Refer s13 notice to RAC to determine jurisdiction?

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Refer s13 notice to RAC to determine jurisdiction?

    23 years Assured contractual periodic Tenant (not AST). Original L deceased few years ago. New L wants 75% rent increase. Have written agreement signed by previous L for smaller percentage yearly increase. Can I refer it to the Rent Assessment Committee to make a ruling on whether s13 should apply or not in view of the existing previous rent increase agreement? Which I presume they would do in the pre hearing that determines if they have jurisdiction. Or would I have to let the 'arrears' build up and wait to for a ground 8 to be served and defend that in the CC, thus risking mandatory eviction if the previous agreement is found not to be valid for some reason?

    Or any other way to challenge it? His Solicitors also made a pigs ear of the prescribed form so it may arguably be defective.

    The flat is a bit of a shed compared to the standard of mostly ASTs on the market today, apart from the improvements I have done myself over the years.

    #2
    Is the "written agreement" about the rent increase part of the tenancy agreement, or is it a separate agreement.

    If the tenancy agreement doesn't say anything about rent increases, a s13 notice is likely to be valid (regardless of any previous agreement) and any appeal would be based on market rate, not a previous agreement.

    If the s13 notice is invalid, there's no rent increase.
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      #3
      I think it may arguably be construed as an original term forming part of the original TA.

      However if I am wrong, the Housing Act 1988 doesn't refer to the tenancy agreement itself it just says there needs to be a provision:

      s13(1)This section applies to—
      (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.

      If I tell his Solicitor I don't think its valid due to XYZ but he eventually proceeds with a ground 8 and I challenge saying the rent isn't lawfully due etc. But the CC throws out my defence am I then in big trouble as its a mandatory ground? It says the arrears need to be owing at the date of the hearing, what do they mean by that though? If they say the rents lawfully due can I say ok its a fair cop then here's the money before he drops his hammer down? Or might it be referred back to the RAC for market rent assessment at that point?

      If I start with the RAC they are composed of Surveyors not law experts like judges so I think it more likely to be thrown out at that stage and have to appeal to High Court.

      Comment


        #4
        Also with the Form 4 prescribed notice guidance for landlords at point 9 it says "Do not use this notice if the tenancy agreement contains a term allowing rent increases, or there is some other basis such as a separate agreement with the tenant for raising the rent."

        Comment


          #5
          I agree with JPKeates. In the absence of anything in the TA and assuming the proposed rent is not out of line with the current market and the s13 is properly completed then its likely to be valid.

          Comment


            #6
            Originally posted by KeepTheFaith View Post
            If I tell his Solicitor I don't think its valid due to XYZ but he eventually proceeds with a ground 8 and I challenge saying the rent isn't lawfully due etc. But the CC throws out my defence am I then in big trouble as its a mandatory ground? It says the arrears need to be owing at the date of the hearing, what do they mean by that though? If they say the rents lawfully due can I say ok its a fair cop then here's the money before he drops his hammer down? Or might it be referred back to the RAC for market rent assessment at that point?
            Yes, that would be an issue.

            If the court decided that the s13 notice was valid, the rent would be due and if more than two month's was owed, the notice would be valid on that basis at least.
            Court rulings are (usually) retrospective, so if the s13 notice was found to be valid, it would have been valid from when it was meant to increase the rent.

            Courts have discretion even if the ground is mandatory - it's possible to defend a section 8 hearing on a number of grounds (such as disrepair), which aren't in the legislation, so it must be possible or a court to decide a mandatory ground shouldn't be applied.

            Is the previous agreement about the rent in writing, and does it say anything about duration or that it's ongoing?
            In theory the purchaser acquires the totality of the agreements regarding the tenancy, but they don't have to follow the same principles as the previous landlord, they don't have to act like their predecessor had done previously.
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              When did you receive the s13 Notice and when was new rent payable from?
              You only have 30 days from receipt to appeal to 3rd Tier Tribunal (old RAC), who are competent to assess any proposed rent increase.
              It is the easier option than your alternatives.

              Comment


                #8
                Definitely refer it: See guidance from the experts here...
                https://england.shelter.org.uk/housi...rent_increases

                Yes, if tenancy talked about rent increases my understanding is you can't use s13.

                Nothing to stop you & landlord agreeing to a rent change without using s13. Nothing to stop you proposing a rent decrease (!).

                Also (not suggesting,merely mentioning) new landlord might be so keen to move onto an AST that he pays you some serious money to go. But I'm not suggesting or recommending this.

                See also more detailed stuff here...
                http://england.shelter.org.uk/legal/...rent_increases

                Regarding the state of the place,in your shoes I'd write the landlord, copy any agent, keep copy a calm & polite letter noting repair issues, using Shelter's draft letter here.
                https://england.shelter.org.uk/housi...ivate_landlord

                Your home has to comply with all the usual stuff & in particular this (long, complicated).
                https://www.gov.uk/government/public...-professionals
                That it is an AT not an AST does not change this.

                Shelter's helpline is 0808 800 4444

                There are no "arrears" until the rent changes, which should only happen after appeal.

                Cheers!
                I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                Comment


                  #9
                  Originally posted by DPT57 View Post
                  I agree with JPKeates. In the absence of anything in the TA and assuming the proposed rent is not out of line with the current market and the s13 is properly completed then its likely to be valid.
                  Thanks, could I ask why you say it needs to be the in the TA. I guess it begs the question of what is a TA? My tenancy was largely verbal However, I had a receipt for deposit and rent in advance and this states how often rent is payable and a few other basics including that the rent can be increased by a percentage each year upon giving notice. I would argue that under contract law these are all terms of the tenancy that can be incorporated into the TA.

                  Comment


                    #10
                    When you say "largely verbal" what was written down and how/where (txt, email, on back of beer mat...)?

                    The why is in s13 of Housing Act 1988..
                    http://www.legislation.gov.uk/ukpga/1988/50/section/13 section 13(1)(b)

                    (only applies to..)
                    (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.
                    See also the experts,
                    http://england.shelter.org.uk/legal/...review_clauses
                    Application to fixed term and periodic tenancies

                    A rent review clause will apply to fixed term or contractual periodic tenancies. Where such a term is included in a fixed-term or contractual periodic tenancy agreement, the section 13 procedure for increasing rent will be excluded
                    You can claim the verbal tenancy had rent increase clause. What evidence do you have for that claim? (That a tribunal might believe? - no offence ..)
                    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                    Comment


                      #11
                      Originally posted by jpkeates View Post

                      If the court decided that the s13 notice was valid, the rent would be due and if more than two month's was owed, the notice would be valid on that basis at least.
                      Court rulings are (usually) retrospective, so if the s13 notice was found to be valid, it would have been valid from when it was meant to increase the rent.
                      Yes that is another reason for not going the wait to be repossessed route as I would have lost chance to challenge the level of market rent.

                      Originally posted by jpkeates View Post
                      Courts have discretion even if the ground is mandatory - it's possible to defend a section 8 hearing on a number of grounds (such as disrepair), which aren't in the legislation, so it must be possible or a court to decide a mandatory ground shouldn't be applied.
                      Yes its a possibility I would have enough of a counterclaim to counteract if need be also. I guess it depends upon the order they do things. Is it deal with the question of whether the s13 applies, if so examine counterclaim, if rejected well have you got the money to pay today? Yes ok here it is then in my back pocket, application dismissed? Or is it ok counterclaim rejected and you haven't paid up before the hearing started so out you go?

                      In any case it seems quite a nasty procedure, plus I may well end up with his legal costs to boot, so I guess would only want to do this as a very last resort if no other option which is why I am trying to work out if it is correct procedure for the T to ask the RAC if they can rule on the validity of the s13? As I am filling out an application form that asks them to do a rent assessment but yet I am also asking them to rule that they don't have jurisdiction to make such rent assessment?

                      Originally posted by jpkeates View Post
                      Is the previous agreement about the rent in writing, and does it say anything about duration or that it'sIN ongoing?
                      In writing, no duration specified.

                      Comment


                        #12
                        Originally posted by mariner View Post
                        When did you receive the s13 Notice and when was new rent payable from?
                        You only have 30 days from receipt to appeal to 3rd Tier Tribunal (old RAC), who are competent to assess any proposed rent increase.
                        It is the easier option than your alternatives.
                        I am not questioning their competency to determine what should be a market rent. But the question of whether I have a tenancy term forming a (rent increase) "provision" as per s13 1 b quoted earlier, would seem to be a question of legality and contract law and they are Surveyors not Judges with legal expertise as far as I have read.

                        Comment


                          #13
                          Originally posted by theartfullodger View Post
                          When you say "largely verbal" what was written down and how/where (txt, email, on back of beer mat...)?
                          You can claim the verbal tenancy had rent increase clause. What evidence do you have for that claim? (That a tribunal might believe? - no offence ..)
                          The relevant bit is the original written 'rent receipt' that mentions the rent increase.

                          Comment


                            #14
                            Originally posted by theartfullodger View Post

                            Nothing to stop you & landlord agreeing to a rent change without using s13. Nothing to stop you proposing a rent decrease (!).
                            We tried that originally before I knew anything about s13 and how that worked he 'surprised' me one day early in the year when I had for the first time after 18 months of him taking over requested he came to inspect rotten door frame (still not done) and he said to me that he could double my rent if he wanted to, then pressured me to negotiate there and then. I said I needed to look into it but I would also need his proposals in writing. But then he produced a piece of paper for me to sign that mentioned that "your rent is below market value...due to an agreement you have had with your previous landlord". Also stating that the new agreement only lasted 12 months. I realised that if I had signed that then I wouldn't have been able to bring up the original agreement with my previous landlord to challenge further market rents with a s13. So I didn't sign it.

                            Subsequently he still tried to claim we had a verbal agreement and was texting me saying he was going to come to the flat to speak to me about the arrears. I told him there was no arrears as we had no valid agreement. I worked out even if I had agreed verbally (which I didn't) it would not be valid for lack of consideration (I didn't pay the increase) after reading a contract law book. Finally he gave up trying to kid me we had a verbal agreement and issued the s13.

                            Originally posted by theartfullodger View Post

                            Also (not suggesting,merely mentioning) new landlord might be so keen to move onto an AST that he pays you some serious money to go. But I'm not suggesting or recommending this.
                            I have thought of trying to negotiate some such resolution. He buys out my interest or I buy out his. If he sells at the price another investor might pay then I think I can afford it with mortgage. I think he thinks if he increases it high enough then I will have to leave? If so he isn't factoring into it is that it still has to be a market rent (if all else fails) and so there will still be no incentive to leave as the alternatives will be paying similar rents but without the security of tenure of an AT. Also if I am paying a lot higher rent then I will no longer be able to continue saving up to buy my own place and unless my circumstances change quite some then he may be stuck with me for another 40 or 50 years (we generally live till we are quite old in our family).

                            He's a very shrewd businessman compared with my old landlord. He let me know at the beginning that his game is to flip properties like in 'homes under the hammer' but he buys them with tenants in situ, does them up around the T still living there, issues s21, then sells them on with vacant possession. He bought mine at auction I think not realising the deal of me being an AT not an AST.


                            Originally posted by theartfullodger View Post
                            Regarding the state of the place,in your shoes I'd write the landlord, copy any agent, keep copy a calm & polite letter noting repair issues,
                            He has had verbal notice about all the problems and constructive notice when he has inspected etc.

                            I guess the best would be to try to negotiate something to resolve things before the legal battles commence?

                            Thanks for all your advice.

                            Comment


                              #15
                              There is no such thing as a 'market rent', just an average of what buyers are prepared to pay for a similar property in an area.
                              You have not yet provided the info I requested

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X