Served Notices under s.13 and s.21- are they correct?

[jules10]

We have a tenant whose 6 month fixed term tenancy expires on 28 May 2009 (rent day is 29th of the month). I sent a letter to him on 26 March to find out if he wished to remain in the property on a periodic tenancy and advise that if so, the monthly rent would be increasing from 29 May.

With the letter I enclosed a S.13 notice as there is no clause in the tenancy regarding rent increase. I also enclosed a S.21 notice dated 26/03/09 stating 'we require possession of........after 28 May 2009' in case he objected to the increase and decided to leave. I hope that I dated this correctly to give the two months notice.

My problem is that the tenant hasn't responded to the letter, e-mails or phone calls so we don't know what he wishes to do. I sent the letter first class but where do I stand if he claims non receipt as I don't think I have a Certificate of Posting. Should I deliver another S.13 and S.21 by hand and if so, do I have to alter the date on the S21 so that it gives two months notice from the date sent?

I'd be grateful for any advice on this as the S.21 dates confuse me!!

[jeffrey]

On the face of it, your dates all seem OK except that s.13 does not operate:
a. during a fixed-term tenancy; and
b. until a tenancy relationship (one or more consecutive) is at least one year old.

[jules10]

Thanks for your reply Jeffrey. Ironically our tenant called us just after I posted my question to say he'd be leaving as he couldn't afford the rent increase. We do need to increase the rent as we reduced it initially to let the house quickly.

We have now proposed a lower increase which he may be able to afford but how should I put this to him in writing. Do you mean that the S.13 can't be used at all until a tenant has resided at the property for a year?

[jeffrey]

We have now proposed a lower increase which he may be able to afford but how should I put this to him in writing. Do you mean that the S.13 can't be used at all until a tenant has resided at the property for a year?

Yes, I'm afraid so. The only way to increase rent due from an existing T, during the year, is if the Agreement itself contains a mechanism.

[Preston]

b. until a tenancy relationship (one or more consecutive) is at least one year old.

I don't think the 52 week rule applies in the case of statutory periodic tenancies does it?

[jeffrey]

I don't think the 52 week rule applies in the case of statutory periodic tenancies does it?

No, that's true. See s.13(2)(b), underlined below:

13. 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.
...

[johnboy]

Yes, I'm afraid so. The only way to increase rent due from an existing T, during the year, is if the Agreement itself contains a mechanism.

Or a new tenancy agreement is signed by all parties.

[jeffrey]

Or a new tenancy agreement is signed by all parties.

True, but that would not realy be 'existing T' nor existing tenancy. Also, L cannot force T to accept new letting at higher rent.

[jules10]

Thanks for your replies. So, as we would prefer the tenant to remain on a periodic basis, rather than issuing a new fixed term agreement, can I issue another S13 notice?

This would show the lower proposed rental increase (i.e £550 as opposed to £575pcm) to commence after the end of the fixed term on 28 May. Our tenant can then decide if he wishes to stay and pay that amount.