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When is a dwelling house not a dwelling house?

Ben on a chairDwelling houses and different tenures

I was recently training a team in a local authority whose job it is to set up lettings for people who are owed a full housing duty by the homelessness unit.

The complexity was very interesting as a variety of deals were operating that exceeds what a normal letting agent would encounter.

Some properties are leased to the council by private landlords for a set period of time, for them to use as either temporary or more long-term accommodation.

In other instances the council liaised with local letting agents, providing the occupants for the agents to manage and in other scenarios, the council used hostels run by themselves or other organisations.

All of this is throwing up a range of different types of security of tenure. Residents in council hostels, for instance, cannot hold tenancies, because such establishments are on the list of excluded occupancies in s3A of the Protection from Eviction Act 1977, along with hostels run by several other public bodies.  But not hostels run by private providers, who are not on the excluded list.

Licences can convert to tenancies

Having said that, people placed in accommodation whilst under homelessness investigation will normally hold licences only – but once a homelessness decision has been reached they will convert to tenancies.

It’s a complex world and in trying to explain the rules to them last week I decided to go right down into the starting blocks of what a Dwelling House actually is before you even get into tenancies and licences.

Working it out can be far from easy

In the real world, it isn’t always easy to tell, given the weird, wonderful and downright mad structural arrangements people in my jobs come across in the rush to find something that will bring in rent for bottom feeder landlords who aren’t too fussy.  And their reluctant tenants who have little to no choice.

By way of example

Last month I visited a property with environmental health to remonstrate with the landlord for, among other things, the lack of a fire escape in his large HMO. He pointed to a ladder eccentrically propped up against the wall by one tenant’s bedroom window.

When we stressed that this was neither safe nor adequate he decided to demonstrate by enthusiastically climbing out of the window and down the ladder, only to get 4 rungs in before he promptly fell off.

I’d like to say we were too professional to laugh but that wouldn’t be true and to be fair, even his wife joined in.

I digress.

Dwelling definitions are not cut and dried

Defining a Dwelling house might sound obvious but as with nearly everything in landlord-tenant law – it isn’t.

For instance, is the property used as a dwelling or to run a business? I was recently called in on a case where in order to avoid licensing requirements, the landlord of five converted studio flats issued all occupants with business tenancies.

Had they indeed been commercial leases they would not be covered by the normal housing Act but by the Landlord and Tenant Act 1954.  However, upon visiting and speaking to the occupiers it was clear that these were being used as homes and the agreements, therefore, a sham.

Sometimes property can be both business and residential use

In the case of Gurton v. Parrot [1990] the occupier took on premises as a residence and the fact that they also ran a kennel business from the same property did not convert it into a commercial tenancy, as the primary use was a home.

The same issue cropped up in Royal Life Saving Ltd v. Page [1978] when a doctor used a room in a property for consultations but his principal GP practice was elsewhere. The degree of business use being held to be insufficient to qualify it as commercial property.

Section 1 of the Housing Act 1988 holds that for an assured tenancy to be in place the property must be one where “A dwelling house is let as a separate dwelling”.

By separate dwelling, they mean either a building or part of a building, such as a room in a house.

The most helpful case on this is Uratemp Ventures Ltd v. Collins (2001) where the House of Lords held:-

“The word ‘Dwelling’ is not a term of art with a specialised legal meaning. It is the place where an occupier lives and to which he returns and which forms the centre of his existence. No doubt he will sleep there and usually eat there; he will often prepare some of his meals there. However there is no legislative requirement that cooking facilities must be available for premises to qualify as a dwelling”.

But what about the type of dwelling itself?

In R v. Guildford Area Rent Tribunal ex p Grubey [1951] a caravan that was attached to the mains services and had its wheels raised from the ground was not classed as a mobile home and therefore was a dwelling house.  But if a caravan is let as a mobile home it can’t be a dwelling house (see R v. Rent Officer of Nottingham Registration Area ex p Allen [1985]).

I was reminded of this distinction when visiting the property in the attached photo, which looks like a shed containing 2 people, located in the garden behind a hairdresser’s in south London.  But which, upon entry turned out to be a small caravan, wheels firmly on the ground and running power from a plugboard poked through the window.

The front being merely a façade made out of a fence panel, that if removed, would allow the caravan to roll out and stretch its legs on the open road as God had intended.

Is it a dwelling house or not?

Planning enforcement who were with me were similarly scratching their heads.

If it is considered a structure they could order it to be demolished but if it’s a mobile home they can’t. For my part, if it isn’t a dwelling house the occupiers have no security of tenure.

Questions, questions…

And this takes us into the realm of the differences between fixtures and chattels and degrees of annexation to land and whether or not a structure is capable of being removed from the land. That my friends is for another article, probably best written by Tessa as this drives right to the heart of land law.

So there. Before you can even go on to question whether or not a person holds a tenancy or a licence, you first have to establish whether or not the accommodation is even classed as a dwelling house.  And it ain’t always easy.

The post When is a dwelling house not a dwelling house? appeared first on The Landlord Law Blog.



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