Jasbir Kaur Kahlon v Andrew Isherwood [2011] EWCA Civ 602 (on Lawtel but not on BAILII yet)
UPDATE: Transcript now available on BAILII

Schedule 2A of the Housing Act 1988 was inserted by the Housing Act 1996 and supports s19A which was inserted by the same Act. S19A basically acts to make the AST the default tenancy under the Act while Schedule 2A lists a series of exceptions to the default position. Most crucially, for this case is the exception in paragraph 7 which states that a tenancy which was previously an Assured tenancy cannot be regranted as an AST unless a notice in a prescribed form had been served.

The parties had been in a previous dispute over rent arrears. This had been settled by way of a Tomlin order with the arrears being waived by the landlord and the tenant accepting a regrant of an AST in place of his Assured tenancy. The landlord now sought to terminate that AST and recover possession. The tenant argued that the Tomlin order was ineffective as notification to allow the regrant of an AST in place of his original Assured tenancy and that consequently the regranted tenancy was an Assured as opposed to an AST. Lower courts had found in favour of the landlord and the tenant appealed to the Court of Appeal.

The landlord argued that the Court should take the same approach to the defect in notice as had been taken with regard to section 20 notices under the original Housing Act 1988 regime. Therefore if the notice was in a form substantially to the same effect as the required form then a small defect of form should not be taken overly seriously.

The Court of Appeal rejected the argument although it should be noted that they did so mainly on the facts. The correct form is a Form 8 and is prescribed by the The Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997. The Court held that the key information in the form is in paragraph 4 which reads:

I/We* understand that under my/our* existing tenancy, I/we* can only be required to give up possession in accordance with the grounds set out in Schedule 2 to the Housing Act 1988, whereas under the new shorthold tenancy, the landlord(s) will be able to recover possession of the premises without being required to prove a ground for possession, after the first six months of the assured shorthold tenancy, or, if there is a fixed term for longer than 6 months, at the end of that fixed term, subject to two months’ notice

There was nothing in the Tomlin Order that in any way equated to paragraph 4 and so the Tomlin order could not be said to be in a form substantially to the same effect as a correct Form 8 and so could not be seen as a valid notice.
In addition, the Tomlin order itself contained a valid contract for a new tenancy agreement, albeit one that was later completed by the execution of a full tenancy agreement. Therefore the Tomlin order could not be valid as a notice which was required to be served “before” the tenancy was entered into as required by para 7.

In short, if a landlord wants to carry out this kind of exercise he would need a valid Form 8 signed first and then it should be referenced in the Tomlin Order which creates the new tenancy.

Appeal by the tenant allowed, the tenant has an Assured tenancy.