Water-tight agreements

Despite the fact that Riverside Housing Association v White, which challenged the validity of Riverside’s rent increase, was fought all the way to the House of Lords (and won by the tenant), social landlords are still giving tenants reason to challenge their rent and service charge practices.
If I were acting for tenants, I would take a careful look at many things, including:

• If landlords were using the statutory rent review procedure, I’d cast a keen eye on whether the notices have the right notes on them or if the landlord had removed or changed the obligatory information to make them more understandable (but, arguably, unenforceable).
• Whether the landlord decided not to include the notes for all tenants because it wastes paper (it has happened).
• Asking the landlord to prove what it had sent - after all, if my tenant said he didn’t get a notice and no one could prove otherwise, I might at least get the arrears reduced.

I would definitely check it was at least a year since the last increase and that the dates of the rent increase in the notices are right.

• Looking to see if the tenancy agreement says whether tenants will pay a fixed or a variable service charge.

I would then look at what the landlord is operating in practice - and not assume that the two are the same.

• If the service charges were variable, I would check landlords had followed the statutory requirements precisely.
• Checking that the tenancy agreement allows the tenant to be charged for the services being provided.

Both the courts and the leasehold valuation tribunal will give the words in the tenancy agreement their natural meaning. Ambiguities should be interpreted in the tenant’s favour.

• If my tenant’s landlord failed to specify the services in the agreement, I’d be sharpening my quill for the defence to say that my client had never agreed to pay for the services and because it was paid by housing benefit direct, he never really thought about what he should be paying.

This would be true - when I acted for tenants they rarely understood from their tenancy agreement what they were paying for.

• I would also look out for registered providers who had, with the best of intentions, varied services to accommodate changes in the needs and standards of service expected by their tenants, but not formally varied the tenant’s legal liability to pay for what they were getting.

It would be a very efficient or a very lucky landlord who would have got everything right for the past six years, as that is as far as I could go back.

During the time ahead, social landlords would be well advised to invest some time in double checking that their rent increases and service charges have been implemented lawfully, before taking proceedings in the county court or the leasehold valuation tribunal.

Times are undoubtedly hard but there is such a thing as a false economy.

geraldine.haden@housinglaw.uk.com

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