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The purpose of this legal update is to examine the recent case law relating to rent review in England and Wales. The paper argues that as rent terms have reduced in length, and as market conditions have tended to produce nil-uplifts, there have been relatively few review cases before the court. Cases that reach court tend to fall into two broad categories: contractual interpretation and challenges to third-party determination.

Review and analysis of case law in England and Wales.

There are no special rules for interpreting rent review clauses. The court's approach to contractual interpretation follows House of Lords and Supreme Court rulings culminating in Rainy Sky SA v Kookmin Bank (2011). There are also very limited circumstances in which the court will set aside an arbitrator's award, informed by a policy that favours upholding arbitration awards as a quick and cost-effective way to settle rent review disputes.

Rent review clauses must be interpreted in accordance with the normal rules of contractual interpretation. The court is unlikely to be swayed by submissions asserting the “general purpose” of rent review.

This is an original analysis of case law.

Complicated leasing terms make both the valuation of lease contracts and the calculation of effective rent levels difficult. These complications are compounded by the existence of option‐like features in many contracts. For example, retail leases in the USA generally have overage rent clauses that allow the landlord additional rent if sales exceed a breakpoint, but set a minimum rent level under any sales conditions. Similarly, upward‐only rent review clauses are common in the UK and Australia (as well as other commonwealth countries). Here the rent is fixed at the commencement of the contract, with the option to review the rental figure in line with market conditions at pre‐determined intervals (normally every five years). If rents in the market have increased over the interim period, the rent of the subject property will be adjusted upwards accordingly and this higher level becomes the minimum possible future rent. However, if market rents have either remained static or decreased, the landlords would choose not to operate the rent review clause and the existing rent will continue. The US overage contract can be valued using a binomial approach. The upward‐only adjusting leases cannot because the value of the option is “path‐dependent”. Here, Monte Carlo valuation methods must be used. In this paper we describe both approaches. We show the relationship between the rents on these contracts relative to those without overage or with up and downward adjustment. The key determinants in establishing this relationship are the expected drift and the volatility of either sales (in the case of overage) or market rents (in the case of upward‐only leases).

At the Conservative Party Conference of 1986, the Minister of State for Housing, Mr John Patten, outlined his intentions for a new Rent Bill to be included in his party's general election manifesto. This directs the spotlight onto rented housing and Mr Patten's slogan ‘the right to rent’ will no doubt lead to a lively discussion. This paper aims to contribute to the debate by reviewing two major housing reports as they relate to rents and making further suggestions.

As deregulation takes place in the UK, rent tribunals are confronted with the problem of setting a “market rent” for previously controlled property. A simple partial equilibrium model of a sector of the rented accommodation market is used to examine the question of setting a “market rent” in the controlled‐rent subsector. It is shown that setting the controlled rent equal to the rent prevailing in the uncontrolled part of the market is sub‐optimal, and a simple formula is suggested which will give a better estimate of the true free market rent.

Recent months have seen increasing public concern with the state of the housing stock in Britain. Symptoms of the malaise include physical decay, empty property, homelessness, geographical immobility of households, overcrowding, and large numbers of people in bed and breakfast accommodation. In the search for causes and cures, attention has been directed at the structure of tenures in the UK and in particular at the inefficient operation of the rented sector of the housing market. The UK is characterised by a relatively large municipally‐controlled rented sector, and a relatively small sector of private lettings, compared with many other advanced countries. Neither the public nor the private sector of the rented housing market seems at present capable of meeting the demand placed upon it. In particular, public policy over 70 years has systematically undermined the privately rented sector. From housing around 90 per cent of households in 1915, the sector has declined to a mere ten per cent in 1985. Two forces explain this extra‐ordinary collapse of private renting. Firstly, as more and more people have become taxpayers during the course of the 20th century, the advantages of receiving lightly taxed income ‘in kind’ by investing in owner‐occupied housing have become increasingly pronounced. Landlords pay tax on the income (including capital gains) derived from housing, owner‐occupiers do not. Secondly, some form of rent control or regulation has been in force for most privately‐rented property continuously since the early years of the First World War. The restriction of prices below market clearing levels in the private rented sector has inevitably discouraged supply, reduced repair and maintenance expenditures, hastened sales of hitherto rented property to owner‐occupiers, gravely impeded geographical mobility of households, distorted the allocation of available housing space, and exacerbated housing shortages (homelessness). As a long term component of social policy, rent control has almost nothing to commend it. Its predicted consequences can all be derived from the simplest application of microeconomic analysis, and many elementary textbooks use rent control as an outstanding example of the effects on markets of intervention in the process of price formation. However, in spite of the widely perceived disadvantages of rent control, it is a policy which it is very difficult to reverse. The purpose of this paper is to discuss briefly the main features of a scheme which was recently advocated by the present writer in a paper published by the Centre for Policy Studies.

The upwards‐only rent review is a characteristic feature of the institutional property lease in the UK. It has been subject to increased attention by investors and regulators in the 1990s with various proposals which sought to make upwards‐only rent reviews illegal. Applies an arbitrage method based on market pricing which enables consistent valuations of different investment opportunities to be compared in a rigorous yet consistent approach. In this way the value of the upwards‐only option can be assessed. Uses the arbitrage approach to value the difference between a lease in which the rents are reviewed upwards‐only and that in which rents can be reviewed upwards or downwards. Starts by applying the arbitrage approach to a simple lease in which rent may take only two values. This simple approach is well established in the finance literature when analysing options, and the valuation of the upwards‐only lease may be seen as a multi‐option contract.

This paper considers the valuation in 1982 of the freehold interest in an industrial estate. The freeholder has granted a ground lease to a developer who has over a period of years constructed and let a number of factory and warehouse units. The ground rent is geared to a percentage of the rack rents on review every seven years. The majority of the occupation leases of the units on the estate are on a five‐yearly rent review basis with one unit on a three yearly rent review basis.

Because the legislation has never provided rent officers with precise and unambiguous rules on which to base their fair rent calculations, the rationale underlying trends in fair rent levels has generally been difficult to discern. Evidence given to the House of Commons Environment Committee and interpretation of data released by the Department of the Environment, however, suggest that in recent years there has been a marked development in the interpretation of the statutory formula. Essentially this seems to have followed from a judgement that, overall, rents in some registration areas have been set at too low a level, and in practice the general level of rents in these areas has been rapidly increased.

Considers Australian shopping centres which have used turnover rents. Examines the benefits for both landlord and tenant, the structure of turnover rent, its problems and effects on the landlord‐tenant relationship. Concludes that the use of turnover rents offers benefits to landlords and tenants, particularly during recession, provided lease agreements are appropriate and tenant turnover reported accurately.

Presents the findings of the first comparative econometric investigation into the influence of demand side forces on retail rent determination in European cities. Examines five major retail centres ‐ Amsterdam, Brussels, Hamburg, London and Paris ‐ over the period 1980 to 1994. Estimates for each city a theory consistent model which tests influences of GDP, retail sales and consumer expenditure on changes in retail rents. Univariate and multivariate regressions show that the relative explanatory capabilities of these influences exhibit a notable degree of variation between the cities. A time series cross‐sectional analysis demonstrates that contemporaneous changes in GDP are the most important common determinant of retail rents across the cities and that the process of rent determination in Paris is influenced by different structural factors from the other cities examined.