In the light of the principles set out in the first part of this article (June 25, p 81), it is now possible to attempt an overall review of the case law.
The following tabulation represents an analysis of some of the reasons which litigants have put forward for: (1) not actually living in the place where they claim to reside; or (2) not very often living in the place where they claim to reside; or (3) not actually going to the place where they might, more logically, appear to reside.
The first column lists those cases where the litigant’s reasoning has been accepted by the court and the second column lists those cases where the litigant’s claim to residential occupation has been rejected by the court. It will be noted that, in many of the cases in the first column, the court has expressly or impliedly recognised that the litigant has two homes (for example, the railway guard in Menzies v Mackay). However, an observation in Megarry on the Rent Acts, 1967, vol 1, p 188 still seems to be valid — the “three-home man” has not yet emerged, so far as the law of landlord and tenant is concerned. The above analysis shows how far towards the edge of permissible toleration of a tenant (if not over it) the Court of Appeal has gone in Brickfield Properties Ltd v Hughes [8] 1 EGLR 106; [1988] 24 EG 95.
However, the Court of Appeal in that case has put forward the following guidelines, extracted from Brown v Brash (1948) and other cases:
(1) Where the tenant’s absence is more prolonged than is to be explained by holiday or ordinary business reasons and is unintermittent, the onus lies on the tenant of establishing an intention to return if he seeks the protection of the Act.
(2) An inward intention, however, is not enough. It must be accompanied by some outward and visible sign of the tenant’s intention. The continued occupation by a caretaker or relative or the continued presence of furniture may be sufficient, but in each case the question is whether or not the person or furniture can be regarded as a genuine symbol of his intention to return “home”.
(3) In addition the tenant must show that there is a “practical possibility” — to use the phrase used in Tickner and by Ormerod LJ in Gofor — or a “real possibility” — to use Upjohn LJ’s expression in Gofor — of the fulfilment of that intention within a reasonable time. What is a reasonable time depends on the circumstances, but it is to be noted that in Gofor the Court of Appeal declined to interfere with the judge’s finding that in the circumstances of that case 10 years was a reasonable time.
(4) The protection of the Act can be claimed even though the tenant has another home or residence — the two words appear to be synonymous in this context (see Lord Brandon in Hampstead Way Investments Ltd v Lewis-Weare [5] — but the court will look with particular care at two-home cases.