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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chohan v McManus [2008] EWCA Civ 1657 (24 November 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/1657.html Cite as: [2008] EWCA Civ 1657

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UXBRIDGE COUNTY COURT
(DEPUTY DISTRICT JUDGE SOFAER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th November 2008

Lord Justice Tuckey:

1. The issue in this case is whether, at the time the defendant tenant was granted assured shorthold tenancy, his earlier assured tenancy of the premises in question had come to an end because he no longer occupied the premises as his only or principal home. In a judgment given in the Central London County Court, HHJ Mitchell found that the earlier tenancy had come to an end, with the result that the landlord was entitled to possession on the mandatory ground prescribed for shorthold tenancies by section 21 of the Housing Act 1988. By this appeal the defendant attacks the judge's finding that he had ceased to occupy the premises.
2. It was common ground that from about 1993 the defendant had been an assured tenant of the claimant landlord of one bedroom with shared use of the kitchen, living room and bathroom at No. 16 Winchester Road in Harlington. He is a single man, who from time to time worked away from the premises as a carpenter. The rent was paid either in cash or by way of housing benefit.
3. But as the judge found, towards the end of 2001 he left the premises and stopped paying rent. After five or six months, he asked the claimant if he could come back. The claimant agreed, and on 1 April 2002 granted him the shorthold tenancy to which I have referred. This tenancy was terminated by notice to quit followed by a section 21 notice in July 2006, and these proceedings followed when the defendant did not give up possession.
4. Neither side was able to produce much in the way of documentary evidence to support its case. The judge found that the claimant's evidence was inconsistent and vague in places, but he rejected the defendant's evidence that he had continued to occupy the premises and had paid the rent in cash during the period in question. He accepted the claimant's evidence that he had gone away during this period. It was also the claimant's evidence that when he went away the defendant handed back the keys to the premises.
5. There is no dispute about the effect of the statutory provisions which were in play in this case. The tenancy granted to the defendant on 1 April 2002 was an assured tenancy. It qualified as an assured shorthold tenancy, for which the termination provisions in section 21 of the 1998 Act applied, unless "immediately before it was granted" the defendant was a tenant under an assured tenancy other than a shorthold tenancy; see sections 19A and paragraph 7(1)(a) of schedule 2A of the 1998 Act. A tenant is only an assured tenant "if and so long as" he "occupies the dwelling-house as his only or principal home".
6. So the question for the judge was: was the defendant occupying the premises as his only or principal home immediately before 1 April 2002? If he was, the claimant was not entitled to possession. If he was not, section 21, with which the claimant had complied, entitled the claimant to possession. This was essentially a question of fact which turned critically upon whether the judge accepted the claimant's or the defendant's evidence.
7. The defendant, through Ms Jacqueline Rubens, who appeared for him in the county court, contends that the judge misdirected himself by failing to make findings as to how and when the assured tenancy ended and where the defendant was living before he returned in April 2002. It was not open to the judge, she says, to make the finding he did simply on the basis that the defendant had gone away and not paid the rent. There was no evidence that the defendant had moved out by, for example, removing his possessions, or that he did not intend to return, as he had done in the past after he had been working away.
8. I do not accept these submissions. The mere fact that the defendant went away was obviously not conclusive, because he had done so in the past in order to work. But at those times the evidence was that he had continued to pay the rent in cash. This time, as the judge found, the defendant had been away for six months or so and paid no rent immediately before the new tenancy was granted. The defendant's evidence, which the judge rejected, was that he had continued to live at the premises whilst he was working for a housing trust nearby in west London. In those circumstances it was not possible for the judge to make any finding other than that the defendant had not been living at the premises.
9. There was some evidence before the judge that the defendant had a girlfriend who had a house which he shared with her in south London, although there was no evidence that he had been staying there at the material time. The defendant's intention had to be inferred from the fact that he was away for many months, he had stopped paying the rent after handing over his keys and then had felt it necessary to ask the claimant if he could come back. He was a man with few personal possessions.
10. These facts, it seems to me, entirely justified the inference that the defendant no longer intended to occupy the premises as his only or principal home. This was a case, as I have said, which turned essentially on the judge's credibility finding. Strenuously though Ms Rubens has argued to the contrary, this court cannot interfere with those findings, and this appeal must be dismissed.

Lord Justice Jacob:

11. I agree.

Lord Justice Aldous:

12. I also agree.

Order: Appeal dismissed.