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New(ish) Section 21 Case

By D

BAILII has recently added a case from November 2008. In Chohan v McManus [2008] EWCA Civ 1657 the Court of Appeal was considering what constituted occupation of premises for the purposes of an Assured Tenancy.

The facts were that Mr McManus occupied a room in a property owned by Mr Chohan on the basis of an Assured tenancy from about 1993. This was undisputed. What was disputed was the suggestion by Mr Chohan that Mr McManus had vacated the property towards the end of 2001 and had stopped paying he rent. It was then suggested that Mr McManus had returned in April 2002 and asked if he could move back in. Mr Chohan apparently agreed and granted a new tenancy which he then sought to end by use of a section 21 notice.

HHJ Mitchell, sitting in Central London County Court, found the facts to be as above and held that on them Mr McManus had given up his tenancy and then been granted a new one and that the section 21 notice was accordingly valid. This was a decision in part made on the basis of the credibility of the evidence of the parties.

It was argued before the Court of Appeal that HHJ Mitchell had misdirected himself because he had failed to come to conclusions regarding how and when the original Assured tenancy had come to an end where Mr McManus had been living in the interim. LJ Tuckey, giving the leading decision, rejected this submission stating:

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.

The findings of HHJ Mitchell “entirely justified the inference that the defendant no longer intended to occupy the premises as his only or principal home”.

This view seems a little harsher than the test normally applied to Rent Act tenancies. However, it seems that much weight was placed on the apparent request of Mr McManus to come back in April 2002 and the fact that he felt the need to make such a request was seen as an indication that he had given up possession prior to that date.

D is a solicitor specialising in landlord and tenant matters with a London firm.


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