This is the first of a couple of developments during the period we were away that is worth reporting on after our catching up phase.

Introduction

Putting aside tenancy deposit schemes for a moment, by far the next biggest problem for landlords is the recent council tax changes which particularly affect landlords where a tenant fails to give proper notice or abandons.

When a property is unoccupied and unfurnished, the person liable for council tax is the person who has the material interest. That includes whoever has a tenancy but only if that tenancy was granted for a term of six months or more. If the tenancy is for less than six months, the liability will pass to the freeholder owner in most cases.

In Genevieve Macattram v London Borough of Camden [2012] EWHC (Admin,) 1033 [2012] RA 369 it was held that after a contractual tenancy has ended (not an assured shorthold tenancy) and the payment of rent is made and accepted, a new periodic tenancy is granted between landlord and tenant based on the terms of the earlier fixed term tenancy. This tenancy is a brand new tenancy and not a continuation. As a result, the tenant does not have a material interest as this new tenancy was not granted for a period of at least six months.

In CT v Horsham District Council (HB) [2013] UKUT 617 (AAC) it was held that where an assured shorthold tenancy becomes statutory periodic after an initial fixed term (of whatever length), that new statutory periodic tenancy will not be a tenancy of six months or more and will only be a new tenancy of the period of the tenancy (e.g. one month where the rent is monthly).

However, as has been often discussed including by ourselves, CT v Horsham DC only relates to a statutory periodic tenancy. However, if the tenancy is like ours and does not actually end but instead continues as a contractual periodic tenancy, we and others have submitted that CT v Horsham DC would not apply because the tenancy does not end and therefore the tenancy in it’s continued form was granted for a term of six months or more. If that is right, the tenant will remain liable for council tax whilst the tenancy exists even without occupation.

Valuation Tribunal – Contractual Periodic Tenancy Case

In the case between Trustees of the Berwick Settlement and Shropshire Council, appeal number 3245M131738/176C, the Valuation Tribunal have agreed.

A tenancy was granted from 23 July 2010 to 22 July 2011. After the expiry of the initial twelve month term, the tenancy contracted to continue from month to month.

The tenants gave notice to leave on 22 July 2013 but actually left on 26 June 2013. The landlord was billed for the period 26 June 2013 (when the tenant left) until the property was re-let sometime in August. The landlord appealed in relation to the period between the tenant vacating and the tenancy actually ending (26 June to 22 July 2013).

The landlord argued that as the tenancy continued upon expiry of the initial term and did not actually end, the tenant continued to have a material interest during this period because there was a tenancy granted for a fixed term of six months or more.

The billing authority’s argument was that the tenancy agreement had an initial fixed term and after the expiry of the fixed term, it continued on a month to month basis. As a result, during the period in dispute, the tenants no longer possessed a material interest in the appeal dwelling, because they were monthly periodic tenants only.

At paragraphs 22 the tribunal said:

The key difference between this case and Macattram is that in this case the tenants had been granted a leasehold interest for a term of six months or more and the contractual term of that lease had not ended, being extended from month to month as part of the term. The fact that they no longer held under the initial term is not, in the judgment of the Panel, a relevant consideration: the leasehold interest “was granted” (applying the words of section 6(6) of the 1992 Act) on 23 July 2010 for a term of six months or more and they continued to hold the appeal dwelling under the extended contractual term until it was agreed their notice expired. They continued to have that material interest in the whole of the dwelling. In Macattram there was no contractual provision for the original term to continue: a new tenancy had arisen by the demand and acceptance of rent.

Comment

This is only the first stage of an appeal but does agree with what we have thought for some time that our tenancy agreements which do not go statutory periodic (mainly to avoid Superstrike problems) should ensure that the tenants remain liable for council tax even if they don’t occupy until the tenancy is properly ended either by valid notice or some other way.

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