NTC consider allotment rent increase enforcement Options

[Simon Kirby]

So long as you can prove that it is unfair.

Absolutely. I'm asking you to work through it with me to see if I'm making a good argument, or else spot where I'm getting it wrong.

[dannyboy]

Absolutely. I'm asking you to work through it with me to see if I'm making a good argument, or else spot where I'm getting it wrong.

edited the post since - So long as you can prove that it is unfair. As you say the amount of the inctrease is irrelevant. You signed a new contract knowing there would be a rent review after you signed. What is unfair about that? You knew it was going to happen.

[Simon Kirby]

You signed a new contract knowing there would be a rent review after you signed. What is unfair about that? You knew it was going to happen.

I'll post my argument fully, but essentially the rent review term is unfair because it doesn't consider the tenant's interests. The Town Council is a virtual monopoly supplier so I have no choice if I don't like their tenancy agreement, I have to like it or lump it, and it's this kind of situation the Regulations prevent. The Regulations force suppliers to consider their consumers' interests. In this case the Council just needed to ammend the rent review term so the tenant was given enough notice of the increase to be able to quit in good order - but I need to give you the whole argument to convince you of that.

[Strafin]

I think you have a great case, and that you present it well. I for one am rooting for you.

[Simon Kirby]

The allotment tenancy is an annual periodic tenancy. This means that the tenancy is a single continuous agreement with exactly the same terms and conditions from year to year, and this includes the rent. However, if the agreement has a rent review term then the rent can be increased according to the provisions of the term.

The agreement has a rent review term that says:

The rent will be revisable every year.

And there is an annexed Rule that says:
[the council will] m) Fix the rent for each allotment having regard for its area and review its rent once a year.

There's also a term to allow the tenant to quit the tenancy:

12. The tenancy may also be determined by the Council or the Tenant by twelve months notice in writing in compliance with the Allotments Act 1922.

There is no provision in the agreement to requires the landlord to give notice of any rent increase.

In summary then, the Council decides how much to increase the rent by and the tenant finds out how much that is when the bill drops through the door and has no choice but to pay because of the clause 12. requirement to give 12 months notice to quit.

[Simon Kirby]

I think you have a great case, and that you present it well. I for one am rooting for you.

Cheers mate, that's kind of you to say so. [Edit] Here, wait, you're not on the waiting list for Wash Common are you?

[Simon Kirby]

You also need to know that the Town Council put a letter in with the bill telling the tenant that if they didn't want to continue with their allotment then the council would accept the surrender of their tenancy and refund any rent pro-rata.

OK, so: the fairness test. I have to show an imbalance contrary to the requirement of good faith.

The council exclusively decide the rent without any reference to external standards. Rent is the single most important contractural term and so there is a significance imbalance in the rights of landlord and tenant.

That alone doesn't make the term unfair, because I still have to show that the imbalance is contrary to the requirement of good faith...

[Simon Kirby]

Cheers Rob, nice one!

[user23]

I might try this with my gas bill. Refuse to pay any increase in cost yet still take the service they give and then suggest that if all their customers ran the service it would be a lot better.

[Strafin]

I might try this with my gas bill. Refuse to pay any increase in cost yet still take the service they give and then suggest that if all their customers ran the service it would be a lot better.

Perhaps you could put the gas to good use by sticking your head in the oven....

I doubt that you have a predetermined cost set in your gas contract. I also suspect that if your gas price went up by 50% that OFGEM would get involved and you would have a perfectly good claim. Why are you so eager for people to get ripped off all the time?

[Iommi]

...and I suspect if you were unhappy at the charge, that you have other options for getting your gas as well.

[Iommi]

OK, so: the fairness test. I have to show an imbalance contrary to the requirement of good faith.

The council exclusively decide the rent without any reference to external standards. Rent is the single most important contractural term and so there is a significance imbalance in the rights of landlord and tenant.

That alone doesn't make the term unfair, because I still have to show that the imbalance is contrary to the requirement of good faith...

As the council will re-fund any rent paid, doesn't that balance the 'fairness' of the 12 months notice required?

[dannyboy]

As the council will re-fund any rent paid, doesn't that balance the 'fairness' of the 12 months notice required?

I'd say it does entirely.

What the council is saying is renew, but if you decide to quit afterwards because of the rent increase, we'll refund you.
And, it seems to me that the 12 months notice to quit is not of the councils making - twelve months notice in writing in compliance with the Allotments Act 1922.. It could be argued that the council is being more than fair by offering a refund precisely because of this clause being unfair.

[Simon Kirby]

As the council will re-fund any rent paid, doesn't that balance the 'fairness' of the 12 months notice required?

I can show that the term creates a significant imbalance in the rights of the parties because without the term the rent can't be increased and with the term the council alone can increase the rent by however much they want.

If I'm to show that the rent review term fails the unfairness test I also have to show that the imbalance created by the term is contrary to the requirement of good faith. The good faith test is that the term doesn't go further than it needs to protect the legitimate interests of the landlord and that so far as it can it protects the interests of the tenant.

1. If there was a free market in allotments and I was free to get an allotment from any number of local suppliers without restriction then that free market would tend to restrict the rent any one supplier would charge. However, because of the current popularity of allotmenteering parish councils don't let their allotment to people outside their parish and so as a Newbury parishoner I can only get an allotment in Newbury and the Town Council operate as a virtual monopoly. Without the free market giving the Council unlimited discretion to set the rent increase goes further than is necessary to protect their legitimate interests and allows them to exploit their monopoly position, and this is contrary to the requirement of good faith. This is a sufficient condition to find the rent review term unfair.

2. There is no requirement under the contract to give me notice of the rent increase so I won't necessarily know how much I have to pay until the rent is actually due. But on rent day, March 1st, I will have crops in the ground (leeks, parsnips, brussels, black currants, asparagus, rhubarb, onions, spring bulbs, etc), and I will have already bought in my seeds for the coming year in December, and I'll have bought my seed potatoes in January, and I'll have my shed, bean frame, fruit cage, pond, bench, which I can't use or store anywhere else, so even if I were contracturally free to terminate the tenancy on rent day I couldn't walk away without losing all of that investment. The Town Council acknowledge this situation because they wrote to me in May when my notice of eviction ran out and told me that because of the investment of time and money that they wouldn't be evicting me until December. This situation is also recognised by the S.1 Allotments Act 1950 ammendment that extends the statutory period of notice that a landlord has to give to terminate a tenancy to 12 months. As I am not able to escape the rent increase without loss the rent review term is contrary to the requirement of good faith. This is a sufficient condition to find the rent review term unfair.

3. As above, I won't necessarily know how much the rent will be until rent day. Clause 12 requires me to give a minimum of 12 months notice to terminate the tenancy and so I am contracturally obliged to pay the rent increase. The landlord is always entitled to accept the surender of a lease but it is at the landlord's discretion, and I have no right to end the tenancy other than by notice to quit, and for this I need to give 12 months notice. Consider this extreme situation: The landlord sets my rent at £100k and I get the bill on rent day, March 1st. £100k is a lot, but it's legally enforceable because it is incompliance with the rent review term. I have no right under the contract to end the tenancy for another 12 months so even if I refuse to pay and walk away the Council can enforce the contract by sueing me for the money, and at £100k it would be well worth their effort doing so. The fairness test is not interested in how the term will be used and whether the council is likely to set a rent of £100k, it is only concerned with the fair balance of rights. As I am not free to escape the rent increase the rent review term is contrary to the requirement of good faith. This is a sufficient condition to find the rent review term unfair.

The Council's offer to refund rent pro-rata is already a contractural obligation. The Tenancy Agreement says: WHEREBY the Council agrees to let and the Tenant agrees to take on a yearly tenancy ... at a yearly rental and at a proportionate rent for any part of a year over which the tenancy may extend. What this means is that if the tenancy ends before the end of the period the Council is obliged to pay back the rent pro-rata.

The Council's argument is that they will accept the surrender of the lease, and they have written to every tenant to tell them this. This doesn't save the rent review term from failing the unfairness test in either 1. or 2. above so it doesn't much matter whether it defeats 3., but in fact it doesn't. First on a technicality, UTCCR S.6 says that the fairness test is to be applied at the time of conclusion of the contract, and this for me was back in December before the letter, so it won't come into it. But it's more fundamental than that because the tenant can never rely on the landlord accepting the surrender of a lease because surrender isn't a contractural right, it's always the landlord's discretion, and the right of the tenant to terminate the tenancy is governed by clause 12 which insistes on a minimum of 12 months.

So that's the argument.

[dannyboy]

So you not be in the situation you find yourself now if the rent review had taken place & been communicated to you prior to you signing for another year?

[Simon Kirby]

What the council is saying is renew, but if you decide to quit afterwards because of the rent increase, we'll refund you.

And, it seems to me that the 12 months notice to quit is not of the councils making - twelve months notice in writing in compliance with the Allotments Act 1922.. It could be argued that the council is being more than fair by offering a refund precisely because of this clause being unfair.

It could be argued, but unsuccessfully. S.1 Allotments Act 1922 (as ammended by S. Allotments Act 1950) sets the minimum notice period that the landlord of an allotment garden must give, and it restricts the dates on which it can expire. There is nothing in the Allotments Act 1922 which affects the notice that a tenant must give. By common law the tenant must give 6 months notice to expire on the last day of the period, and clause 12 extends this to 12 months entirely at the whim of the landlord.

The issue of the refund is unrelated to the issue of the period of notice. By common law there is no apportionment of rent paid in advance so a tenant quitting on the second day of the period having paid the whole of the rent on the first day has no right to any money back whatsoever. The phrase in the tenancy agreement WHEREBY the Council agrees to let and the Tenant agrees to take on a yearly tenancy ... at a yearly rental and at a proportionate rent for any part of a year over which the tenancy may extend. changes that.

[dannyboy]

The council is still being fair in offering a refund should you decide to quit due to the rent increase . As yu say the tennant has no right to any money back. But the council is being fair in offering this.

[Simon Kirby]

So you not be in the situation you find yourself now if the rent review had taken place & been communicated to you prior to you signing for another year?

The Regulations don't exactly give a foumula for making unfair terms fair so there are a number of ways the Council could have avoided their present difficulty.

A rent review term that pegs the rent to some external index is automatically fair under the Regulations, so pegging the rent to CPI or RPI would have been the easiest way to go. If they needed to increase the rent by more than that for any particular reason then they would just do what most other allotment landlords do and serve 12 months notice and then issue a new agreement with the new rent.

Another way to go would be to include a term that required the Council to give enough notice of any rent increase to allow the tenant to escape the increase without loss. For the reasons I've argued already 12 months notice would likely be fair. However, this doesn't necessarily make the existing rent review term fair because of the free-market argument, but it's certainly more difficult to argue unfairness with 12 months notice of the increase.

[Simon Kirby]

The council is still being fair in offering a refund should you decide to quit due to the rent increase . As yu say the tennant has no right to any money back. But the council is being fair in offering this.

Like I said, the tenant already has a contractural right to a refund. It's not a right under the common law, but the existing clause in the tenancy agreement creates a contractural right to a refund. None of this affects the fairness of the rent review term within the meaning of the Regulations.

[dannyboy]

So you agree with what I said. You'd have paid your renewal had you known about it in advance.


You can't have a free market with allotments unless someone is going to give up some land.