Residential Tenancies: how strict are statute-prescribed time limits?

The recent case of Robertson v Webb [2018] serves as a useful reminder of the importance of meeting statutorily prescribed time limits when serving and challenging property notices.

The law

The case concerned a tenant's appeal of a landlord's notice to increase rent of an assured periodic tenancy governed by the Housing Act 1988 (" HA 1988").

Under s13 (2) of the HA 1988, a landlord may serve notice on a tenant of an assured periodic tenancy proposing a new increased rent. If the tenant wishes to challenge the landlord's proposal, he may apply to the Tribunal for determination of the rent to be charged (s13 (4)). Significantly, however, there are strict time limits which apply. In particular, under s13 (4) of the HA 1988, a tenant's referral to the Tribunal must be made before the beginning of the new period of the tenancy specified in the landlord's notice. Where a tenant fails to do this s13 (4) provides that "[the] new rent specified in the ' [landlord's] notice shall take effect".

The facts

In Robertson v Webb, the Landlord had served a valid notice proposing to increase the rent under an assured periodic tenancy with effect from 7 April 2017. The tenant did not pay the increased rent. When challenged by the landlord, the tenant claimed he had not received the notice as he had been ill and he assumed the people looking after him had discarded the notice with the junk mail. The tenant subsequently sought to challenge the notice by referring it to the First Tier Tribunal (" FTT"), however, he did so on 19 May 2017. This was some six weeks outside the time limit prescribed by s13 HA 1988 and specified in the notice.

The FTT held that it did not have the jurisdiction to determine the rent as the referral had been made out of time, and the Upper Tribunal ("UT") refused an appeal. Nevertheless, that refusal was quashed on judicial review and the case remitted to the UT.

The Upper Tribunal's Decision

The UT concluded that the HA 1988 "[did] not provide for any discretionary enlargement of the time limit [to make a referral to the Tribunal]", and the FTT therefore had no jurisdiction to deal with the referral. The Application was refused.

The UT also held that, on the facts, the more flexible interpretation of the time limits to take account of article 6 (1) of the European Convention on Human Rights and of the cases of Pomiechowski v Poland [2012] and Adesina v Nursing and Midwifery Council [2013] was not applicable.

Conclusion

The decision in Robertson v Webb makes it clear that the time limits prescribed by s13 HA 1988 are strict and must be adhered to. The Tribunal will not have jurisdiction to consider any referral made outside of those limits - the tenant's opportunity to have the rent determined will be lost.

More generally, the case emphasises the need for both landlords and tenants to be aware of and to act carefully In accordance with rules for serving (and challenging) property notices. The Tribunal is likely to adopt a strict approach, especially where the relevant legislation uses absolute language.