This page contains details of cases dealing with:
- Notices excluding tenancies from being shortholds;
- Tomlin orders purporting to convert shorthold into standard assured tenancy;
- Turning a shorthold into a fully assured tenancy by mistake.
Tenancies created on or after 28 February 1997
Andrews v Cunningham
 EWCA Civ 762.
Any assured tenancy created on or after 28 February 1997 is automatically an assured shorthold tenancy unless one of the exclusions in Schedule 2A of the Housing Act 1988 Act. The relevant provisions of s19A of the 1988 Act and of the Schedule provide that the assured tenancy will not be a shorthold in the following circumstances:
"1. (1) An assured tenancy in respect of which a notice is served as mentioned in sub-paragraph (2) below.This case
(2) The notice referred to in sub-paragraph (1) above is one which
(a) is served before the assured tenancy is entered into,
(b) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy, and
(c) states that the assured tenancy to which it relates is not to be an assured shorthold tenancy.
2. (1) An assured tenancy in respect of which a notice is served as mentioned in sub-paragraph (2) below.
(2) The notice referred to in sub-paragraph (1) above is one which
(a) is served after the assured tenancy has been entered into,
(b) is served by the landlord under the assured tenancy on the tenant under that tenancy, and
(c) states that the assured tenancy to which it relates is no longer an assured shorthold tenancy.
3. An assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy."
In this case the landlord had provided the tenant with a rent book which had the words "Assured Tenancy" on the cover. The tenant sought to argue that those words were sufficient to amount to a notice under paragraph 1 or paragraph 2 of Schedule 2A. This would have meant that the s21 notice served by the landlord on the basis that the tenancy was a shorthold was of no effect. The District Judge agreed and refused to make an order for possession.
The DJ's decision was overturned by a Circuit Judge, whose decision was upheld on a further appeal to the CA. The words on the front of the rent book were not a notice within the meaning of the Schedule because:
"the statement on the cover 'Assured Tenancy' is not a statement 'that the assured tenancy to which it relates is not to be an assured shorthold tenancy' (para 1(2)(c)), because an assured shorthold tenancy is itself a type of an assured tenancy (see section 19A)" (Lawrence Collins J at para 39).Or, in the words of Wilson J at para 51:
"[the] argument is hopeless because the rent book was as apt to an assured shorthold tenancy as it was to an assured non-shorthold tenancy and it was not stated therein that the tenancy was of the latter rather than the former character."There were other difficulties in the way of the tenant. One of them was that at the time that the tenancy was granted the landlord was a resident landlord. This meant that the tenancy could not be assured at all and s19A of the 1988 provides that a relevant 'assured tenancy' is an assured shorthold tenancy 'unless it falls within any paragraph in Schedule 2A".
As can be seen from the provisions quoted above, one of the circumstances in which an assured tenancy is not a shorthold is where the "assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy". An issue that arose in the case was whether or not this paragraph requires a written agreement containing such a "provision".
Lawrence Collins J thought that it almost certainly did because:
"enabling a tenant to simply defend a claim for possession on the ground that it was orally agreed that the tenancy was not an assured shorthold tenancy would be contrary to the whole regime of assured shorthold tenancies, and would result in unfounded claims that there was an oral agreement that there should be a non-shorthold tenancy having to go to trial."However, as the point was not fully argued and was of some considerable importance the Court did not come to any definite conclusion on the issue.
Previous tenancy assured but not shorthold - Tomlin order purporting to create new shorthold
A Tomlin order reciting that T, who had been an assured non shorthold tenant, would reside under a new tenancy as an assured shorthold tenant, was not sufficient to avoid the security provisions of the Housing Act 1988.
As stated above, assured tenancies created on or after 28 February 1997, will in the majority of cases be shortholds. If immediately prior to the new tenancy, the tenant held as an assured tenant, then the new tenancy will continue to be an assured non-shorthold tenancy (Housing Act 1988, Sched. 2A, paragraph 7). That will be the case unless a prescribed notice (or a form substantially to the same effect) is served before the new tenancy by the tenant on the landlord. The prescribed notice refers to the consequences of accepting a shorthold tenancy and the impact on security.
T was an assured tenant of L. Previous possession proceedings had been settled by way of a Tomlin order on the basis that L would waive rent arrears and T would enter into a new assured shorthold tenancy to replace their assured tenancy. The schedule to the order made no reference to any loss of security. T had the benefit of legal advice at the time of compromising the matter and had drafted the order and schedule. Following the compromise the parties entered into a written tenancy agreement that professed to be an assured shorthold tenancy.
L subsequently brought possession proceedings on the basis that the tenancy was a shorthold. T defended arguing that the requisite notice had not been given prior to the new tenancy and therefore they remained an assured tenant.
The trial judge held the Tomlin order was sufficient to give rise to a shorthold tenancy. While it was not a notice in prescribed form, T had been advised as to the impact of the compromise on his security.
Court of Appeal
The issue before the Court of Appeal was whether the circumstances in which the Tomlin order was entered into were sufficient to overcome the fact that the prescribed form was not utilised. Patten LJ held that where:
"the provision in the prescribed form is clearly part of the substance of the notice … it is no answer to its omission to say that the information it conveys was well known to the tenant at the relevant time." (para 21)Therefore the fact that T had been advised as to the impact of the compromise was not enough to overcome the omission from the schedule as to the consequences of accepting a shorthold tenancy.
A distinction was drawn with Mannai type cases, where the error was one of particulars given and errors which the reasonable recipient would know to be errors. Patten LJ stated:
"… while that approach may operate to correct obvious factual mistakes in the notice, it cannot, in my view, operate to fill gaps in the form of notice of the kind we are concerned with on this appeal. Either the notice contains all the necessary matters of substance or it does not." (para 23).The appeal was allowed and the matter remitted to the county court for the judge to re-consider the claim for possession on the basis that the new agreement created an assured rather than an assured shorthold tenancy. It might also be necessary to consider whether the other the terms of the compromise contained in the Tomlin order remained effective.
Notice mistakenly turning a shorthold into a non-shorthold
Saxon Weald Homes Ltd v Chadwick
 EWCA Civ 1202
A landlord of an assured shorthold tenant mistakenly served notice under Schedule 2A paragraph 2 of the Housing Act 1988, which on its face turned the tenancy into an ordinary assured tenancy. As there was nothing in the contents of the notice which should have alerted the tenant to a mistake, the notice was good and his tenancy became a non-shorthold at the end of the first year.
T was granted a probationary tenancy by L which was expressed as an assured shorthold tenancy. It was stated in the tenancy that if no steps had been taken to terminate the tenancy after 12 months, it would automatically convert into a non-shorthold.
Shortly before the 12 months were up, L served a s21 notice and a s8 notice (relying on anti-social behaviour grounds). However, on the anniversary, another letter was sent by an agent of L stating that T was now an assured tenant. The latter letter was sent in ignorance of the other notices.
By Section 19A of the Housing Act 1988 a tenancy granted after February 1997 will automatically become a shorthold tenancy unless "it falls within any paragraph in Schedule 2A to this Act". Schedule 2A provides that the tenancy will be an assured non shorthold tenancy if during the tenancy the landlord serves a notice stating that the tenancy is no longer an assured shorthold tenancy.
The District Judge found that as the letter was sent in error it was of no effect and granted possession. The Circuit Judge held that it was effective for the purpose of Schedule 2A to create a non shorthold tenancy.
Court of Appeal
L argued that the letter must be read in the context of the other notices and that T must therefore have known that his tenancy was not going to be converted into an ordinary assured tenancy.
The Court of Appeal disagreed and determined that the notice it was effective. There was no internal ambiguity in the letter which permitted it to be construed differently. The letter was so clear that it could not be construed otherwise, no matter what were the background circumstances.
Davis LJ at paragraphs 20-21:
“Mr Glen in fact seemed to assume that this tenant, and any reasonable recipient, would have taken it, given the background, that the letter could not have been intended to convert the assured shorthold tenancy into an assured tenancy. But a tenant ordinarily is not to be expected to enquire into, or think about, a landlord's reasons for serving an otherwise unambiguous notice in connection with a lease. In any event, as Dame Janet Smith observed in argument, a tenant here might well think that the landlord had simply changed its mind from its previous indicated intention.Back to top
The case of Mannai involved an identifiable internal ambiguity within the notice itself. It is wholly different from the present case, where there is no such ambiguity. As the Judge below crisply pointed out, the mistake is not in the wording: the mistake is in the fact that the letter was sent at all.