Moat Homes Limited v Michelle Carlo

Sections 13 and 14 of the Housing Act 1988 do not confer jurisdiction on the First-tier Tribunal to determine a new rent for an assured periodic tenancy containing a contractual provision under which the rent may increase for a later period. The exclusion applies both where the clause fixes the increase and where it provides machinery enabling the landlord to choose or propose a new rent. The parties cannot confer jurisdiction by using the statutory procedure or by failing to object to it. The prescribed section 13 notice should not be used where the contractual rent review clause excludes the statutory scheme.

These were three appeals from decisions of the First-tier Tribunal, Property Chamber, concerning rent increases under assured periodic tenancies. Moat Homes Limited appealed against the determination of a new rent for 39 Dunkirk Road after serving a section 13 notice despite a contractual rent review clause. Longhurst Group appealed against determinations concerning two supported-accommodation flats, each tenancy containing a similar contractual rent review clause.

The common issue was whether the contractual provisions excluded the tenancies from sections 13 and 14 of the Housing Act 1988, so that the FTT lacked jurisdiction to determine the proposed rents.

1. All three appeals allowed. The FTT decisions determining new rents were set aside because the FTT lacked jurisdiction.
2. Sections 13 and 14 of the Housing Act 1988 establish a statutory procedure for increasing rent under qualifying assured periodic tenancies. Section 13(1)(b) excludes an assured periodic tenancy containing a provision binding on the tenant under which the rent for a particular period will or may be greater than the rent for an earlier period.
3. The exclusion is not confined to clauses specifying the amount of an increase. Following Contour Homes Ltd v Rowen, [2007] 1 WLR 2982, it also covers a clause which supplies machinery for increasing the rent. The parties cannot confer jurisdiction on the tribunal by invoking the statutory procedure, and the landlord is not estopped from asserting the statutory exclusion.
4. The clause in Moat’s tenancy provided for an annual review and permitted the landlord to increase or decrease the rent on notice. It was a contractual provision of the type described in section 13(1)(b), so the statutory scheme did not apply. The rent from 1 April 2024 was therefore the sum specified in the notice.
5. The Longhurst tenancies were weekly assured periodic tenancies. Their rent review clauses permitted the landlord to vary the rent on notice and restricted increases to once in any 52-week period. Those clauses likewise fell within section 13(1)(b), with the result that the rents payable from 1 April 2024 were the sums notified by Longhurst.
6. Helena Partnerships Ltd v Brown, [2015] UKUT 324 (LC), reached a different result on its tenancy wording, but did not cast doubt on the principle that a contractual rent review clause excludes FTT jurisdiction. The inappropriate use of the prescribed section 13 form was criticised as misleading and wasteful where the statutory scheme did not apply.

• First-tier Tribunal, Property Chamber: determined new rents for the three assured periodic tenancies in decisions dated 17 May 2024 and 20 May 2024.
• Upper Tribunal (Lands Chamber): allowed all three appeals, set aside the FTT determinations, and held that the contractual rent review clauses excluded jurisdiction under sections 13 and 14 of the Housing Act 1988.