Occupation, Abandonment and Only or Principal Home

Introduction

For a tenancy to be an assured shorthold tenancy, it must be the only or principal home of at least one of the tenants (if more than one); section 1(b) Housing Act 1988 

This means that the tenant of an assured shorthold tenancy may have two homes because it can be either their "only" or "principal" home. 

The problem then arises if there is more than one home, which one is the "principal" home, for if they have two homes, only the "principal" home can be an assured shorthold tenancy. 

This is why it's so important to be careful when considering abandonment because although it may seem that a tenant isn't occupying, it may be the case that only the tenancy ceases to be an assured shorthold tenancy (because it may no longer be the principal home), it does not necessarily stop to be a tenancy. 

For there to be an assured shorthold tenancy, there are, amongst others, two things to consider for this article. 

(1) Is there occupation? 

And 

(2) is that occupation the tenants only or principal home?

(1) Is there occupation?

In Tickner v Hearn [1960] 1 WLR 1406, the defendant, an elderly lady, had lived in a house "Quetta" as a statutory tenant protected by the Rent Restrictions Acts. She had lived there with her daughter. 

On a temporary visit by another daughter in July 1954, she was admitted to a mental hospital suffering from paranoid schizophrenia.

She then remained in the hospital continuously. By November 1959, when she was 73, she had improved sufficiently to be regraded to voluntary status and so entitled to discharge herself at short notice. Her daughter continued to maintain the Quetta house as their home. 

In December 1959, the plaintiff landlords instituted possession proceedings on the ground that, given her long absence, the defendant was no longer entitled to the protection of the Rent Restriction Acts. 

The only medical evidence at the trial was that of the hospital's medical superintendent, who was called on behalf of the landlords. His evidence was that it was most unlikely that the defendant would ever leave the hospital in the light of her mental state and age. He said that she required constant psychiatric care, day and night. In cross-examination, he said there had been remarkable strides in treatment and that medical developments that would help her could not be ruled out. He also gave evidence that she often said that she regarded "Quetta" as her home and that she would like to go back there if better. 

The County Court judge refused to make an order for possession. The appeal by the landlords was dismissed. 

All the judges in the Court of Appeal emphasised that the question was one of fact and degree. Ormerod LJ said (at p. 1410):

“I think there must be evidence of something more than a vague wish to return. It must be a real hope coupled with the practicable possibility of its fulfilment within a reasonable time.”

The Court of Appeal considered it to be a borderline case. Still, it concluded there was evidence that the Judge could find because the defendant had become a voluntary patient and of the advances being made in the treatment of mental illness, that she intended to return to live in the house and that it might become practicable for her to do so within a reasonable time.

 In Gofor Investments Ltd v Roberts [1975] 20 P&CR 366, the defendant was the statutory tenant of a flat within the Rent Act 1968. By section 3(1)(a) of that Act, she only remained a statutory tenant if and so long as she occupied the dwelling as her residence. 

She left the flat to go abroad with her children, intending to return when her younger children had completed their education in about eight to ten years. 

Various people stayed in the flat from time to time, and some furniture remained there. 

The Court of Appeal upheld the County Court judge's order dismissing the landlord's claim for possession. 

The Court of Appeal applied the principles set out in Brown v Brash but with the following further extension or elaboration. 

Cairns LJ endorsed (at pp. 369–370), as the core principle, Ormerod LJ's statement in Tickner v Hearn that there must be real hope of return coupled with the practical possibility of its fulfilment within a reasonable time. 

Notwithstanding the doubt expressed by Asquith LJ on the point, Cairns LJ could see no reason why furniture alone could not be sufficient "corpus possessionis": p. 872. 

Further, Cairns LJ could see no reason why different considerations should apply to a period of ten years absence rather than three years: p. 371. 

Both Cairns LJ (p. 373) and Lawton LJ (p. 374) emphasised that the question of the continuing occupation of the dwelling by the tenant, even though the tenant was not living there, is a question of fact for the trial judge in all the circumstances of the particular case. 

Lawton LJ warned (p.374) against "subtle distinctions … drawn by lawyers". He said (p. 375) that, where the trial judge has not misdirected themself in law, the only issue is whether their findings on the evidence were so unreasonable as to be perverse. 

The case of Brickfield Properties Ltd v Hughes (1987) 20 HLR 108 is almost identical to Tickner v Hearn shown above. 

A summary of Brickfield can be found in London Borough of Islington v Boyle & Anor (2011) EWCA Civ 1450 in paragraph 53. Lord Justice Etherton said in para 55

… I would summarise as follows the relevant principals to be applied in determining whether a tenant continues to occupy a dwelling as his or her home, for the purposes of the 1985 Act, despite living elsewhere. First, absence by the tenant from the dwelling may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree. Secondly, assuming the circumstances of absence are such as to give rise to that inference: (1) the onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased; (2) in order to rebut the presumption the tenant must have an intention to return; (3) while there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a ‘practical possibility’ or ‘a real possibility’ of the fulfilment of the intention to return within a reasonable time; (4) the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it. Thirdly, two homes cases, that is to say where the tenant has another property in which he or she voluntarily takes up full-time residence, must be viewed with particular care in order to assess whether the tenant has ceased to occupy as a home the place where he or she formerly lived. Fourthly, whether or not a tenant has ceased to occupy premises as his or her home is a question of fact. In the absence of an error of law, the trial Judge’s findings of primary fact cannot be overturned on appeal unless they were perverse, in the sense that they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts.

(2) Occupies as Only or principal Home

It is not enough for an assured shorthold tenancy that the tenant occupies the premises as a home, and it must be the tenant's "only or principal" home. 

Where it is not the only or principal home, the tenancy will become (or should be granted from the outset) a contractual (common-law) tenancy.

There are few reported cases on the question as to whether the occupation is as only or principal home. They include the following decisions of the Court of Appeal.

In Crawley BC v Sawyer (1987) 20 HLR 108, the defendant had been granted a tenancy by the plaintiff's local authority in 1982. In 1985 he went to live with his girlfriend. The electricity to the premises was cut off in June 1985 and the gas in 1986. In May 1986, it was reported to the plaintiff that the premises were vacant. In July 1986, the defendant told the plaintiff that he was living with his girlfriend and that they intended to purchase her home. 

In August 1986, the plaintiff gave the defendant notice to quit expiring at the end of September. By that time, the defendant and his girlfriend had broken up. The defendant returned to the premises in October 1986. The plaintiff instituted proceedings for possession and alleged that the defendant was not a secure tenant because he did not occupy the premises as his only or principal home. 

The County Court judge found that during the period that he was absent from the premises, the defendant paid the rent and the rates, visited the premises once a month and spent a week there at some point. The defendant gave evidence that he had not abandoned the premises and intended to return to them. 

The Judge found that the premises were the defendant's principal home at all times and dismissed the claim. The Court of Appeal dismissed the plaintiff's appeal. Parker LJ, with whom O'Connor LJ agreed, said (p. 102) that the trial judge was entitled to take the view that the defendant was staying with his girlfriend temporarily and that the premises remained his principal home throughout. 

In Ujima Housing Association v Ansah (1997) 30 HLR 831, Roch LJ, with whom Cazalet J agreed, said (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 intentions. Were it otherwise it would lead to inconsistent decisions being given in cases where the facts were parallel.”

In Hammersmith & Fulham LBC v Clarke (2001) 33 HLR 26, the claimant local authority had granted Mrs Clarke a secure tenancy of a house. In 1996 she suffered a severe stroke, and the defendants, her grandson and his wife, moved into the house with her. 

In 1997 Mrs Clarke spent five months in a nursing home, after which she returned to live in the house with the defendants. 

By November 1998, she suffered from several physical difficulties and depression and was re-admitted to the nursing home. In January 1999, Mrs Clarke signed a note prepared by a social worker which stated that she had decided to become a permanent resident of the nursing home and no longer intended to live in the house.

 In February 1999, relying on that note, the claimant served a notice to quit. 

The defendants remained in the house, and the claimant commenced possession proceedings. At the time of the trial, Mrs Clarke was again living in the house. She showed that she had been depressed when she signed the note because of difficulties with her medication. She said that she had always intended to return to the house once she could do so. 

The Judge dismissed the claim that Mrs Clarke was a secure tenant. 

The Court of Appeal dismissed the claimant's appeal. Keene LJ, with whom Otton LJ agreed, said (p. 886) that the Court of Appeal in Crawley v Sawyer had set out the correct approach. At [23] and [24], he addressed the issue of the absent tenant's intention and the need for objective assessment. He said:

“[23] The relevance of intention has been emphasised in other cases including that of Ujima Housing Association v Ansah …, though it was made clear there that what the court is concerned with is an objective assessment of the tenant’s actions and intentions, rather than his or her subjective intention …” 

“24. However, intention is undoubtedly of great importance since it may be the only way of distinguishing between a dwelling which has in effect been abandoned by the person as his only or principal home and a dwelling which has not. When the court refers to an objective approach, it is only emphasising that one has to look at all the evidence in order to ascertain intention and not merely what the tenant says in the witness box his or her intention was.”

Keene LJ also said (p. 887) that, when considering the issue of whether a person occupied premises as their only or principal home, even though not living there, the court will focus not on fleeting changes of mind but on the enduring intention of that person. He said that was particularly so in cases such as before him where the tenant was an old lady in poor health whose intentions in the nursing home may have fluctuated from time to time and even daily. He said, on the facts (at [26]):

“26. That seems to me to have been the approach adopted here by the learned judge, insofar as one can rely on the very brief note taken of his judgment. He seems to have found, in effect, that despite Mrs Clarke’s statement, as embodied in the note of January 14, 1999 it was always her intention to return home to 11 Bryony Road. That finding only reads in a consistent way with the rest of the judgment if he were regarding the note of January 14, 1999 as reflecting merely a very short lived intention on her part, one which did not reflect her more general and enduring intent. …”

These cases were clarified and summarised by Lord Justice Etherton in London Borough of Islington v Boyle (see above) at paras 62 - 65 of the judgment:

62. The comments of Roch LJ in Ujima Housing Association and Keene LJ in Hammersmith & Fulham LBC v Clarke about objective assessment require some clarification. 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. 

63. Objective assessment has, in addition, a wider application in this context. However honestly and strongly a defendant may intend to return and may regard his or her occupation of the dwelling to be as a sole or principal home, the objective facts must be consistent with the reality of continuing occupation as a sole or principal home. If objectively it is impossible fairly to describe the dwelling as being occupied as the defendant’s sole or principal residence, even if legally he or she is still in occupation of it (by virtue, for example, of the presence of furniture, personal possessions or people), then the Tenant Condition is not satisfied however much the defendant may intend to live there again and believe it remains his or her sole or principal home. 

64. In carrying out that assessment of the defendant’s intention and belief, and the objective reality of the situation, there is an obvious distinction between, on the one hand, the case where the defendant has voluntarily taken up long term residence in one of two or more homes which the defendant owns or has some other enforceable right to occupy, and, on the other hand, other situations. Even in the former case, of course, the position will depend on all the facts. 

65. In the light of the cases, I would summarise as follows the principals (in some cases reflecting those in [55] above) which apply to the identification of which of two or more homes of the tenant is or was the tenant’s principal home. First, the length or other circumstances of the tenant’s absence may raise the inference that the dwelling which is the subject of the proceedings ceased to be the tenant’s principal home so as to cast on the tenant the burden of proving the contrary. Secondly, in order to rebut that presumption, it is not sufficient for the tenant to prove that at the material time it was his or her subjective intention and belief that the dwelling remained the principal home. The objective facts must bear out the reality of that belief and intention both in the sense that the intention and belief are or were genuinely held and also that the intention and belief themselves reflect reality. The reason for the absence, the length and other circumstances of the absence and (where relevant) the anticipated future duration of the absence, as well as statements and conduct of the tenant, will all be relevant to that objective assessment. Thirdly, the court’s focus is on the enduring intention of the tenant, which, depending on the circumstances, may not be displaced by fleeting changes of mind. Fourthly, the issue is one of fact to be determined in the light of the evidence as a whole, and in respect of which the trial judge’s findings of primary fact can only be overturned on appeal if they were perverse in the sense that I have mentioned earlier; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts.

The date on which the tenant is to be considered occupying as only or principal home

An assured shorthold tenancy can pass in and out of being an assured shorthold tenancy. The tenant doesn't need to have shown they have occupied as their only or principal home throughout the tenancy to have the protection afforded by the Housing Act 1988.

It seems it is not yet fully settled as to what date should be considered for assured shorthold tenancies. Still, under secure (local authority) tenancies and contractual tenancies, the date that matters is the day of expiry of the notice to quit. 

It's not relevant what happened before or even after that date. Still, any events may be taken into consideration when deciding the nature of the occupation on the day of expiry. 

For assured shorthold tenancies, the relevant date will likely be the day of expiry of the section 21 notice, comparable to an old notice to quit. However, there are significant differences; in particular, section 21 does not end the tenancy s.5(1A) Housing Act 1988] whereas a notice to quit does.

66. The next issue is the date at which the Tenant Condition must be satisfied. The position on that issue is clear. By virtue of the words “at any time” in section 79(1) of the 1985 Act, 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, so that section 79(1) has (what has been described as) ambulatory effect: Basingstoke and Deane Borough Council v Plaice (1995) 27 HLR 433 (CA) at 437. Where a notice to quit has been served to terminate the contractual tenancy, the Tenant Condition must be satisfied on the expiry of the notice to quit. What happened before the expiry of the notice to quit and what happened after it may, nevertheless, throw light on whether the Tenant Condition was satisfied at the date of expiry of the notice to quit. If, for example, the tenant moved to other premises on what was intended to be a temporary basis, but for one reason or another what was intended to be temporary became a settled existence for a prolonged period such that both subjectively and objectively those premises became the tenant’s principal home, the tenant’s assertion that, by the time of expiry of a subsequent notice to quit, the original premises had once again become the tenant’s principal home, even though the tenant was still not living there, would require very close scrutiny. para 66 London Borough of Islington v Boyle & Anor (2011) EWCA Civ 1450

Other useful resources

Nearly Legal - Home, realistically and objectively