Landlord and tenant – Fair rent – Jurisdiction – Appellant applying to first-tier tribunal for determination of fair rent – Application determined on basis that appellant having assured tenancy to which sections 13 and 14 of Housing Act 1988 applying – Appellant appealing on ground that tenancy in fact protected tenancy under Rent Act 1977 – Appeal on point of law – Whether FTT having jurisdiction to determine fair rent under section 13 of 1988 Act – Appeal allowed
The appellant was the tenant of a basement flat in London NW6 under a tenancy granted in 1993. By a notice of variation dated September 2013, his landlord notified him that it was proposing a new rent of £350 per week in place of the existing rent of £150 per week. The appellant referred that notice to the first-tier tribunal (FTT) under section 13 of the Housing Act 1988 and a hearing was conducted at which the appellant represented himself. In its decision, the FTT recorded that it was satisfied that the application was validly made in respect of an assured tenancy and that the FTT had jurisdiction to determine it. The FTT determined a market rent of £210, applying the rules in section 14 of the 1988 Act.
The appellant sought and obtained permission to appeal on the ground, not mentioned at the hearing before the FTT, that the tenancy was not after all an assured tenancy under the 1988 Act but was a regulated tenancy under the Rent Act 1977, to which different provisions applied if a landlord wished to secure an increase in rent. By the date of the appeal, the respondent had purchased the property and become the appellant’s landlord.
Held: The appeal was allowed.
The right of appeal in relation to fair rents, under section 11 of the Tribunals, Courts and Enforcement Act 2007, was limited to an appeal on a point of law. However, the concept of an error on a point of law was widely interpreted in appeals from tribunals and an appeal on law could, in appropriate cases, be available where a decision had been reached on an incorrect basis of fact due to misunderstanding or ignorance: Railtrack plc v Guinness Ltd [2003] EWCA Civ 188; [2003] 1 EGLR 124 applied.
Under section 34(1) of the 1988 Act, a tenancy entered into after the commencement of the relevant Part of that Act in January 1989 could not be a protected tenancy under the Rent Act 1977 except in defined exceptional circumstances. One of those, as set out in section 34(1)(b), was that a tenancy created after the relevant date could be a protected tenancy if it was granted to a person who, immediately before the tenancy was granted, was a protected or statutory tenant and it was so granted by a person who at that time was the landlord under the protected or statutory tenancy. On the evidence, immediately before the appellant was granted his tenancy of the flat in approximately 1993, he had been a protected or statutory tenant of another flat let to him by the same landlord. The appellant had enjoyed a continuous series of periodic or statutory tenancies of residential properties from that landlord since 1983. It followed that, by the operation of section 34(1)(b) of the 1988 Act, the appellant’s tenancy was a regulated tenancy under the 1977 Act and not an assured tenancy under the 1988 Act.
Consequently, the FTT had no jurisdiction to determine a rent for the appellant’s flat under section 13 of the 1988 Act. The FTT had also erred in law in applying the rules governing a determination of market rent contained in section 14 of the 1988 Act. It therefore reached its decision on an incorrect basis of fact due to its ignorance of the true status of the appellant’s tenancy. That constituted an error of law and the FTT’s determination of a market rent was set aside accordingly.
The appellant appeared in person; the respondent did not appear and was not represented.
Sally Dobson, barrister
