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tynan
23-01-2009, 12:19 PM
We put the rent up from £500 to £550 (in writing) starting from September. She phoned and said she couldn’t afford it so we agreed £530 over the phone.

Her rent is due 20th of every month but we noticed in December that it hadn’t gone in…………..and, she had not been paying the extra £30 either. I rang her and asked about the rent, she said from now on it’s going to go in the bank a week later (personal reasons) and she is withholding the £30 a month due to damp in the house!!!

We had the roof fixed by someone she recommended 07/01/2008 because of the report of damp (£528.75) my husband went and removed the damp off the walls on the inside and painted. She is now saying it’s come back!!

I phoned her last night and asked her what’s happening and she said her son has asthma and she’s withholding the extra £30 until it’s sorted, I said id send my husband straight round to look at it but she said no he can’t because she is unwell, I said what about the weekend then and she said………..she didn’t know when she would be better.

I lost my patience a bit and told her to forget the telephone conversation where I agreed to drop from £550 to £530………that’s where we are up to, don’t know what to do next!.......she is studying law at university!!:mad:

Poppy
23-01-2009, 18:14 PM
Be honest with yourself, do you think you can quickly re-let the property at the higher rate?

If you think you can achieve the higher rent with new tenants, then I suggest it is time to consider initiating possession proceedings.

Please share the following information with the members:

What is the commencement date of the current tenancy agreement?
What is the end date or length of term of the current tenancy agreement?
Was a deposit taken?
If a deposit was taken and the current tenancy agreement started on or after 6 April 2007, is it protected in a scheme?

Depending on the answers, I'm sure we'll have suggestions for you.

johnboy
25-01-2009, 12:08 PM
The rent increase should have been done by a section 13 notice

jta
25-01-2009, 12:20 PM
The rent increase should have been done by a section 13 notice

That may be, but the OP said they had mutually agreed to 530 and then reneged.

OP. Consider issuing a S21, and if the money owing is sufficient, a S8 as well on g.8,10,11. At least you will be showing her you mean business. If she has any sense and wants to stay she will get her act together.

If you search the site for S21 (sword of damocles) and S8 you will find all the info. you need.

jeffrey
25-01-2009, 14:22 PM
That may be, but the OP said they had mutually agreed to 530 and then reneged.
I don't agree. T's "agreement" is unsupported by contractual consideration- so, in absence of s.13 Notice, it's not binding on T.

Preston
25-01-2009, 16:09 PM
T's "agreement" is unsupported by contractual consideration- so, in absence of s.13 Notice, it's not binding on T.

Hi

I agree. In the absence of a (clear) clause in the tenancy agreement dealing with rent increases, or a section 13 notice, the increase is not enforceable. This became a big issue a few years ago for a while and courts routinely threw out increases with missing or defective section 13s.

What I mean by clear is that the clause must be capable of objective interpretation. For example, a clause saying "your rent will increase on April 1by a reasonable amount" is not enforceable. One saying that "your rent will increase on April 1 by the RPI index from the January preceding the increase" is.

Preston

PaulF
25-01-2009, 16:24 PM
You only need a clause referring to the L's ability to implement an annual rent review to be valid and obviate the necessity of a S.13 Notice; there's no need to specify the amount of any increase as it's market rent that should determine the amount, not RPI as that could decrease in the current financial situation, and a L wouldn't want that would he?

mind the gap
25-01-2009, 16:34 PM
You only need a clause referring to the L's ability to implement an annual rent review to be valid and obviate the necessity of a S.13 Notice; there's no need to specify the amount of any increase as it's market rent that should determine the amount, not RPI as that could decrease in the current financial situation, and a L wouldn't want that would he?

But surely any such clause must state objectively either the likely/maxium percentage increase, or the likely/maxium amount of the increase?

It can't just say 'L reserves the right to put the rent up every year', can it?

(Which is what you appear to be suggesting).

Or do you mean that the L can include a clause which says they have the right to 'review' the rent? Doesn't review mean increase, for all practical purposes? If not, there's not much point to the clause, is there.

PaulF
25-01-2009, 16:38 PM
It can't just say 'L reserves the right to put the rent up every year', can it?

(Which is what you appear to be suggesting).

Or do you mean that the L can include a clause which says they have the right to 'review' the rent? Doesn't review mean increase, for all practical purposes? If not, there's not much point to the clause, is there.There's nothing to stop the L increasing the rent to what they think they can get every 53rd week. If tenant disagrees tenant can vacate (serve Notice) or refer to a Rent Assessment Committee. The L is likely to be the loser if they ask more than the market can stand. The L must give reasonable notice if S.13 is not used.

mind the gap
25-01-2009, 16:41 PM
There's nothing to stop the L increasing the rent to what they think they can get every 53rd week. If tenant disagrees tenant can vacate (serve Notice) or refer to a Rent Assessment Committee. The L is likely to be the loser if they ask more than the market can stand. The L must give reasonable notice if S.13 is not used.

I agree, but that wasn't the point. Unless T is psychic, he will need to be told at some point how much the proposed increase is, so that he may decide whether he wants to stay or go. In the absence of a s13 notice, how else is he to know? I presume you mean that he can be told informally before the year ends? It wasn't very clear.

jeffrey
25-01-2009, 16:46 PM
The s.13 procedure applies unless the Agreement itself contains an enforceable increase procedure- see underlined wording below.

Increases of rent under assured periodic tenancies.

(1) This section applies to:
(a) a statutory periodic tenancy other than one which, by virtue of paragraph 11 or paragraph 12 in Part I of Schedule 1 to this Act, cannot for the time being be an assured tenancy; and
(b) any other periodic tenancy which is an assured tenancy, other than one in relation to which there is a provision, for the time being binding on the tenant, under which the rent for a particular period of the tenancy will or may be greater than the rent for an earlier period.



(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:
(i) in the case of an assured agricultural occupancy, the first anniversary of the date on which the first period of the tenancy began;
(ii) in any other case, on the date that falls 52 weeks after 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:
(i) in the case of an assured agricultural occupancy, the first anniversary of the date on which the increased rent took effect;
(ii) in any other case, the appropriate date.


(3) The minimum period referred to in subsection (2) above is:
(a) in the case of a yearly tenancy, six months;
(b) in the case of a tenancy where the period is less than a month, one month; and
(c) in any other case, a period equal to the period of the tenancy.

lawstudent
04-04-2009, 08:04 AM
A S.13 notice has to be 'in the prescribed form', but what is the prescribed form and where is it prescribed?

jeffrey
05-04-2009, 19:50 PM
A S.13 notice has to be 'in the prescribed form', but what is the prescribed form and where is it prescribed?
See:
a. SI 1997 no. 194; and
b. SI 2003 no. 260 (or no. 307 if in Welsh).
To read just about any Statutory Instrument, use http://www.opsi.gov.uk/stat.htm.

lawstudent
06-04-2009, 07:16 AM
Thanks again Jeffrey - the second of these SIs seems apposite, but not the first. I understand that a S13 notice is not compulsory since a new rent can be agreed amicably and informally.

Two further questions arise:

1. Suppose one tenant in a joint tenancy with others accepts a proposed rent increase (not in the prescribed form) but the others do not. Since there is joint and several liability does the one who accepts effectively accept on behalf of them all?

2. Does a Rent Assessment Committee have authority to determine a rent if the S13 notice proposing the rent increase has been defectively completed?

jeffrey
06-04-2009, 09:45 AM
1. Suppose one tenant in a joint tenancy with others accepts a proposed rent increase (not in the prescribed form) but the others do not. Since there is joint and several liability does the one who accepts effectively accept on behalf of them all?

2. Does a Rent Assessment Committee have authority to determine a rent if the S13 notice proposing the rent increase has been defectively completed?
1. No. If T1 is acting informally, others (T2 etc.) are not bound.
2. If the Notice is defective, it's not valid of course. Subject to that, see s.14 for T's right to refer the Notice to RAC.

[B]14. Determination of rent by rent assessment committee.
(1) Where, under subsection (4)(a) of section 13 above, a tenant refers to a rent assessment committee a notice under
subsection (2) of that section, the committee shall determine the rent at which, subject to subsections (2) and (4) below, the committee consider that the dwelling-house concerned might reasonably be expected to be let in the open market by a willing landlord under an assured tenancy:
(a) which is a periodic tenancy having the same periods as those of the tenancy to which the notice relates;
(b) which begins at the beginning of the new period specified in the notice;
(c) the terms of which (other than relating to the amount of the rent) are the same as those of the tenancy to which the notice relates; and
(d) in respect of which the same notices, if any, have been given under any of Grounds 1 to 5 of Schedule 2 to this Act, as have been given (or have effect as if given) in relation to the tenancy to which the notice relates....

simons03
06-04-2009, 10:13 AM
Going back to the points made about reasonable notice on a rent increase - I found myself in a related situation (as a tenant).

NOTE: This isn't directly trying to address the OP's case - I just thought I'd share for anyone reading who might find it interesting, as it's on the topic of clauses/notice to increase rent.


The contract had a clause stating that the LL could increase the rent on any anniversary of the AST (1st April). No specifics of by how much.

However, it also stated that the tenant could only give notice ahead of any anniversary of the AST. (in this case, two months notice, so by Feb 1st).


Both seem reasonable clauses in their own right.

However, one year the rent was increased, and written notice of this given just a week before it came into affect (late March). This wasn't by S13, but that wasn't necessary as the clause is stated in contract.

I was forced to accept it, as the window for me to give notice was already well past. Increase was around 7%, so not unreasonable, but not insignificant.

I could have argued the case - but actually didn't want to leave or cause a rift in LL relationship for the sake of this.

However, on retrospect, I wouldn't sign the same contract again, unless an equivalent notice was stipulated for the rent increase, to allow tenant to give notice if increase is not acceptable.

lawstudent
07-04-2009, 06:53 AM
Thanks again Jeffrey. In the case of an AST I suppose there is nothing to stop a LL who dislikes the outcome of a reference to the RAC issuing an S21 and finding new tenants who will not be subject to the RAC decision (which I assume only applies to the tenancy, not to the property)