Think Tank

The principal principle

We are going to try to convince the county court that it is reasonable to grant a possession order and, to this end, a notice of seeking possession was served today. I should add that the tenant has submitted a right-to-buy application for her maisonette, although we have delayed this,pending the proceedings.

There are two questions here: about evidence and about law.

On the issue of evidence, you will have to demonstrate the fact of who occupies the property – which may not be easy. The leading case on whether a tenant is occupying premises as their only or principal home is Crawley BC v Sawyer, dealt with by the Court of Appeal in 1988. In that case, the tenant who held a secure tenancy went to live with his girlfriend in 1985. In July 1986, the defendant told the council he was living with his girlfriend and that they intended to buy her home. A notice to quit was served by the council, expiring on 30 September 1986. By that time, the defendant and his girlfriend had split up and he returned to the premises in October. Allowing Sawyer to remain, the court said there was no material difference between occupying premises as a home and occupying them as a residence.

The issue of which is a principal home is a question of intention. If a person is not occupying a property, you would need to consider whether they have an intention to return. This intention can change.

The best example is someone who is in a care home and changes their desire to return from day to day. A court would look at all the facts to establish an enduring intention to return. Where the property has been sublet, the tenant cannot maintain an intention to return during the period of the sub-lease.

For secure tenancies, if the whole of the property is sublet, the tenant ceases to be secure and cannot again become secure.

However, an assured tenant can move in and out of security. There is nothing stopping a tenant buying a second property and letting it, even though such a tenant might not be a suitable beneficiary of the landlord if he or she later applied for housing. The proximity of the second property is not, unfortunately, relevant. The question is whether the landlord can prove the tenant was out of occupation at the relevant time.

The relevant case on right to buy is Sutton BC v Swann, again heard in the Court of Appeal. Dismissing the appeal, the court held that if a secure tenant does not respond to a landlord's offer under the Housing Act 1980 (now Housing Act 1985) after a reasonable time, the offer will lapse, as it did for that tenant. It added that the secure tenancy status must exist when a claim to exercise the right to buy is made and when the conveyance or grant is made. So, if you can prove your tenant is out of occupation when you serve a notice to quit, when it expires and for the period of the notice, you can defeat the right-to-buy application.

It is not easy, but you must prove that she is out of occupation – not just that she has another home, however close – or that she is otherwise in breach of her tenancy.

The specific tenancy clause does not necessarily add any protection as the statement as to interest in another habitable property is likely to be construed as applying only at the date of grant of the tenancy.

Rosemary Hart Partner and housing specialist, Trowers & Hamlins