Eviction by rent increase

by Readers Question

5 years ago

Eviction by rent increase

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Eviction by rent increase

My tenant is still paying rent but not moving out after his 6 month AST had expired . He was given a section 21 notice for that date and was told verbally at the outset that the contract could only be for 6 months, as the property was let, and is let to students (who are waiting to move in ).

He has been offered other properties but says they are not suitable.

I am not going to enforce the section 21 notice to go for accelerated possession.

Can I …..

a) increase his rent whilst waiting for the eviction order to take effect
b) can he continue on the periodic tenancy at a higher rent, or would increasing rent nullify the existing section 21. notice

Thanks Eviction by rent increase

Rick



Comments

Mark Alexander

5 years ago

Hi David

I don't understand why you don't simply pursue the section 21. route and apply to the Courts for a possession order. Do you think there was something wrong with the service of the s.21 or is it something else? Please advise.

Your question is an interesting one. There is only one option to increase the rent in this scenario as a new tenancy or an increase by mutual agreement is clearly out of the question. That leaves the option to increase rent by service of a section 13 notice. I don't really see the point but yes you can do it.

The next question is whether service of a section 13 notice would invalidate the section 21. notice on the basis that it might be argued that this showed intent to allow the tenancy to continue. I can't find any reference to this scenario ever having been to a Court as a defence for a section 21 notice so I've asked a couple of other established landlords and they are equally baffled by this question. Hopefully somebody reading this will be able to post a conclusive response with evidence back to legislation of a Court case.

Mark Alexander

5 years ago

As you can see, we've been working hard to find you the answer ...

Romain Garcin

5 years ago

A s.13 notice is to increase the rent of the current periodic tenancy. It has nothing to do with seeking possession or a s.21 notice, so no impact there.
Also worth keeping in mind that a s.21 notice has no impact on the tenancy.

David Sweeney

5 years ago

Reply to the comment left by "Romain " at "18/09/2013 - 15:45":

If Rick increases the rent via section 13 (the only unilateral option) then the notice itself clearly tells the tenant what to do if they object to the increased rent. I suspect an increase beyond fair market rent would be quashed immediately by the rent assessment committee.

If Rick devises his own s13 notice - without the information - then the increased rent will simply not apply (unless the tenant pays it through ignorance) because he hasn't followed due process.

I can not see why a s13 would affect an s21 - the tenancy remains valid until the tenant surrenders the property or a court order is enforced, while that tenancy is valid, none of the landlords rights are compromised.

Mary Latham

5 years ago

This is a very interesting question for many reasons

1. There is no longer a Rent Assessment Committee it was replace in July this year by the first-tier tribunal property chamber
2. A tenant can only appeal to the tribunal during the first six months of a tenancy (this has not changed it was always the case)
3. I have not seen it tested but it might be an interesting defense if a landlord served a Section 13 after Serving a Section 21. One notice to show his intention to end the tenancy on a date that is stated in the S21 and another to increase the rent. If the date of the increase was after the date that Possession was asked for it could be argued that the landlord sent the tenant mixed messages - I would not want to fight that one with the wrong Judge.
4. When we sign up new tenants before gaining vacant possession there is always the potential that the tenant will not move out on the day that the landlord thinks he will and it is dangerous to sign a new AST before the keys are returned. The landlord would be in breach if contract to the new tenants and would need to provide alternative accommodation while he regains possession.

In this particular case the best option is to pursue the S21 through accelerated Possession and find somewhere else for the tenants to live. Simply hoping that the tenant will leave because of a Section 13 Notice is unrealistic - he is more likely to ignore the Notice and force the landlord back to square one - S21

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David Sweeney

5 years ago

Reply to the comment left by "Mary Latham" at "18/09/2013 - 18:46":

Mary is, of course, right. I forgot the change in process created by the Transfer of Tribunal Functions Order 2013.

Interestingly, the 'prescribed form' still seems to be 4b from 2003 which refers to the RAC - guaranteed confusion for tenants.

However, Mary, can you clarify where the 6 month rule is set out? I can find it in neither section 13 or 14.

Romain Garcin

5 years ago

The right to appeal a s.13 notice is relative to the date the notice was served, not relative to when the tenancy started.
Otherwise in effect the tenant could never appeal...

lauren field

5 years ago

Hi Rick

I am slightly confused by your question;

“a). increase his rent whilst waiting for the eviction order to take effect.

I am confused as you stated “I am not going to enforce the section 21 notice to go for the accelerated possession”

Therefore, if you are not going to enforce it, what eviction are you waiting for to take place?

Overall, you imply that the tenant has only occupied the property for a maximum of 6 months, so I assume the tenant has not been in the property for 12 months yet? If this is the case, you are unable to increase the rent anyway so the question's irrelevant.

The key part of the Section 13 Notice is the date of the rent increase. This date must be at least 12 months after the date the tenant first moved into the property and must also be at least 12 months after the last rental increase.

Therefore, if a tenancy was for an initial fixed term of six months, then after the fixed term, if no Section 21 Notice was served and subsequently enforced, it would continue as a statutory periodic tenancy. So, it would not be possible to use the Section 13 process immediately after the fixed term came to an end; you would have to wait until the periodic tenancy had been running for six months before the Section 13 Notice procedure could be used.

In regards to, question ‘b’, “can he continue on the periodic tenancy at a rent, or would increasing rent nullify the existing section 21 notice” In my opinion, bearing in mind that you state “he was told verbally at the outset the contract could only be for 6 months”, combined with the fact you have offered him alternative properties and made him aware that you have let ‘his/the’ property to students, whom are waiting to move in, I would think that bearing in mind you will have allowed a periodic tenancy to commence and continue for a period of 6 months (assuming he has only occupied the property on a 6 month fixed term preceeding) before you could increase the rent, re-protected the deposit etc on the basis of the new periodic tenancy then it would be a risky proposition to rely upon the said served 21 notice.

In general terms, a landlord does not have to enforce a section 21 notice as soon as it has expired, he can enforce it either months or even years later but it would be wise to affirm this in writing, of his intention to enforce it at a later date, therefore making it clear that he is not cancelling the notice.

However, by allowing the tenant to remain in the property at an increased rent, it may be prudent to re-serve the section 21 notice as it could be construed that as you have acted in a manner contradicting everything you originally said to the tenant, that the original said section 21 notice was cancelled. Of course, it really depends on what is agreed between you and the tenant and how etc.

In regards, to the generality, of whether a serving a s.13 notice invalidates a section 21 then I would also answer technically no, but i feel it is risky to rely upon the original section 21 notice.

lauren field

5 years ago

in fact Mary says it quite well in point 3, in that you would be giving the tenant mixed messages and I would not fancy your chances in front of a District Judge.

Romain Garcin

5 years ago

Reply to the comment left by "lauren field" at "18/09/2013 - 21:09":

Actually, my reading of s.13 is that the duration of any preceeding fixed term tenancy, or the date the tenant moved in, is not relevant for a statutory periodic tenancy: s.13 notice may be served as soon as tenancy is created to take effect on 3rd monthly period.

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