Secure Tenancy

March 23rd, 2017 by James Goudie KC


The substantial issue on the appeal in Dove v Havering LBC [2017] EWCA Civ 156 related to whether the “tenant condition”, pursuant to Section 81 of the Housing Act 1985, was satisfied, in order for the tenancy to be a secure tenancy. The tenancy in this case was a joint tenancy. The first limb of the condition was satisfied because both tenants were individuals. The issue was whether at least one of them occupied the dwelling-house as her only or principal home at the time when the notice to quit would otherwise have taken effect.  Lewison LJ said:-

“17.    There is now a considerable body of learning on what amounts to occupation of a dwelling as an only or principal home. There are two parts to the question: (a) does the person in question occupy the dwelling as a home and (b) if so, does he or she occupy it as his or her only or principal home?


  1. Part of this body of learning derives from cases decided under the Rent Acts where the issue was whether a person occupied a dwelling “as his residence”. The courts developed the principle that continuous physical presence in a dwelling was not necessary to maintain occupation as a residence. It thus became necessary to lay down some guidelines to differentiate between cases in which occupation as a residence had been maintained and those in which it had not. Many of these cases are discussed and summarised by Etherton LJ in Islington LBC v Boyle [2011] EWCA Civ 1450, [2012] PTSR 1093. As Etherton LJ went on to point out at [56] the test under the Housing Act is more stringent. It is not enough that the person in question occupies a dwelling as a home: he must occupy it as his only or principal home.


  1. In view of the emphasis that Mr Manning, on behalf of the Doves, placed on the question of an intention to return, I should quote what Etherton LJ said about that at [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.”


  1. It is important to note that this passage deals with a case in which the defendant asserts that there has been a change in his or her pattern of residence which will revert back to a former state of affairs. It does not deal with the situation in which there is no evidence that the pattern of residence is likely to change in the future.


  1. Etherton LJ summarised the effect of the case law on the question of occupation as an only or principal home at [65]:


“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.”


  1. In my judgment these principles are engaged not only where the tenant is absent from the property in the sense of not being physically present at all. They are also engaged where the tenant ceases to occupy the property as his or her only or main home even if he or she continues to occupy it as a home; as, for example, where what had once been the tenant’s only home becomes no more than a weekend or holiday home. Moreover the question of an intention to return (which often features in these cases) is in reality an intention to revert to a previous pattern of existence….”


The Court of Appeal also made observations about applications for an adjournment. Where an application for an adjournment is made on medical grounds the court will normally expect to see evidence from a medical practitioner familiar with the patient and his or her medical condition. That evidence should identify what the medical condition is, and what features of it prevent participation in the trial process. The evidence should also provide a reasoned prognosis and describe what arrangements short of an adjournment could be made to accommodate a party’s difficulties. Even then, the ultimate decision is for the court to make. There are many hidden costs flowing from adjournment of the trial: witness statements and reports need updating; fee earners handling the litigation may change with a need for newcomers to read into the case; both legal teams continue to work upon the litigation and so forth. In addition to the increased costs there is wastage of resources. Lawyers, experts, factual witnesses and other busy people who had cleared their diaries to attend the trial (probably cancelling other commitments) will have to clear their diaries yet again for another trial a year later. There is also the continuing strain on the parties to consider. What litigants need is finality, not procrastination. These considerations apply whatever the reason for the adjournment. There is no doubt that modern case management places considerable importance on not losing trial dates once they have been fixed.



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