Landlord and tenant – Housing Act 1985 – Tenant condition – Respondent council bringing proceedings against appellant joint tenants for possession of flat – Whether appellants having secure tenancy – Whether occupying as only or principal home so as to satisfy “tenant condition” in section 81 of 1985 Act – Appeal dismissed
The appellants were twin sisters who held a joint tenancy of a flat let to them by the respondent council. The respondents served notice to quit on the appellants on the grounds of rent arrears and brought proceedings for possession. The respondents contended that the appellants did not attract the protection of the secure tenancy regime under the Housing Act 1985 since they did not occupy the flat as their “only or principal home” at the date of the notice to quit and therefore did not fulfil the “tenant condition” under section 81 of the 1985 Act.
In the possession proceedings, the judge considered findings of fact made by the first-tier tribunal in a failed appeal by the appellants against the withdrawal of housing benefit. These included findings that the first appellant was in a long-term relationship and stayed at her partner’s flat four days each week, shared the cooking at that flat, had a key and had some post addressed there; and that the appellants’ flat was not in full and regular use as the first appellant’s home but was used by her largely for the storage of goods.
The second appellant was also found to spend much of her time at the home of her long-term partner, staying there three nights during the week, plus weekends. She too had a key to her partner’s flat.
The judge found that, while it was understandable that the appellants would want to have their own space to which they could return to be alone, or if their relationships broke down, neither of them had any actual intention to change the settled patter of life that they were living and neither could be said to be occupying their flat as their only or principal home. The appellants appealed.
Held: The appeal dismissed.
In order to meet the tenant condition under section 81 of the 1985 Act, a person had to occupy the dwelling not just as a home but as an only or principal home.
In some cases, the length or other circumstances of the tenant’s absence might raise the inference that the dwelling had ceased to be the tenant’s principal home, so as to cast on the tenant the burden of showing an intention to return. In such case, the tenant’s subjective intention was not enough and it had to be borne out by objective facts showing that the intention was genuinely held and reflected reality. Those principles were engaged not only where the tenant was entirely absent from the property, but also where the tenant continued to occupy the property as a home, albeit not as his or her only or main home: for example, where a property that had once been the tenant’s only home became no more than a weekend or holiday home. An intention to return was, in reality, an intention to revert to a previous pattern of existence: Islington London Borough Council v Boyle [2011] EWCA Civ 1450; [2012] PTSR 1093; [2011] PLSCS 287, Crawley Borough Council v Sawyer (1987) 20 HLR 98 and Camden London Borough Council v Goldenberg (1996) 28 HLR 727; [1996] EGCS 48 applied.
In the instant case, each of the appellants had a settled way of life and there was no suggestion that it would change in the future. There was therefore no question of an intention to return or revert to a previous pattern of life. The question of intention to return was relevant in cases where the issue was whether a period of absence broke the continuity of residence. In a case such as the present, where the pattern of residence had been the same throughout the period under consideration, there had been no break in continuity and the question was simply whether the pattern of residence showed that either appellant was occupying the flat as her principal home.
While an intention to retain a flat as a place to be alone was a factor in considering whether it was occupied as a home, it was of little help in deciding whether it was a person’s principal home. While that issue was not to be decided by applying a simple “day count”, the judge had not fallen into that error but had looked at all the evidence in the round. He had been entitled to conclude that neither of the appellants was occupying the flat as her principal home when the notice to quit was served and took effect. Accordingly, neither was a secure tenant and the respondents were entitled to possession without the need to prove one of the statutory grounds applicable to secure tenancies.
Jonathan Manning (instructed by GT Stewart) appeared for the first appellant; Jonathan Manning (instructed by Hansen Palomares) appeared for the second appellant; Stephanie Lovegrove (instructed by Perrin Myddelton, of Harpenden) appeared for the respondents.
Click here to read transcript: Dove v Havering London Borough Council
