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The proceedings in the FTT
The proceedings in the FTT
Where a dwelling is let under an assured periodic tenancy under the Housing Act 1988, the landlord is entitled to obtain an increase in rent by giving the tenant a notice of increase under section 13(2) proposing a new rent. Provided the notice is in the prescribed form, the rent payable under the tenancy will increase to the proposed amount from the date suggested by the landlord unless the tenant refers it to the FTT (section 13(4), 1988 Act). Where a notice of increase is referred to the FTT by a tenant, the FTT will determine the rent at which the dwelling-house could reasonably be expected to be let in the open market by a willing landlord to a willing tenant on certain assumptions identified in section 14(1).
When he appeared before the FTT, Mr Wallis did not place much emphasis on the rent which his home could be let for in the open market. He maintained instead that the rent for his tenancy could not be increased at all.
The tenancy under which Mr Wallis occupies his home was not made in writing but was the result of an oral agreement between Mr Wallis and Mr Malcom Hutchby, a director of the respondent. Mr Wallis produced copies of a number of rent books, starting in August 2004, recording the receipt of weekly payments of £100 a week which he had made under the tenancy. None of the rent books recorded any terms of the tenancy, nor were the front or rear pages of the rent books (which might have recorded standard terms) included in the copies.
Mr Wallis told the FTT that in 1999, when he moved to 115 Broadwater Street East from another property which he had occupied as tenant of the respondent, there was a verbal agreement between him and Malcom Hutchby that the rent which he was to pay would be “fixed” at £100 a week. He said that the rent under his previous tenancy had also been fixed and he relied on the fact that he had continued to pay £100 a week since 1999 in support of his case that his rent could never be increased.
The FTT did not accept Mr Wallis’s case that his rent could not be increased. It said this:
Essentially, the tenant argues that the verbal agreement was perpetual at the original rent. However, there is no evidence whatsoever to support this claim.
It is the job of the Tribunal to determine what was in the minds of the parties at the outset of the agreement. In normal circumstances the written agreement must be the primary source of evidence as to the intention of the parties to the agreement. Although there was no written agreement the Tribunal adopts the guidance given to it by the Supreme Court in Arnold v Britton and other [2015] UKSC 36 [The FTT then quoted a passage from Lord Neuberger’s judgment about the interpretation of written agreements].
On the balance of the evidence before it, the Tribunal is of the opinion that there is insufficient evidence to conclude that the parties intended the rent to stay fixed for the duration of the agreement. Hutchby & Collumbell were landlords of a portfolio of 17 properties, and it would have made no business or commercial sense whatsoever to agree to a concessionary rent that could be fixed for 25 years or more. Therefore the Tribunal determines that the rent in the agreement can be varied.
Having rejected Mr Wallis’s case that no rent increase was possible, the FTT then determined the rent which it considered would have been agreed on a letting in the open market, which it was satisfied would have been£156 a week (having regard to various improvements and repairs carried out by Mr Wallis).