I am currently editing my section 21 ebook, which I hope to be able to launch in its final form in a week or so. There is one point which one of the purchasers of the beta version made which is quite interesting and I would be interested to hear your comments.
It is about the interpretation of s1(b) of the Housing Act 1988, which defines an assured tenancy (and therefore also an assured shorthold tenancy) as being a tenancy where
(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 …
Let me tell you a story …
The problem with this is perhaps best illustrated by a story.
Sally works as a software developer for Cyberwidgets Ltd. She lives in London in a flat which she rents under an assured shorthold tenancy. However she has always loved the country so she rents a small cottage in Kent which she uses at the weekends. This cottage is also rented under an assured shorthold tenancy agreement.
Here both properties are rented as ASTs – but the wording of the statute appears to assume that a tenant can only have one ‘only or principal home’. If this is the case, then it would seem at this stage that Sally’s principal home is the London flat where she lives during the week and for some weekends.
In January Sally meets Bob and they fall in love. They decide to live together but as Bob works in Kent he stays in the Kent cottage for most of the time, and only joins Sally occasionally in the London flat, for example if they go to a show.
Sally still spends all the week days in London but now spends all of her weekends in Kent, and sometimes goes down there to stay overnight during the week. Bob never signs a tenancy agreement for the Kent cottage (and therefore is not a joint tenant of the property), however the landlord confirms that he does not object to him living there.
It is now more difficult to say which of the two properties is Sally’s principal home. She may still spend more time in the London flat, but if so it is by a narrow margin.
Sally becomes unhappy at the amont of time she is spending away from Bob. She arranges for the cottage to have fast broadband connected and in August, asks her boss, Raymond at Cyberwidgets, if she can work from home.
Raymond agrees but says that she will need to attend the weekly departmental meeting every Tuesday, as well as having regular meetings with him to discuss her work. Sally therefore keeps on the London flat but now generally only stays there for one night per week and some weeks is able to avoid staying there altogether.
Now Sallys ‘principal home’ is almost certainly the cottage in Kent where she spends most of her time.
However if one property is an AST and the other is a common law tenancy, which one is which? Bearing in mind that before January Sally was spending most of her time in the London flat, and from August was spending most of her time in the Kent Cottage.
If, for example, the landlord of the London property were to serve a section 21 notice on her, and then issue accelerated possession proceedings, would she be able to defend on the basis that it was not her only or principal home, and that a section 21 notice was therefore inappropriate and he should have used a notice to quit?
What do you think?
[Later – you can get the ebook >> here]