Rent increase - new agreement or variation of old one?

[outonmeear]

I'm currently on the receiving end of a S21 notice, and I'm trying to find out if I have grounds to contest this.

 

I moved into a flat in 2001. The landlord wasn't really bothered about being a landlord, so he didn't do any of the expected things, like gas certificates or maintenance. TBH this wasn't a problem as the rent was very low, and I'm a pretty practical guy, so I was happy to look after the place, and renovated it from top to bottom. The place is an awful lot nicer than when I moved in. I could go literally 5 years without so much as speaking to him on the phone. He's moved several times without notifying me of a new address, all I've ever had is a mobile phone number.

 

This was the days before deposits had to be protected, so I didn't worry about that. This was a periodic tenancy from the start, not a fixed term that rolled into a statutory periodic tenancy.

 

In 2009 we met and he put the rent up by a small amount. I agreed to this as it was a pretty modest increase. Nothing was written down, definitely no Section 13 notice, but I started paying the higher amount straight away. There was nothing in the original AST about varying the rent.

 

My question is whether this should be regarded as a variation of the old tenancy agreement, or a new agreement. This is significant as if it is a new agreement, then he needed to put the deposit into a protection scheme. If not, then I can't defend the S21 on that basis. At the time I was unaware of the distinction between the two and the implications if our arrangement all went south - as it has done now.

 

What would the characteristics be of a new agreement versus a variation of an old one? How strong is my argument that he should have protected the deposit as we effectively had a new agreement post-2009?

 

Thanks for the help.

[SabreSheep]

If there was a written agreement to start with that did not include any method of varying the rent then you might be able to argue a new agreement came into force.

 

However the lack of paperwork is going to make this a very steep and complicated uphill battle IMO

 

Others with more experience will comment

[mariner51]

An accepted & paid increase in rent is allowable under old TA. no s13 reqd.

Your only hope IMO is to raise the validity of TA post-Localism Act 2012 at s21 hearing. If dates are correct, there is no defence to a valid s21.

[raydetinu]

As it was a periodic tenancy from day one as you say then the S21 must have the correct dates, and give two calendar months notice and end on the correct date of a rent period.

I would tend to agree that the increases were a variation rather than creating a new contract.

However you may wish to consult Shelter for advice.

[outonmeear]

Thanks for the advice guys, I guess it's worth advancing the argument that there was a new agreement made in 2009 and see what the judge thinks. BTW previous to 2009 he was paying the water rates, I took over that responsibility post the rent hike. Don't know if that reinforces the argument or not.

 

I've also been looking again at the S21 notice I was sent, and it's very ambiguous to my non-legal eyes, particularly when compared with the unequivocal wording in some of the sample notices I've seen dotted round the web. For example, it doesn't say that possession is required, merely that the landlord intends to apply to the court for a possession order (after the expiry date). Is this sufficient under the legislation?

 

Also the saving clause reads, "This notice expires on [incorrect date ie not end of period of tenancy] or the last day of the period of the tenancy whichever is the later". ie no use of the word "subsequent", so I don't really know which period is being referred to.

 

I don't know if it's allowed under board rules to solicit - offer recommendations like this, but I'd happily pay for a solicitor with specific sector knowledge to give the S21 notice a once-over and see if it is faulty. Any suggestions?

[The Carpet Cleaners]

Your local housing officers at the council will look at it and tell you. And they do it for free..

[raydetinu]

Frome what I understand if your tenancy started after February 1997, it would deemed to be an AST; So the contract you have has no fixed term? i.e. periodic/month by month?

unless there is anything in the contract or you were notified that this was not a an AST.

So as long as the S21 has the correct expiry ( departure date ), rent period, it will be valid. ( this applies under the new ruling, to contracts that were periodic from the start, with no fixed term.).

[BoopDMX85]

To the OP, please see my new post of today. A judge decided that a verbal AST can replace a written one previously issued.

 

Therefore, it would be my opinion, based on our judgement today that you can advance an argument to say that you had a new verbal AST agreement created in 2009 and this new verbal AST came with an increased rental figure for a 6 or 12 month period, which then turned into an SPT.

 

If I can post a link to our situation from another forum then you would see that our judge decided against us tenants by saying that the agreement to increase the rent in a conversation and via an informal note equalled to a new 12 month AST being created at a higher rent. EDIT: can't post link as am a new member

 

If there is any precedent to support the judge decision, then I would say, based on this judges statements, you can argue that you were given a new AST agreement at a higher rent.

 

Question is, does non-compliance of deposit protection (Serving PI again), apply for the new verbal AST?

Edited January 6, 2015 by BoopDMX85
explained about posting link to my other thread on a different forum