Brown v Nash and Ambrose: CA 1948

The statutory tenant was sent to prison but left his mistress and children in the premises and subsequently the mistress and children left the premises.
Held: ‘We are of the opinion that a non-occupying tenant prima facie forfeits his status as a statutory tenant. But what is meant by ‘non-occupying’? The term clearly cannot cover every tenant who, for however short a time or how ever necessary the purpose or with whatever intention in regards to returning, absents himself from the demised premises. To retain possession or occupation for the purpose of retaining protection the tenant cannot be compelled to spend 24 hours in all weathers under his own roof for 365 days in the year. Clearly, for instance, the tenant of a London house who spends his weekends in the country or his long vacation in Scotland does not necessarily cease to be in occupation. Nevertheless, absence, may be sufficiently prolonged or unintermittent to compel the inference, prima facie, of cessor of possession or occupation. The question is one of fact and of degree. Assume an absence sufficiently prolonged to have this effect: the legal result seems to us to be as follows: (1) The onus is then on the tenant to repel the presumption that his possession has ceased. (2) In order to repel it he must at all events establish a de facto intention on his part to return after his absence. (3) But we are of the opinion that neither in principle nor on the authorities can this be enough. To suppose that he can absent himself for 5 or 10 years or more and retain possession and his protected status simply by proving an inward intention to return after so protracted an absence would be to frustrate the spirit and policy of the Acts …. (4) Not withstanding an absence so protracted the authorities suggest that its effect may be averted if he couples and clothes his inward intention with some formal, outward and visible sign of it; that is, installs in the premises some caretaker or representative, be it a relative or not, with a status of a licensee and with the function of observing the premises for his own ultimate homecoming. There will then, at all events, be someone to profit by the housing accommodation involved which will not stand empty. It may be the same results can be secured by leaving on the premises as a deliberate symbol of occupation, furniture ….. apart from authority in principle, possession in fact (for it is with possession in fact and not with possession in law that we are here concerned) requires not merely an ‘animus possidendi’ but a ‘corpus possessionis’, namely, some visible state of affairs in which the ‘animus possidendi’ finds expression. (5) If the caretaker …. leaves or the furniture is removed from the premises, otherwise than quite temporarily, we are of the opinion that the protection, artificially prolonged by their presence, ceases whether the tenant wills or desires such removal or not.’


Asquith LJ


[1948] 2 KB 247


England and Wales

Cited by:

CitedUjima Housing Association v Ansah and Another CA 17-Oct-1997
The tenant had created a sub tenancy, the result of which was that he no longer had any right to enter upon the property unless the sub-tenant surrendered his lease.
Held: The tenant could not be said properly to be in occupation of the . .
Lists of cited by and citing cases may be incomplete.


Updated: 31 July 2022; Ref: scu.220478