Secure tenancy — Appellant moving into council flat with grandmother — Appellant moving out to house sit for 10 weeks after his marriage — Appellant intending to find alternative accommodation — No other accommodation forthcoming and returning to grandmother’s flat — Appellant claiming assignment as member of family residing with tenant for period of 12 months — Council successfully claiming possession at first instance — Court of Appeal allowing appeal by majority.
In April 1983 the council granted a tenancy to the appellant’s grandmother, Mrs G, of a one-bedroomed flat in a block of flats reserved for elderly people at 9 Nalton House, Hillgrove Road, London NW6. In 1991, the appellant, B, moved in with her. He then married R in February 1992. B and R then took over a house of friends, who were abroad, for 10 weeks. B stated that he would have continued to live with his wife if he had found more suitable accommodation, but they were unable to afford alternative premises so separated at the conclusion of the house sit and B returned to Mrs G’s flat. She became in increasing need of care and moved into a nursing home in November 1992 assigning all interest in her flat by deed to B. The council refused to accept the assignment and issued proceedings for possession.
The appellant pleaded that he was a person qualified to succeed to the secure tenancy on the grounds that: he had occupied the premises as his home; he was a member of the tenant’s family; and he had resided with her throughout the period of 12 months ending with the tenant’s removal: see sections 87 and 91(3)(c) of the Housing Act 1985. The essential question for the judge was whether B had resided with Mrs G for the 12 months ending November 15 1992. He decided inter alia, that the combination of the house sit together with the intention to move on to other accommodation if it could be found, was sufficient to interrupt the residence. Although Mrs G was first defendant, the council left the issue as between themselves and B.
Held B’s appeal was allowed.
1. In order to determine whether B’s departure from the premises had broken the continuity of residence, regard had to be paid, first, to the nature and extent of the continuing connection with the premises throughout the period of absence and, second, to the quality of the intention to return.
2. The nature and extent of B’s continuing connection with the premises was characterised by the fact that his possessions were left there and it remained his postal address.
3. His intention not to return to Mrs G’s flat if he and his wife found something else suitable was, in reality — and on B’s evidence of the difficulties of finding anything in the private sector on his income — a distant prospect sufficient only to qualify, but not to displace, B’s intention to return.
4. Per McCowan LJ dissenting: In dealing with the question of the quality of B’s intention to return, it could be characterised as an intention to return if he failed to find accommodation where he and his wife could live together. It could also be characterised as an intention not to return if he succeeded in finding accommodation where they could live together. A helpful method of deciding the matter was to look to see what was the preferred option. Of that there could be no doubt. He had expressed a preference to continue to live with his wife rather than return to a one-bedroom flat with his grandmother in a block reserved for elderly people.
Geraldine More O’Ferrall (instructed by Fisher Meredith) appeared on behalf of the appellant tenant; Christopher Walker (instructed by the solicitor to Camden London Borough Council) appeared for the respondent housing authority.
