Rent Officer Handbook: fair rent registration

Fair rent registration: jurisdiction

Where the Rent Officer determines whether the tenancy qualifies for the rent to be registered.

Agricultural tenancy questionnaire

A list of questions to help the Rent Officer determine the details of a statutory tenancy arising under the Rent (Agriculture) Act 1976.

The questionnaire

  • Employment commencement date?
  • Occupation of property

  • around same date yes no
  • if not, date of occupation

  • Date full-time employment ceased?
  • Employed as?
  • Type of Agriculture undertaken by employer
  • Was a separate agreement or licence entered

into for occupation of property? yes no

  • Has employer changed within above periods yes no

if yes, at what date?

  • Successor? - date partner/parent died?

  • Your relationship to original tenant?
  • Were you also employed by same employer yes no
  • If yes, what as?
  • When did your employment commence?
  • When did your employment cease?
  • How long have you lived in the property?

Agricultural tenancies

(v1 2011)

Statutory tenancies arising under the Rent (Agriculture) Act 1976.

Rent Officers can register a fair rent for most private-sector tenancies, which started before 15th January 1989. This is allowed for in the Rent Act 1977.

They can also register a fair rent for agricultural workers who continue to live in properties provided by their employer after they’ve finished working for them, as long as certain rules are satisfied. This may happen even if they finish work after 15th January 1989 and is allowed for in the Rent (Agriculture) Act 1976.

Before the Rent Officer can register the rent they must establish jurisdiction. A questionnaire is provided within this handbook to assist the Rent Officer in making the relevant enquiries at a jurisdictional hearing.

To establish jurisdiction there are three tests that must be satisfied:

  • Is this a “relevant licence or tenancy”?

This means that the occupancy must be of a separate dwelling, and it started before 15th January 1989, and it would be protected by the Rent Act 1977 if certain conditions in that Act were relaxed.

  • Is the property in “qualifying ownership”?

This means that the tenant must be an agricultural worker and that the property must either be owned by his employer or that his employer has arranged for it to be used by him.

  • Is the tenant a “qualifying worker”?

This means that the worker must have worked in agriculture for at least 35 hours a week for at least 91 weeks out of the 104 weeks immediately before qualifying for protection. This period does not have to be immediately before the Rent Officer registers the rent as the worker may have qualified for protection many years before.

Once all three of these tests are satisfied the agricultural worker will qualify for what is called ‘protected occupancy’ and this protection continues until the protected occupancy is brought to a close. This usually happens when the worker finishes working for his employer and may be due to retirement or redundancy but there are also other examples such as a notice to quit or a notice of increase of rent.

Once the protected occupancy finishes the worker immediately becomes a ‘statutory tenant’ and can have his rent registered by the Rent Officer if either he or his landlord submits an application.

Rent limit

There is no legal requirement for the rent to be registered but there is a limit as to how much rent can be charged if the rent isn’t registered. For dwellings that have a rateable value (RV), this limit is 11/2 times the annual RV of the dwelling.

Rateable values are no longer produced for residential dwellings, and as the VOA and Local Authorities generally no longer hold RV information for residential dwellings, where this information cannot be found by the parties, the only other source would be the local water authorities as they use RV in some instances for determining water bills.

In the few cases where a dwelling was constructed after 1989 and has no RV as at 31st march 1990, such as those where an existing protected occupier or statutory tenant has transferred to such a dwelling with the same landlord, then the maximum chargeable is the reasonable annual rent that a tenant would normally pay for a “year to year” tenancy where the tenant is liable to pay for all rates, insurance and repairs. This would generally be the amount for an assured tenancy on full repairing and insuring terms. A typical deduction from the assured rent to reflect the tenant’s full repairing and insuring liability would be in the region of 10 – 20 %, dependent on the age of the dwelling. Modern dwellings would generally require fewer repairs and this would be reflected in a lower deduction.

Agriculture

This is defined as including:

  • Dairy farming and livestock production
  • The production of any consumable produce including non edible items (e.g. willows for baskets or market gardening)
  • Forestry
  • Farm Managers
  • Agricultural Engineers

But does not include:

  • Game-keeping
  • Stud farms
  • Sales assistants in farm shops
  • Crane drivers
  • Lorry drivers

This list is by no means exhaustive and Rent Officers should contact the guidance team for advice if they are in any doubt.

Purpose of the letting

The letting has to be residential and the premises must be let as a dwelling. However, a dwelling does not necessarily have to contain a kitchen or other cooking facility.

Exceptions

The ‘normal’ exceptions that prevent the creation of a regulated tenancy (see page “Regulated tenancy”) apply, apart from the following exceptions:

  • where the tenancy is at a low rent
  • where the dwelling-house is comprised in an agricultural holding

which do not apply; and the exceptions:

  • where the tenancy is a qualifying shared ownership lease
  • where there are payments for board or substantial payments for attendance

which are amended to refer to The Rent (Agriculture) Act 1976 instead of The Rent Act 1977, and the provision of board provided in connection with the person’s employment in Agriculture are not considered to be board for the purposes of the Act.

Applications to the Rent Officer

Applications to the Rent Officer for registration of rent should be made on form RR1C.

Tenants who move or their employment status changes

Once a worker has qualified for protected occupancy or has a statutory tenancy they keep their protection even if they move to a different property as long as their landlord remains the same. They will also keep their protection if their job changes to part-time or if they pay no rent at all as long as they have passed the three tests.

Tenants’ improvements

It should be noted that tenants’ improvements must be disregarded as they are in Rent Act 1977 cases, as long as they were carried out during the period of the statutory tenancy. This means that any tenants’ improvements carried out at the subject property during the period of the protected occupancy must not be disregarded for the purposes of the determination of rent under Section 70 of the Rent Act 1977. The property, in the absence of changes since, should be valued in terms of condition and provision of accommodation, as it was at the commencement of the statutory tenancy.

Assured agricultural occupancy

Agricultural workers who start employment on or after 15 January 1989 and occupy a dwelling because of that employment are assured agricultural occupiers. When they cease employment, they become assured tenants under the Housing Act 1988, retaining security of tenure but the Rent Officer cannot register a rent.

  • Regulated tenancy
  • Glossary
  • Jurisdiction - deciding jurisdiction
  • Agricultural flowchart

Challenges to jurisdiction

(v1 2009)

Where the parties to the application to register a rent challenge the Rent Officer’s decision about whether the tenancy qualifies for rent registration.

On receipt of an application for registration of fair rent the Rent Officer must confirm that the tenancy is a regulated one and that he/she has jurisdiction to register a rent.

The Rent Officer has a duty to process the case, make all the necessary investigations and register a rent in a reasonable time. What is reasonable will vary in each case according to the circumstances; some cases may require an inspection or consultation but others won’t. However, the Rent Officer mustn’t delay the case unnecessarily once he/she has determined that a regulated tenancy exists.

If either the landlord or tenant disputes that the tenancy is regulated they should put their case to the Rent Officer for consideration. Once the Rent Officer has made a decision about the tenancy and his jurisdiction, if either the landlord or tenant do not agree, either may apply to the county court under s141 of the Rent Act 1977 (or Section 26 of the Rent (Agriculture) Act 1976) for a declaration of the status of the tenancy. However, if the Rent Officer’s decision on the status of the tenancy is challenged before the rent is registered, the Rent Officer must not delay the registration to wait for the court’s decision unless it is due within 2 or 3 days.

If a registration is made and the court finds that a regulated tenancy did not exist the rent register should be endorsed (in red) with:

“This registration was made in error and should not be relied on.”

However, if there is a challenge to the way a registration is being conducted this will take the form of an application for judicial review. If such an action is taken the details must be referred to RO Guidance (RO.Guidance@voa.gsi.gov.uk) at the earliest opportunity and the Rent Officer must take no further action and must wait for the court to reach its decision before proceeding.

  • Jurisdiction - determining jurisdiction

Change of circumstances - fair rent

(v1 2009)

Where there is a change to the dwelling or terms of the tenancy allowing a further application to register the rent.

Under S67 of The Rent Act 1977

  • A landlord and tenant together can make a joint application for a new registration of rent at ANY time
  • A tenant alone can only request a new registration of rent after 2 years have passed since the effective date of the last registration of fair rent
  • A landlord alone can only request a new registration of rent after 1 year and 9 months have passed since the effective date of the last registration of fair rent

However, either landlord or tenant alone or jointly may apply for a re-registration at any time on the grounds of change of circumstances.

The criteria are:

“… that there has been such a change in:

  • the condition of the dwelling-house (including the making of any improvement therein), the terms of the tenancy
  • the quantity, quality or condition of any furniture provided for use under the tenancy (deterioration by fair wear and tear excluded), or
  • any other circumstances taken into consideration when the rent was registered or confirmed

to make the registered rent no longer a fair rent”.

So, if the Rent Officer is to accept an early application on these grounds:

  • there must be a change; and
  • it must be a change which is enough to make the current “fair rent” no longer “Fair”

The applicant must state the change of circumstances that form the basis for the application (questions 13 and 15 on the application form). Rent Officers must decide their jurisdiction on these grounds alone. The Rent Officer must be sure of all the facts, because their jurisdiction is determined on this point, and it is open to challenge in the administrative court and not by the Rent Assessment Committee.

It may be that at the time of the previous registration there were items of disrepair that affected the tenant’s use or occupation of the dwelling. An example might be defects that prevented the safe use of a room or where there was a lack of basic amenities such as hot water, bathing or toilet facilities. The Rent Officer will have determined a rent that reflected the actual market at that time, for a property in that condition. In these circumstances the nature and degree of disrepair must be recorded at the time.

If there is a change to the property that improves the dwelling because some or all of the disrepair or other recorded matters have been put right, and as a result, the rent is no longer fair, the Rent Officer is able to register a different rent within the 2 year period. This is regardless of whether the works are part of the landlord’s repairing obligations.

An early application can be accepted if there is a change in the condition of a dwelling, because of repairs or improvements providing the changes mean that the registered rent is no longer a fair rent.

There is no right of appeal against a Rent Officer’s decision not to accept an application made on the grounds of change of circumstances but the decision can be challenged by way of judicial review.

If the Rent Officer decides that he/she has jurisdiction, there is nothing to prevent them from assessing and registering the same rent as before. When Rent Officers are registering the rent they must consider all the circumstances, and one set of circumstances may be offset by another. For example, the installation of central heating may be offset by a general reduction in market rent.

When deciding what rent to register the Rent Officer must also consider the maximum fair rent. Although an application has been accepted early because of a change in circumstances, the maximum fair rent (MFR) may still apply, because the change itself must result in an increase in rent of at least 15% of the existing registered rent to gain exemption from the MFR.

If the Rent Officer accepts an early application for registration on the grounds of change of circumstances, the effective date of that new registration will be the date that the Rent Officer registers the new rent.

  • Jurisdiction - determining jurisdiction
  • Maximum fair rent

Controlled tenancies and phasing

V1.0 2010

Specific types of tenancy which attract a phased rent increase following registration of a new rent.

Background

Rent Control was introduced with the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915. Control was originally only applicable to separate dwellings with rents not exceeding £35 in London, £30 in Scotland and £26 elsewhere. There were some exceptions.

Throughout the 1920 – 1939 period, various pieces of legislation were introduced to raise the rateable value limits, and control was gradually abolished between 1923 and 1938. Only to be introduced again in 1939 to coincide with the outbreak of the second world war.

The Government finally decided to de-control the market by the introduction of “The Rent Act 1957”, coming into effect on 6th July 1957. The Act immediately de-controlled all new furnished tenancies having a Rateable Value on 7th November 1956 of up to £40 in London, and Scotland and £30 elsewhere. All new “long” tenancies with a term exceeding 21 years were also de-controlled.

Abolition of control

Existing tenancies already subject to control prior to the 6 July 1957 remained controlled tenancies, but most remaining controlled tenancies were finally de-controlled on 28 November 1980 with the introduction of the Housing Act 1980. The only exception was those tenancies including a business use under Pt 2 of The Landlord and Tenant Act 1954, which continued to be controlled until the contractual term ended, and treated as a continuing tenancy thereafter under S24 of that Act.

Summary

a controlled tenancy must have commenced prior to 6 July 1957, at a rent not exceeding £40 in London and Scotland or £35 elsewhere. Any tenancy that commenced after that date or exceeding the rent limits is not a de-controlled tenancy.

De-controlled tenancies and registration of fair rent

Rent Officers may register rents for de-controlled tenancies in the normal manner provided that the rent passing at the time of the application is above 2/3 of the Rateable value on 23 March 1965 (the 1965 rating list). Otherwise the tenancy is at a “low rent” and outside of the Rent Officer’s jurisdiction by means of S5 of The Rent Act 1977.

Phasing of increases

When the rent is registered by the Rent Officer for the first time following de-control, the increase in rent is subject to phasing. This means that ½ the increase in rent is payable from the effective date of registration, and the full increase payable from the first anniversary of the effective date of registration. Phasing only applies to the first registration.

Notices of increase

Landlords must serve a valid notice of increase on their tenants following a registration of fair rent. The notice can be back-dated up to 4 weeks from the date of the notice, but cannot pre-date the effective date of registration. The correct form to use for standard rent increases is “Form 1” in the “Rent Act 1977 (forms etc) Regulations 1980 (SI 1980 No 1697).

For “De-Controlled” tenancies where the rent has been registered for the first time only, the correct form to use is “Form 2” in the same regulations. The relevant forms are available from law stationers.

  • Notices of increase
  • Jurisdiction (all pages)

Crown tenancies

v1 2012

Tenancies where a Crown body is the landlord and which are exempt from protection under the Rent Act 1977.

Crown tenancies are one of the exemptions from protection under the Rent Act 1977.

The Rent Act 1977 Section 13 “Landlord’s interest belonging to Crown” states:

A tenancy shall not be a protected tenancy at any time when the interest of the landlord under the tenancy belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department; and

A person shall not at any time be a statutory tenant of a dwelling-house if the interest of his immediate landlord would at that time belong or be held as mentioned above.

An interest belonging to Her Majesty in right of the Crown shall not prevent a tenancy from being a protected tenancy or a person from being a statutory tenant if the interest is under the management of the Crown Estate Commissioners.

This means that any tenancy where the landlord is either the Monarch (in his/her role as Monarch) cannot be a protected tenancy under the Rent Act 1977, unless the dwelling is being managed by the Crown Estate Commissioners who are a body that manage property on behalf of the nation.

The Monarch’s personal estate (property held in their own name rather than property held by the Crown) is not subject to Crown immunity.

Tenancies where the landlord under the tenancy is a Government Department also fall outside the protection of The Rent Act under this provision. Government departments are those such as NHS, DWP, DEFRA, DCLG etc…

From 1st April 1991 Crown immunity was removed from any new tenancy created by a Health Service Body, which includes Family Health Services Authorities, Dental Practice Boards and Public Health Service Laboratory Service Boards. This also includes NHS trusts.

Any tenancy created prior to 1st April 1991 which was continuous and became vested in one of the above named bodies after 1st April 1991 would retain Crown immunity.

If you are in any doubt as to whether the landlord under the tenancy would fall under the section 13 Crown exemption from protection, please contact RO Guidance for assistance.

  • Jurisdiction – deciding jurisdiction
  • Jurisdiction – what isn’t a regulated tenancy?

Deciding jurisdiction

(v1 2009)

Matters for consideration by the Rent Officer when deciding whether a rent may be registered under the tenancy.

The Network Support Office will book in all applications for registrations of fair rent that they receive. Once booked in the Rent Officer must decide on their jurisdiction to deal with the case.

Applications should be taken at face value. Rent Officers may accept or refuse jurisdiction on the basis of the answers given to questions on the application form. For example, if a tenant’s application says that the landlord is the local authority, it is plainly outside the Rent Officer’s jurisdiction and the Rent Officer may reject that application on the basis of the applicant’s own statements.

Where the Rent Officer has doubt, they must contact the applicant and ask for more information.

Where there is doubt about a particular fact, Rent Officers must make enquiries to try to satisfy themselves as to their jurisdiction. They should do this by holding a jurisdictional hearing (not a consultation) where both parties

  1. can state their case

  2. be questioned by the other party; and/or

  3. make submissions about the applicable law

After the hearing, Rent Officers must decide whether to proceed with the application.

Rent Officers must refuse to proceed with the application if they are:

  1. not satisfied that they have jurisdiction

  2. unsure if they have jurisdiction

But if they are satisfied that they have jurisdiction, they must proceed to register a fair rent in the normal way. The exceptions to this rule are where:

Court proceedings will determine the matter within the next 2 or 3 days, or; someone issues proceedings against the Rent Officer, directly challenging jurisdiction. In these cases the Rent Officer should not make any determination until the matter has been resolved.

It should be noted that when in the “Enter Final FR Decision” stage on our VICTER system, there is no facility for the case to be withdrawn at that stage. The Rent Officer should only advance the case to this final stage in the workflow if s/he is sure of their jurisdiction and is going to immediately enter their registration decision. Cases must not be left at this stage without final decisions being entered, so the Rent Officer must be confident of their jurisdiction to register a rent and be ready to enter the decision which they have made before advancing a case to this stage.

When faced with an application for registration of rent, Rent Officers are under a duty to determine their own jurisdiction, but their decisions are not conclusive. The county court has power to determine the status of the letting under s141 of the Rent Act 1977 or s26 of the Rent (Agriculture) Act 1976, and either party can ask the court to do this. The county court’s decision is conclusive, subject only to a right of appeal to the Court of Appeal.

There is one point upon which the Rent Officer can be certain of jurisdiction. The legislation:

sets out the rateable value limits within which tenancies are protected, and,

provides that if in any proceedings any question arises as to whether or not a dwelling-house is, on the appropriate day (which is defined within the Rent Act), within the rateable value limits specified for protection it shall be deemed to be within those limits unless the contrary is shown.

An application to the Rent Officer constitutes ‘proceedings’ in this context. So where the application is for the tenancy of a property that has no separate rateable value, the Rent Officer should assume jurisdiction unless one of the parties challenges the decision. The Rent Officer alone cannot refer the matter to the County Court.

  • Additional information
  • Challenges to jurisdiction

Deserted spouses - rights to remain

V1.2 2009

The rights of the deserted spouse to remain under the tenancy when they are not the named tenant.

Spouses or civil partners

Rent Officers may come across the situation where the named tenant has separated from their spouse or civil partner, left the property and the ‘deserted’ spouse or civil partner remains resident. This may involve the male partner leaving and the female remaining at the property, or the reverse. Exactly the same rights, described below, apply in either situation.

The rights of deserted spouses and civil partners are laid down in the Family Law Act 1996.

Under s30 FLA’96 the spouse or civil partner left at the property has the right to stay at the property and not to be evicted by anyone without a Court Order. The deserted spouse or civil partner’s continued occupation of the property is treated as continuation of the named tenant’s tenancy. The Act specifically states that this applies to tenancies covered by the Rent Act 1977, the Rent (Agriculture) Act 1976 and the Housing Act 1985.

Furthermore any “payment or tender made or other thing done … in respect of rent” counts as if it were done by the other spouse or civil partner (i.e. the tenant). So any rent payments made by the deserted spouse or civil partner count towards continuance of the original tenancy and the landlord can’t argue that he has not received rent due from the tenant. Likewise any improvements to the property by the deserted spouse or civil partner would count as tenant’s improvements for the purposes of a rent registration. All the deserted spouse or civil partner has to do is to continue living at the property and paying the rent and they will have the same security of tenure and rights to rent registration that the original tenant had.

Cohabitants

Section 30, as described above, protects what was called in the past the ‘matrimonial home’. Where the two people involved have not actually married or entered into a formal civil partnership the situation is different from that described above. In the law’s eyes unmarried couples or unregistered same-sex partnerships are ‘cohabitants’, and less protection is given to them.

Cohabitants’ rights are covered by s36 FLA’96. Where either a tenant has left the property leaving a cohabitant behind and the deserted cohabitant has no right of their own to remain in the property (i.e. they weren’t a joint tenant or didn’t have any other right to the tenancy), or the relationship has broken down and the cohabitant has no rights to remain, they can apply to the Court for an Order laying down their occupation rights, if any. Any Order made has a limited time span of 6 months, with the possibility of one six month extension. The Court will have regard to a number of matters when making the Order, including the length of the relationship, the needs of any children and the financial resources of the two parties. Additionally a cohabitant can apply to the Court for an Order transferring certain types of tenancy.

Effectively a spouse or civil partner can stay in the property without a Court Order whereas a cohabitant may have to go to Court to establish their right to stay.

Divorce or dissolution

The rights of deserted spouses or civil partners to remain in the property exist whilst they are married or in a civil partnership. However these rights will end automatically on divorce or dissolution (of the civil partnership). The divorce or dissolution Order should address the matter of who, if anyone, is allowed to stay in the former home and the Court can order the transfer of a tenancy. All types of tenancy that we register rents for are covered by this provision.

However, the transfer must have taken place as part of the Court Order and probably can’t be sought after the event. The one Court case that covered this area (Lewis v Lewis ,1985) ruled that the FLA’96 rights applied during the marriage but lapsed immediately on divorce. They had no power, after the divorce, to revive a statutory tenancy in order to transfer it. Consequently if the tenancy isn’t transferred as part of the divorce or dissolution it may lapse as the tenant no longer lives there, either in person or through the occupation rights of the deserted spouse or civil partner. In such a situation continued occupation and payment of rent by the now single ex-deserted spouse or civil partner may constitute a new tenancy which, if it started after 15 January 1989, would be one we couldn’t register a rent for.

  • Jurisdiction - deciding jurisdiction
  • Regulated tenancy

Exemptions to regulated tenancies

(v1 2009)

Tenancies which are not protected under the Rent Act 1977 and so the rent may not be registered.

An application for registration of rent must relate to a dwelling-house and to either:

  • a regulated tenant;
  • a housing association tenancy
  • a statutory tenancy under the Rent (Agriculture) Act 1976

Regulated tenant

In simple terms a regulated tenant is:

  • a tenant of residential accommodation;
  • with exclusive use of living accommodation;
  • whose tenancy began prior to 15 January 1989;
  • paying rent; and,
  • to which none of the exceptions listed below applies.

Purpose of the letting

The purpose has to be residential and the premises must be let as a dwelling, however, a dwelling does not necessarily have to contain a kitchen or other cooking facilities.

Exceptions

These are where:

  • the dwelling-house has a rateable value or rent above the specified limits
  • the tenancy is at a “low rent” (see page Glossary of FR terms)
  • the tenancy is a qualifying shared ownership lease (if created on or after 10 December 1987)
  • the dwelling-house is “let with other land” (see page Glossary of FR terms)
  • there are payments for “board” or substantial payments for “attendance”; (for instance some tenancies covered by the Supporting People scheme); (see page Glossary of FR terms)
  • the letting is to a student by a specified educational institution
  • the purpose of the letting is that of a holiday
  • the dwelling-house is comprised in an agricultural holding
  • the dwelling-house consists of licensed premises
  • the landlord is resident
  • the landlord’s interest belongs to the Crown; (except where the property is in the management of the Crown Estate Commissioners)
  • the landlord’s interest belongs to the local authority
  • the landlord’s interest belongs to a registered housing association (but see page on Housing Association tenancy)
  • the tenancy is an assured or assured shorthold tenancy (under the Housing Act 1988)
  • the premises are let for business use and Part II of the Landlord and Tenant Act 1954 applies

Assured or assured shorthold tenancy

A tenancy created on or after 15 January 1989 is an assured or assured shorthold tenancy unless s34 of The Housing Act 1988 applies (s35 for Housing Association tenancies):

  • it is granted to a person (or any one of joint tenants) who immediately before the tenancy was granted was a regulated tenant, and
  • the same landlord (or any one of joint landlords) grants the new tenancy as under the regulated tenancy

The tenancy does not have to be on the same premises. As a general rule, if regulated tenants move home, then they take their protection with them providing:

  • they move to a property owned by the same landlord
  • there is no break between tenancies.

  • Note: it is important to establish that the Landlord is the same, this must not be confused with applications submitted by the same Agent who acts on behalf of several landlords.
  • Housing association tenancy
  • Statutory tenancy under the Rent (Agriculture) Act
  • Glossary of FR terms
  • Protected shorthold tenancies
  • Determining jurisdiction

Ground rent applications

(V1 2011)

Applications where the rent relates to ‘ground rent’ only.

In recent years Rent Officers have accepted jurisdiction on applications to register rents where the contract is for a ground rent.

A ground rent is usually a low level rent which leaseholders of flats pay. They have usually paid a premium at the start of the tenancy, i.e. the purchase price of the leasehold, and this large premium off sets the low level of ongoing rent.

In the past the low level of rent would have taken such tenancies out of the Rent Officer’s jurisdiction due to them being tenancies at a low rent. A tenancy is not a protected tenancy if either no rent is payable or if the rent is less than 2/3 of the rateable value. If the tenancy began on or after 1st April 1990, the tenancy is not protected if the rent is less than £1000 per annum in greater London or £250 per annum elsewhere.

In recent years the terms of some contracts have linked the ground rent to the capital value of the flat, and this has taken the contractual ground rent above these rent limits.

Rent Officers must take account of the terms of the tenancy when determining a registered rent, and this includes the payment of a premium.

It is recommended that where such applications for registration of rent are received, they are put on to the VICTER system for Rent Officer consideration, and the RR2s are issued, and then the allocated Rent Officer should contact RO.guidance for further advice.

It is likely that a copy of the lease will be requested for the detailed terms to be considered.

  • Glossary of FR terms
  • Jurisdiction – what isn’t a regulated tenancy

Housing association tenancy

(v1 2009)

Tenancies where the landlord is a registered Housing Association.

Tenants of registered housing associations (housing associations that are registered with the Housing Corporation) are not regulated tenants. But Rent Officers may register fair rents for them if the only reason the tenancy is not regulated is the fact that the landlord is a housing association.

Housing Association tenant

Part 1 of The Rent Act 1977 excludes Housing Association tenancies from Rent Act protection, however Part VI allows some sections of The Rent Act to apply to Housing Association tenancies. Generally housing association tenants can have their rents registered by a Rent Officer if they are:

  • a tenant of residential accommodation
  • with exclusive use of living accommodation
  • whose tenancy began before 15 January 1989
  • paying rent
  • who would be a regulated tenant but for the fact that the landlord is a registered housing association; and
  • where none of the exceptions that prevent the creation of a regulated tenancy apply

Purpose of the letting

The purpose has to be residential and the premises must be let as a dwelling. However, a dwelling does not necessarily have to contain a kitchen or other cooking facilities.

Assured or assured shorthold tenancy

A tenancy created by a registered housing association on or after 15 January 1989 is an assured or assured shorthold tenancy unless:

  • it is granted to a person (or any one of joint tenants) who immediately before the tenancy was granted was a housing association tenant; and
  • it is granted by the same landlord as under the housing association tenancy
  • that former tenancy also was a tenancy that could be or was subject to a registration of fair rent by the Rent Officer

The tenancy does not have to be on the same premises. As a general rule, if housing association tenants move home, s35 of The Housing Act 1988 allows them to take their protection with them providing:

  • they move to a property owned by the same landlord; and
  • there is no break between tenancies
  • Regulated tenancies
  • Jurisdiction – deciding jurisdiction

Jurisdictional Hearings

(V2 2013)

Meetings where the Rent Officer gathers evidence from the parties as to his/her jurisdiction to register a rent.

Jurisdictional Hearing is a term which does not appear in the statutes. It is simply a meeting called by the Rent Officer to establish whether or not the application for registration of rent is valid and the registration can be lawfully made. It is a meeting to which both parties to the tenancy are invited; hence occasionally it has been confused with a consultation.

Consultation v Jurisdictional Hearing

A consultation is not a hearing to determine whether or not an application for fair rent can be entertained. The purpose of a consultation is for the Rent Officer to consider, with the parties, what rent should be registered as a fair rent.

Where there is doubt about a particular fact, Rent Officers must make enquiries to satisfy themselves as to their jurisdiction. They may do this by seeking additional information by serving an RR3, or by holding a jurisdictional hearing (not a consultation). The hearing allows both parties to state their case, to be questioned by the other party and/or to make submissions about the applicable law. The Rent Officer must then decide after establishing all the facts at the hearing whether to proceed with the application.

Separate meetings

It is very important to keep the jurisdictional hearing and the consultation separate. The best approach is to hold them at separate times/venues. The danger of not doing so is to blur the meetings together, which may give the false impression that the Rent Officer may be pre-judging the outcome of the jurisdictional hearing.

If for any reason it is unavoidable to hold both a jurisdictional hearing and a consultation at the same time/venue, the important thing is that the separate meetings are very clearly delineated, and the Rent Officer explains to those present that the

  • jurisdictional hearing (usually held first) is in order to hear representations concerning jurisdiction to register a rent, such as tenancy status and history, and then separately, the
  • consultation meeting purpose is in order to hear representations in relation to the level of rent to be registered, such as tenant’s improvements and state of repair

The Rent Officer must make it abundantly clear that the consultation is only being held in case the outcome of the jurisdictional hearing, which is yet to be judged, is that the Rent Officer does have jurisdiction to register.

It is because of the difficulty of avoiding the perception of prejudgement that the firmly recommended practice is to hold the jurisdictional meeting at a time and venue prior to, and separate from, any future consultation which may be required.

  • Consultations – procedure and practice
  • RR3 – further information required – application for registration of rent

Long tenancies and leases

(V1 2010)

Tenancies granted for a term of more than 21 years.

Introduction

Over the years that preceded the Rent Act 1977 various statutes have both included and excluded long tenancies from protection. Prior to 1957, most long tenancies were excluded as their rent was less than two thirds of the rateable value (see handbook page, “Tenancies at a Low Rent v1 2009”). The Rent Act 1957 expressly excluded all long tenancies regardless of the level of rent. The Leasehold Reform Act 1967 then returned protection to long tenancies, except those at a low rent. The Rent Act 1977, which is still the governing statute in relation to protected tenancies, continues to afford protection to long tenancies, again, save for those at a low rent.

Accordingly, regardless of the length of the term, any tenancy

  • created prior to 15th January 1989 (save for the limited circumstances provided for by section 34 of the Housing Act 1988 in relation to the valid creation of new protected tenancies where the landlord and tenant are the same as those immediately prior and before 15th January 1989)
  • under which residential premises are let as a separate dwelling; and
  • regardless of whether or not the original term granted under the tenancy has expired

is a tenancy to which the Rent Act 1977 applies.

Additional rules for long tenancies

A long tenancy is defined as a tenancy granted for a term exceeding 21 years.

In determining whether a long tenancy is a tenancy at a low rent, the Rent Officer must disregard such sums that are expressed payable in relation to rates (now called council tax), services, repairs, maintenance or insurance.

Furthermore it should be noted that long tenancies with terms exceeding just 7 years are likely to have repairing obligations which are distinct from most protected tenancies. The most common obligations for landlord and tenant in relation to repairs and maintenance are expressed by Section 11 of the Landlord and Tenant Act 1985; however Section 11 specifically does not apply to tenancies with a term exceeding 7 years. (It also does not apply to tenancies commencing before 24th October 1961.) Repairing obligations in relation to registrations of rent for these cases should be noted as per the contractual arrangements between landlord and tenant.

  • Tenancies at a low rent
  • Repairing obligations

Protected shorthold tenancies

(v1 2009)

Shorthold tenancies granted before the Housing Act 1988.

What is a protected shorthold tenancy?

Protected shorthold tenancies (PST) were introduced by the Housing Act 1980, and gave the same protection to the tenant as a fully protected Rent Act tenancy, but only during the initial fixed term of between 1 and 5 years. They could only be created on or after 28 November 1980 and before 15 January 1989.

To create this special type of tenancy it had to be set up correctly at the time. A valid notice (referred to as a section 52 notice) had to be given to the prospective tenant before the tenancy was granted. This was so that the tenant could take advice prior to signing the agreement because the tenancy only had limited Rent Act protection.

At the end of the fixed term the tenant continues to benefit from statutory protection under the Rent Act 1977, but only as long as the PST continues, and the tenant does not break the conditions of the tenancy. The rent can be registered by the Rent Officer.

But, from 15 January 1989 landlords can very easily convert PST’s to Assured Shorthold Tenancies (AST’s), providing they serve the correct notice on the tenant – basically within the last 3 months of the anniversary date. And, if the PST has been brought to an end correctly, the Rent Officer would no longer have jurisdiction to register the rent.

Rents for PSTs

For PSTs outside Greater London (which began on or after 1 December 1981), and for PSTs in Greater London (which began on or after 4 May 1987), the landlord and tenant can agree the rent if there is no registered rent for the property. However, either party can apply at any time for a fair rent to be registered.

For PSTs which began before these dates a fair rent must have been registered by the Rent Officer, or a certificate of fair rent issued before the tenancy was granted, and a formal application for registration made within 28 days after the tenancy started.

There are no differences in terms of the application or registration process in dealing with PST’s than a normal regulated tenancy, and the register sheets are filed in the main part of the rent register.

During the fixed term

During the fixed term the tenant has full Rent Act protection. The landlord will only be able to get possession before the end of the agreed fixed term if the tenant fails to pay the rent or breaks some other obligation under the tenancy and the terms of the tenancy agreement allow the landlord to bring the tenancy to an end in such circumstances.

But, if the tenant wants to leave before the end of the fixed term they can, provided that they give at least 1 months notice in writing for PST’s of 2 years or less; or at least 3 months notice for PST’s of more than 2 years.

At the end of the fixed term

The tenant has no right to remain after the fixed term if the landlord wants the tenant to leave. But the landlord must give the tenant at least three months notice in writing of his or her intention to apply to the court for possession under Case 19 of the Rent Act 1977. This notice must be served during the last three months of the fixed term (or within 3 months of the anniversary date). For example, if the PST fixed term ends on 31 July the notice can be served at any time between 1 May and 31 July. A notice served on 1 May would have to run out on or after 1 August; a notice served on 1 June would have to run out on or after 1 September.

However, at the end of the fixed term the landlord could offer the tenant a new AST. If the tenant accepts a new tenancy and the qualifying conditions are fulfilled, the new tenancy will automatically be an AST. The landlord does not need to serve any notice. Any rent registered for the property will no longer apply to this tenancy.

If the landlord takes no steps to serve notice of possession at the appropriate time or to enter into a new tenancy, the tenant will be able to stay on for at least another year as a regulated tenant under the Rent Act. This doesn’t give the tenant indefinite security of tenure though; the landlord will still be able to serve notice on the tenant later.

Moving to another property or new agreement with the same landlord

PSTs are specifically excluded from the continued protection afforded by section 34 of the Housing Act 1988, where existing regulated tenants move to a different property with the same landlord.

In fact even if the landlord and tenant remain the same and a new tenancy is entered into after 15 January 1989 it will automatically be an AST, unless the landlord specifically serves a notice on the tenant saying that it is not an AST.

Referrals of PSTs for Housing Benefit

PST’s are excluded tenancies for the purposes of Housing Benefit referrals, and therefore should not be referred to the Rent Officer. However, any PST’s that have been brought to an end correctly or simply converted to AST’s can be referred in the normal way.

  • Regulated tenancy
  • Jurisdiction - determining jurisdiction

Regulated tenancy

(v1 2014)

Tenancies protected under the Part IV of the Rent Act 1977.

The application for registration of rent must relate to a dwelling-house and to either:

  • a regulated tenant
  • a housing association tenancy
  • a statutory tenancy under the Rent (Agriculture) Act 1976

Regulated tenant

In simple terms a regulated tenant is:

  • a tenant of residential accommodation
  • with exclusive use of living accommodation
  • whose tenancy began prior to 15 January 1989
  • paying rent; and
  • to which none of the exceptions listed below applies

Purpose of the letting

The purpose has to be residential and the premises must be let as a dwelling, However, a dwelling does not necessarily have to contain a kitchen or other cooking facilities.

Exceptions

These are where:

  • the dwelling-house has a rateable value or rent above the specified limits
  • the tenancy is at a “low rent” (see page Glossary of FR terms)
  • the tenancy is a qualifying shared ownership lease (if created on or after 11 December 1987)
  • the dwelling-house is “let with other land” (see page Glossary of FR terms)
  • there are payments for “board” or substantial payments for “attendance”; (for instance some tenancies covered by the Supporting People scheme); (see page Glossary of FR terms)
  • the letting is to a student by a specified educational institution
  • the purpose of the letting is that of a holiday
  • the dwelling-house is comprised in an agricultural holding
  • the dwelling-house consists of licensed premises
  • the landlord is resident; [Must be resident in the building and from the start of the tenancy]
  • the landlord’s interest belongs to the Crown
  • the landlord’s interest belongs to the local authority
  • the landlord’s interest belongs to a registered housing association (but see page on Housing Association tenancy)
  • the tenancy is an assured or assured shorthold tenancy (under the Housing Act 1988)
  • the premises are let for business use and Part II of the Landlord and Tenant Act 1954 applies
  • assured or assured shorthold tenancy

Tenancies created after 15 January 1989 that can still be protected

A tenancy created on or after 15 January 1989 is an assured or assured shorthold tenancy unless s34 of the Housing Act 1988 (s35 for HA tenancies) applies:

  • it is granted to a person (or any one of joint tenants) who immediately before the tenancy was granted was a regulated tenant, and
  • the same landlord (or any one of joint landlords) grants the new tenancy as under the regulated tenancy
  • The tenancy does not have to be on the same premises. As a general rule, if regulated tenants move home, then they take their protection (not their registered rent) with them provided that
  • they move to a property owned by the same landlord* and
  • there is no break between tenancies

  • Note: it is important to establish that the landlord is the same, this must not be confused with applications submitted by the same Agent who acts on behalf of several landlords.
  • Housing association tenancy
  • Glossary FR
  • Protected shorthold tenancies
  • Jurisdiction - determining jurisdiction

Regulated tenancies

(v2.1 2013)

Tenancies protected under the Part IV of the Rent Act 1977.

The right to succeed to a tenancy varies with the type of tenancy.

It must be noted that in the case of the death of a joint tenant, the tenancy automatically passes to the remaining joint tenant(s). This doesn’t constitute a succession in regulated (i.e. Rent Act) tenancies. However in housing association secure tenancies it will count as the first and only succession to a secure tenancy.

Regulated tenancy

On the death of original tenant to the tenancy

Only the original tenant’s spouse or civil partner can succeed to a regulated tenancy. To qualify the spouse or civil partner must have lived at the premises immediately before the death. There is no further right of succession.

Spouse means any person living with the original tenant as husband or wife. Civil partner means someone with whom the tenant has either registered as a civil partner or with whom the tenant is living as if they were civil partners.

Example 1:

Mr Jones was a tenant of 1 Smith Street. The tenancy began 1st February 1970. He married Mrs Jones in 1972. Mr Jones Died in February 1988. His wife would succeed to the regulated tenancy.

Although only a spouse or civil partner can succeed to the regulated tenancy, other family members can be entitled to remain in the property as assured tenants. A member of the original tenant’s family can succeed to an assured tenancy, provided that:

  • the tenant died between 15 January 1989 and 14 July 1990:

the successor must have lived with the tenant for 6 months prior to 15 January 1989 and continued to live there until the tenant’s death;

  • the tenant died after 14 July 1990:

the successor must have lived with the tenant for 2 years prior to death.

Example 2:

Mrs Jones (from Example 1) dies on 13 July 1990, and her son was living at the dwelling at the time of death and since November 1989. The son would succeed to an ASSURED tenancy as he was a member of the original tenant’s family AND the 1st Successors family. He also met the qualifying test for residency (at time of death and 6 months prior to death)

Had Mrs Jones died 16th July 1990, the son would NOT qualify to succeed to an ASSURED Tenancy, because qualifying test had changed to being resident 2 years prior to death.

The old rules were that people with close personal connections, but who were not relatives, could not qualify as members of each other’s family for purposes of succession. An example would be a platonic relationship between a widow and a younger man. These old rules may no longer apply if the people concerned are civil partners, or are living together as if they were civil partners or a couple.

On the death of the first successor

A member of the first successor’s family who:

  • had also been a member of the original tenant’s family; and
  • had lived with the successor for two years prior to the successor’s death;
  • succeed, but only to an assured tenancy.

As an example, if the original tenant were a married man with a child, on his death his wife would become the first successor. On the wife’s death, providing the child had lived with its mother for two years prior to her death, the child would succeed to an assured tenancy. But, if the original tenant and his wife had no children, and after the husband had died, the wife had a child through a later marriage or relationship; her child could not succeed to a tenancy. This is because, although the child would be a member of the first successor’s family, it was never a member of the original tenant’s family.

Example 3:

Mrs Jones (from example 1) re-married in 1989 and became Mrs Smith. She died on 13 July 1990. Her son was not resident. Her second husband was resident at the time of death and 6 months prior to death. The second husband could NOT succeed to any tenancy as he is not a member of the ORIGINAL tenant’s family, only a member of the first successor’s family.(but do remember joint tenancy provisions mentioned at the start of this section)

  • Rent Act does not say what “member of the original tenant’s family” means. But the courts have ruled that the term should be given “a wide and liberal interpretation”. The test is whether an ordinary individual taking a common sense, approach, would see the person as a member of the tenant’s family. So, anyone who is a relative in the wide popular sense of the term may count as a member of the family. This includes children, parents, brothers and sisters. The law is less certain as to more remote relatives.

Example 4:

Mr Smith was the tenant of a dwelling from January 1980 and lived with his partner Mr Jones from February 1990. Mr Smith died in July 2010. Mr Jones was resident at death and for 2 years prior to death. Mr Jones would succeed to the regulated tenancy as, although he was not formally a civil partner of Mr Smith, he would be treated as living with Mr Smith as his long-standing partner, and as such would be treated as his spouse.

Second successions to regulated tenancies occurred prior to the coming in to force of the Housing Act 1988 on the 15th January 1989 so some may still exist.

Prior to the Rent Act 1965 which commenced on the 8th December 1965 there was only one succession

Example 5

Mr Gray was the tenant of a dwelling from January 1952 living with his wife and son. He died in July 1960 and his wife succeeded to his tenancy. She died in November 1965. Their son who was living at home at the time is likely to have been allowed to stay in the property but he would not be a second successor, as he would had his mother died on or after 8th December 1965; he would be a new original regulated tenant. Any works his parents carried out to the property would revert to the landlord.

  • Transfer / Assignment / Mutual exchange
  • Housing association tenancy
  • Regulated tenancy
  • Agricultural tenancy - Rent (Agriculture) Act 1976
  • Jurisdiction - deciding jurisdiction

Succession

(v2.1 2013)

Where the tenant dies and the tenancy passes to a surviving resident of the dwelling. The right to succeed to a tenancy varies with the type of tenancy.

It must be noted that in the case of the death of a joint tenant, the tenancy automatically passes to the remaining joint tenant(s). This doesn’t constitute a succession in regulated (i.e. Rent Act) tenancies. However in housing association secure tenancies it will count as the first and only succession to a secure tenancy.

Regulated tenancies

On the death of original tenant to the tenancy

Only the original tenant’s spouse or civil partner can succeed to a regulated tenancy. To qualify the spouse or civil partner must have lived at the premises immediately before the death. There is no further right of succession.

Spouse means any person living with the original tenant as husband or wife. Civil partner means someone with whom the tenant has either registered as a civil partner or with whom the tenant is living as if they were civil partners.

Example 1:

Mr Jones was a tenant of 1 Smith Street. The tenancy began 1st February 1970. He married Mrs Jones in 1972. Mr Jones Died in February 1988. His wife would succeed to the regulated tenancy.

Although only a spouse or civil partner can succeed to the regulated tenancy, other family members can be entitled to remain in the property as assured tenants. A member of the original tenant’s family can succeed to an assured tenancy, provided that:

  • the tenant died between 15 January 1989 and 14 July 1990
  • the successor must have lived with the tenant for 6 months prior to 15 January 1989 and continued to live there * until the tenant’s death
  • the tenant died after 14 July 1990
  • the successor must have lived with the tenant for 2 years prior to death.

Example 2:

Mrs Jones (from Example 1) dies on 13 July 1990, and her son was living at the dwelling at the time of death and since November 1989. The son would succeed to an ASSURED tenancy as he was a member of the original tenant’s family AND the 1st Successors family. He also met the qualifying test for residency (at time of death and 6 months prior to death)

Had Mrs Jones died 16th July 1990, the son would NOT qualify to succeed to an ASSURED Tenancy, because qualifying test had changed to being resident 2 years prior to death.

The old rules were that people with close personal connections, but who were not relatives, could not qualify as members of each other’s family for purposes of succession. An example would be a platonic relationship between a widow and a younger man. These old rules may no longer apply if the people concerned are civil partners, or are living together as if they were civil partners or a couple.

On the death of the first successor

A member of the first successor’s family who:

  • had also been a member of the original tenant’s family; and
  • had lived with the successor for two years prior to the successor’s death;
  • succeed, but only to an assured tenancy.

As an example, if the original tenant were a married man with a child, on his death his wife would become the first successor. On the wife’s death, providing the child had lived with its mother for two years prior to her death, the child would succeed to an assured tenancy. But, if the original tenant and his wife had no children, and after the husband had died, the wife had a child through a later marriage or relationship; her child could not succeed to a tenancy. This is because, although the child would be a member of the first successor’s family, it was never a member of the original tenant’s family.

Example 3:

Mrs Jones (from example 1) re-married in 1989 and became Mrs Smith. She died on 13 July 1990. Her son was not resident. Her second husband was resident at the time of death and 6 months prior to death. The second husband could NOT succeed to any tenancy as he is not a member of the ORIGINAL tenant’s family, only a member of the first successor’s family (but do remember joint tenancy provisions mentioned at the start of this section).

  • Rent Act does not say what “member of the original tenant’s family” means. But the courts have ruled that the term should be given “a wide and liberal interpretation”. The test is whether an ordinary individual taking a common sense, approach, would see the person as a member of the tenant’s family. So, anyone who is a relative in the wide popular sense of the term may count as a member of the family. This includes children, parents, brothers and sisters. The law is less certain as to more remote relatives.

Example 4:

Mr Smith was the tenant of a dwelling from January 1980 and lived with his partner Mr Jones from February 1990. Mr Smith died in July 2010. Mr Jones was resident at death and for 2 years prior to death. Mr Jones would succeed to the regulated tenancy as, although he was not formally a civil partner of Mr Smith, he would be treated as living with Mr Smith as his long-standing partner, and as such would be treated as his spouse.

Second successions to regulated tenancies occurred prior to the coming in to force of the Housing Act 1988 on the 15th January 1989 so some may still exist.

Prior to the Rent Act 1965 which commenced on the 8th December 1965 there was only one succession

Example 5:

Mr Gray was the tenant of a dwelling from January 1952 living with his wife and son. He died in July 1960 and his wife succeeded to his tenancy. She died in November 1965. Their son who was living at home at the time is likely to have been allowed to stay in the property but he would not be a second successor, as he would had his mother died on or after 8th December 1965; he would be a new original regulated tenant. Any works his parents carried out to the property would revert to the landlord.

Housing association secure tenancies

If the tenant was a sole tenant either the tenant’s spouse, civil partner, or a member of the tenant’s family who had lived with the tenant for 12 months prior to the tenant’s death can succeed to another secure tenancy. There are no further succession rights.

Unlike the Rent Act, the Housing Act 1985 defines the term “a member of the tenant’s family”. It means:

  • spouse or civil partner of the tenant, or someone living with the tenant as spouse or civil partner; or,
  • person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.

In interpreting these provisions:

  • relationship by marriage shall be treated as a relationship by blood;
  • relationship of the half-blood shall be treated as a relationship of the whole blood;
  • stepchild of a person shall be treated as the child of that person;
  • illegitimate child shall be treated as the legitimate child of his/her mother and reputed father.

Example 6:

Mr Brown was the secure tenant of a dwelling from January 1980 and lived alone with his son. Mr Brown died in July 2010. His step-son was resident at death and for 12 months prior to death. The step-son would succeed to the secure tenancy as he met the qualifying requirements and was a member of the original tenant’s family.

  • law regarding Housing Association secure tenancies is defined further by Section 88 of the Housing Act 1985, which describes some tenancy changes which are not successions but which are treated as successions. This means that
  • tenancy changing from a joint tenancy to a single tenancy, by one or more of the joint tenants dying or just vacating the premises and leaving one or more of the remaining joint tenants, or
  • assignment of the tenancy, except for any assignment made as a result of proceedings under the Family Law Act (or before 1996, under the Matrimonial Homes Act) as part of a divorce settlement, the assignee only being treated as a successor if they were a successor at a former tenancy, so effectively the assignor status is passed to the assignee
  • treated as though it was the first succession under the secure tenancy. There are therefore no further succession rights

Example 7:

Mr & Mrs Brown were joint secure tenants of a dwelling from January 1980 and lived with their son. Mr Brown died in July 2010, and Mrs Brown died in September 2011. Their son was resident at death and for 12 months prior to death of Mrs Brown. The son would NOT succeed to the secure tenancy as, although he met the qualifying requirements and was a member of the original tenant’s family, there can be only one succession to a secure tenancy, and S88 (1) (b) of The Housing Act 1985 states that death of a joint tenant is treated as the one and only succession, so Mrs Brown was the first and only successor to the secure tenancy. There are no further succession rights.

Example 8:

Mr Brown was a secure tenant of a dwelling from January 1987 after he succeeded to his father’s tenancy and lived with his wife. Mr Brown separated from his wife, and they divorced in 2010. The Court allocated the tenancy to Mrs Brown. Mrs Brown takes the role of successor in place of her former husband.

Example 9:

Mr Brown was a secure tenant of Flat 21 in a block from January 1987 after he succeeded to his father’s tenancy. He decides to exchange tenancies with Mr Green who is an original secure tenant at Flat 23 in the same block. This is an assignment by way of exchange under s88 (3) of the Housing Act 1985. In this case, after the exchange, whilst the principle of mutual exchange is that the tenancies are “exchanged”, the tenants’ successor status will be retained by the individual tenants, so Mr Brown will retain his status as successor even though he moves to another dwelling. Mr Green will retain his status as an original tenant.

Shared ownership leases

For shared ownership leases, on the death of the tenant the lease is vested in the deceased’s estate until assigned to a new shared ownership tenant by the executors of the estate and the landlord. Therefore succession cannot take place.

Rent (Agriculture) Act 1976 tenancies

A spouse or civil partner succeeds to a statutory tenancy under the Rent (Agriculture) Act on the death of the original qualifying occupier or statutory tenant (occupier or tenant depends on the statutory tenancy having commenced).

If there is no spouse or civil partner, a family member who has lived with the original occupier for two years prior to his death can succeed to:

  • statutory tenancy under the Rent (Agriculture) Act if the original occupier died pre 15 January 1989
  • assured tenancy if the original occupier died on or after 15 January 1989

There are no further succession rights.

Again, the Act does not define who are members of the deceased’s family. The rules are basically the same as for a regulated tenancy. In both cases the test is whether an ordinary individual, taking a common sense approach, would see the person as a member of the tenant’s family.

  • Transfer / Assignment / Mutual exchange
  • Housing association tenancy
  • Regulated tenancy
  • Agricultural tenancy - Rent (Agriculture) Act 1976
  • Jurisdiction - deciding jurisdiction

Tenancies at a low rent

(v1 2009)

Where the rent is sufficiently low as to exclude it from protection under the Rent Act 1977.

Introduction

Ordinarily, a tenancy

  • created prior to 15th January 1989 (except in limited circumstances provided for by section 34 of the Housing Act 1988 in relation to the valid creation of new protected tenancies)
  • under which residential premises are let as a separate dwelling; and
  • regardless of whether or not the original term granted under the tenancy has expired

is a tenancy to which the Rent Act 1977 (“the Act”) applies. However, the Act excludes certain classes of tenancy, including tenancies at a low rent.

Tenancies at a low rent

A tenancy is excluded from the Act if under the tenancy

  • no rent is payable; or
  • the rent payable is less than two thirds of the rateable value on the appropriate day

The appropriate day and Rating Lists

The appropriate day is 22nd March 1973. In other words, the value shown on the rating list for the property concerned on 22nd March 1973. It should be noted that rating lists are valid for exactly 10 years. The appropriate rating list that was operative as of 22nd March 1973 was the rating list created on 1st April 1963.

Obtaining this data can be very difficult indeed. The lists were officially held by local authorities. However, it is likely that a local authority no longer has the 1st April 1963 as:

  • the 1st April 1963 list was superseded by the 1st April 1973 list (the last domestic rating list ever created); and
  • the 1973 list has not been used in relation to local residential property taxation since the fiscal year 1989/1990

The Valuation Office Agency used to keep copies of these lists, but they have all been disposed of.

There is a ‘best that can be done’ solution that may still work. Water companies still use the 1973 rating list for billing purposes in some cases, mainly in relation to older properties. This would be the best data available.

Additional rules for long tenancies

A long tenancy is defined as a tenancy granted for a term exceeding 21 years.

In determining whether a long tenancy is a tenancy at a low rent, the Rent Officer must disregard such sums that are expressed payable in relation to rates (now called council tax), services, repairs, maintenance or insurance.

Formerly excluded low rent tenancies

A tenancy that is determined to be at a low rent is not permanently excluded from the Act. If progressive rent increases take the rent payable to a level that is equivalent to or greater than two thirds of the applicable rateable value, then that tenancy will no longer be exempt from the Act.

On the other hand, a tenancy that is subject to a decrease in rent to a level that is below two thirds of the applicable rateable value will accordingly become exempt from the Act.

  • regulated tenancies
  • jurisdiction – what isn’t a regulated tenancy

Transfers, assignments, and mutual exchanges

(v1 2009)

Where the same tenancy is passed from one tenant to another under formal legal procedures as agreed by the landlord.

Rent Officers may come across various situations when considering their jurisdiction to deal with an application to register a fair rent. Sometimes a tenant has either moved since last registration, or the tenant on the application is different to the one named on the previous registration. There are 3 common situations that Rent Officers will come across: Assignments, Mutual exchanges and Transfers.

Assignments

An assignment is where a new party “takes over” as one party to an agreement, leaving the agreement itself intact. This can happen in a variety of forms, most commonly occurring for “shared ownership” cases but it can occur for other types of tenancy.

If there has apparently been an assignment the Rent Officer needs to check when the original tenancy was created. If that was before 15/1/89 (or 10/12/87 for shared ownership leases) the rent can usually be registered even if the lease has been assigned after that date.

(Note: For shared ownership leases; Rent Officers cannot register rents for shared ownership leases granted after 10/12/87)

Assignments must be in writing, so Rent Officers need to either see a copy of a document to confirm that the assignment is in fact an assignment and not a new tenancy, or have some written statement to confirm this to be the case.

There is no difference as to who the assignee is (Landlord or tenant) only that it is the same tenancy, assigned to a different landlord or tenant (or even both).

“Assignments” do NOT involve the creation of a NEW tenancy, it is the ORIGINAL tenancy that is ASSIGNED and it is still effective.

If the Rent Officer accepts jurisdiction and proceeds to register the rent he / she should insert in the ‘Commenced on’ box of the register the date the original tenancy of the property commenced (not the date of assignment), and in the ‘Remarks’ box (g) the following phrase: ‘Tenancy assigned on [DATE]’

Mutual exchange

A mutual exchange is simply an assignment but where two parties (usually 2 tenants) effectively swap places with each other. Mutual exchange often occurs where the tenancies exchanged are with different landlords, such as between local authority and housing association tenants.

A genuine mutual exchange is simply a specific type of assignment. An assignment is a procedure where a 3rd party acquires an existing tenancy and effectively takes the place of the existing tenant.

An assignment by mutual exchange is where 2 tenants effectively “swap” places and their respective tenancy agreements. So in the case of a mutual exchange between a LA tenant and a HA tenant, the LA tenant will effectively swap tenancies with the original HA tenant and vice versa. So, providing the original tenancy was a secure HA tenancy then the original LA tenant will have become a secure HA tenant, and the original HA tenant will become a secure LA tenant.

If an application for registration of rent is received where any form of assignment has occurred, the Rent Officer should ask the applicant (usually a housing association) for written confirmation” (or the tenant if they don’t have a copy). The written confirmation should give the Rent Officer all the information and dates needed to confirm or reject jurisdiction.

If the Rent Officer accepts jurisdiction and proceeds to register the rent he / she should insert in the ‘Commenced on’ box of the register the date the original tenancy of the property commenced (not the date of assignment), and in the ‘Remarks’ box (g) the following phrase: ‘Tenancy assigned by mutual exchange on [DATE]”

Transfers

A transfer is simply where a tenant vacates one property and then starts a new tenancy at a different property, but the landlord (or one of the joint landlords) remains the same. This is typically where a tenant moves to a different flat or house belonging to the same housing association, or a landlord relocates a tenant to another flat or house they own.

If the original tenancy is one that has or could have the rent registered under the Rent Act 1977 (or Rent (Agriculture) Act 1976, then any new tenancy created in this way would also be capable of having the rent registered. This is because the tenant’s protection is carried forward by virtue of S34 of the Housing Act 1988. It is important to note that it is only the tenant’s protection and right to have their rent registered by the Rent Officer that is carried forward. The registered rent from the previous property does not carry forward to the new tenancy.

If the “new” property already has a registered rent, which may have been registered for a previous tenant at that address, then that existing registered rent will immediately apply to the new tenancy. The existing registered rent may have been registered many years ago, but, unless it had been cancelled, would still be effective and also form the basis of any MFR calculation for a new registration of rent unless one of the MFR exemptions applied.

The Housing Act 1988 effectively abolished Rent Act protection for new tenancies. However, S34 of the act allowed the creation of some new “protected” tenancies to those where “immediately prior to the creation of the new tenancy, the tenant was a protected or statutory tenant of the same landlord, or one of the joint landlords”

Provided the Rent Officer is satisfied that the new tenancy is covered by s34, then they should accept jurisdiction and register the rent. The commencement date should be entered as the tenancy commencement date of the new tenancy and the “remarks” box (g) of the register should be noted:

“Former protected or statutory tenant of the same landlord [or Housing Association]”

  • Jurisdiction – deciding jurisdiction