Chapter 2rent variation instigated by landlord’s noticeRent-increase notice given by landlord

43LLandlord’s power to increase rent by no more than the permitted rate(1)

The landlord under a current tenancy may increase the rent payable under the tenancy by giving the tenant a notice in accordance with this section (“a rent-increase notice”).

(2)

But the landlord under a current tenancy may not increase the rent payable under the tenancy by more than the permitted rate.

(3)

The rent-increase notice must––

(a)

specify––

(i)

the rent that will be payable once the increase takes effect,

(ii)

the day on which the increase is to take effect,

(iii)

the reasons for the rent payable under the tenancy being increased, and

(b)

fulfil any other requirements prescribed by the Scottish Ministers in regulations.

(4)

The rent increase takes effect on the effective date, unless before that date—

(a)

the landlord intimates to the tenant that the notice is rescinded,

(b)

the tenant makes a referral to a rent officer under section 43N(2), or

(c)

the tenant applies to the First-tier Tribunal under section 43S(1).

(5)

For the purpose of subsection (4), the effective date is the date of the later of—

(a)

the day specified in the notice in accordance with subsection (3)(a)(ii), or

(b)

the day after the day on which the minimum notice period ends.

(6)

In subsection (5)(b), “the minimum notice period” means the period that—

(a)

begins on the day the notice is received by the tenant, and

(b)

ends on the day falling—

(i)

three months after it began, or

(ii)

whatever longer period after it began as the landlord and tenant have agreed between them.

(7)

In subsection (6), the reference to a period of three months is to a period that ends in the month that falls three months after the month in which it began, either—

(a)

on the same day of the month as it began, or

(b)

if the month in which the period ends has no such day, on the final day of that month.

43MModification of rent-increase notice by parties(1)

This section does not apply in relation to a current tenancy if the permitted rate is 0%.

(2)

Anything specified in a rent-increase notice in accordance with section 43L(3)(a) may be modified by agreement between the landlord and tenant under the current tenancy.

(3)

But the landlord and the tenant may not modify a rent-increase notice under subsection (2) so as to increase the rent payable under the current tenancy by more than the permitted rate.

(4)

A modification made to a rent-increase notice by virtue of subsection (2) ceases to have effect if the notice subsequently prompts a referral to a rent officer under section 43N(2).

Tenant’s referral of rent-increase notice to rent officer

43NTenant’s right to refer rent-increase notice to rent officer(1)

If a tenant who has received a rent-increase notice considers that the proposed increase in the rent payable under the current tenancy is more than the permitted rate, the tenant must notify the landlord in writing of the tenant’s view before the end of the day falling 30 days after the tenant receives the notice.

(2)

The tenant may make a referral to a rent officer for the area in which the let property is situated seeking a decision under section 43O in relation to the rent-increase notice if, before the end of the day falling 21 days after the landlord receives notification from the tenant under subsection (1), either—

(a)

where the permitted rate is 0%, the landlord has not notified the tenant in writing that the rent-increase notice has been withdrawn, or

(b)

in any other case, the landlord and the tenant have not agreed to a modification of the rent-increase notice so as to increase the rent payable in respect of the let property by no more than the permitted rate.

(3)

A referral to a rent officer under subsection (2) must be––

(a)

in the prescribed form,

(b)

accompanied by the prescribed fee (if any),

(c)

intimated by the tenant to the landlord in the prescribed manner, and

(d)

made before the end of the day falling 42 days after the landlord receives notice from the tenant under subsection (1).

(4)

In subsection (3), “prescribed” means prescribed by the Scottish Ministers in regulations.

43ORent officer’s power to set rent(1)

Where a rent officer receives a referral under section 43N(2), the rent officer is to decide whether the rent specified in accordance with section 43L(3)(a)(i) in the rent-increase notice would be an increase in the rent payable under the current tenancy of more than the permitted rate.

(2)

If the rent officer decides under subsection (1) that the rent specified in the rent-increase notice would be an increase in the rent payable under the current tenancy of no more than the permitted rate, the rent officer must make an order stating that from the effective date the rent payable under the tenancy is the rent specified in the rent-increase notice.

(3)

(a)

where the permitted rate is 0%, that the rent-increase notice has no effect,

(b)

in any other case, that from the effective date the rent payable under the current tenancy is the rent determined by the rent officer.

(4)

The rent determined by the rent officer under subsection (3)(b) must be the rent payable under the current tenancy as increased by the permitted rate.

(5)

For the purpose of subsections (2) and (3), the effective date is—

(a)

where the rent officer makes the order 14 days or more before the original effective date, the original effective date,

(b)

otherwise, the first payment date falling at least 14 days after the day on which the rent officer makes the order.

(6)

In subsection (5)—

“original effective date” means the date on which the rent would have been increased in accordance with section 43L(4) had the referral to the rent officer not been made under section 43N(2),

“payment date” means a date on which a rent payment falls to be made in accordance with the terms of the current tenancy.

43PRent officer’s power to correct order(1)

A rent officer may, within 14 days of making an order under section 43O(2) or (3), remake the order for the purpose of curing an error in the original order made under that subsection.

(2)

The effective date of the remade order is to be specified in accordance with subsection (2) or (3) of section 43O as though it were an order made under either of those subsections.

(3)

Where an order is remade under this section—

(a)

the original order is of no effect,

(b)

other than in subsection (1), references in this Part to an order made under section 43O(2) or (3) are to be read as references to the remade order,

(c)

if a request for review of the original order has been made under section 43Q(1), the review is to be regarded as having been made against the remade order.

43QRight of review to another rent officer(1)

Where a rent officer has made an order under section 43O(2) or (3) in relation to the rent payable under a current tenancy, the landlord or the tenant may request a review of the order by a different rent officer.

(2)

A request for a review of an order under subsection (1) must—

(a)

be made before the end of the day falling 14 days after the order is made,

(b)

be in the prescribed form,

(c)

be intimated by the landlord or the tenant (as the case may be) to the other party to the tenancy by sending a copy of the request to the other party.

(3)

Requesting a review under subsection (1) renders the order being reviewed of no effect.

(4)

In subsection (2), “prescribed” means prescribed by the Scottish Ministers in regulations.

43ROther rent officer’s power to set rent(1)

Where a rent officer receives a request for a review under section 43Q(1), the rent officer is to decide whether the rent specified in accordance with section 43L(3)(a)(i) in the rent-increase notice prompting the referral to the first rent officer under section 43N(2) would be an increase in the rent payable under the current tenancy of more than the permitted rate.

(2)

If the rent officer decides under subsection (1) that the rent specified in the rent-increase notice would be an increase in the rent payable under the current tenancy of no more than the permitted rate, the rent officer must make an order stating that from the effective date the rent payable under the current tenancy is the rent specified in the rent-increase notice.

(3)

If the rent officer decides under subsection (1) that the rent specified in the rent-increase notice would be an increase in the rent payable under the current tenancy of more than the permitted rate, the rent officer must make an order stating that from the effective date the rent payable under the current tenancy is the rent determined by the rent officer.

(4)

The rent determined by the rent officer under subsection (3) must be the rent payable under the current tenancy as increased by the permitted rate.

(5)

For the purpose of subsections (2) and (3), the effective date is—

(a)

where the rent officer makes the order 14 days or more before the original effective date, the original effective date,

(b)

otherwise, the first payment date falling at least 14 days after the day on which the rent officer makes the order.

(6)

In subsection (5)—

“original effective date” means the date on which the rent would have been increased in accordance with section 43L(4) had the referral to the rent officer not been made under section 43N(2),

“payment date” means a date on which a rent payment falls to be made in accordance with the terms of the current tenancy.

(7)

Where the rent officer makes an order under subsection (2) or (3), the order under section 43O(2) or (3) to which the request for review under section 43Q(1) relates is of no effect.

Tenant’s application to First-tier Tribunal relating to rent-increase notice

43STenant's right to apply to First-tier Tribunal in relation to rent-increase notice(1)

A tenant under a current tenancy of a property that was previously let who has received a rent-increase notice on the first occasion under the tenancy may apply to the First-tier Tribunal for determination of whether—

(a)

a previous rent increase took effect less than 12 months before the day on which the increase is to take effect (as specified in the notice in accordance with section 43L(3)(a)(ii)),

(b)

the initial rent under the tenancy (that is proposed to be increased by the rent-increase notice) was not set in accordance with section 43G(2) or (3) (as the case may be).

(2)

A tenant may make an application under subsection (1) only if—

(a)

the tenant has notified the landlord in writing before the end of the day falling 30 days after the tenant receives the rent-increase notice as to why the tenant considers that the circumstances mentioned in paragraph (a) or (b) (as the case may be) of subsection (1) are met, and

(b)

before the end of the day falling 21 days after the landlord receives notification from the tenant under paragraph (a), the landlord and tenant have not agreed to a modification of the rent-increase notice as mentioned in subsection (3).

(3)

The modification referred to in subsection (2)(b) is—

(a)

where the tenant considers that the circumstances mentioned in subsection (1)(a) are met, a modification so that the increase in rent is to take effect 12 months or more after the most recent previous rent increase took effect,

(b)

where the tenant considers that the circumstances mentioned in subsection (1)(b) are met, a modification so that the increase in the rent payable is based on increasing an amount of rent that is set in accordance with section 43G(2) or (3) (as the case may be).

(4)

An application to the First-tier Tribunal under subsection (1) must be—

(a)

intimated by the tenant to the landlord in the prescribed manner, and

(b)

made before the end of the day falling 42 days after the landlord receives the notice from the tenant in accordance with subsection (2)(a).

(5)

In subsection (4), “prescribed” means prescribed by the Scottish Ministers in regulations.

43TFirst-tier Tribunal’s powers on an application under section 43S(1)(1)

Subsection (2) applies where the First-tier Tribunal receives an application under section 43S(1)(a) in relation to a rent-increase notice given under a current tenancy.

(2)

If the Tribunal determines—

(a)

that any previous rent increase took effect less than 12 months before the original effective date, the Tribunal must make an order that the rent-increase notice is of no effect (and accordingly the rent payable under the current tenancy is unchanged),

(b)

that any previous rent increase took effect 12 months or more before the original effective date, the Tribunal must make an order stating that from the effective date the rent payable under the current tenancy is the lower of—

(i)

the rent specified in the rent-increase notice in accordance with section 43L(3)(a)(i), and

(ii)

the rent payable under the tenancy as increased by the permitted rate.

(3)

Subsection (4) applies where the First-tier Tribunal receives an application under section 43S(1)(b) in relation to a rent-increase notice given under a current tenancy.

(4)

If the Tribunal determines—

(a)

that the initial rent under the current tenancy (that is proposed to be increased by the rent-increase notice) was not set in accordance with section 43G(2) or (3) (as the case may be), the Tribunal must make an order stating that from the effective date the rent payable under the tenancy is the rent determined by the Tribunal,

(b)

that the rent payable at the start of the current tenancy (that is proposed to be increased by the rent-increase notice) was set in accordance with section 43G(2) or (3) (as the case may be), the Tribunal must make an order stating that from the effective date the rent payable under the tenancy is the lower of—

(i)

the rent specified in the rent-increase notice in accordance with section 43L(3)(a)(i), and

(ii)

the rent payable under the tenancy as increased by the permitted rate.

(5)

In determining the rent under subsection (4)(a), the First-tier Tribunal may not determine that the rent payable under the current tenancy from the effective date is more than the base rent as increased by the permitted rate.

(6)

For the purpose of subsection (2) or (4), the effective date is—

(a)

where the Tribunal makes the order 14 days or more before the original effective date, the original effective date,

(b)

otherwise, the first payment date falling at least 14 days after the day on which the Tribunal makes the order.

(7)

In this section—

“base rent” means the amount of rent that would have been payable from the start of the current tenancy had the rent been set in accordance with section 43G(2) or (3) (as the case may be),

“original effective date” means the date on which the rent would have been increased in accordance with section 43L(4) had the referral to the First-tier Tribunal not been made under section 43S(1),

“payment date” means a date on which a rent payment falls to be made in accordance with the terms of the current tenancy.

Matters arising from referral to rent officer or application to First-tier Tribunal

43UTenant’s liability for underpaid rent(1)

This section applies where––

(a)

the rent payable under a current tenancy has been changed by an order made under—

(i)

section 43O(2) or (3),

(ii)

section 43R(2) or (3), or

(iii)

section 43T(2)(b) or (4)(a) or (b),

(b)

the effective date stated in the order (“the actual effective date”) falls later than the date on which the rent would have been increased in accordance with section 43L(4) had a referral to a rent officer not been made under section 43N(2) or, as the case may be, had an application to the First-tier Tribunal not been made under section 43S(1) (“the originally proposed effective date”), and

(c)

the rent payable from the actual effective date (“the new rent”) is more than the rent payable immediately before that date (“the old rent”).

(2)

On the date the order is made the tenant becomes liable under this subsection to pay the landlord the difference between––

(a)

the amount that would have been payable in rent between the originally proposed effective date and the actual effective date had the new rent been the rent payable from the originally proposed effective date, and

(b)

the amount that should have been paid in rent during the same period (whether or not it was actually paid).

(3)

Subsection (4) applies if, at the end of the day falling 28 days after a tenant’s liability under subsection (2) arose, that liability is (in whole or in part) still outstanding.

(4)

For the purposes of paragraph 12 of schedule 3, the liability mentioned in subsection (3) is to be regarded as a sum that fell to be paid by way of rent on the day the liability arose.

(5)

In this section, a reference to a period between two dates includes both of those dates.

43VWithdrawal of referral or request for review by rent officer or application to First-tier Tribunal(1)

This section applies—

(a)

where a referral to the rent officer made under section 43N(2) is withdrawn by the tenant,

(b)

where—

(i)

a request for a review by another rent officer made under section 43Q(1) is withdrawn by one party, and

(ii)

either—

(A)

the other party has not requested a review in respect of the tenancy in question, or

(B)

any request for a review by the other party has been withdrawn, or

(c)

where an application to the First-tier Tribunal made under section 43S(1) is withdrawn by the tenant.

(2)

The order maker must make an order under section 43O(2) or (3), section 43R(2) or (3), or section 43T(2)(b) or (4)(a) or (b) (as the case may be), stating that from the effective date the rent payable under the current tenancy concerned is the lower of—

(a)

the rent specified in the rent-increase notice, and

(b)

the rent payable under the tenancy as increased by the permitted rate.

(3)

Where the order maker is another rent officer in relation to the making of an order under section 43R(2) or (3), an order may not be made by virtue of subsection (2) until the expiry of the period within which a request for a review made under section 43Q(1) may be made.

(4)

In subsection (2)—

“order maker” means—

(a)

in the case of the making of an order under section 43O(2) or (3), the rent officer,

(b)

in the case of the making of an order under section 43R(2) or (3), another rent officer,

(c)

in the case of the making of an order under section 43T(2)(b) or (4)(a) or (b), the First-tier Tribunal,

“the rent-increase notice” means the rent-increase notice that, as the case may be—

(a)

prompted the referral to the rent officer,

(b)

led to the request for review by another rent officer, or

(c)

led to the application to the First-tier Tribunal.