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 which people raise from time to time.
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?
Would it be fair for her to be able to do this if her landlord has no idea that she has another property or that she is now spending most of her time there?
What do you think?
*Note that the section 21 ebook is no longer available
I’ve recently advised a landlord that she is now letting her property as a common law tenancy. Her tenant moved out but kept renting her apartment for use when he came into the city centre.
I look forward to reading the answers to your scenario
I thought time was only one factor in determining which is the principal property. I have an AST on a flat in a town where I work during the week, so typically spend five nights here. By no stretch of the imagination is this my principal home. My books, valuables (and family) are at what I think of as my family home. So for time, the week wins. For heart and soul, the weekend pad wins.
I don’t have an answer to that myself but I do remember a case of mine in the early 1990s that ended up in court of an HMO landlord who was a nightclub bouncer who lived in Luton with his family but kept a room in the HMO where he slept most nights of the week. He would wake up and then go home to his family. The judge took the view that it wasn’t his sole home but the degree of regularity that he occupied and the degree of permanence qualified him as a resident landlord
The simple answer is that which of two or more homes is a matter of evidence in any case. Note however that the word “or” appears between “only” and “principal”. It is theoretically possible to have two principal homes if, for example, an equal amount of time is spent in each.
My advice to landlords is to let on an AST. They then have the benefit of certainty of possession if AST status is not challenged. If the tenant is unwise enough to say that a property is not the principal or only home they lose all Housing Act protection.
Ben, one trick I have seen about illegal evictions is landlords installing themselves in an HMO a few weeks before summarily booting out the tenant then, when pushed, claiming they’re a resident landlord and thus an excluded occupier… naturally, anyone with legal training will see through this but a lay tenant will not and thus just go elsewhere.
This sound familiar to you?
Oh yeah absolutely JS. When I train people in security of tenure I always emphasise that when interviewing clients they shouldnt just ask “Resident landlord?” and leave it there, but many do, missing the relevance of the date the landlord actually moved in.
Landlords claiming to have a room in a house is a very common scenario and yet when I go there, I find rooms full of boxes that nobody could really live in, or just no signs of occupation at all.
I wrote on one of my TRO Confidentials of a landlady who claimed to live in a room who pointed enthusiastically to 4 or 5 photos drawing-pinned to a wall as evidence of occupation but when I threw open the wardrobe doors there wasnt a stitch.
The problem is largely in HMOs I find. And even if the tenants know they have been stitched they tend to not to bother challenging because that is the lot of the vast majority of HMO tenants…..getting pushed around (not you HMOLandlady)
Oh and Steven, That has always been my view too. The relevance of the word “Or”. Which is why I am interested in Tessa’s view here. Whaddya think T? Could your fictional Sally hold an AST of both properties?
I think that is what everyone sort of does without highlighting it.
It is certainly much easier as otherwise you have this problem about the landlord not knowing the status of the letting.
But I was interested to hear what other people thought.