Assured shorthold tenancies - Notice - Possession - Prescribed forms

Jasbir Kaur Kahlon v Andrew Isherwood: CA (Civ Div) (Lord Justices Rix, Stanley Burnton, Patten): 19 May 2011

The appellant tenant (T) appealed against an order that he give possession of a property to the respondent landlord (L).

T and L had agreed to settle disputed possession proceedings by L waiving arrears of rent and T entering into an assured shorthold tenancy to replace his assured tenancy.

The settlement was recorded in a schedule to a Tomlin order.

L later gave notice to terminate the tenancy, and sought a possession order.

T defended the possession proceedings on the grounds that no notice in the prescribed form had been given of an intention to replace an assured tenancy with an assured shorthold tenancy, with the effect that under section 19A of part I of the Housing Act 1988 the tenancy was assured.

The recorder held that the schedule to the Tomlin order, although not identical to the prescribed form 8, was in a form substantially to the same effect, and that T must be assumed to have been advised by his solicitor and to have known about the effect of the agreed change from an assured to an assured shorthold tenancy.

The recorder found that that knowledge, plus T’s signature to the Tomlin schedule, were sufficient to comply with the notice formalities required by paragraph 7(2) of schedule 2A for granting an assured shorthold tenancy, and he ordered possession.

L argued that the case law on whether a notice was in a form substantially to the same effect as the prescribed form under section 20, which required the landlord to serve a notice on the tenant, had no application to a case governed by section 19A, which required the tenant to serve a notice on the landlord.

Held: (1) The relevance or materiality of any provision in a prescribed form of notice had to be assessed by reference to the purpose of the notice.

Where a provision in the prescribed form was clearly part of the substance of the notice it was no answer to its omission to say that the information it conveyed was well known to the tenant at the relevant time.

The requirement under section 19A that the tenant serve the notice was not determinative of its purpose; it was clear from the structure of form 8 that the primary purpose remained that of informing the tenant of the consequences of replacing an assured tenancy with an assured shorthold tenancy.

Consequently, the reasoning in the cases on section 20 applied with equal force to a case under section 19A, Manel v Memon [2001] 33 HLR 24 CA (Civ Div) applied.

The obvious purpose of a form 8 notice was to give the tenant the information in paragraph 4, that under an assured shorthold tenancy possession could be obtained without proving any grounds, and to provide the landlord with the tenant’s acknowledgement of that.

There was nothing in the schedule to the Tomlin order that corresponded with paragraph 4. Therefore it was not substantially to the same effect as form 8 (see paragraphs 21-22, 24 of judgment).

(2) The Tomlin schedule created a specifically enforceable contract for a new tenancy, which was completed by the later execution of the agreement.

Therefore, the schedule could not amount to a notice served ‘before’ the tenancy was entered into as required by paragraph 7(2)(b) of schedule 2A (paragraph 28).

Appeal allowed.

Naomi Winston (instructed by Blakemores) for the appellant; Andrew Maguire (instructed by Heer Manak) for the respondent.