Chohan v McManus

A tenant is an assured tenant only if and so long as he occupies the dwelling-house as his only or principal home. Whether that condition is met immediately before a later tenancy is granted is essentially a question of fact. Absence alone is not conclusive, particularly where the tenant has previously worked away. The court may infer cessation of occupation and an intention not to return from the whole circumstances, including prolonged absence, non-payment of rent, surrender of keys, a request to return and limited possessions. Where the finding turns on credibility and the evidence supports the inference, the appellate court should not interfere. If the tenant was not occupying the premises as his only or principal home immediately before the grant, the new tenancy qualifies as an assured shorthold tenancy and section 21 possession provisions apply.

The claimant landlord had let the defendant one room under an assured tenancy from about 1993. The defendant worked away from the premises from time to time. Towards the end of 2001 he left, stopped paying rent and later asked to return. The landlord granted him a new tenancy on 1 April 2002.

The county court found that the earlier assured tenancy had ended because the defendant no longer occupied the premises as his only or principal home. The new tenancy was therefore an assured shorthold tenancy, and possession proceedings under section 21 succeeded. The defendant appealed, arguing that the judge had failed to find when or how the earlier tenancy ended and that absence and non-payment did not establish cessation of occupation. The central issue was whether he occupied the premises as his only or principal home immediately before the new tenancy was granted.

Lord Justice Tuckey delivered the judgment. Lord Justices Jacob and Aldous agreed. The appeal was dismissed.

1. Under sections 19A and paragraph 7(1)(a) of Schedule 2A to the Housing Act 1988, a tenancy granted on 1 April 2002 qualified as an assured shorthold tenancy unless, immediately before it was granted, the defendant was a tenant under an assured tenancy other than a shorthold tenancy. A tenant is an assured tenant only if and so long as he occupies the dwelling-house as his only or principal home.
2. The question whether the defendant occupied the premises immediately before the new tenancy was granted was essentially one of fact. The mere fact that he had gone away was not conclusive, since he had previously worked away while continuing to pay rent.
3. The judge was entitled to infer that the defendant no longer intended to occupy the premises as his only or principal home. The relevant circumstances included his absence for about six months, non-payment of rent, handing back the keys, asking the landlord whether he could return, and having few personal possessions. The evidence concerning his girlfriend’s house did not establish that he had been staying there at the material time.
4. The case turned substantially on the judge’s assessment of credibility. The evidence accepted by the judge justified the conclusion that the defendant had not been living at the premises. The Court of Appeal could not interfere with that factual finding, and the landlord was entitled to possession under section 21.

Order: Appeal dismissed.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 1657, the appeal was dismissed.
2. County court: The court held that the earlier assured tenancy had ended because the defendant no longer occupied the premises as his only or principal home, and that possession was available under section 21.