Flat 4, 90 West Road, Westcliffe on Sea, SS0 9DB CAM/OOKF/MNR/2023/0137
DECISION
The Tribunal determined a market rent of £750 per month effective from 27 October 2023.REASONS
[1]The Landlord served a notice dated 11 September 2023 pursuant to section 13 (2) of the Housing Act 1988 which states an increase in the passing rent from £550 per month to £750 per month with effect from 27 October 2023.[2]This rent is stated to be exclusive of Council Tax, Water Charges, and fixed service charges.[3]The Tenant made an application on 20 September 2023 to the Tribunal in reliance on section 13 (4) of the Housing Act 1988.[4]The Tribunal issued directions on 2 November 2023 inviting the Parties to submit any further representations (including any photographs and details of rentals for similar properties) they wished the Tribunal to consider. The Property[5]The Tribunal did not inspect the Property but relied upon the submissions of the Parties and information in the public domain.[6]The Property comprises a self-contained ground floor flat providing a living room, bedroom, kitchen bathroom and toilet. It benefits from double glazing, central heating, private gardens and off-street car parking. The Tenancy[7]The Tenant took occupation pursuant to an Assured Shorthold Tenancy commencing 16 June 2018 for a term of 12 months.[8]The initial rent under this Tenancy was £550 per four-week period. This is equivalent to £595.83 per month.[9]In this regard, the Section 13 Notice states a monthly rent of £550 per month whereas is should have stated either £400 per four-week period or £595.83 per month.[10]The rent is paid every four weeks starting from 15 June 2018. 3[11]Paragraph 5 of the Tenancy sets out the Tenant’s repair obligations including:a. “(5.2) To keep the interior of the Property and the Contents in at least as good and clean condition and repair as they were at the commencement of the tenancy, with fair wear and tear excepted, and to keep the Property reasonably aired and warmed.b. (5.4) That the Landlord or any person authorised by the Landlord may at reasonable times of the day on giving 24 hours’ written notice (unless in the case of an emergency) enter the Property for the purpose of inspecting its condition and state of repair…c. (5.8) To notify the Landlord promptly of any disrepair, damage or defect in the Property or of any event which causes damage to the Property.”[12]Paragraph 10 of the Tenancy states that “The Landlord agrees to carry out any repairing obligations as required by section 11 of the Landlord and Tenant Act 1985”. The Law[13]Section 5 (3) of the Act provides that the periodic tenancy arising on expiry of the Assured Shorthold Tenancy is one: “(a) taking effect in possession immediately on the coming to an end of the fixed term tenancy; (b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy; (c) under which the premises which are let are the same dwelling-house as was let under the fixed term tenancy; (d) under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and (e) under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy”[14]Section 14 of the 1988 Act provides that the Tribunal is required to determine the rent at which the Property might reasonably be expected to let in the open market by a willing landlord under an assured tenancy: 4a. “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 rent) are the same as those of the existing tenancy.”[15]Section 14 (2) of the 1988 Act requires the Tribunal to disregard:a. “Any effect on the rent attributable to the granting of a tenancy to a sitting tenant;b. Any increase in the value of the dwelling-house attributable to a relevant improvement (as defined by section 14 (3) of the Act) otherwise than as an obligation;c. Any reduction in the value of the dwelling-house attributable to a failure by the tenant to comply with any terms of the tenancy.”[16]Examples of a tenant’s failure to comply with the terms of the lease may include, for example, a lack of redecoration.[17]Section 11 of the Landlord and Tenant Act 1985 (the 1985 Act), provides that the Tribunal is to imply a covenant by the Landlord:a. “to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),b. to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), andc. to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.”[18]Section 14 (7) of the 1988 Act states: “Where a notice under section 13(2) above has been referred to the appropriate tribunal, then, unless the landlord and the tenant otherwise agree, the rent determined by the appropriate tribunal (subject, in a case where subsection (5) above applies, to the addition of the appropriate amount in respect of rates) shall be the rent under the tenancy with effect from the beginning of the new period specified in the notice or, if it appears to the appropriate tribunal that that would cause undue hardship to the tenant, with effect from such later date (not being later than the date the rent is determined) as the appropriate tribunal may direct.” 5 Representations – The Tenant[19]The Tenant completed the Application Form highlighting that he has decorated the living room and bedroom. However, the Tenant did provide any further documentation to explain the grounds of the Appeal nor provide supporting evidence. Representations – The Landlord[20]The Landlord completed the Reply Form and advised that the Tenant has not allowed any access to the Property and that the proposed increase is reasonable.[21]The Landlord provided copies of correspondence with the Tenant for the period 10 November 2023 to 20 November 2023. It is apparent from this that the Tenant has a number of concerns in respect of the condition of the Property but that the Landlord has not been provided with full details of the disrepair and has not been able to secure access to verify the position.[22]The Landlord also provided letting details of properties at Hamlet Court, Windsor Road and Glenwood Avenue at asking rents ranging from £850 per week to £900 per week. Determination[23]In determining the market rent, the Tribunal has regard to prevailing levels of rent in the general locality and achieved rental values in respect of other properties of comparable accommodation and provision that would be likely to be considered by a prospective tenant. The current rent and the period that has passed since that rent was agreed or determined is not relevant.[24]The legislation requires the Tribunal to have regard to market demand assuming that the landlord is willing. The Tribunal is therefore unable to have any regard to the personal circumstances or identities of the actual landlord and tenant in assessing the level of rent.[25]In addition, historic matters between the actual landlord and tenant are not relevant to the rent likely to be offered by a prospective tenant. The Tribunal can therefore only have regard to the Property as it exists on the relevant date of the proposed rent review having regard to the statutory assumptions.[26]As set out above, section 14 of the 1988 Act requires the Tribunal to determine the rent at which the Property might reasonably be expected to let with effect from the date specified for commencement of the new rent as set out in the section 13(2) Notice.[27]In effect, the Property is assumed to have been vacated, fully redecorated and be available on the market for occupation by an incoming tenant. 6[28]It is apparent from the evidence submitted by the Tenant that the Property is in disrepair but the Tenant has only recently notified the Landlord of this and has not provided access to enable repairs to be carried out.[29]In this regard, paragraph 5.8 of the Tenancy requires the Tenant to promptly notify the Landlord of “…disrepair, damage or defect in the Property…” and paragraph 5.4 of the Tenancy obliges the Tenant to allow access to the Landlord on the provision of 24 hours’ notice “…for the purpose of inspecting its condition and state of repair.”[30]It is not reasonable for the Tribunal to make deductions from the rent on account of failures by the Landlord to comply with their repair obligations when the Tenant has not promptly informed the Landlord of the full position nor provided access.[31]The Tribunal has therefore assumed, for the purposes of determining the rent, that the Landlord has complied with its repair obligations. However, for clarity, this assumption does not mean that the Tribunal considers the Property to be fully in repair.[32]The Tribunal is aware that the Landlord is advertising first floor and second floor rooms within the same block at asking rents of £800 per month. It appears that, whilst these are stated as being refurbished, they have shared bathroom facilities.[33]The Tribunal has taken the evidence submitted to it by both Parties into account but also applied its own expertise and knowledge. In this regard, the Tribunal determines the market rental of the Property as at the effective date to be £750 pcm.[34]This rent equates to £812.50 per four-week period.[35]The rent payable may not exceed these figures. However, this does not prevent the Landlord from charging lower figures. Name: Peter Roberts FRICS CEnv Date: 15 January 2024 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If either party is dissatisfied with this decision, they may apply for permission to appeal to the Upper Tribunal (Lands Chamber) on any point of law arising from this Decision. 7 Prior to making such an appeal, an application must be made, in writing, to this Tribunal for permission to appeal. Any such application must be made within 28 days of the issue of this decision to the person making the application (regulation 52 (2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rule 2013). If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e., give the date, the property, and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).