Fair rent registration process

The rules for fair rents for regulated tenants are set out in the Rent Act 1977. The landlord or tenant of a regulated or secure tenancy can make an application to have a fair rent registered.

Applications for a fair rent can be made by the tenant, their landlord, or jointly by both parties. An application by one of a number of joint tenants is invalid unless they have authority to apply on behalf of the others.[1]

In practice applications are often made by landlords to increase an existing registered fair rent.

An application to fix a fair rent must be made to the rent officer. The application must be made on the form prescribed by regulations.[2] It must state the amount of proposed rent. Application forms are available from the Valuation Office Agency.

Rent officers (employed by the Valuation Office Agency) have the power to assess and register fair rents for most private-sector residential accommodations let before 15 January 1989.

The rent officer will set a fair rent and must hold a consultation if either party requests it. Both parties are entitled to be represented at the consultation.

Rent officers are advised to inspect once every five years unless the landlord or tenant specifically requests an inspection or there has been a change in the condition of the premises. Inspections can take place before or after a rent officer consultation.

A registered rent can take effect from the date of registration by the rent officer.[3]

Details of rent officers' decisions are registered on the Rent Register and copies of the decisions are sent to landlords and tenants. The registered rent is the maximum that can usually be charged by a landlord.

The Rent Register is a public document which must be open for public inspection.[4] It is kept at the local Valuation Office where anyone can look at it during normal office hours. It can also be accessed online from the Valuation Office Agency electronic rent register search.

If the rent increases as a result of a registration or re-registration, the landlord must serve a notice of increase before the rent can be increased to the new level. The notice must be in the prescribed form[5] and specify the increase and the date from which it will take effect.[6] This date must not be earlier than the date the registration took effect and not more than four weeks before the date on the notice.

If no notice of increase is served, the tenant is not obliged to pay more rent and is able to recover amounts of overpaid rent.[7]

Where the rent is increased by the rent officer and is further increased by a Tribunal on appeal, the landlord must serve a fresh notice of increase.

Once a fair rent has been registered it cannot generally be reconsidered for a period of two years.

After the expiry of the two-year period either the landlord or the tenant can apply for a new fair rent to be registered.[8] In reality it will usually be the landlord who makes the application for a new fair rent and they can apply during the last three months of the two-year period even though any new increase will not be effective until the two-year period has ended.[9]

An application can be made before the expiry of the two-year period where there has been a change in circumstances.

A registered rent can be reconsidered before the expiry of two years on the application of either party if there is a change in circumstance, which makes the registered rent no longer a fair rent.

Changes in circumstances include:[10]

• the condition of the property including improvements

• the terms of the tenancy

• the quantity, quality or condition of any furniture

• any other circumstances considered when the rent was registered

If a landlord or tenant disagrees with the rent officer's decision, they can object to it by writing to the rent officer within 28 days of receiving the decision.[11]

The rent officer passes the objection and background details to the First-tier Tribunal (Property Chamber) to deal with by way of a hearing.

The rent officer must tell each side about an objection. Legal aid is not available for representation at the Tribunal hearing as it is a tribunal, not a court. The High Court has statutory powers to review Tribunal decisions by way of judicial review.

If a tenant refers a fair rent fixed by rent officers to the Tribunal, the rent can be increased above the level set by the rent officer.

Where the Tribunal sets the rent, it takes effect from the date of the committee's decision.[12] The fair rent applies to the premises, not the tenancy, so long as it is let on a protected tenancy.

If the form of occupation changes, for example an assured tenancy is created, the fair rent does not apply to the occupier.

Both parties should send written evidence in advance of the hearing to the rent officer and they pass the materials to the other party.

First-tier Tribunal (Property Chamber) hearings are open to the public and are relatively informal. A tenant may wish to be represented at the hearing.

Although the Tribunal members are not obliged to, they can inspect the property. Hearings are often conducted in the morning to allow the Tribunal members to visit properties in the afternoon.

Tribunal members only inspect a property if the tenant agrees. The landlord may be present at the inspection but the tenant can refuse permission for the landlord to be there.

Once the Tribunal has all the necessary information, it makes its decision, usually within a few days of the hearing or inspection.

The decision is in the form of a single page with summary reasons attached. Those reasons should enable a party to the appeal to understand why they have won or lost the case, and to consider whether there is merit in an appeal.[13] In a case where the Tribunal's decision differed considerably from that of the rent officer, the Upper Tribunal held on appeal that the reasons given were inadequate to explain this, nor did they show the methodology that had been used.[14]

Appeals against a First-tier Tribunal's determination are made to the Upper Tribunal (Lands Chamber).[15]

Applications for appeal must be made within 28 days of the Tribunal sending written reasons for its decision to the applicant.[16]

Appeals against Upper Tribunal decisions may only be made on a point of law (not a dispute about the facts) and are made to the Court of Appeal.

If no fair rent has been registered for a contractual tenancy, the tenant is only liable for the original contractual rent.

The landlord can only increase the rent by either

• applying for a new fair rent to be registered

• agreeing a new contractual rent with the tenant

Section 51 of the Rent Act sets out requirements for an agreement to increase the rent, including that it must be in writing and state that:[17]

• the tenant's security of tenure is not affected by a refusal to sign

• the agreement does not prevent a future application to register a fair rent

If the landlord seeks to increase the rent other than by registering a new fair rent or by an agreement that meets these requirements, the tenant can take action to recover any additional rent paid above the contractual rent. They can recover overpaid rent for the previous two years, or one year where the overpayment was due to the landlord's failure to comply with a requirement relating to an agreement under s.51.[18]