Landlord and tenant – Fair rent – Housing Act 1988 – First-tier tribunal determining fair rent for residential property let to respondent – Deductions made from market rent to reflect condition of property – Effect of tenant’s implied covenant under section 16 of 1988 Act to permit access by landlord for purpose of repairs – Whether precluding deductions for disrepair where tenant persistently refusing access – Appeal allowed
The respondent was the tenant of a residential property which was originally let to her under a secure tenancy agreement. The tenancy had later become an assured short tenancy by default following a voluntary large-scale transfer of housing stock from the appellant’s previous landlord to the appellant in 2007. Following changes to the housing benefit rules in 2013, the respondent was said to be under-occupying the property with the result that her housing benefit was reduced. When the respondent was unable to meet the shortfall in rent herself, the appellant brought legal proceedings to recover rent arrears. In that context, the first-tier tribunal (FTT) made a determination, under section 11 of the Tribunal, Courts and Enforcement Act 2007, of the fair rent for the property.
The FTT reached its determination by reference to the market rent at which the property might reasonably be expected to be let on the open market by a willing landlord under an assured tenancy under the Housing Act 1988. While it found that the market rent for the property in a modernised state was £120 per week, it decided that the property was not in a good enough condition to realise that rent and, after making deductions to reflect the condition of the property at the time of inspection in July 2014, it fixed the fair rent at £86 per week.
In reaching that decision, the FTT considered the effect of the covenant, implied into every assured tenancy by virtue of section 16 of the 1988 Act, requiring the tenant to afford the landlord access to the property and to provide all reasonable facilities for executing any repairs which the landlord was entitled to execute. Although the respondent had refused to allow access, the FTT considered that it was still appropriate to make a reduction in the market rent to reflect the outstanding repairs since the appellant had failed to exercise its statutory rights to obtain access and to undertake the necessary works. The appellant appealed.
Held: The appeal was allowed.
The FTT had erred in law in deducting sums from the market rent of £120 per week in circumstances where the appellant had persistently been refused access in order to carry out repairs and other major works. The condition of the property was directly referable to the respondent’s failure to allow access. While the appellant had not exercised its implied rights to enter in order to affect repairs, the respondent herself was in breach of the provisions of the 1988 Act in failing to allow access for such repairs to be carried out: see section 14(2)(c) of the 1988 Act. The matter should accordingly be remitted to the FTT for reconsideration of their decision as to the market rent in respect of the property.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister
Click here to read transcript: North Lincolnshire Homes Ltd v Bentley
