Statutory tenancy — Claim by appellant landlord for rent arrears — Landlord arguing statutory tenancy ending for lack of residence — Tomlin order — Landlord agreeing to undertake works — Whether issue estoppel as to respondent’s intention to resume occupation — Appeal dismissed
The respondent held a statutory tenancy of a maisonette that was protected, under section 2 of the Rent Act 1977, for so long as he occupied the premises as his residence. The appellant landlord brought a claim for arrears of rent, in which it asserted that the statutory tenancy had terminated because the respondent was not residing at the property. The respondent counterclaimed for breach of the landlord’s repairing covenant, arguing that the premises were uninhabitable owing to disrepair. The proceedings were settled by a Tomlin order, under which the appellant undertook to carry out works listed in a schedule, whereupon the respondent would become liable for rent.
The respondent was dissatisfied with the works that the appellant had carried out. He continued to withhold rent and to live elsewhere in the meantime. The appellant brought a claim for possession, again contending that the statutory tenancy had ended for lack of residence.
The claim was dismissed on the basis that the respondent still held a statutory tenancy. The judge found that the respondent had showed that, despite his prolonged absence from the maisonette, he genuinely intended to return within a reasonable time after the completion of the works.
The appellant appealed. It contended that the judge, when considering the question of an intention to return, should have taken into account events occurring prior to the date of the Tomlin order. It submitted that the respondent had ceased to reside at the property, and had accordingly lost his statutory tenancy, prior to that order, so that he could not now be said to have an intention to return to the property. The respondent submitted that the terms of the Tomlin order were premised on the assumption that he had been a statutory tenant at that time, and that the necessary inference was that he had, at that time, intended to resume occupation of the premises.
Held: The appeal was dismissed.
Although the appellant had challenged the respondent’s status as a statutory tenant in the earlier proceedings, it had abandoned that issue and had reached agreement on the basis that the respondent was, at that date, a statutory tenant. That agreement could not be treated as a bare statement of law, but had to be clothed with the underlying facts. The agreement had been predicated on the assumption that the respondent had a statutory tenancy, and that, although he was out of actual occupation, he intended to go back into actual occupation when the works were finished. The agreement had settled between the parties the issue of the respondent’s intention to return once the premises were habitable. The appellant had thereby waived its right to contend that the statutory tenancy had been lost prior to the date of the Tomlin order.
The issue for the judge in the possession proceedings was whether the respondent had retained his intention to return throughout the period from the date of the Tomlin order to the commencement date of the possession proceedings. The judge had been entitled to infer such an intention from the evidence before him.
Christopher Pymont QC and Paul Clarke (instructed by Clyde & Co, of Guildford) appeared for the appellant; Jan Luba QC and Richard Alomo (instructed by Collins Solicitors, of Coventry) appeared for the respondent.
Sally Dobson, barrister
