R v London Rent Assessment Panel, ex parte Mota

Rent Act 1977, section 70(1)(b) — Application by tenant for judicial review, challenging decision of rent assessment committee — Whether tenancy was a furnished tenancy, the furniture being ‘provided for use under the tenancy’ within the meaning of section 70(1)(b), despite the fact that the furniture physically in situ belonged to the tenant — Tenant of a furnished flat agreed with the landlords that during renovations she would be given temporary accommodation and would then be put back into a renovated flat, although not the one which she had originally occupied — The arrangement, set out in a written agreement, confirmed that she would have a protected tenancy of the new flat, the fair rent of which would be fixed by the rent officer — The agreement stated that the landlords would have no objection to the tenant using on a daily basis her own furniture, in lieu of that supplied by the landlords, which would be removed and retained by them and reinstalled at the end of the tenancy — After she had moved into the new flat a fair rent of £4,500 pa was registered by the rent officer on the basis of a furnished tenancy, adopting an inventory of furniture sent in by the landlords, which the latter confirmed in their application form — The tenant objected to the rent registered and appealed to the rent assessment committee, who reduced the rent to £4,250, but still on the basis of a furnished tenancy — In their reasons the committee accepted that the bulk of the furniture in the flat belonged to the tenant, but said that they were ‘satisfied that the landlords had provided a full complement of furniture and equipment for the flat and concluded that it was let as furnished accommodation and should be assessed on that basis’ — They noted that the tenant had previously had a furnished tenancy from the same landlords — In an affidavit the chairman of the committee observed that, although at the hearing the tenant’s representative had pointed out that the tenant was using her own furniture, he had not argued that the tenancy was unfurnished and the only comparable rents put forward were those of furnished tenancies — Held, rejecting the application, that furniture can be ‘provided for use’ within the meaning of section 70(1)(b) although at the tenant’s request the furniture is not physically on the premises — In the present case the committee were justified on the evidence in taking the view that the tenant was entitled (a) initially to have a flat furnished, (b) to use her own furniture and have some or all of the landlords’ furniture removed and retained by the landlords, and (c) to have the landlords’ furniture replaced not merely at the end of the tenancy but also during its currency — The committee were not in error in having regard to the fact that the tenant’s original tenancy was furnished — It was not the case, as alleged in the grounds for the application, that the tenant should provide her own furniture; the landlords had merely agreed that she could do so — Application dismissed No cases are referred to in this report. This was an application for judicial review by Mrs Teresa Mota, seeking to quash a decision of a committee of the London Rent Assessment Panel assessing a fair rent for a first-floor front flat at 63 Greencroft Gardens, London NW6. The landlords were Tropicacre Ltd. Miss Caroline Hunter (instructed by Daniel & Harris) appeared on behalf of the applicant; D P Pannick (instructed by the Treasury Solicitor) represented the respondent committee. Giving judgment, SCHIEMANN J said: The Rent Act 1977 contains provisions for the registration of fair rents. Section 67(1) provides: An application for the registration of a rent for a dwelling-house may be made to the rent officer by the landlord or the tenant, or jointly by the landlord and the tenant, under a regulated tenancy of the dwelling-house. Subsection (7) of that section provides: . . . The provisions of Part I of Schedule 11 to this Act . . . shall have effect with respect to the procedure to be followed on applications for the registration of rents. I shall come to that schedule in a moment. Section 70(1) provides: In determining, for the purposes of this Part of this Act, what rent is or would be a fair rent under a regulated tenancy of a dwelling-house, regard shall be had to all the circumstances (other than personal circumstances) and in particular to — (a) the age, character, locality and state of repair of the dwelling-house, and (b) if any furniture is provided for use under the tenancy, the quantity, quality and condition of the furniture. (c) Any premium . . . which has been or may be lawfully required or received on the grant, renewal, continuance or assignment of the tenancy. The relevant provisions of the 11th Schedule are contained in paras 6, 8 and 9. Para 6 provides that once a rent officer has fixed a fair rent the person affected can object. Para 8 provides that if either landlord or tenant requests to make oral representations a committee known as the rent assessment committee shall give him an opportunity to be heard either in person or by a person authorised by him in that behalf. Para 9 provides: (1)  The committee shall make such inquiry, if any, as they think fit and consider any information supplied or representation made to them in pursuance of paragraph 7 or paragraph 8 above and — (a) if it appears to them that the rent registered or confirmed by the rent officer is a fair rent, they shall confirm that rent; (b) if it does not appear to them that that rent is a fair rent, they shall determine a fair rent for the dwelling-house. This is an application to quash the decision of such a rent assessment committee. The factual background is that Mrs Mota was a tenant of some property. The landlords wished to renovate it and to decant her while the renovation was going on, and then to put her back in a renovated flat, albeit a different one from that which she had originally occupied. On April 10 1984 an agreement was reached between the landlords and the tenant which, so far as presently relevant, runs as follows: We the Directors of Tropicacre Ltd, the landlords of Mrs Mota confirm: that she is a protected tenant of the furnished Flat 2, of 63 Greencroft Gardens, London NW6, comprising of two rooms, kitchen and bathroom; that her90 move to Flat 5, 61 Greencroft Gardens, London NW6, is only a temporary move pending works at 63 Greencroft Gardens . . .; that Mrs Mota’s tenancy of Flat 2, 63 Greencroft Gardens NW6 continues during the works, and that the rent will continue to be collected for Flat 2, 63 Greencroft Gardens, while the works are under completion; that when the works at 63 Greencroft Gardens are completed . . . Mrs Mota will be entitled to move to the first-floor front flat at 63 Greencroft Gardens, under a protected tenancy, within the meaning of the Rent Act 1977, paying an exclusive fair rent to be registered by the rent officer; that subject to the plans and specifications Mrs Mota’s intended flat at first-floor front, 63 Greencroft Gardens, will be a furnished converted self-contained dwelling consisting of two bedrooms, living room, a kitchen and a bathroom, for her own exclusive use with shared use of communal garden; that we are to be responsible for the removal costs and other necessary expenses incurred by the tenants in connection with their transfer to and from the temporary accommodation; that we have no objection to the tenant using on a day to day basis their own furniture, in lieu of that supplied by the landlord, which will be removed and retained by the landlord, and reinstalled at the end of the said tenancy, with the exception of the gas cooker. That has been signed by Mrs Mota and also by the landlords. The landlords in due course provided to the rent officer service of the Camden Council an inventory of the contents of the first-floor front flat at 63 Greencroft Gardens. That includes a fair amount of furniture, crockery, glasses, and so on. In February 1985 the applicant moved into her new flat. It was not the flat which she had been occupying, but rather one on the first floor. It is agreed that the landlords provided the carpets for the flat and the cooker. The landlords applied on August 9 1985 for a registration of the rent. In their application form they were asked: ‘Is any furniture provided under the tenancy?  If Yes, give details.’  They wrote against that: ‘See the Rent Officer’s file’ — and no doubt the reference was to the list of contents to which I have referred. On October 31 1985 the rent was registered and the furniture provided by the landlords was stated to be: ‘As per inventory, a copy of which is in the Rent Officer’s possession.’  The rent register contains the remark: ‘Fully furnished to a high standard.’ On November 15 1985 an objection by the tenant was duly received. On January 23 1986 that objection was referred to the rent assessment committee. On March 12 1986 there was a hearing before the rent assessment committee. The tenant was represented but the landlords were not. The rent assessment committee reduced the assessment of fair rent from £4,500, which had been the rent officer’s figure, to £4,250. They gave their reasons as follows: The committee were concerned with assessing the rents of three furnished flats in a substantial semi-detached house located in a good residential area of West Hampstead. On inspection they ascertained that the structure of the building appeared recently to have been overhauled and that major works of decoration had been carried out both to the exterior and the common parts. Internally the committee found that the units had been newly converted and comprehensively refurbished. Then they make various findings in relation to that. They say that the tenant’s representative presented evidence to the committee of registered rents for furnished accommodation within the locality. They comment that unfortunately, as in all furnished accommodation, these registrations were of little assistance as they gave no indication of the extent and quality of the furnishings. However, the committee took note of the general rent levels and inspected externally some of the comparables. They found that neither of those properties appeared to have benefited from substantial modernisation works, and that both their situation and character were less favourable than those of the subject premises. Then comes this paragraph: ‘The committee took careful note of the differences between the units.’  In relation to Mrs Mota’s flat they say they accepted that the bulk of the furniture currently in use belonged to the tenant, Mrs Mota. They were, however, satisfied that the landlords had provided a full complement of furniture and equipment for the flat and concluded that it was let as furnished accommodation and should be assessed on that basis. They noted that the tenant had previously had a furnished tenancy from the same landlords. They assessed the fair rent on the evidence that the landlords were responsible for all repairs and decorations. There is an affidavit in front of me sworn by the chairman of the rent assessment committee which contains the following: The committee concluded that neither the letter dated April 10 1984 nor any other evidence put forward on behalf of Mrs Mota demonstrated any intention to create anything other than a furnished letting. Although [her representative] pointed out that Mrs Mota was using her own furniture, he did not put forward any argument to the effect that the tenancy was unfurnished, and the only comparable rents which were in evidence were of furnished tenancies. He was unable to put forward any satisfactory evidence as to repairing liabilities, or differentiate between the liabilities of the two tenants whom he represented. The committee accepted the landlords’ written assertion on the application form, adopted by the rent officer, that they were responsible for all repairs and decorations, and found this to be consistent with a furnished letting. That decision is challenged on grounds which I permitted to be amended at the beginning of the hearing in front of me, and which, as amended, read as follows: The decision of the Respondents erred in law in that: (i) no reasonable Rent Assessment Panel would have assessed the rent on the basis that the accommodation was furnished; (ii) the Respondents took into account an irrelevant consideration, namely that the tenancy of a flat previously let to the Applicant in the same house had originally been furnished; (iii) the Respondents failed to take into account a relevant consideration, namely that the landlords had not provided any furniture and that the landlords had agreed that the Applicant should provide her own furniture; (iv) they misconstrued section 70(1) of the Rent Act 1977, by taking into account furniture which the Applicant had no contractual right to use or alternatively only had to call for the future use of, a right which she had not exercised. In my judgment furniture can be provided for use under the tenancy within the meaning of section 70(1)(b) notwithstanding that at the tenant’s request the furniture is not physically on the premises. Further, one of the circumstances to which the committee would be entitled to have regard is any obligation by the landlord to provide furniture on the premises if asked by the tenant so to do. In my judgment, the committee were entitled to take the view that the tenant was entitled (a) initially to have the flat furnished, (b) to use her own furniture and have some or all of the landlords’ furniture removed and retained by the landlords, and (c) to have the landlords’ furniture replaced not merely at the end of the tenancy but also during its currency. My reasons for that view are, first, that she wished for a furnished flat. That is quite clear from the wording of the agreement of April 10 1984, even though at the time that she entered into the agreement she had no furniture in the old flat. I consider that the words at the very conclusion of the April agreement, namely: We have no objection to the tenant using on a day to day basis their own furniture, in lieu of that supplied by the landlord, which will be removed and retained by the landlord, and reinstalled at the end of the said tenancy, with the exception of the gas cooker, are words which are not apt to cut down the tenant’s right to have a furnished dwelling if she so wished. Second, that conclusion is reinforced by the wording ‘on a day to day basis’, and the phraseology that the landlords have no objection to the tenant using their own furniture on a day-to-day basis. Third, I bear in mind that this appears to have been the view of the representative who argued the whole case for the tenant on the basis that she was a tenant of furnished accommodation. I consider that the committee were entitled to bear in mind that in fact at the time of their hearing all the furniture on the premises, with the exception of the carpets and the cooker (if these items are properly described as furniture) had been provided by the tenant. It is, however, by no means clear that the committee did not have this in mind in making their assessment of the fair rent. They certainly knew it as a fact, because they referred to it. The committee were, in my judgment, entitled to have regard to the fact, undisputed before them, that the tenant had in respect of the premises which she had originally occupied been a tenant under a furnished tenancy. This was a background factor against which the arrangements set out in the letter of April 10 1984 had to be seen and a factor, moreover, which had been drawn to the committee’s attention by the advocate appearing for the tenant. With that in mind, looking at the grounds of challenge, I reject the challenges, because looking at the first one, I consider that it was perfectly reasonable for the rent assessment committee in these circumstances to assess the rent on the basis that the accommodation was furnished. Second, I do not regard the earlier history as irrelevant. Third, I am not persuaded that the respondent had failed to take into account the fact that the flat was filled with the tenant’s furniture. It is not the case, as is alleged in these grounds, that the landlords had agreed that the applicant should provide her own furniture. All that the landlords had agreed was that she could provide her own furniture.91 So far as the assertion in the grounds that the landlords had not provided any furniture is concerned, I am not prepared to take a different view of the factual background from that which was found by the committee after hearing representations on behalf of the tenant. So far as the last ground is concerned, it proceeds from the assumption that the tenant had no contractual right to use furniture provided by the landlords. That factual assumption is one which, in my judgment, the committee were not obliged to make on the evidence before them, which was both that of the written agreement and the further evidence which they received on behalf of the tenant. So far as the tenant’s having only a right to call for the future use of the furniture is concerned, and that this was a right which she had not exercised, I am not persuaded that the committee took any view of the facts which is inconsistent with that. In those circumstances, this application to quash the decision of the committee fails. The application was dismissed with costs.