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Housing Solicitors

Losing Security of Tenure through Absence (27 January 2014)

Date: 27/01/2014
Duncan Lewis, Housing Solicitors, Losing Security of Tenure through Absence

In cases involving secure tenants, Housing Act 1985 s81 (‘the tenant condition’) provides that security of tenure can only be gained and retained if tenants occupy premises as their ‘only or principal home’.

The requirement in the Housing Act 1985 section 81 provides:

“The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.”

The equivalent provision for assured tenants is Housing Act 1988 section 1(1):

“A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as—(a) the tenant or, as the case may be, each of the joint tenants is an individual; and (b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home…”

To summarise earlier authorities and set out what are now the relevant principles relating to occupation, Lord Justice Etherton sitting in the Court of Appeal, said in para 55 London Borough of Islington v Boyle & Anor (2011) EWCA Civ 1450

… I would summarise as follows the relevant principals to be applied in determining whether a tenant continues to occupy a dwelling as his or her home, for the purposes of the 1985 Act, despite living elsewhere.

First, absence by the tenant from the dwelling may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree. Secondly, assuming the circumstances of absence are such as to give rise to that inference:

(1) The onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased;

(2) In order to rebut the presumption the tenant must have an intention to return;

(3) While there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a ‘practical possibility’ or ‘a real possibility’ of the fulfilment of the intention to return within a reasonable time;

(4) The tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it.

Thirdly, two homes cases, that is to say where the tenant has another property in which he or she voluntarily takes up full-time residence, must be viewed with particular care in order to assess whether the tenant has ceased to occupy as a home the place where he or she formerly lived. Fourthly, whether or not a tenant has ceased to occupy premises as his or her home is a question of fact.

In the absence of an error of law, the trial Judge’s findings of primary fact cannot be overturned on appeal unless they were perverse, in the sense that they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts.


The second condition that needs to be determined is whether it is the tenant’s “only” home or “principal” home. The difficulty is in circumstances where the tenant appears to have two homes
The criteria for determining which of two or more homes of the tenant is or was the tenant’s principal home were also set out by the Court of Appeal in London Borough of Islington v Boyle [2011] EWCA Civ 1450 as follows at [65]:

“First, the length or other circumstances of the tenant’s absence may raise the inference that the dwelling which is the subject of the proceedings ceased to be the tenant’s principal home so as to cast on the tenant the burden of proving the contrary.

Secondly, in order to rebut that presumption, it is not sufficient for the tenant to prove that at the material time it was his or her subjective intention and belief that the dwelling remained the principal home. The objective facts must bear out the reality of that belief and intention both in the sense that the intention and belief are or were genuinely held and also that the intention and belief themselves reflect reality. The reason for the absence, the length and other circumstances of the absence and (where relevant) the anticipated future duration of the absence, as well as statements and conduct of the tenant, will all be relevant to that objective assessment.

Thirdly, the court’s focus is on the enduring intention of the tenant, which, depending on the circumstances, may not be displaced by fleeting changes of mind.

Fourthly, the issue is one of fact to be determined in the light of the evidence as a whole, and in respect of which the trial judge’s findings of primary fact can only be overturned on appeal if they were perverse in the sense that I have mentioned earlier; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts.”


If a tenant appears to his public sector or social landlord to be living elsewhere, they will act on the basis that he has lost the security of either his secure or assured tenancy. His tenancy will become a contractual common law tenancy determinable by service of a Notice to Quit.

The service of a Notice to Quit on the tenant will be for the purposes of bringing to an end the now unprotected tenancy. Unless the tenancy agreement incorporates the relevant provisions of the Law of Property Act relating to service of Notices, personal service on the tenant will be necessary.

The date for testing whether the conditions of occupation of the only principal home will be the date on which the notice to quit expires. The Tennant condition must therefore be satisfied by the date of the notice to quit for the purpose of the Defendant being able to defend a claim for possession that is likely to be issued against him.

Since any claim for possession against a secure or assured tenant would need to make out a prima facie case of security having been lost, it will be sensible to ensure a first letter to the landlord says something along the lines of:

We have been shown the contents of your letter dated ………… along with attached Notice to Quit. Our client occupies the accommodation located at ……………. as his/her only and principal residence. S/he does so under a secure tenancy. It is unclear to us the evidence upon which you have relied, to serve a NTQ and claim that secure status has been lost. Please note that any claim for possession which seeks to rely on the service of this NTQ will be resisted. You are therefore put on notice regarding this and to avoid the need to incur further public funds please provide disclosure of the evidence on which you claim the tenancy has ceased to be secure. We submit that a claim on the basis of service of NTQ would require you to make out a prima facie case that the tenancy had ceased to be secure. Compelling evidence would need to be presented as to whether the tenant had actually parted with possession.
We look forward to your urgent response.


It is expected that the increased suspicion about sub-letting of social housing, in particular, will give rise to the need for attention to the principles referred to in this article.


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