Only or Principal Home – Trial Lessons Learnt

Judgment has been handed down this week in the County Court at Clerkenwell & Shoreditch in a possession claim brought by a private registered provider of social housing and based on the allegation that the defendant was no longer living in her demised premises at the expiry of a notice to quit served by her (erstwhile) landlord.

There is nothing unusual in such a scenario of course and it is of depressingly common concern to social landlords that a minority of their tenants are not using their properties in the manner they should – abandonment, sub-letting, parting with possession or not using the property as their only or principal home.

The details of the case are not important for the purposes of this article, but the question of why the landlord succeeded in its case is. Seven points are of special note:

  1. Most of the Landlord’s evidence was hearsay and the Judge was very careful to assess its weight set against the factors provided for at section 4 of the Civil Evidence Act 1995. She particularly looked for corroborative documentary evidence, and treated neighbour “views” with particular caution in their absence from the trial.
  2. One of the key issues was the performance of the defendant (and indeed her witnesses) under cross examination. This is generally difficult to anticipate and pre-judge when considering in advance the strengths of any case.
  3. How a witness gives evidence can be as important as what they say. Here the defendant was found to be evasive at times and lacking in credibility in some of her explanations.
  4. There were further a number of inconsistencies in the defendant’s evidence (and, again, that of her mother and friend) brought out under cross examination, and a lack of documentary proof of residence (a lack of ‘footprint’ at odds with 11 years’ residence).
  5. The defendant’s witnesses were kept out of the court room until the time for them to give evidence arrived. This highlighted some stark differences between the defendant and her friend which though not in themselves especially significant or determinative did demonstrate a serious credibility issue.
  6. Evidence of low/no usage of utilities at the subject premises was especially helpful to the landlord’s case.
  7. A ‘trigger’ had been placed in the front door at one stage to check on access, and was still in place some 4 months later.

Though this article is not intended to explain the legal arguments for only or principal home cases, reference to and use of Dove v London Borough of Havering [2017] PTSR 1233 will also often be helpful, not least at paragraphs 31 and 33 of Lewison LJ’s judgment, where the defendant still “uses” the demised premises to a degree:

31. At [39] the judge said that he understood why they wished “to be in a position to have their own place – their own space – somewhere to which they can return in order either to be alone or if the worst happens and their relationship breaks down a place to live.” But there was no evidence that either Ms Evelyn or Ms Elaine Dove had any actual intention to change the settled pattern of life which they were living. He held therefore that he “would have had to have” reached the same conclusion as the FTT.

33. The issue before the judge was not of course whether either Ms Dove was occupying the flat at Highfield Tower as a home. On the basis of the judge’s findings of fact one or other of them may or may not have been. It was whether either of them was occupying that flat as her principal home. The judge’s findings of fact are, in my judgment, clear to the effect that neither of them was. As I have said each of them had a settled way of life and there was no suggestion that it would change in the future. This is not, therefore, a case which turns on any intention to return or revert to a previous pattern of life. The question in cases which turn on an intention to return, as explained by Thorpe LJ in Goldenberg at 733, is whether a period of absence breaks the continuity of residence. In a case such as the present where the pattern of residence has been the same throughout the period under consideration there has been no break in continuity. So the question is a different one: is the pattern of residence such that either Ms Dove is occupying the flat at Highfield Tower as her principal home?

These claims are especially difficult because the defendant may well still have access to and be using at times their social rented property, but “simply” not as their only or principal home. Sometimes their use of a 2nd property is particularly clear to show the reality of the situation. Where that is not the case, as in the case here, the focus will centre more on the demised premises.

Inconsistencies need to be identified in full, the explanation for them assessed and positive evidence of residence considered.

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