Can a rent increase with RPI value be enforced retroactively?

Question

In October 2016 we have rented a lovely house through an agency and , while negotiating , the landlord proposed that after one year the rent should increase with the RPI value. We accepted but with a modified release clause, that instead of 18 months it could be triggered after 12 months, if the increase would be too steep for our finances to be able to walk away from the agreement.

In October 2017 when this clause should have been put in place nobody remembered, neither landlord or property management or us , for that matter. Therefore we continued to pay the same amount of rent through DD, nobody told us otherwise.

In 2018, August, when we've terminated the tenancy agreement early, the landlord looked into the contract and wanted to know why the increase was not proposed and, rightfully so, holds the letting agency to account for negligence and in breach of their duty of care.

Now the letting agency wants us to pay,RETROACTIVELY , the increase from October 2017 until August 2018 when we vacated the property, approximately 630 GBP. His argument is at least thin, to say the least, based on a personal interpretation of the expression ‘’ without further notice’’ from the following clause of tenancy agreement : 30.3 Notwithstanding clause 2 (“the Rent”) detailed above it is further agreed between the Parties that the Rent payable for the first year of the Tenancy shall be increased on 22nd October 2017 by the same percentage as the Retail Price Index (RPI) shall have risen over the first year of the Tenancy subject to a minimum of 1% and a maximum of 5% and without further notice

There is no precedent where ‘’no further notice’’ was successfully used to base an argument for retrospective reinforcement of a clause. This is also in breach of our consumer rights, as at this moment when the amount is tried to be reinforced upon us, there are no other choices to which we could possibly adhere.

The property management is continuously lying, stating that the landlord seeks compensation from us, tenants, not the agency therefore the deposit cannot be returned until the issue is solved and reffered the case to TDS. My question is: do they have a case and I might lose 630 pounds? What should I consider sending to TDS to support my case?

Answer 1

It doesn't sound like the rent increase needed to be "proposed", it sounds like you already agreed to it in the lease. It is in place.

Therefore your payments have been short.

You can make an argument that you relied in good faith on the paperwork they provided showing you were current on payments, which would likely secure you time to pay without invoking penalties, and the landlord can go after the management company for whatever reasonable costs he incurred from the delays. You shouldn't have to pay any penalties here. But I doubt you will get out of paying the rent you agreed to.

(I am not a lawyer, nor British, but we Americans share the principles of common law)

Answer 2

I've made a few comments so will provide an answer.

No, you are not liable for a penny as you specifically asked for the contract to be amended SO YOU COULD TERMINATE IT IF THERE WAS A RENT INCREASE.

You need to dig out your contract and see exactly how that was worded, but from the information provided the agent cannot retrospectively apply a rent increase and expect you to pay it. The agent has made an error (I am assuming your Direct Debit is to the agent?) and you have no control over that, only the beneficiary of a DD can amend the amount debited.

Tell the agent that you want your deposit back NOW and they have no right to delay this, furnish the TDS with a copy of this letter to hurry things along. Send them a copy of the rental agreement highlighting the clause relating to early termination in the event of a rent increase.

Your landlord needs to seek compensation from the agent, who has been negligent and not you as you have done nothing wrong.

I would also contact the TDS directly asking for your deposit back, you are certain they actually do have your deposit?

Answer 3

Given the stakes (or to be more precise the lack of high enough stakes to justify hiring of a lawyer), it is perfectly reasonable for OP to self-represent at this matter. Everyone expects that. Some folks are making the path seem "fraught with danger" as if the wrong word said will cost them dearly. That's simply not true. OP's downside risk is only the £630 in play.

The way the English law works is, you bring every argument that is not patently unreasonable. When you are a pro-se litigant, the general practice of most courts is to be very forgiving on simple mistakes, like bringing an argument that is contradicted by a law you wouldn't know about.

No argument is perfect. Every argument has chinks, and those chinks can be identified and criticized by some oh-so-clever person from the Internet. It's fair to weigh that criticism. But don't get sucked in! Don't you dare become a shrinking violet afraid to raise a point because it isn't perfect enough. That timidity is a guaranteed lose. The system (especially toward pro-se litigants) requires that you raise every argument that makes sense. The system literally does not work if you don‘t.

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There's an issue of timeliness. When the landlord accepted the rent checks as written, that's it - that's the rent accepted. If they didn't like that rent, they had an obligation to tell you the rent was short and that you need to make it up. That applied in October 2017. They were not timely providing you this notice in October 2017.

The argument I would make to the TDS is it's now too late. If you were paying too little rent, that means your rent was short every month from Oct 2017 to Aug 2018, getting shorter and shorter each month to where it became a significant fraction of the rent. And yet, they never noticed you of a single one of them. That defies belief; no reasonable landlord operates that way.

The landlord forgot about the increase, and that means both landlord and tenant agree the increase did not apply.

Answer 4

It depends.

I do not know about British law, but in Germany, the increased rent has to be told to the renting party, as thes index values are not necessarily known to the rentin party resp. they cannot be expected to look it up on their own.