The court was called upon to construe the Act. when the question was whether a tenant could bring himself within the Act had to be more strict than the construction of the Rent Acts because the Leasehold Reform Act enabled a tenant to acquire compulsorily a greater interest in the house against the will of the landlord. In order to qualify under Section 1 of the Act, the tenant of a leasehold house had to occupy the house as his residence and at the time of giving notice in accordance with the Act of his desire to have the freehold or an extended lease, he had to have been the tenant of the house under a long tenancy at a low rate and have occupied it as his residence for the last five years or for periods amounting to five years in the last 10 years. In that case the applicants, Commander Poland and his wife, had gone abroad leaving the keys of the property in the hands of the mortgagees of the property believing or at least hoping that the house would be sub-let and had been sub-let, so that the rent thus obtained could be used to discharge the mortgage payments. Commander and Mrs Poland had left their furniture in the house during their absence abroad. All three members of the Court of Appeal concluded that the applicants were not during the period of their absence abroad resident in the house nor had they occupied it as their residence for the last five years. Waller LJ: ‘Once it becomes clear that the tenant is not physically in occupation the onus is firmly on him to show that the steps which he has taken to maintain occupation are clear. Going away for a short holiday is simple but the longer the period the more difficult it becomes to infer continued occupation. If the family, wife or children, are still in physical occupation, then the position is clear, but to infer occupation because furniture is left in the house or because there is a caretaker requires closer examination. If the period is short the inference of continued occupation may be easy, but where many months are concerned very much more doubtful. The tenant does not lose the benefit of his periods of genuine occupation because of the provisions allowing aggregation.’ Eveleigh LJ When it came to the question of sub-letting: ‘I am of the opinion that a person may occupy premises as his residence, even though he is absent for a very long period. It may well be, however, that a long absence will necessitate the acquisition of another residence which will prevent the tenant from claiming the premises were his only or main residence, which is the requirement of section 1(2) of the Act. It seems to me that, if a person takes the tenancy of a house and furnishes it and keeps it ready for his own habitation ‘whenever he pleases to go into it’, he is . . . an occupier though he may not reside in it one day in a year, and I would further say that he occupies it as a residence. Moreover, I would say that he occupies it as his residence provided that it is understood that the expression ‘his residence’ is not used in a context which implies his main residence. It means he keeps it for himself to live in. If, however, he sub-lets the property, he ceases to occupy it as his residence because …. the occupation is in the sub-tenant. It may not be inaccurate, however, still to refer to the premises as his residence. That in isolation would be a permissible description of the property, but it does not mean that he is in occupation.’ Megaw LJ: ‘It seems to me that, as regard the former statutory provision, a tenant cannot be said to be occupying a house as his residence during a period of time in respect of which he has no intention of occupying it or residing in it because of his belief, or expectation, whether it is accurate or not, that he has given up his legal right to occupy or reside in the house. He has in respect of that period of time to use the expression used in the judgement of the court in Brown -v- Brash .. no ‘animus possidendi’ ; no intention of asserting or exercising an immediate right of possession. That is an essential element.’
Judges:
Waller LJ, Megaw LJ, Eveleigh LJ
Citations:
[1980] 3 All ER 544
Statutes:
Leasehold Reform Act 1967 1(1)(b)
Jurisdiction:
England and Wales
Cited by:
Cited – Ujima 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.
Housing
Updated: 11 June 2022; Ref: scu.220479