Tribunal Sets Fair Rent for Protected Tenancy

OUTCOME: Allowed

First-tier Tribunal – Property Chamber File Ref No. LON/00AY/F77/2022/0170

Notice of the Tribunal Decision

Rent Act 1977 Schedule 11

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

[NAME]

[COMPANY]

Tenant Miss [APPELLANT] [NAME]

1. The fair rent is £249.00 Per week (excluding water rates and council tax but including any amounts in paras 3&4)

2. The effective date is 20th April 2023

3. The amount for services is n/a Per

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

negligible/not applicable

5. The rent is/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)/ do not apply because 1st registration/15% exemption.

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

n/a

8. For information only:

(a) The fair rent to be registered is the maximum fair rent as prescribed by the Rent Acts (Maximum Fair Rent) Order 1999. The rent that would otherwise have been registered was £299.00 per week

Chairman R [NAME] of decision 20th April 2023

MAXIMUM FAIR RENT CALCULATION

LATEST RPI FIGURE X 364.5

PREVIOUS RPI FIGURE Y 293.3

X 364.5 Minus Y 293.3 = (A) 71.2

(A) 71.2 Divided by Y 293.3 = (B) 0.242754

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) 1.292754

Last registered rent* £192.50 Multiplied by (C) = £248.85 *(exclusive of any variable service charge)

Rounded up to nearest 50p = £249.00

Variable service charge YES / NO If YES add amount for services n/a

MAXIMUM FAIR RENT = £249.00 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/OOAY/F77/2022/0170

Property : [ADDRESS] [POSTCODE]

Tenant

: Miss [APPELLANT]

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

Tribunal

: Mr [NAME] [NAME] : [ADDRESS] (paper, video, audio)

Date of Decision : 20th April 2023

Date of Statement of Reasons: 20th April 2023

_______________________________________________

Statement of Reasons

____________________________________

© CROWN COPYRIGHT 2023

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Background The Tribunal gave formal notice of its decision by a Notice dated 20 April 2023 of the determined Fair Rent of £249.00 per month with effect from same date. By way of application, dated 25th May 2022, made by the landlord of the property, applied for re registration of a fair rent of £231.00 per week. Previously the Rent Officer had registered a rent of £192.50 per week with effect from 3rd August 2020. The Rent Officer registered a fair rent of £231.00 per week, with effect from 3rd August 2022. In an e mail dated 29th January 2023 the tenant, objected to the rent registered and the matter was referred to the First –tier Tribunal (Property Chamber) (Residential Property). Directions were issued by the Tribunal on the 21st September 2022. 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 case was previously postponed and relisted. The Property The tribunal did inspect the property on the day of the hearing, and found the block to be well maintained, the flat double glazed and centrally heated. The kitchen had been installed by the tenant and extensive tiling on the floor also installed by the tenant. Relevant Law 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 predecessor in title of his 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 predecessor in title of his; (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 predecessor 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.”

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 predecessor in title 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).

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. Prehearing submissions Landlord No submissions Tenant In the objection email dated 9th June 2022 the tenant noted “I am deeply concerned about the huge 20% rent increase asked by the landlords” In a further letter dated 8th August 2022 the tenant Ms [APPELLANT] citing other comparable properties with fair rents objected to the rent registered by the Rent Officer. The tenant additionally submitted a completed Reply Form. The form noted the property has central heating and double glazing installed by the landlord and noted

communal gardens are present. The dimensions of the rooms were identified; living room 3.6m x 4.5m, kitchen 2.9m x 1.8m, bedroom 1 3.7m x 3.1m, bedroom 2 3.6m x 2.7m and a bathroom of 1.4m x 2.5m. Ms [APPELLANT], the tenant, notes the windows are draughty. Additionally previous registered rents were identified by the tenant,22nd June 2012 of £133.50, 22nd June 2014 £147.50, 22nd June 2016 £158.00, 22nd June 2018 £178.00 and finally 3rd August 2020 a registered rent of £ 192.50. The tenant also made a submission dated 18th October 2022, the submission notes concern over the rent increase. The tenant in the hearing noted they had improved the kitchen tiled the bathroom; The submission focused on the table of properties within the locality which were also regulated tenancies. From which the T submitted the fair rent should be £218.50 per week. The Hearing Landlord Was not represented. Tenant Carefully set out their view on the fair rent noting in particular a table of other registered rents in the locality. Additionally, they eloquently presented the financial pressures of a rent increase which the tribunal has sympathy. Reasons for Decision The rent to be determined must reflect the condition found on the date of the hearing disregarding all tenants' improvements. 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. 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 such a likely market rent, if a market rent is adopted would be £2000.00 per month. However, 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 10% 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 10% was adopted. Market derived rental level - £2000.00 per month Less 10% condition £200.00 per month -------------------------------------------------------- £1800.00 per month

Less 10% for terms and supplied goods inc white goods £180.00 per month ----------------------------------------------------------------- £1620.00 per month --------------------------------------------------------------------- Less 20% for scarcity £324.00 month --------------------------------------------------------------------- The rent after this final adjustment was £1296.00 per month equivalent to £299.00 per week. The Act provides that the determination of the fair rent is by either an adjusted market base or indexing of the previous registered rent. The table of other registered rents cannot be considered as material to the case as it cannot inform either of the two approaches. Rent Acts (Maximum Fair Rent) Order 1999 The rent to be registered is limited by the Rent Acts (Maximum Fair Rent Order) 1999. The rent calculated in accordance with the Order is £299.00 per week this figure is higher than the figure calculated by reference to the Rent Acts (Maximum Fair Rent Order) of £249.00 per week.

Accordingly, the sum of £249.00 per week is determined. Valuer Chair: [NAME]: 20th April 2023 Extended reasons: 20th April 2023

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.