Housing – Secure tenancy – Tenant condition – Judge refusing local authority application for repossession of property – Whether tenant occupying property as only or principal residence for purposes of claiming security of tenure — Appeal allowed
The appellant local authority granted to the first respondent a secure tenancy of a two-bedroom flat where she lived with her partner (the second respondent) and children. In 2004, the relationship deteriorated and the second respondent moved out of the flat and purchased a house. The respondents continued to co-parent their children.
Their eldest child was severely autistic and, in view of his aggressive conduct and inappropriate behaviour, the respondents decided that the first respondent and her daughters would move out of the flat and into the house while the second respondent would live in the flat with their son.
In 2008, the appellants issued possession proceedings in respect of the flat alleging that the first respondent had lost her security of tenure because she failed to occupy the property as her only or principal home between 2004 and 2008 contrary to section 81 of the Housing Act 1985. The county court dismissed the claim for possession on the ground that, on the expiry of the notice to quit, the first respondent had been a secure tenant of the flat. The appellants were ordered to pay all of the respondents’ costs.
The appellants appealed against the dismissal of its claim for possession and the order for costs contending that the judge had failed to address the issue as to whether the first respondent’s occupation of the property, when the notice to quit expired, had been occupation as her sole or principal home; had he done so, the judge would have been bound to conclude that she had not occupied it as her sole or principal home and so had no security of tenure.
Held: The appeal was allowed.
To qualify as secure tenant under section 81 of the 1985 Act, a tenant had to be in occupation of the dwelling in question and that occupation had to be as the tenant’s only or principal home (the tenant condition).
In identifying which of two or more homes was the tenant’s principal home, the length or other circumstances of the tenant’s absence might raise the inference that the property ceased to be the tenant’s principal home so as to cast on the tenant the burden of proving the contrary. In order to rebut that presumption, it was not sufficient for the tenant to prove that it was his or her subjective intention and belief that the dwelling remained the principal home. The objective facts had to bear out the reality of that genuinely held belief. The reason for the absence, the length and other circumstances and any anticipated future duration of the absence, as well as statements and conduct of the tenant, would all be relevant to that objective assessment. The court’s focus was on the enduring intention of the tenant, which, depending on the circumstances, might not be displaced by fleeting changes of mind. The issue was one of fact to be determined in the light of the evidence as a whole. The trial judge’s findings of primary fact could only be overturned on appeal if they were perverse. However, the appeal court might in an appropriate case substitute its own inferences drawn from those primary facts: Brown v Brash [1948] 2 KB 247, Gofor Investments Ltd v Roberts (1975) 2 P&CR 366, Brickfield Properties v Hughes (1987) 29 HLR 108 and Amoah v Barking & Dagenham London Borough Council [2001] 82 P&CR 6 considered.
By virtue of the words “at any time” in section 79(1) of the 1985 Act, it was not necessary for the tenant to show that the tenant condition had been satisfied at all times since the grant of the tenancy. Occupiers might therefore pass in and out of secure tenant status. Where a notice to quit had been served to terminate the contractual tenancy, the tenant condition had to be satisfied on the expiry of the notice to quit. What happened before and after the expiry of that notice might nevertheless throw light on whether the tenant condition was satisfied at the date when it expired.
In the instant case, the judge had examined carefully the facts and the law on the issue of whether the first respondent had continued to occupy the flat despite her prolonged absence. However, he had failed to resolve the issue of whether the flat was the first respondent’s principal home for the purposes of satisfying the tenant condition.
On the evidence, it would be possible for a trial judge to conclude that the first respondent had failed to discharge the burden of proving that, despite the fact she was no longer living at the flat at the time the notice to quit expired, it remained her principal home. However, that was not the only proper conclusion at which the judge could have arrived. It would not be right for the Court of Appeal to attempt to draw its own inferences from the primary facts found by the judge. Accordingly, the case would be remitted for rehearing.
In those circumstances, the judge’s order for costs would be set aside. In any event, the court would have allowed the appeal in relation to the costs of a unsuccessful summary judgment application. There was no principled basis for making the appellants, which were successful in defeating the two day summary judgment application, pay all the respondents’ costs of that application.
Iain Colville (instructed by the legal department of Islington London Borough Council) appeared for the appellants; Matt Hutchings (instructed by Harter & Loveless Solicitors) appeared for the respondents.
Eileen O’Grady, barrister
