Failure to increase rent correctly

The rent cap ended on 31 March 2024.

In some cases, if the tenant starts to pay the increased rent, regardless of how it has been requested, the landlord may be able to argue that the tenant has actually agreed to the increase. In cases where statute allows for this it will be binding on the landlord and tenant.

An agreement to increase the rent is likely to be implied (even if nothing has been actually said) if the tenant responds to a request for an increased rent by paying the amount requested. In the event of a dispute, the tenant could prevent this by making it clear that the payments are being made 'without prejudice' whilst the position is clarified.

English case law has held that, provided the landlord gives the required notice, generous interpretation will be given to any provision in the tenancy agreement that sets a timetable for the landlord to notify a tenant of rent increases. [1]

There are some statutory provisions which mean implied consent is not possible.  For private residential tenancies the relevant legislation makes it clear that rent may only be increased in accordance with Chapter 2 of the Private Housing (Tenancies) Scotland Act 2016. [2] For this reason implied consent is not possible in private residential tenancies.

Implied consent is also not possible where a short assured tenancy rent had previously been set by the First Tier Tribunal under section 34 of the Housing (Scotland) Act 1988. In a case of this type it may be necessary to use the section 24 procedure.

Disputes about the validity of notices of increase and variation will normally be determined by the First Tier Tribunal Housing and Property Chamber, who can only hear applications where the correct notice has been served by the landlord and/or tenant.