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View Full Version : Inherited let property but no compliance with s.13 procedure



Iron Mike
14-12-2005, 21:06 PM
I need some advice i inherited a property in 2003 with a tenant who moved in May 94 and who has always claimed housing benefit. the tenant has claimed she has never signed a contract and no contract can be found.

Each year when housing benefit had to be reapplied for, the rent was increased and checked with rental assessment comittee (by DSS) as to ensure that the rent was fair.
Each year it was confirmed as being fair DSS paid the new amount direct to the tenant then was passed to the landlord no s.13 notice was ever issued as previous landlord had always insisted that the tenancy was AST.

Housing benefits are no longer paying rent current arrears are £2000 as tenant is on a college course i am going through the slow arduos court process and have been told by her solicitor that the arrears are not due because the s.13 notices were not issued.

Is this correct even though the rent office has confirmed the rent as being fair

MrShed
14-12-2005, 21:43 PM
Please don't take this as definite, it is just me hazarding a guess. But I suspect that their solicitor is actually correct...I don't think a rent increase can stand up under legal challenge unless backed by a S13. However, I am not sure whether this situation would change with there being apparently no original contract.

P.Pilcher
14-12-2005, 23:55 PM
And I would hazard a guess the other way: The section 13 notice is to advise the tenant of a rent increase and what to do if the tenant does not agree that it is fair. If the rent is paid then the tenant has accepted it - particularly as it went through the fair rent process anyway. Clearly the opinion of a solicitor is needed and PainSmith are an organisation advertising here who have the necesary knowledge to authoritatively advise.

P.P.

mjpl
15-12-2005, 11:08 AM
Failure to serve a section 13 notice will mean that the tenant can claim all of monies paid in excess of the original rent back! unless, the tenancy has repeatedly been renewed on a fixed term basis with the rent specified.

In this case there is no agreement and I personally believe that the tenant's solicitor is spot on.

(Unless you can get a copy of the original agreement and there is an increase clause covering all renewals)

MrShed
15-12-2005, 12:11 PM
In light of mjpl's confirmation of what I thought, you should seriously consider your position with regards these arrears....as instead of getting back £2000, you could lose an awful lot more if they push for reclaiming the invalid rent increases. Of course, your problem now with pushing the matter even thus far, is that now the tenant realises that the rent increases are invalid, he may decide to attempt to reclaim the money anyway.

PaulF
15-12-2005, 13:40 PM
Mmmm..................

If there is no evidence of a written tenancy agreement or any other documents the tenancy is an Assured Tenancy (no evidence of a S.20 Notice having been served to have made it an AST).
Failure to serve a S.13 Notice would probably invalidate any rent increases imposed upon the tenant, BUT
I doubt if the Rent Assessment Committee would fix a market rent (not a fair rent as is doesn't apply here) if there was no evidence that the landlord had adopted the correct prcedure.
The landlord would need to show evidence of occupation by the tenant from May 1994 in order to possibly prove it isn't a tenancy under the Rent Act 1977 and therefore subject to "fair rent" and wonder if this is the case.
Are there any family members who might be able to shed some light on this?
I must check up on the S.13 Notice concerning if the landlord might be able to still use the S.8 Notice as that's all about there is available to him. I though S.13 only applied to rent increases, not the ability to repossess on arrears gorunds. I know lack of a written tenancy agreement rather inhibits all this.

Iron Mike
15-12-2005, 18:47 PM
Are there any family members who might be able to shed some light on this?
Yes former landlords wife insists that before tenant moved in he was issued with s.20 notice and that it is an AST and rent increase were mutually agreed

I Contacted the rent assesment comittee today for there opinion they said and i've checked that if the tenancy is an assured periodic then the landlord may and increase the rent once a year

(2) For the purpose of securing an increase in the rent under a tenancy to which this section applies, the landlord may serve on the tenant a notice in the prescribed form proposing a new rent to take effect at the beginning of a new period of the tenancy specified in the notice, being a period beginning not earlier than -

(a) the minimum period after the date of the service of the notice; and

(b) except in the case of a statutory periodic tenancy, the first anniversary of the date on which the first period of the tenancy began; and

(c) if the rent under the tenancy has previously been increased by virtue of a notice under this subsection or a determination under section 14 below, the first anniversary of the date on which the increased rent took effect

The rent assesment guy says the key word is MAY and not must and by virtue of the fact that the tenant went back to the DSS and asked for further help with increased rent which was confirmed as fair he agreed to the increase

One further point is that when i took over the first thing i did was ask the tenant to sign a new AST with me as LL which he duly did but i'm now being told that this is irrelevant

I appreciate all posts and thank you for your assistance

lucid
15-12-2005, 22:42 PM
As Paul said if the tenant first moved in before January 1989 then they are fully regulated under the Rent Act 1977. If after and you have no agreement or notice is it likely they will be classed as fully assured tenants due to your posted occupation date. It is doubtful that word of mouth would be enough to say that they are under an AST in court if it came to that.

The tenant would now therefore be a statutory periodic tenant and have full security of tenure.

Download pdf info leaflet here:
http://www.odpm.gov.uk/embedded_object.asp?id=1151919

From ODPm site:



When a fixed term tenancy ends and the tenancy lapses into a statutory periodic tenancy, the landlord can put the rent up if you agree. Alternatively he or she can use the formal procedure in the Housing Act 1988 to propose a rent increase to be payable as soon as the statutory tenancy starts. The landlord can then propose further increases at yearly intervals after the first increase.

7.4 What is the formal procedure for proposing a rent increase for contractual or statutory periodic tenancies where this is not covered in the tenancy agreement?

The landlord must propose the rent increase on one of two special forms called "Landlord's notice proposing a new rent under an Assured Periodic Tenancy of premises situated in England" or "Landlord's notice proposing a new rent under an Assured Periodic Tenancy of premises situated in Wales". The forms can be used for assured or assured shorthold tenancies.

He or she must give at least a month's notice of the proposed increase if the rent is paid on a weekly or monthly basis (more if the rent period is longer). More details are in Appendix E.

7.5 What should I do if I get formal notice of a rent increase?

If you accept the rent increase, you should simply pay it from the date given in the notice.

If you do not agree with the increase, you must apply to a rent assessment committee to decide what the rent should be. You must apply on a special form called "Application referring a Notice proposing a new rent under an Assured Periodic Tenancy or Agricultural Occupancy to a Rent Assessment Committee", available from law stationers or rent assessment panels (see Appendix D). (This form must also be used if the tenancy is a shorthold tenancy). The committee must receive the application before the date on which the new rent would be due.

7.6 What is a rent assessment committee?

Rent assessment committees are made up of 2 or 3 people - usually a lawyer, a property valuer and a lay person. They are drawn from rent assessment panels - bodies of people with appropriate expertise appointed by Government Ministers. There are 6 rent assessment panels in England and Wales. Their addresses are given in Appendix D. The committees are independent of both central and local government. There is no appeal against a committee's decision except on a point of law.

The committee may make a decision by considering the relevant papers although you or the landlord can ask for an informal hearing, which you may both attend. There is no charge for a committee decision.

7.7 When can I apply to a rent assessment committee for a decision on the rent?

If you are an assured or a shorthold tenant, you can ask a committee to set a rent under a contractual periodic or statutory periodic tenancy if you have been given notice by the landlord of a rent increase (see section 7.4).

If you are a shorthold tenant, you can ask a committee to set a rent at the beginning of a shorthold tenancy if you consider the rent to be significantly higher than rents for comparable tenancies (see section 7.10).

7.8 How does the rent assessment committee decide on a rent for a contractual periodic or statutory periodic tenancy?

When settling disputes on rent, the committee decides what rent the landlord could reasonably expect for the property if he or she was letting it on the open market under a new tenancy on the same terms. It does not take into account any increase in the value of the property due to voluntary improvements by you. The committee may agree the proposed rent or set a higher or lower rent.

The rent fixed by the committee is the legal maximum the landlord can charge. The new rent will be payable from the date specified in the landlord's notice unless the committee considers this would cause you undue hardship in which case it may specify a later date.

7.9 Can the landlord propose a further rent increase after the committee has made a decision?

The landlord can propose that the rent is increased a year after the date on which the rent decided by the committee was payable (but see Appendix E), unless you agree that he or she can put it up earlier. You must apply to a rent assessment committee to decide what the rent should be if you do not agree with the proposed increase. In addition it is most likely that the AST signed by the tenant is worthless and irrelevant.