Payment of Rent: Whether a s.13 notice served to increase rent under a periodic tenancy was valid (Mooney v Whiteland – 2023)
The Court of Appeal considers whether a notice served under s.13 of the Housing Act 1988 was valid where the stated date for the increase in rent differed from the periodic tenancy arrangements.
The background
In Mooney v Whiteland [2023], the tenant had occupied a property under a weekly periodic tenancy from the landlord since May 1991, paying a rent of £25 per week. Rent was due to be paid on the Monday of each week, although the tenant usually paid on the preceding Friday.
The landlord sent the tenant a notice under s.13 of the Housing Act 1988 in October 2018, stating that an increased rent of £100 per week would be payable from Friday 7th December 2018, instead of stating a date of Monday 10th December 2018 which would have been the start of a new rental period under the terms of the tenancy.
At first instance, the court found that the notice was valid when considering the tenant’s payments were usually made on a Friday. This decision was overturned on appeal, finding that the notice was invalid as it was unclear that the commencement date for the new rent was to be Monday 10th December. The landlord appealed.
The decision
The Court of Appeal dismissed the landlord’s appeal, finding that the landlord’s notice was invalid. There must be no reasonable doubt as to the intention of the notice, but the Court of Appeal concluded that this was not the case.
The landlord’s appeal was based on three grounds:
- Although the tenancy had originally commenced on a Monday in 1991, this had been varied such that it was no longer possible to determine when weekly tenancy periods began.
The landlord at first instance had argued that the weekly tenancy period commenced on a Monday. The landlord was not therefore able to depart from this argument later, and the appeal failed on this ground.
- The court had not applied Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997]
The Court of Appeal considered Mannai, together with Pease v Carter [2020], finding that there must be no reasonable doubt as to the intention of the notice. One interpretation of the notice was that Monday 10th December should be the start date for the new rent, but it was also equally possible that Friday 7th December was the intended start date.
The Court of Appeal therefore considered that reasonable doubt did exist, and concluded that the notice was invalid. This was not an obvious mistake, such as a typographical error, which could still render the notice valid.
- The court erred in concluding that the rent assessment committee did not have jurisdiction to determine validity of the s.13 notice.
The Court of Appeal agreed that the rent assessment committed did not have jurisdiction to determine the notice’s validity, which is a matter for the court. The tenant’s failure to refer the notice to the local rent assessment committee did not preclude the court from making a later decision in respect of the validity of the notice.
Advice and action for landlords
This decision serves as a reminder for landlords to ensure that dates specified in notices are correct and accurately reflect the terms of an agreement. A useful point of law, and an industry precedent, landlords wishing to vary rents of periodic tenancies are advised to ensure that the new rent commencement date aligns with the terms of the tenancy rather than any variation in practice.
Due to the existence of reasonable doubt as to the commencement date, the notice was deemed invalid.
The Court of Appeal dismissed the landlord’s appeal, finding that the landlord’s notice was invalid. There must be no reasonable doubt as to the intention of the notice, but the Court concluded that this was not the case.
