6 Picasso Court, Cezanne Road, London, W3 7ET: LON/00AJ/MNR/2024/0267
Residential Property Tribunal Decision of Judge Tueje on 30 August 2024
Read the full decision in [ FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AJ/MNR/2024/0267 HMCTS Code (Paper, video, audio)
- Property :
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V: CVPREMOTE
6 Picasso Court, Cezanne Road, London, W3 7ET Tenant : Mr Hadi Kaiser Landlord : Notting Hill Genesis Type of application : Sections 13 and 14 of the Housing Act 1988 Tribunal members : Judge Tueje Mr R Waterhouse MA LLM FRICS Venue : 10 Alfred Place, London WC1E 7LR Date of hearing : 30th August 2024 Date of decision : 5th September 2024
DECISION The Tribunal does not have jurisdiction to determine this application for the reasons stated below.
REASONS
The Application
- The Tribunal received an application on behalf of the leaseholder, Mr Kaiser, on 25th April 2024.
- The application relates to a proposed rent increase for the rent payable in respect of the rented element of the shared ownership lease granted to Mr Kaiser in respect of the property known as 6 Picasso Court, Cezanne Road, London, W3 7ET. Background
- The Particulars of the lease state the gross rent payable will be reviewed annually in accordance with schedule 5 of the lease.
- The relevant provisions of schedule 5 of the lease state:
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Gross Rent review With effect from each Review Date the Gross Rent for the purposes of this Lease shall be the reviewed Gross Rent (as agreed or determined in accordance with this Schedule 5 (Rent Review)).
- Upwards only rent review (a) The reviewed Gross Rent is to be the greater of: (i) the Gross Rent under this Lease immediately preceding the Relevant Review Date x 1.005; and (ii) the Gross Rent under this Lease immediately preceding the Relevant Review Date x ((B/A) + 0.005)
- Paragraph 7 of schedule 5 continues: Notice of Review Immediately following each review date the landlord shall serve written notice on the leaseholder, substantially in the form set out in appendix 2 specifying the amount of the reviewed gross rent and the amount of the specified rent then payable.
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The relevant provisions of that appendix are as follows: Appendix 2 Example of Notice of Rent Increase To: Leaseholder [insert details of the Premises] (“the Premises”) The next Rent Review Date under your shared ownership lease of the Premises is [●] [20 ]. The rent which you currently pay is [●] per month. The rent which you must pay on and after [●] [20 ] is [●] per month. The new figure of [●] per month is calculated as follows: • RPI Index for [●] [20 ] was [●] (this was the Index on which the rent review in [●] [20 ] was based); • The Gross Rent fixed at the rent review in [●] [20 ] was [●] per month; • RPI Index for [●] [20 ] is [●] (this is the Index on which the rent review in [●] [20 ] is being based); • The reviewed Gross Rent as at [●] [20 ] is therefore [●] per month being: (£[●] x
(( ) + 0.005) But because your share of the Premises is currently [●%] and our share is [●%], the rent which you must actually pay is only [●%] of [£●], which is the sum of [£●] per month. - By a notice dated 3rd March 2024, the respondent notified the applicant his rent would increase to £786.76 per month with effect from 1st April 2024.
- Around 3 weeks after the new rent was due to take effect, the applicant submitted his application to the Tribunal. Following receipt of the application, the Tribunal wrote to the parties on 19th July 2024, explaining the Tribunal’s Legal Officer’s preliminary opinion was that the Tribunal may not have jurisdiction to consider the substantive application. The parties were given the option of having a paper determination on the jurisdictional issue, or for the matter to be dealt with by a telephone or remote video hearing. The applicant chose a video hearing, which was listed on 30th August 2024 at 10.30am.
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This determination sets out the decision of the Tribunal following that hearing at paragraphs 14 to 19 below. The Law
- By section 13 of the Housing Act 1988 a landlord may provide written notice to a tenant regarding a proposed increase in rent. Section 13(1) of that Act states: This section applies to- (a) a statutory periodic tenancy other than one which, by virtue of paragraph 11 or 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.
- As a result of section 13(1)(b), where the terms of tenancy make provision for rent increases, section 13 does not apply to those tenancies.
- Section 13(2) sets out the requirements of a notice proposing a new rent, and section 13(4) states that the proposed rent will be the new rent unless the tenant duly applies to the tribunal for a determination of the rent payable.
- By section 14, the Tribunal has jurisdiction to determine rent where a landlord proposes a rent increase pursuant to section 13 The Parties’ Contentions
- The applicant relied on two points to challenge the proposed rent increase. Firstly, that because the notice of increase of rent was dated 3rd March 2024, the respondent provided insufficient notice of the rent increase. Secondly, that the respondent had miscalculated the Retail Price Index, meaning the proposed rent increase was incorrect.
- The respondent’s position was that because the tenancy agreement makes provision for rent increases at schedule 5 and Appendix 2, section 13 of the Housing Act 1988 does not apply. The respondent contends that it has complied with the provisions in schedule 5 and Appendix 2, accordingly, those provisions are binding on the applicant. Furthermore, the respondent relies on paragraph 7 of schedule 5 to argue there is no requirement to give the applicant advance notice of rent increase, and yet it had given advance notice to him. The Tribunal’s Findings
- We find that schedule 5 of the applicant’s tenancy agreement makes provision for increasing rent by carrying out a rent review, which provisions are binding on the applicant if the respondent complies with those provisions.
- We also find that while the respondent must provide written notice of the new rent immediately after the rent review, there is no requirement to give advance notice of the rent increase. We also find that page 5 of the written notice given to the applicant is in the same or substantially the same form as Appendix 2 of the tenancy. We also note that at the video hearing, the applicant accepted the notice was in substantially the same format.
- As the respondent has complied with the provisions of the tenancy relating to increasing the rent at schedule 5 and appendix 2, those provisions are binding on the applicant. Therefore, as a result of section 13(1)(b) of the Housing Act 1988, section 13(2) does not apply. Furthermore, as the Tribunal’s jurisdiction under section 14 to determine rent relates to rent increase following service of a notice under section 13(2), the Tribunal has no jurisdiction to deal with this matter.
- It follows that the Tribunal also does not have jurisdiction to determine the applicant’s substantive challenge relating to the alleged miscalculation of the rent increase. Name: Judge Tueje Date: 5th September 2024
ANNEX - 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 a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case.
The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. 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. Any appeal in respect of the Housing Act 1988 should be on a point of law.
If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber). ].