Only or principal home (and an intention to return)
Security of tenure requires a tenant to live at the demised premises as their only or principal home. That issue frequently centres on the question of whether an “absent” tenant has an ‘intention to return’. This paper considers this important concept in the context of the overall definition, and the judicial treatment of it.
1. Introduction
- The “tenant condition
- Joint tenants/spouses
- Absent tenants
An assured or secure tenant only has security of tenure whilst they live at the demised premises as their only or principal home:
Secure Tenancies – Housing Act 1985
81. The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.
Assured Tenancies – Housing Act 1988
1(1) A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as—
…
(b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home.
There are qualifications to such a “tenant condition”:
- As noted in the statutory provisions just cited, where there is a joint tenancy only one of the tenants needs to satisfy the condition; and
- Where the property is occupied by the spouse or civil partner of the tenant then that is treated as occupation by the tenant: Family Law Act 1996, section 30(4)(b).
The security of tenure is ambulatory:
“…it is not necessary for the tenant to show that the tenant condition has been satisfied at all times since the grant of the tenancy. Occupiers may therefore pass in and out of secure tenant status” (Etherton L.J. in LB Islington v Boyle [2012] P.T.S.R. 1093 at para. 66)
In contrast to the position under the Rent Acts[i], for an absent tenant to maintain security they must also not only establish that the dwelling remains their home but that it is their “only or principal home”.
The two scenarios where only or principal home comes to the fore are, as noted by Lewison L.J. in LB Havering v Dove [2017] P.T.S.R. 1233 at para. 17:
First, where the tenant is absent from the property by not being physically present at all; and
Second, where the tenant has ceased to occupy the property as their only or main home even if they continued to occupy it as a home at times (e.g. where it had become no more than a weekend or holiday home).
2. Physical residence
- Physical occupation
Physical occupation of premises is not necessarily required to retain only or principal home status. As Parker L.J. said in Crawley BC v Sawyer (1988) 20 H.L.R. 98 at pp. 101-102:
“It is quite plain that it is possible to occupy as a home two places at the same time, and indeed that is inherent in the wording of section 81. It is therefore plain that, if you can occupy two houses at the same time as a home, actual physical occupation cannot be necessary, because one cannot be physically in two places at the same time.”
This follows on from The Governors of the Peabody Donation Fund v Grant (1983) 6 H.L.R. 41 where a would-be successor was treated as still living at her father’s flat:
“The learned judge concluded on the evidence that from the beginning of 1980 the defendant was staying four nights a week at the flat; he found that by that time all her clothes and her books were at the flat, and the learned judge said that he accepted her evidence that she had come to regard it as her home. He went on to find that the defendant occupied the flat as her home at the time of her father’s death, but he said that if by any chance he was wrong about that and if the defendant’s mother’s home at Salisbury could be regarded as being the defendant’s home by reason of the fact that the daughter was still living there, the London flat was to be regarded as the defendant’s principal home.”
3. Objective or Subjective (Intention to return)?
- Intention
- Burden of proof
- Practical prospect of return
- Motive
Both of the scenarios raised by Lewison L.J. in the “Introduction” section entail varying degrees of absence from the subject premises and will require, for security of tenure status to be retained, for an intention by the tenant to return to live at the demised premises as their only or principal home.
In Uijima Housing Association v Ansah (1998) 30 H.L.R. 831[ii] Roch L.J. dealt with the subjective/objective question of such an intention at p. 843:
“The respondent was no longer in physical occupation of Flat B and the onus was upon him to establish that he was still occupying the flat as his principal home. Whether he was doing so is not, in my judgment, to be determined by the subjective intention or motives of the person claiming still to have an assured tenancy, but by an objective assessment of his actions and intention. Were it otherwise it would lead to inconsistent decisions being given in cases where the facts were parallel.”
Lord Justice Etherton, now the Master of the Rolls, confirmed the hybrid nature of this “test” in LB Islington v Boyle at para. 62:
“Where the defendant is physically absent from the dwelling, in which the defendant formerly lived as his or her only or principal home, the defendant’s intentions about living there again as the sole or principal home will be critical to the question whether the tenant condition is satisfied. Plainly, without that intention, the tenant condition cannot be satisfied. It is not sufficient, however, for the defendant merely to give oral evidence of his or her subjective belief and intention. The credibility of the defendant’s evidence as to belief and intention must be assessed by reference to objectively ascertained facts.” (Emphasis added)
A common example of this approach, as demonstrated in the LB Camden v Goldenberg case referred to below, is where the sole tenant has had to move into a residential facility because of their care needs. They may have a very genuine wish and intention to return home, even where the professional assessment is that this will not and cannot happen. Objectively therefore there will be no realistic opportunity of return and security of tenure will be lost.
The motive behind an intention to return is irrelevant. In LB Southwark v Ibidun [2018] H.L.R. 5 the defendant was the secure tenant of a studio flat. The authority brought possession proceedings on the basis that the flat had ceased to be the defendant’s only or principal home.
They said she had sublet the flat to a Ms Oludje and had another home in Kent. Also, they provided evidence that the defendant had advertised the flat for letting in 2012 on a website. They further provided evidence of credit checks which showed that three other people had connections with the flat between 2012 and 2015.
The defendant gave evidence and provided documents showing that the flat remained her correspondence address for most purposes, including her bank account. She stated that the advertisement had been taken down from the website within minutes of it going up.
Her mother gave evidence that the defendant always returned to the flat at weekends (see the second of Lewison L.J.’s scenarios in “Introduction”) and that, when she visited her there, Ms Oludje was not always present.
Moulder J. said at para. 22:
“…The paragraph in the judgment referring to her intention of retaining the property as a springboard to other accommodation in the future was, in my view, not central to the decision and her motive in my view was not relevant to the decision before him.”
4. Relevant Factors
- Question of fact
- Potential factors
Putting that question of intention into its proper context therefore, in LB Islington v Boyle Etherton L.J. set down 4 crucial factors at para. 65 of the judgment to determine help determine the issue:
- It is a question of fact to be determined upon consideration of the evidence as a whole.
- As noted above, it is not enough that the tenant show a genuine intention to return, this intention and the proposed return must be based on objective reality.
- Enduring intention is the key, as opposed to “fleeting changes of mind”.
- Certain evidence, such as a long period of absence, may move the burden of showing that the premises remained the tenant’s principal home to the tenant. In Tickner v Hearn [1960] 1 W.L.R. 1406, CA the protected tenant was away from her home for 6 years in a hospital, latterly as a voluntary patient, yet was held to still retain her tenancy status (her daughter remained in the house and maintained it as a home).
To give some examples of facts found relevant in the reported cases:
Suggesting not occupying
- Visits to property unanswered (Dove).
- Advertising for sub-letting (Ibidun).
- Relationship/stays elsewhere/keys to 2nd property (Dove).
- Neighbour reports (Dove).
- Use of 2nd property address for official purposes (Dove).
- No signs of occupation in property (Dove).
- Low utility consumption (Dove).
- Not on electoral roll/census (Grant).
- Prolonged absence (Brickfield Properties Ltd v Hughes (1988) 20 H.L.R. 108).
- Children’s/family’s needs elsewhere (Boyle).
Suggesting occupation
- Registration with local GP, bank (Dove, Ibidun).
- Clothes/books/furniture present (Boyle, Brickfield, Brown v Brash [1948] 2 K.B. 247, Goldenberg, Grant).
- Problems at other property (Ansah, Grant).
- Postal address (Goldenberg).
- Family remain at property (Tickner).
- “Caretaker” present (Brown).
- Returns to property (Ibidun).
5. Future change in behaviour
- Future plans
To what extent may potential future changes of circumstance prove relevant?
LB Havering v Dove was a case where neither joint tenant was asserting that their circumstances would change in the future, but rather maintained that their present living arrangements with their respective partners away from their home did not mean that the Havering property was not still their principal home (it was clearly not their only home).
In LB Camden v Goldenberg (1996) 28 H.L.R. 727 the tenant went into a care home and her grandson was told that there was no valid assignment of her tenancy because he had not lived with her for the full 12 months required prior to her departure. He had in fact spent 10 weeks looking after a house belonging to friends during this period. The evidence was that if he could have found alternative accommodation for his wife and himself during this period of absence (which he in fact didn’t) then he would have permanently moved from the grandmother’s flat.
In a majority judgment, the grandson succeeded in his appeal against the possession order made below. Nourse L.J. concluded at p. 736:
“On those facts, I would hold that there was no break in the continuity of the appellant’s residence at 9 Nalton House. I agree with Thorpe L.J. that if this had been the simple case of the appellant’s going to house sit for a friend for a period of 10 weeks or so during the 12 months in question, there could have been no doubt in the matter. The case would have fallen well within the examples given by Denning L.J. in Middleton v. Bull . Was then the continuity broken by the quality of the appellant’s intention? I do not think that it was. His intention not to return was contingent on finding something suitable for himself and his wife. That event did not occur. The intention was never realised. The appellant returned to 9 Nalton House, which was still his postal address and where the bulk of his belongings still were. His intention caused no change in his circumstances. It was as if it had never been formed.” (Emphasis added)
Similarly, in Crawley BC v Sawyer the tenant went to live with his girlfriend in 1985 and in July 1986 he told the authority that he was living with his girlfriend and that they intended to purchase her home. The following month, perhaps unsurprisingly, a notice to quit was served on the tenant though he separated from his girlfriend before its expiry (and returned to his premises 10 days later).
The authority lost its appeal against the dismissal of its possession claim. Parker L.J. said at p. 102:
“Going through the whole thread of these matters is the common principle that in order to occupy premises as a home, first, there must be signs of occupation—that is to say, there must be furniture and so forth so that the house can be occupied as a home—and, secondly, there must be an intention, if not physically present, to return to it. That is the situation envisaged in the examples given by the Master of the Rolls of, for example, the sea captain who is away for a while. His house is left fully furnished, ready for occupation, no doubt the rent paid in his absence, but he is not physically there and may not be for a very long period indeed…The position as at the time the notice to quit was served was that the girlfriend had already told him that he had to get out. He did not in fact move back into Cobnor Close until after the expiry of the notice to quit, but in my view it was well open to the learned judge to have come to the conclusion that, both when the notice to quit was served and when it expired and indeed throughout the whole period, Cobnor Close remained his principal home.”
Conclusion
The ambulatory nature of the tenant condition, as noted at the start of this paper, provides challenges not faced by the once and for all loss of security of tenure as a result of the sub-letting or parting with possession of the whole.
The outcome of cases is often hard to predict, as is clear from the cases referred to above.
11 November 2019
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Andy Lane is a Social Housing & Public Law barrister at Cornerstone Barristers, and author of “Cornerstone on Social Housing Fraud” (Bloomsbury Professional)
[i] Under the Rent Act 1977 a protected tenant will become a statutory tenant on termination of the protected tenancy “if and so long as he occupies the dwelling-house as his residence”: Rent Act 1977, s.2(1)(a)
[ii] The Court of Appeal in Waltham Forest Community Based Housing Association v Fanning [2001] L. & T.R. 41 at para. 9 found that Sawyer and Ansah were irreconcilable on the issue of the impact of sub-letting which is no longer of any great relevance since since the introduction of section 15A of the Housing Act 1988