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” home or their “principal” home. The problem that then arises is if there is more than one home, which 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 cease to be a tenancy.

In order for there to be an assured shorthold tenancy, there are amongst others, two things to consider for the purposes of 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 unmarried daughter. On a temporary visit to another daughter in July 1954 she was admitted to a mental hospital suffering from paranoid schizophrenia. She then remained in the hospital continuously, although 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 unmarried daughter continued to maintain the Quetta house as their home. In December 1959 the plaintiff landlords instituted possession proceedings on the ground that, in view of 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 medical superintendent of the hospital, who was called on behalf of the landlords. His evidence was that it was most unlikely that the defendant would ever leave hospital in the light of her mental state and her age. He said that she required constant psychiatric care, day and night. In cross-examination he said that there had been remarkable strides in treatment, and that developments in treatment that would help her could not be ruled out. He also gave evidence that she said many times 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, but concluded there was evidence on which the Judge could find, in view of the fact that 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 virtue of 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’ time. 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 principals set out in Brown v Brash, but with the following further extension or elaboration. Cairns LJ endorsed (at pp. 369–370), as the core principal, Ormerod LJ’s statement in Tickner v Hearn that there must be a 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 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 himself or herself in law, the only issue is whether their findings on the evidence was 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 at paragraph 53.

To summarise these cases, Lord Justice Etherton said in para 55 London Borough of Islington v Boyle & Anor (2011) EWCA Civ 1450

… 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. It must be the tenants “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 (see F005 contractual tenancy agreement on our landlord forms page)

There are few reported cases on the question as to whether occupation is as only or principal home. They include the following decisions of the Court of Appeal.  ... Please login or signup to continue reading this content

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