I'm pretty sure that I'm right about the unfairness of the rent review term, but of course I'm not 100% confident that I'm right, that would just be delusional. I'm confident I'm right because the Regulation 5. unfairness test is objective and the issues are clear. The rent review term is unfair if, at the time the tenancy agreement was signed, and taking into account the nature of allotmenteering and the other terms of the afreement, the rent review term causes a significant imbalance in the rights and obligations arising under the contract, and that the imbalance is contrary to the requirement of good faith.
The imbalance part of the test is simple enough. Without the rent review term the landlord can't increase the rent because there is no common law right to review rent, so the rent review term creates an imbalance in the rights and obligations under the contract by allowing the landlord to increase the rent where previously she couldn't. And because the term affects the rent which is obviously an important aspect of the agreement, and because there is no limit to the increase the landlord can impose, then the imbalance created by the rent review term is significant, and to the tenant's detrement.
That doesn't necessarily make the rent review term unfair though, because the imbalance still needs to be contrary to the requirement of good faith. Good faith here is an autonomous construct of European jurisprudence and there are books written on what it means, but there's nothing marginal with the rent review term and the fact that the tenant can't escape the agreement without being obliged to pay the increase is decisive. The Council tried to argue that they wouldn't enforce the contractual requirement to give 12 months notice to quit because that would be unfair, but the contract term is there in black and white and that's all the Regulations are concerned with, and in any event their admission simply reenforces the unfairness if the rent review term.
It took them over a year to think of it, but the Council's strongest argument was that the Regulations didn't apply to the rent review term because they had a statutory right to increase the rent under Section 10 of the Allotments Act 1950. If the Section did indeed create a statutory right they would be quite right that the Rgeulations didn't apply, but it doesn't, and they do. The Section says:
QUOTE ("Section 10(1) of the Allotments Act 1950")
Land let by a council under the Allotments Acts, 1908 to 1931, for use as an allotment shall be let at such rent as a tenant may reasonably be expected to pay for the land if let for such use on the terms (other than terms as to rent) on which it is in fact let:
Council's aren't actually free to choose the rent at which they let their allotments, they have to use this statutory provision. If there was an implied common law right for the landlord to increase the rent in an annual periodic tenancy then each year the council would be obliged to charge the rent for the year as set by this provision. But there isn no common law right, so this provision just defines the rent at which the allotment is let, and that's the rent the tenant pays each year. For this section to be construed as creating a statutory right to charge a revised rent each year it would need to say that, but it doesn't.
You get a better idea of what the section means by understanding that the 1950 act was an act to ammend previous allotments legislation, and it simply overides the requirement of Section 16(3) of the Allotments Act 1922 that allotments "shall be let at the full fair rent" with a more relaxed requirement that allotments "shall be let at such rent as a tenant may reasonably be expected to pay" which essentially reapplies the implied duty under Section 23(1) of the Small Holdings and Allotments Acts 1908 as enacted that a council provide allotments where otherwise they "cannot be obtained at a reasonable rent".
So I'm not 100% confident that the rent review term would be found to be unfair by a court, but I'm pretty sure it would, and more importantly I'm pretty sure that the Council have no basis for believing that the term is fair.
Of course Trading Standards agreed that the term was unfair and obliged the council to change the tenancy agreement. Trading Standards said
QUOTE ("Trading Standards")
I spoke to our legal representative yesterday and she is of the opinion that the 'rent review term' in the old agreement was itself not unfair, what made it unfair was the lack of ability to withdraw from the contract without penalty, ie you had to give 12 months notice and pay the higher price in the meantime.
And what's crucial here is that Newbury Town Council agreed to ammend the agreement - so that agreed with Trading Standards that the term was unfair! They had to agree because Trading Standards said:
QUOTE ("Trading Standards")
The old agreement, we agreed was unfair, but was changed to comply with the legislation. (If they had not changed it WBC could have applied for a civil injunction to prevent The Council from using the term).
Julian Swift-Hook really needs to explain his statements and the council's actions in the light of this.
But finally, none of this dispute needed to happen, and none of that £8,000 needed to be spent. Trading Standards made the Council revise the tenancy agreement and that was what I wanted. I'd made my protest, there was nothing more to be gained. I wrote to every councillor on 22 May 2010 saying:
QUOTE ("Simon Kirby 22 May 2010")
Dear Councillors
I would like to suggest that now is a good time to think about a mutually acceptable solution. I have made my protest, and there is nothing more to be gained by continuing. My passion is allotmenteering and I have no particular desire to spend the summer outside the Town Hall with my placard.
I respectfully request a meeting with a couple of you as soon as reasonably possible to discuss my legitimate concerns and how we can jointly present the outcome, now that people are watching. I would be very grateful for your response.
Simon
Other than an acknowledgement of receipt from Jeff Beck not one councillor had the decency even to respond, and the town clerk, who I hadn't addressed the request to, responded:
QUOTE
Simon
Following on from your conciliatory e-mail to selected Councillors on Saturday 22 May 2010 (in response to my e-mail of Friday 21 May 2010), requesting a meeting, I was in the process of suggesting such a meeting between us to progress.
Your e-mail of 22/5/10 stated “I would like to suggest that now is a good time to think about a mutually acceptable solution. I have made my protest, and there is nothing more to be gained by continuing. My passion is allotmenteering and I have no particular desire to spend the summer outside the Town Hall with my placard. I respectfully request a meeting with a couple of you as soon as reasonably possible to discuss my legitimate concerns and how we can jointly present the outcome, now that people are watching. I would be very grateful for your response”.
However, your subsequent question to the Community Services Committee meeting on Monday simply undermined all the goodwill that your e-mail of Saturday created and merely continued your protest. It is difficult for us to have any trust in any statement you make. A written response to the Community Services question will be provided in due course.
Neither I nor Councillors see any point in any meeting, unless you provide us, in advance, with clear and specific written proposals for discussion. At that point a meeting may be considered.
In the meantime, your categorisation as a vexatious complainant remains.
Regards
Graham Hunt
I had no further interests in persuing the unfairness of the rent review term, I just wanted to get on with my allotmenteering, but in two years the Council have given me just the one option of signing the new agreement, and that was with the secret gagging clause and that was obviously unacceptable. Ostensibly the council have persued my eviction over the matter of £20, and it has so far cost them - no, cost you - £8,000.
Eviction for arrears is the simplest legal process - but there were no arrears because the rent review term was unfair. All the Council need to do is apply for a possession order, so why don't they do it? What is in those minutes that is so embarrassing that they are unable to present them in evidence?