Possession claim – Compromise – Mediation resulting in agreement whereby respondent landlord to waive rent arrears and appellant tenant to accept change from assured tenancy to assured shorthold tenancy – Agreement reflected in schedule to Tomlin order – Respondent subsequently purporting to terminate tenancy and obtaining possession order – Whether appellant continuing to hold assured tenancy by reason of non-compliance with procedural requirements of para 7(2)(a) of Schedule 2A to Housing Act 1988 – Whether Tomlin order constituting a notice to substantially same effect as that required by para 7 – Appeal allowed
In 2008, possession proceedings brought by the respondent landlord against the appellant assured tenant were compromised after a successful mediation. A mediation agreement, signed by the parties and the mediator, provided that the appellant’s assured tenancy would be replaced with an assured shorthold tenancy for a term of 12 months from June 2008, while the respondent would repair items of disrepair for which the appellant had counterclaimed and would waive the arrears of rent and the benefit of a costs order. The parties subsequently signed a Tomlin order drawn up by the appellant’s solicitor with a schedule in those terms. A tenancy agreement headed “Assured shorthold tenancy” was executed in the agreed terms.
The respondent subsequently served notice on the appellant, under section 21 of the Housing Act 1988, to terminate the assured shorthold tenancy at the end of the 12-month period. The appellant failed to vacate on that date and the respondent brought possession proceedings. The appellant contended that he still held an assured tenancy, by reason of section 19A of the Housing Act 1988, since the notice requirements of para 7(2)(a) of Schedule 2A to that Act, which applied where an existing assured tenant was downgraded to an assured shorthold tenancy from the same landlord, had not been met. He relied on the absence of any notice served by him in the form prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 (form 8), setting out the tenant’s acknowledgment that the tenancy was to be an assured shorthold tenancy, with all the consequences for security of tenure that that entailed.
A possession order was granted in the county court. The recorder held that the schedule to the earlier Tomlin order, although not identical to form 8, was to “substantially the same effect” within the meaning of para 2 of the 1997 Regulations. He took the view that the appellant, who had been advised by a solicitor throughout the relevant proceedings and the subsequent mediation, must be assumed to have been advised of, and to have known about, the effect of the agreed change to an assured shorthold tenancy. The appellant appealed.
Held: The appeal was allowed.
Unlike certain other types of notices under the 1988 Act, there was no provision for the court to dispense with the requirements for a notice under para 7(2)(a) of Schedule 2A if it considered it just and equitable to do so. The schedule to the Tomlin order was not to “substantially the same effect” as the prescribed form 8. It did not contain the bullet-pointed information as to the tenant’s rights that form 8 included and there was nothing corresponding to para 4 of the form that set out the tenant’s understanding and acceptance of the consequences of a change from an assured to an assured shorthold tenancy in terms of security of tenure. Those were clearly matters of substance. Their relevance or materiality had to be assessed by reference to the purpose of the notice to be prepared and served by the tenant under para 7(2)(a), which was to give him the information that para 4 of form 8 contained and to provide the landlord with an acknowledgment of that. Since the schedule to the Tomlin order did not contain that information, it was not in a form substantially to the same effect as form 8. 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 that it conveyed had been well known to the tenant at the relevant time: Manel v Memon [2000] 2 EGLR 40; [2000] 33 EG 74 applied; Tegerdine v Brooks (1977) 245 EG 51 considered. The principles relevant to the construction of inaccurate particulars in a notice could not fill gaps in the form of notice with which the instant appeal was concerned: either the notice contained all the necessary matters of substance or it did not: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57; [1997] 24 EG 122; [1997] 25 EG 138 considered.
Accordingly, the possession order would be set aside and the case remitted to the county court to reconsider the claim for possession on the basis that an assured, rather that an assured shorthold, tenancy had been created. It might also be necessary to address any arguments as to the continued effectiveness of the other terms of the mediated compromise.
Per curiam: Even if the Tomlin order had contained wording in the prescribed form, it was doubtful whether such an order, which formed a contract between the parties for the grant of an assured shorthold tenancy, could also fulfil the role of a para 7 notice that needed to be served before the tenancy was entered into. The assumption behind the requirement for a gap in time between the service of the notice and entering into the tenancy agreement was that the tenant should be given an opportunity to consider fully the consequences of what was proposed and to resile if he changed his mind. That was not possible where the execution of the Tomlin order bound him to take a new tenancy; that order created a specifically enforceable contract for the grant of a new tenancy in the form of the tenancy agreement annexed to it. Similar problems arose with regard to the mediation agreement. Therefore, the requirement for service of a para 7 notice could and should have been dealt with by the tenant serving a notice in the prescribed form immediately prior to the execution of the mediation agreement.
Naomi Winston (instructed by Blakemores Solicitors, of Birmingham) appeared for the appellant; Andrew Maguire (instructed by Heer Manak Solicitors, of Coventry) appeared for the respondent.
Sally Dobson, barrister
