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Not an AST?

In Kahlon v Isherwood the court held that a tenant that had a Assured Tenancy but agreed to the grant of an Assured Shorthold Tenancy as part of a settlement of court proceedings was, in fact, still an Assured Tenant.

Isherwood became a tenant in 1994. Since 2000 there had been 3 claims for possession due to rent arrears. On the third occasion the parties agreed to mediate and reached an amicable solution to Kahlon’s claim for arrears and Isherwood’s claim for disrepair. As part of this agreement Isherwood also agreed to sign a new Assured Shorthold tenancy for a period of 12 months and in return arrears of rent were written off.

The ‘new’ tenancy term began on the 2 June 2008. This agreement included a break clause at any time upon the expiry of 2 months notice. The ‘new’ tenancy did not have the same security of tenure as an assured tenancy where such notice would be ineffective as a means to end the tenancy.

On the 31 March 2009 Kahlon served notice on Isherwood to expire on the 2 June 2009. Upon the expiry of the notice possession proceedings were issued and Isherwood defended claiming he was an Assured tenant.

The county court rejected Isherwood’s defence and awarded Kahlon possession. Isherwood appealed.

The Court of Appeal held that when a tenant losses his security of tenure he must be fully aware of the effect of this change in status. That in this case Isherwood should have been served with a prescribed notice pursuant to section 20 and schedule 2A of the Housing Act 1988.  This notice has a prescribed form and must  include a warning of the legal consequences of becoming an Assured Shorthold tenant and this would have assisted Isherwood in making an informed decision about the change of status.

The court held that in the absence of this notice Isherwood was still an Assured tenant and set the order for possession aside.  The notice requirements were not negotiable and could not be waived by the court even where the original agreement which demoted the tenancy had been approved by the court.

Whilst the decision seems a little unfair on the landlord who wrote off a substantial amount of arrears as part of the mediation agreement the court made the only decision available to it. The legislation makes the process very clear and attempts to circumvent the procedure will fail.  Care should be taken when entering into any form of agreement to demote a tenancy from Assured to Assured Shorthold and advice should be sought.

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