Another allotment rent rise on the way Options

[Richard Garvie]

Have you consulted with Trading Standards since the compromise was put in place???

[Simon Kirby]

Often in these matters, verdicts depend on what is normal. Is there such thing as an 'industry' norm?

Custom and practice might apply in the absence of a contractural term, but here there is an explicit term so the issues are 1. what is the most natural interpretation of the term, and 2. is that term fair.

As it is the National Sociaty of Allotmant and Leisure Gardeners' position is that a rent increase needs 12 month's notice. The Allotments Act 1950 extended the period of notice that a council was obliged to give to terminate a tenancy from six months to 12 months so there is some precedence for a 12 months period of notice.

[Simon Kirby]

Have you consulted with Trading Standards since the compromise was put in place???

I have been in contact, but I haven't yet raised this issue with them.

Thanks for the offer to look at the agreement. e-mail sent.

[Bloggo]

The rent is payable in advance, so rent for the year 2011/2012 is due 1 March 2011.

So how much notice do you understand it to give Bloggo, 1 month, or 13?

The statement implies notice of 1 month in my view but I agree it could be crafted to mean 13 months but it would be highly unlikely for anyone to give a notice period of 13 months.
Sorry.

[Iommi]

Custom and practice might apply in the absence of a contractual term, but here there is an explicit term so the issues are 1. what is the most natural interpretation of the term, and 2. is that term fair.

As it is the National Society of Allotment and Leisure Gardeners' position is that a rent increase needs 12 month's notice. The Allotments Act 1950 extended the period of notice that a council was obliged to give to terminate a tenancy from six months to 12 months so there is some precedence for a 12 months period of notice.

The term fair is what I'm getting at. If the vast majority of allotment agreements have a minimum of 12 months notice, then you have a complaint in my humble opinion.

It would to me, sound reasonable, considering the nature of allotmenteering, and the points you have made, that a 12 month notice be given of a change in the circumstances for the provision of an allotment.

It also seems to me, ignorant and stubborn of the council not to realise yours and others concerns.

[Simon Kirby]

My Tenancy Agreement in the good old days of Newbury District Council didn't have a rent review term and so to increase the rent the Council would have to serve 12 months notice to terminate the Agreement and offer a new Agreement at the new rate. The problem has arisen because the Town Council included a rent review term in their Agreement that imposed a unilateral rent increase without notice, and the tenant was also contracturally obliged to give 12 months notice to quit and so was unable to escape the increase. Such a rent review term is unfair under the Unfair terms in Consumer Contracts Regulations 1999 and thus any increase imposed under the term is unenforceable. This is why I refused to pay the increase this year, and it is why despite their considerable bluster the Town Council are unable to evict me.

The new Agreement is somewhat more fair in that tenants have 13 months notice of any increase, because without that they would inevitably suffer loss should they not want to continue their tenancy at the increased rate.

The Council's position, explicitly given to me, was that they don't want me meddling in their business and telling them what they can and can't do and that if I persisted I would "lose support at the Council". They said that, Regulations or not, if people paid the increase then they consented to it, which is strictly true - tenants have no right to recover any of the £5000 they paid under the unfair increase. The Council were reluctant to introduce the new Agreement because it would be obvious to tenants that they had conceded the unfairness of the rent review term to Trading Standards, and this is why the Councillors vacillated over the ratification of the Agreement. As it is they managed to suppress any organised protest from the site associations and no one other than me was prepared to risk their tenancy and refuse to pay, and by calling me vexatious they've quite effectively silenced me. It's only the difference of £20 rent for me, but the principle is important. I don't believe the state should behave this arrogantly.

[Simon Kirby]

I have asked a solicitor to clarify what the term means.

The Rent will be reviewed by the Council every year. (Notification of any price change, which will take effect from the 1st April will be made known by the 1st February of each year ...

The Rent shall be paid on the FIRST day of MARCH each year for the following 12 month period commencing 1st April.

They said:

1. Rent can be reviewed yearly.
2. New rent operates from 1 April.
3. New rent must be notified by 1 Feb.
4. So new rent does not apply in March- it even states explicitly which will take effect from the 1st April, doesn't it?

So that's a comprehensive 13 month's. I'm clarifying with Trading Standards what their understanding was.

So as it stands 250 tenants have signed up to the new Trading Standards-approved agreement and it's not unreasonable to suppose that both tenants and TS thought they were getting 13 months notice of any rent increase, and Newbury Town Council do not intend to honour it.

I'd ask, but they won't talk to me, so would anyone else care to ask the Town Council how they intend to resolve this new snafu?

[Iommi]

So that's a comprehensive 13 month's. I'm clarifying with Trading Standards what their understanding was.

Why do you see it as a comprehensive 13 months. I don't 'get it'?

[Simon Kirby]

It's like the solicitor said, the agreement says explicitly that the increase doesn't take effect until 1 April and so the increase doesn't apply in March.

I think the difficulty comes in if you think about the rent accruing daily at whatever rate applies on each day, and paying in advance on 1 March is just a convenience for paying every day at that day's rate. But rent in advance isn't like that (though I believe rent in arrears is). The whole of the period's rent becomes due on the rent day - at the rate that applies on the rent day. Technically it's called apportionment but it's intuitive when you think about the situation when the rent goes up in the middle of a rent period when you didn't know in advance, because you wouldn't expect an extra bill having already paid the rent for the period. It's like if you buy a toaster that's advertised at £30 and you're told it goes up to £40 in a couple of weeks - you pay £30 for it because that's how much it is now.

So it's 13 month's notice. 1 February you're told what the new rent will be, 1 March you pay at the existing rate, next time round you pay at the increased rate - 13 months' notice.

[Iommi]

So it's 13 month's notice. 1 February you're told what the new rent will be, 1 March you pay at the existing rate, next time round you pay at the increased rate - 13 months' notice.

Yes, I understand put like that, but why is the payment on 1 March at old rate? (In my humble opinion) I read it as the agreement says that the rate is announced in Feb, payable 1 March but the payment is for forth-coming 1 April to 31 March rent period.

I don't see where the solicitor can claim that just because the rate is for the next rent period (1 April to 31 march), that you don't pay that new rate (in advance) in March.

IOW - the key issue is what tells you whether the rent due in March, is at the new or old rate? Is there something that states that rent is to be paid in advance or in arrears anywhere?

[Simon Kirby]

Yes, I understand put like that, but why is the payment on 1 March at old rate? (In my humble opinion) I read it as the agreement says that the rate is announced in Feb, payable 1 March but the payment is for forth-coming 1 April to 31 March rent period.

I don't see where the solicitor can claim that just because the rate is for the next rent period (1 April to 31 march), that you don't pay that new rate (in advance) in March.

IOW - the key issue is what tells you whether the rent due in March, is at the new or old rate? Is there something that states that rent is to be paid in advance or in arrears anywhere?

The Agreement says

The Rent shall be paid on the FIRST day of MARCH each year for the following 12 month period commencing 1st April.

So that tells you the rent is payable in advance on 1 March.

It's payable at the pre-increase rate because the increase is effective 1 April, but the rent is due 1 March - one month before the increase takes affect. Rent in advance is due at the rate effective on the due date - so you pay at the 1 March rate.

[Iommi]

It's payable at the pre-increase rate because the increase is effective 1 April, but the rent is due 1 March - one month before the increase takes affect. Rent in advance is due at the rate effective on the due date - so you pay at the 1 March rate.

OK, I understand the logic, but is the statement in bold text correct? Again this is essence of the issue, isn't it. Can rent only legally be chargeable at the rate that is in effect on the due date?

[Simon Kirby]

OK, I understand the logic, but is the statement in bold text correct? Again this is essence of the issue, isn't it. Can rent only legally be chargeable at the rate that is in effect on the due date?

I've made it sound more complicated than it is. You need to know two things: How much is the rent, and when to pay it.

The Agreement is clear about when: The rent is due 1 March.

It's the how much that is causing the confusion. The Agreement says that any price change will take effect from the 1st April, and so the rent due on 1 March is whatever it is before the increase.

By common law rent is an entire obligation, the whole of the rent becomes due on the rent day and there is no apportionment with time of rent in advance. So however much the rent is on the rent day, that's how much you owe.

So the rent is due 1 March, you're told 1 February if the rent is going up, and the new rent takes effect 1 April, and that's what you pay next time round. So you get 13 months notice of any rent increase.

The question is will the Town Council be honest about their mistake and not impose the 33% rent increase this year, or will they do exactly what they did this year and impose an unenforceable rent increase and hope no one makes a fuss.

[Iommi]

By common law rent is an entire obligation, the whole of the rent becomes due on the rent day and there is no apportionment with time of rent in advance. So however much the rent is on the rent day, that's how much you owe.

Like I said, I fully understand the argument. It was just unclear to me that one doesn't pay rent in advance. If that is a fact then I understand your 13 month argument. In other words: If you pay rent annually, you pay the equivalent of 12 x 1 months rent, all at the same rate of the month in which it is due - I did not know that is statutorily true that one doesn't pay rent in advance, and that is what I was pressing you to explain.

[Guest_Newbury Expat_*]

Regarding the size of the increase - this seems to be excessive considering another recent whopping increase. I thought your research into neighbouring councils was good Simon, hopefully it will be of use. It may not be a lot of money to some, but any time you have net increases of 96% over two years (the compound effect of 33% and 47%) it stings.

Regarding the interpretation of the times, I have to say I agree with Iommi. It appears to be mentioning the same cluster of months.

• The rent you pay is in respect of April 1 2011 through March 31, 2012.
• It is payable on March 1, 2011 (so you're paying 12 months in advance, one month in advance of the period beginning)
• The amount of rent is, in this case, notified on February 1, 2011.

So they are in effect giving you one months notice of the annual rent which is itself payable one month ahead of the date at which it becomes effective. The wording isn't great as they use March and April almost interchangably but that seems to me to be the intent. More so because councils set their budgets one year ahead (or for the upcoming year, whichever phrase works for you) rather than two years ahead so the 13 month interpretation doesn't seem to fly.

As to the fairness of being stuck with an increased rent because you have to give 12 months notice, I'm not sure, but it doesn't seem to be fair. For those who find the new rent unaffordable, if they simply decide not to renew and 'shut down' their plot by April, is there any penalty in practice or in theory (the two often being mutually exclusive)?

[Simon Kirby]

Like I said, I fully understand the argument. It was just unclear to me that one doesn't pay rent in advance. If that is a fact then I understand your 13 month argument. In other words: If you pay rent annually, you pay the equivalent of 12 x 1 months rent, all at the same rate of the month in which it is due - I did not know that is statutorily true that one doesn't pay rent in advance, and that is what I was pressing you to explain.

I don't think I've explained this well. It's more correct to say that the amount due on the rent day is whatever the rent is, and the tenancy agreement will say what that is.

With a simple tenancy the rent will be fixed and will never change. There is no implied rent review term and so if the Agreement doesn't say anything then the rent is fixed, though it can still change if landlord and tenant agree. When there is a rent review term there's no limit to how complicated the algorithm can be, so when I said "rent in advance is due at the rate effective on the due date" that wasn't very general, and it also undermined the idea that rent is an entire obligation, so I'm sorry about that.

So anywho, the question then is how is the rent calculated in the allotment Tenancy Agreement?

It says:

The Rent will be reviewed by the Council every year. (Notification of any price change, which will take effect from the 1st April will be made known by the 1st February of each year ...

The Rent shall be paid on the FIRST day of MARCH each year for the following 12 month period commencing 1st April.

1. The Council decide the rent.
2. Any price change will take effect from 1 April. So it isn't effective until the following 1 March.
3. The rent day is 1 March, one month in advance of the start of the period.

I think I understand how this is being misunderstood: if it said:

The Rent will be reviewed by the Council every year. (Notification of any price change, which will apply for the period begining the 1st April will be made known by the 1st February of each year ...

then yes, the implication then is that the price change is effective on rent day. But that's not what it says.

[Iommi]

I'm sorry Simon Kirby, with every reply you make I get more confused and for me you are making this ever more confusing. In my view I have seen nothing that entitles you to think that you have 13 months before you pay the new rate; UNLESS there is something in statute that says you do not pay a revised rate in advance.

Sorry, to me it all seems simple but you seem to be complicating it. What is without doubt is that the contract is poor in that it is ambiguous. Well to me it is not ambiguous; it is only when you start explaining things do I get confused. To me, the two quoted examples you posted mean the same thing.

[Simon Kirby]

Alright, do this one: You go into a bed shop to buy a bed. It's £30, but there's a £10 price rise effective next week. You buy the bed today before the price rise takes affect. How much do you pay?

[Iommi]

£30, but I don't see this as a suitable analogy.

Again, how I see it is: the council are advising you in February (year 1), that if you want to use the allotment between April (year 1) and March (year 2) inclusive, then you will have to pay the rate advised in February (year 1), in March (year 1).

In February (year2), you are advised of the rent for the period from April (year 2) to March (year3), and you will be required to pay that rate in March (year2); incidentally, a month that you have already paid for in March (year1).


It is a bit like buying a season ticket for football.

I buy a season ticket in May for the season football season from August this year, to May the following year. During the early part of the following year we would be advised of the new season ticket price before the old season is finished and so we pay that in readiness for the new season.

[Simon Kirby]

Yes, the football season ticket is very like it.

Suppose the club put the price of the ticket up. 1 April they tell you that the price for the forthcoming season is £1000, that the ticket goes on sale 1 May, and that there'll be a £250 price rise which will take effect from 1 June.

You buy your ticket 1 May. How much do you have to pay.