fixed equipment generating electricity heat or power , vehicle fuel and oil tanks, signs and notices, livestock handling systems and sheep dips and insulation on water pipes
- The circumstances in which the tenant may execute repairs or replacements, which are the landlord’s liability, has been extended so that the tenant may repair fire and carbon monoxide detectors and underground water pipes, without notice served on the landlord
- Roofs – the limit on the tenant’s contribution to broken/cracked/slipped tiles or slates is increased to £500 each year
- Dispute resolution – third party determination is included as an alternative to arbitration
- Reed beds for water and sewerage treatment and slurry, silage and other effluent systems (excluding anaerobic digesters) – these new items are split so the landlord must repair and replace, whilst the tenant must keep reed beds clear, slurry systems clean and free of blockages and silage and effluent systems clean and in good working order. Tenants must also repair and replace all removable covers to manholes, inspection chambers, sewage disposal systems and slurry, silage and other effluent systems.
Differences between English and Welsh model clauses
The new Welsh model clauses are almost identical to the 2015 English model clauses. There are one or two differences, including the following principal ones:
- Fitted kitchens – in Wales these are expressly included within the tenant’s obligations. In England these are not expressly mentioned, so will only be included if falling within the description of “fixtures and fittings”
- Slurry systems – in Wales, tenants are expressly obliged to keep these clean and free of blockage, whereas in England, tenants have the more onerous requirement to keep them clean and in good working order
- Reed beds – in Wales, tenants must keep these clear, whereas in England tenants must keep them clear and in good working order
One month opportunity to challenge disrepair for liability changes
The new Welsh regulations provide a brief one month period for landlords or tenants to refer to arbitration or third party determination any claim that the other party has not fully discharged the prior maintenance duties for an item, whose liability has been transferred between the parties under the new regulations. As the new regulations come into force on 1st November 2019, this period is effectively during the month of November 2019. After the end of November no further challenge will be permitted.
Urgent action for landlords and tenants
In view of this time limit on bringing disrepair claims landlords and tenants alike should check urgently whether the new Welsh model clauses apply to their tenancies. If they do, then for any item, for which the responsibility has transferred, they should then check whether the other party has complied with their obligations to date and if they have not, should start a claim before the end of November 2019.