Short assured tenants - right to have rent determined

Short assured tenants can apply to the tribunal to have their rent determined at any time during the tenancy. Only one application can be made, and the application must be made on a prescribed form. [1]

The tribunal can only set a rent if it considers there are enough assured tenancies in the locality with which to compare the property, and if it feels that the existing rent is significantly higher than rents for other such properties. [2] It can refuse the application to determine a market rent on the basis that it cannot apply the criteria.

If the criteria are met, the tribunal can determine a new rent that it considers could reasonably be obtained under the tenancy. [3] This may be lower than a rent for an assured tenancy, reflecting its more limited security. If a new rent is determined, the tribunal will decide the date from which it is to take effect.

Tenants should be made aware that given the limited security of a short assured tenant, there may be a risk to having the rent determined. The landlord can apply for an eviction order at the end of the fixed term. However, all eviction grounds are discretionary, and the tribunal must consider reasonableness when deciding whether to grant an eviction order.

From the date of the tribunal determination, the landlord will only be able to recover the amount set by them. After a year, the landlord can apply under section 24 of the Housing (Scotland) Act 1988 to increase the rent. If section 24 is not applicable (ie because the tenancy is still in the fixed term) then the landlord will not be able to increase the rent except by coming to a new agreement with the tenant.

The rent fixed by the First Tier Tribunal will take effect from a date decided by the tribunal, which cannot be earlier than the date of the application. [4]

This procedure is intended for use by landlords who need to change the terms of a tenancy once it has become a statutory tenancy. If the changes in the terms of the agreement merit a change in the rent then this can be proposed by the landlord or the tenant at the same time. Even if there is no proposal for a change in the rent, if the application goes to a First Tier Tribunal and the tribunal varies other terms of the tenancy, it can determine a new rent reflecting these. The rent could go up or down. [5]

The procedure can only be used in the first 12 months of the statutory assured tenancy. [6] The landlord or the tenant may serve a notice (AT1), [7] proposing a variation in the terms of the tenancy. The notice will take effect three months from its date of service, unless it is referred to the First Tier Tribunal.

Appeals to the First Tier Tribunals must be made on a prescribed form, AT3. [8] When making its determination. the tribunal must make decisions on any other proposed variations to the tenancy before determining a market rent. Any rent determined will then take into account those variations. Any rent increase will take effect from the date decided by the tribunal, but cannot be earlier than the date specified in the notice.

If a landlord proposes variations and a rent increase under section 24, the First Tier Tribunal can consider these together.

For more information, please see the page on the First Tier Tribunal Housing and Property Chamber.