London Borough of Lambeth v Emeter

For secure-tenancy protection under section 81 of the Housing Act 1985, the tenant must occupy the property as their only or principal home when the notice to quit is served. The whole property need not be sublet before the court may conclude that this requirement is not met. Physical absence, an intention to return, occupation of two homes, or allowing another person to use the property does not by itself determine the issue. A retained and occasionally used room may support occupation as a principal home, but is not conclusive. Its significance must be assessed against all the evidence and the trial judge’s factual findings.

The council landlord obtained a possession order against Gerard Emeter in the Lambeth County Court on 10 October 2008. Mr Emeter had been granted a secure tenancy of a two-bedroom flat after making a homelessness application. The council alleged that the application was deceptive and that he had not occupied the flat as his only or principal home.

The trial judge found that Mr Emeter had maintained a home elsewhere, had sublet or licensed part of the flat, and had retained a locked room for purposes other than living there. The judgment records a renewed application for permission to appeal, challenging the legal significance of the retained room and the assessment of the evidence. The central issue was whether the statutory condition for secure-tenancy protection was satisfied.

The renewed application for permission to appeal was dismissed. The possession order therefore stood.

1. Section 81 of the Housing Act 1985 removes secure-tenancy protection where, at the time the notice to quit is served, the tenant is not occupying the property as their only or principal home.
2. The court rejected the submission that the whole property must be sublet before the tenant can be found not to occupy it as a whole as their only or principal home.
3. The court accepted that physical presence is not essential where there is an intention to return home. It also accepted that a person may occupy two houses as homes at the same time, and that allowing another person to use the property during an absence does not alone establish parting with possession.
4. Keeping a locked room which the tenant visits and uses from time to time may be evidence that the flat is their only or principal home, but it is not conclusive. The evidence must be assessed in context. On the trial judge’s findings, Mr Emeter did not keep or use the room as his principal home but for other purposes.
5. The trial judge had considered the evidence, including the occupation and rent records relating to Mr Nuweke, and had given convincing reasons for rejecting the applicant’s evidence. There was no proper basis or realistic prospect for the Court of Appeal to disagree with those factual conclusions.

Appeal dismissed.

• Court of Appeal (Civil Division): On 27 April 2010, Sir Simon Tuckey dismissed the renewed application for permission to appeal and dismissed the appeal.
• Lambeth County Court: HHJ Welchman made an order for possession on 10 October 2008, finding that the flat was not the tenant’s only or principal home.