Tribunal Sets Fair Rent for Protected Tenancy

OUTCOME: Allowed

First-tier Tribunal – Property Chamber File Ref No. LON/00BK/F77/2023/0269

Notice of the Tribunal Decision

Rent Act 1977 Schedule 11

Address of Premises The Tribunal members were 2nd [ADDRESS], [POSTCODE]

[NAME] Mr [APPELLANT] [NAME] [APPELLANT]

Tenant [NAME] [APPELLANT]

1. The fair rent is £272.78 Per week (excluding water rates and council tax but including any amounts in paras 3&4)

2. The effective date is 2nd February 2024

3. The amount for services is £23.67 Per week

negligible/not applicable

4. The amount for fuel charges (excluding heating and lighting of common parts) not counting for rent allowance is

n/a Per n/a

negligible/not applicable

5. The rent is not to be registered as variable.

6. The capping provisions of the Rent Acts (Maximum Fair Rent) Order 1999 apply (please see calculation overleaf).

7. Details (other than rent) where different from Rent Register entry

8. For information only:

(a) The fair rent to be registered is not limited by the Rent Acts (Maximum Fair Rent) Order 1999, because it is the same as/below the maximum fair rent of £ 307.17 per week including £ 23.67 per week for services (variable) prescribed by the Order.

[NAME] of decision 2nd February 2024

MAXIMUM FAIR RENT CALCULATION

LATEST RPI FIGURE X 379.00

PREVIOUS RPI FIGURE Y 293.50

X 379.00 Minus Y 293.50 = (A) 85.50

(A) 85.50 Divided by Y 293.50 = (B) 0.2913

First application for re-registration since 1 February 1999 YES/NO

If yes (B) plus 1.075 = (C)

If no (B) plus 1.05 = (C) 1.3413

Last registered rent* £211.00 per week Multiplied by (C) = £283.01 per week *(exclusive of any variable service charge)

Rounded up to nearest 50p = £283.50 per week

Variable service charge YES If YES add amount for services £23.67 per week

MAXIMUM FAIR RENT = £307.17 Per week

Explanatory Note

1. The calculation of the maximum fair rent, in accordance with the formula contained in the Order, is set out above.

2. In summary, the formula provides for the maximum fair rent to be calculated by:

(a) increasing the previous registered rent by the percentage change in the retail price index (the RPI) since the date of that earlier registration and

(b) adding a further 7.5% (if the present application was the first since 1 February 1999) or 5% (if it is a second or subsequent application since that date).

A 7.5% increase is represented, in the calculation set out above, by the addition of 1.075 to (B) and an increase of 5% is represented by the addition of 1.05 to (B).

The result is rounded up to the nearest 50 pence.

3. For the purposes of the calculation the latest RPI figure (x) is that published in the calendar month immediately before the month in which the Tribunal’s fair rent determination was made.

4. The process differs where the tenancy agreement contains a variable service charge and the rent is to be registered as variable under section 71(4) of the Rent Act 1977. In such a case the

variable service charge is removed before applying the formula. When the amount determined by the application of the formula is ascertained the service charge is then added to that sum in order to produce the maximum fair rent.

Case Reference

: LON/OOBK/F77/2023/90269 Property : 2nd [ADDRESS] [POSTCODE] Tenant

: [NAME] [APPELLANT] Landlord : [NAME] [RESPONDENT] of Application. : Determination of a Fair Rent under section 70 of the Rent Act 1977

Tribunal

: Mr [NAME] (Hons) MA LLM

FRICS Mr [NAME] JP

HMCTS Code

: Inspection followed by determination on

papers

Date of Decision : 2nd February 2024

Date of Statement of Reasons: 2nd February 2024 _______________________________________________

Statement of Reasons

____________________________________

© CROWN COPYRIGHT 2024 FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Decision 1. The decision of the tribunal is that a fair rent of £272.78 per week inclusive of £23.67 per week of services, is determined with an effective date of 2nd February 2024. Background 2. An application was made to re-register a fair rent, dated 6th June 2023, by the landlord of the property [RESPONDENT]. Prior to the application to re- register a fair rent, the Rent Officer had registered a rent of £211.00 per week with £22.96 per week for services, included in afore going rent, with effect from 23rd November 2020.

3. Subsequently the Rent Officer registered a fair rent of £280.00 per week with £23.67 per week included in the foregoing rent, attributed to services with effect from 2nd February 2024.

4. In a letter undated the tenant objected to the rent registered and the matter was referred to the First –tier Tribunal (Property Chamber) (Residential Property).

5. Directions were issued by the Tribunal on the 21st September 2023. Thereafter, the Directions made provision for the filing with the Tribunal of the parties’ respective written submissions and, in particular, for the completion of a reply form giving details of the Property and including any further comments the parties wished the Tribunal to take into account in making its determination. The tenancy is a statutory (protected) periodic tenancy. The tenancy (not being for a fixed tenancy of 7 years or more) is subject to section 11 of the Landlord and Tenant Act 1985 which sets out the landlords statutory repairing obligations; the tenant is responsible for internal decorations.

The Property 6. The property is a second floor, self-contained converted flat, full central heating, three rooms, one kitchen and a bath/WC.

The Inspection 7. The tribunal inspected the property on 2nd February 2024, the flat is contained within a late Victorian converted mid-terrace house. Access to the flat is via a communal ground floor entrance with remote entry intercom. The communal parts are tidy, and the subject flat is reached from a communal passage on the first floor. The entrance door to the flat opens onto a set of state that leads to the second floor.

8. At the top of the stairs at the rear of the building is a bedroom with sash window. The flooring, laminate, is installed by the tenant and there is a single double electrical socket. The window is single glazed rotten in places and draughty. There is a radiator.

9. The kitchen contains a new boiler installed by the landlord. The piping for which runs at ceiling height. These carry hot and cold water; condensation sometimes gathers on the pipes and drips into the kitchen. The base units are provided by the landlord but the cupboards by the tenant as with the white goods. The oven is provided by the landlord and is in poor condition. The flooring to the kitchen is plastic tiles and has disintegrated.

10. The bathroom has a bath, WC and basin. The bathroom has a defective extractor fan, 11. The second bedroom room contains a radiator and electrical socket. Laminate, flooring provided by the tenant.

12. The living room faces the front of the house and has electrical sockets and laminate flooring provided by the tenant. The windows are very rotten with one the glass is poorly secured. Relevant Law 13. Provisions in respect of the jurisdiction of the Tribunal and the determination of a fair rent are found in Schedule 11, Part 1, paragraph 9(1) to the Rent Act 1977, as amended by paragraph 34 of the Transfer of Tribunal Functions Order 2013, and section 70 of the Rent Act 1977. Rent Act 1977

Schedule 11, Part 1, paragraph 9 (as amended) “Outcome of determination of fair rent by appropriate tribunal 9. (1) The appropriate tribunal shall- (a) if it appears to them that the rent registered or confirmed by the rent officer is a fair rent, confirm that rent; (b) if it does not appear to them that that rent is a fair rent, determine a fair rent for the dwelling house.” Section 70: Determination of fair rent (as amended) “(1) In determining, for the purposes of the Part of this Act, what rent is or would be a fair rent under a regulated tenancy of a dwelling house, regard shall be had to all the circumstances (other than personal circumstances) and in particular to- (a) the age, character, locality and state of repair of the dwelling-house, … (b) if any furniture is provided for the use under the tenancy, the quantity, quality and condition of the furniture [, and (c) any premium, or sum in the nature of a premium, which has been or may be lawfully required or received on the grant, renewal, continuance or assignment of the tenancy.] (2) For the purposes of the determination it shall be assumed that the number of persons seeking to become tenants of similar dwelling-houses in locality on the terms (other than those relating to rent) of the regulated tenancy is not substantially greater than the number of such dwelling-houses in the locality which are available for letting on such terms. (3) There shall be disregarded- (a) any disrepair or other defect attributable to a failure by the tenant under the regulated tenancy or any [NAME] to comply with any terms thereof; (b) any improvement carried out, otherwise than in pursuance of the terms of the tenancy, by the tenant under the regulated tenancy or any [NAME];

(c), (d) …[repealed] (e) if any furniture is provided for use under the regulated tenancy, any improvement to the furniture by the tenant under the regulated tenancy or any [NAME] of his or, as the case may be, any deterioration in the condition of the furniture due to any ill-treatment by the tenant, any person residing or lodging with him, or any sub-tenant of his.”

14. Consequently, when determining a fair rent the Tribunal, in accordance with the Rent Act 1977, section 70, has regard to all the circumstances including the age, location and state of repair of the Property. It also disregards the effect of (a) any relevant Tenant’s improvements and (b) the effect of any disrepair or defect attributed to the Tenant of any [NAME] in [NAME] under the regulated tenancy, on the rental value of the Property. In [COMPANY] v Chairman of the Greater Manchester etc. Committee (1995) 28 HLR 107 and [NAME] v [NAME] [1999] QB 92 the Court of Appeal emphasised: (a) that ordinarily a fair rent is the market rent for the property discounted for “scarcity” (i.e. that element, if any, of the market rent, that is attributable to there being a significant shortage of similar properties in the wider locality available for letting on terms- other than as to rent- to that of the regulated tenancy) and (b) that for the purposes of determining the market rent, assured tenancy (market rents) are usually appropriate comparables. (The rents may have to be adjusted where necessary to reflect any differences between the comparables and the subject property).

15. In considering scarcity under section 70 (2), the Tribunal recognises that: (a) there are considerable variations in the level of a scarcity in different parts of the country and that there is no general guidance or “rule of thumb” to indicate what adjustments should be made; the Tribunal, therefore, considers the case on its merits;

(b) terms relating to rents are to be excluded. A lack of demand at a particular rent is not necessarily evidence of scarcity; it may be evidence that the prospective tenants are not prepared to pay that particular rent. Fair rents are subject to a capping procedure under the Rent Acts (Maximum Fair Rent) Order 1999 which limits increases by a formula based on the proportional increase in the Retail Price Index since last registration. The only exception to this restriction on a fair rent is provided under paragraph 7 of the Order where a landlord carries out repairs or improvements which increase the rent by 15% or more of the previous registered rent.

Submissions Landlord 16. No submissions from the landlord were received, other than the objection to the rent registered Tenant 17. The objection noted; “1. The property has not been maintained internally and is in a terrible state of disrepair due to natural wear and tear over the course of the last 34 years. The landlord does not maintain any internal decor with flooring disintegrating as well a tiles, bath panels and entire kitchen damp patches carrying through. Original sash single glazed window one filled or cracked and the frame which causes terrible draughts and no 2. Please clarify which services £23.67 per week is for as the communal area is not. I clean it myself.

3. The increase of £65 per week is not affordable for me. Photographs are also included showing flooring and internal decoration. Additionally, the tenant completed a Reply Form. It is noted that the landlord provided the central heating, with a new boiler installed 2016/7, while the tenants supplied white goods.

Under the section titled “Disrepair” Original single glazed sash windows is terrible disrepair causing drafts and noise issues. Picture 1 – living room window that doesn't close Picture 2-living room window that doesn't open Picture 3-living room window glass no longer attached to frame Picture 4 – Bedroom 1 window cracking in frame causing defects Large cracks in walls and ceiling -exposed pipes in kitchen causes condensation and dripping in winter plus hole in ceiling that I’ve covered with tape. Kitchen counters and cupboards falling apart Bath panels and bathroom fixing have water damage Damp and crumbling paint in bedroom 2 All doors and doors frames cracked and worn

The Determination 18. The property was inspected on 2nd February 2024.

Reasons for Decision 19. The rent to be determined must reflect the condition found on the date of the hearing disregarding all tenants' improvements.

20. The process for determining a fair rent is the application of Rent Act 1977 section 70 on the subject property and then comparison with the maximum rent permitted under the Maximum Fair Rent Order 1999. This means that comparison with other properties the subject of Fair Rent is not material.

21. Initially the Tribunal determined what rent the Landlord could reasonably be expected to obtain for the Property in the open market if it were let today in the condition that is considered usual for such an open market letting. Considering

evidence submitted and the Tribunal acting in its capacity as an expert tribunal and using its general knowledge of market levels in the area, concluded that the rent was £485.00 per week if let on a contemporary assured shorthold basis.

22. The Property is not in the condition considered usual for a modern letting at a market rent, therefore, it is necessary to adjust the above hypothetical rent, a deduction of 25% is made. In addition, the Tribunal determined that there should be a further deduction of 10% to reflect the fact the terms and conditions and goods supplied under the tenancy would differ from those of a contemporary assured shorthold tenancy, from which the rental comparables are derived. Thereafter the Tribunal considered the question of scarcity in section 70 (2) of the Rent Act 1977. A figure of 20% was adopted. The calculation 23. The rent of £485.00 per week is on the basis of an assured shorthold tenancy where the tenant would not be responsible for the service charge. The protected tenant is in this case liable for the service charge of £ 23.67 per week. Prior therefore to any adjustments for condition, tenancy terms and scarcity a deduction of the service charge is made giving £461.33.

24. The rent prior to adjustment for condition, terms and scarcity, but adjusted for service charge is: £461.33 per week Less 25% condition £115.33 per week

----------------------

£345.99 per week

---------------------- Less 10% for terms and supplied goods inc white goods

£34.60 per week

----------------------

£311. 39 per week Less 20% for scarcity £62.28 per week

----------------------

£249.11 per week

25. The rent after this final adjustment was £249.11 per week. Add back the weekly service charge £23.67 per week, giving £272.78 per week including service charge. Rent Acts (Maximum Fair Rent) Order 1999 26. The rent to be registered is not limited by the Rent Acts (Maximum Fair Rent Order) 1999. The rent calculated in accordance with the Order is £283.50 per week with £23.67 per week included within it attributable for services. This figure is higher than the figure calculated by reference to the market rent with adjustments, of £272.78 per week with £23.67 per week attributed for services.

27.

Accordingly, the sum of £272.78 per week including a service charge of £23.67 per week will be registered as the fair rent with effect from 2nd February 2024, being the date of the Tribunal’s decision.

Valuer Chair: [NAME] [NAME] JP

Decision Date: 2nd February 2024 Extended reasons: 2nd February 2024 Appeal to the Upper Tribunal A person wishing to appeal this decision to the Upper Tribunal (Property Chamber) on a point of law must seek permission to do so by making a written application to the First-tier Tribunal at the Regional Office which has been dealing with the case which application must: a. be received by the said office within 28 days after the Tribunal sends to the person making the application written reasons for the decision. b. identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.

If the application is not received within the 28–day time limit, it must include a request for an extension of time and the reason for it not complying with the 28-day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.