Kerr v Stephens

Whether premises remain occupied as a statutory tenant’s residence or home is a question of fact and degree. It must be determined by ordinary common sense and by assessing the circumstances as a whole. Individual indicators, such as furniture, visits, sleeping arrangements, domestic activities elsewhere and utility usage, are relevant but none is necessarily decisive. Where a trial judge has carefully evaluated the evidence, particularly live evidence, and reached a conclusion open to him, the Court of Appeal should interfere only exceptionally. The possibility that another judge might have reached a different conclusion is insufficient to establish perversity.

The claimant became a statutory tenant of the property on her mother’s death in 1987. Under section 2(1)(a) of the Rent Act 1977, the tenancy could continue only while she occupied the property as her residence. The defendant contended that she had ceased to do so because she spent substantial time at a friend’s nearby house, where she ate, bathed, washed clothes and slept, although she continued to visit and sleep at the property.

The Newport (Isle of Wight) County Court tried the issue as a preliminary issue and found that the claimant had not ceased to occupy the property as her home. The defendant appealed, arguing that the findings compelled the opposite conclusion and that the judge had misappreciated the relevant factors. The central issue was whether the judge’s fact-and-degree assessment was open to him on the evidence.

Jonathan Parker LJ, with Buxton LJ agreeing, dismissed the appeal. The judge below had correctly treated the question whether the claimant occupied the property as her residence or home as a question of fact or degree to be approached by ordinary common sense, consistent with Beck v Scholz [1953] 1 QB 570.

1. The finding that the friend’s house was the friend’s home did not prevent it also being the claimant’s home. However, the judge was entitled to find that the claimant was there as a guest, and the absence of a sexual relationship was significant in assessing that status.
2. The presence of the claimant’s furniture at the property was not treated as determinative. It was one of many factors, alongside sleeping there, daily visits, personal belongings, domestic arrangements elsewhere and utility consumption.
3. The judge’s difficulty in balancing the evidence did not establish legal error. On an issue of this character, an appeal should be entertained only in an exceptional case. The significance of the findings was pre-eminently a matter for the trial judge, who had seen and heard the witnesses.
4. The findings were fully open on the evidence. The possibility that another judge might have reached a different conclusion was irrelevant and did not make the decision perverse.

There was therefore no basis for appellate interference. The application concerning the late Respondent’s Notice was unnecessary to determine. Order: appeal dismissed.

1. Court of Appeal (Civil Division): dismissed the appeal from the preliminary-issue order; [2006] EWCA Civ 187.
2. Newport (Isle of Wight) County Court: on 22 August 2005, held that the claimant remained in occupation of the property as her home and dismissed the defendant’s counterclaim for possession. Permission to appeal was granted.