19 June, 2009
The decision reached in Freeman v Islington London Borough Council  EWCA Civ 536 has cast light on highly emotive and potentially difficult situations for landlords where a family member has moved in with the tenant to care for them. Upon the death of the tenant, there may be uncertainty as to whether a possession order for the property could then be granted to the landlord. It is hoped that Freeman has provided some clarity to the area.
The appellant (F) appealed against the decision of the Clerkenwell & Shoreditch County Court to grant a possession order to the Council (I) for a flat, which had been let to F's father on a secure tenancy.
The health of F's father had deteriorated and consequently F moved into the flat to care for him, despite owning another flat. At the initial hearing, the judge found that F had been occupying the flat at the time of her father's death but, for the purposes of the Housing Act 1985, she had not 'resided with' him throughout the previous year, despite the fact that F had lived there on a full-time basis for that period.
The judge stated that the phrase 'residing with' required something more than merely 'living at' a particular address. F appealed and submitted that there was no case where a person had lived for seven days per week with a tenant for the requisite period in the property concerned had failed her claim to succession.
The court stressed that it was possible for a person to have more than one home and still reside with a tenant. However, in this particular instance the court rejected F's appeal. There was said to have been a considerable level of case law which had established the position that a temporary residence or a mere physical presence in a property was not enough to amount to 'residing with' and instead there had to be, to a significant degree, an intention that could be characterised as making a home with the tenant.
In Freeman, it was felt that the trial judge's approach had been entirely correct. There was nothing to show that the actions of F were more than her natural duty to care for her ill father. It was felt that she lived in his flat in order to carry out this responsibility and not to make it her primary home. In these circumstances, it was held that the judge was entitled to conclude that F had not intended to set up a home with her father.
The decision reached in Freeman may assist landlords and housing practitioners to deal with instances where a tenant has passed away with a family member residing with them. In situations such as these the family member may wish to succeed to the tenancy, which may not be wanted by the landlord. It is important that in these scenarios for there to be clear records kept of how long the family member has been at the property and whether they have expressed their intention to succeed to the tenancy. As shown in Freeman, intent is most important.