This case demonstrates that despite it appearing to be obvious that a tenant had ceased to live in the rented property a Court may still conclude otherwise.

The High Court has recently refused to grant a possession order in the recent appeal in London Borough of Southwark v Ibidun on the basis that the tenant was still occupying the property as her ‘only or principal home’ despite the authority’s evidence to the contrary.

London Borough of Southwark challenged the dismissal of their claim for possession against Ms Ibidun and the decision that she still occupied the property as her principal home. The London Borough of Southwark argued that the judge had made a finding contrary to public policy and had misdirected himself and given too much weight to the tenant’s evidence. The latter was ruled incorrect as the judge had treated the tenant’s evidence with great caution. New evidence regarding an advertisement seeking to let a property did not establish that it had been let. The main issue had been that of occupation and not sub-letting. The new evidence was not important enough to justify a retrial.

Facts of the case

Ms Ibidun, the tenant, occupied a property as a secure tenant. London Borough of Southwark sought possession of the property on the basis that the tenant was living somewhere else. London Borough of Southwark brought a possession claim of a studio flat, rent arrears and an unlawful profit order.

The London Borough of Southwark became aware that the tenant had been living at another property in Kent and had potentially been sub-letting the studio flat for some time.

The Country Court concluded that a secure tenancy existed and the flat was the tenant’s ‘only or principal home’. It stated that the tenant had sub-let the property but there was no written agreement to this effect and in addition, she was being paid rent for the property. The tenant did return to the property at weekends and in some cases, while the sub-tenant was not there. The court considered that it was necessary to look at additional factors, such as that the tenant used the property as her address for her niece’s school, her address for most of her formal and financial dealings and the address for her bank account.

Although the likelihood of the tenant returning to the studio flat as her permanent home was unlikely following the birth of her son, the court was satisfied that the tenant did want to use the flat as her home so that she could use it as a springboard to move to larger accommodation when she was offered it.

Decision

The High Court dismissed the London Borough of Southwark’s appeal holding that the County Court judge’s finding was of fact that the tenant had continued to occupy the property. The judge stated that in his view, the tenant’s intention was to use the property as a stepping stone to being offered larger accommodation. In the High Court’s view, it was not enough for the London Borough of Southwark to allege that this was contrary to public policy.

Although the tenant had accepted payment for the use of the studio flat, the tenant had not granted exclusive possession and returned to the property at weekends. The London Borough of Southwark’s grounds of appeal therefore amounted to a disagreement over the judge’s finding of facts rather than a perverse finding by the judge.

Comment

This decision will be of interest to all landlords as, on the face of it, the local authority had a large body of evidence suggesting that the tenant was no longer occupying the property as her only or principal home and showing that she had been sub-letting the property for periods of time.

This case demonstrates that despite it appearing to be obvious that a tenant had ceased to live in the rented property a Court may still conclude otherwise. A cautious approach is invariably the best one to take. The Court was clear that the decision was one of the judge to make taking into account the evidence that he considered to be relevant to the case.

For further information relating to the points raised in this article, please contact Sarah Proctor at Sarah.Proctor@luptonfawcett.law or on 01904 561434 or a member of the Property Litigation Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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