Risks of moving out and back in

A RECENT Court of Appeal decision has highlighted the potential cost to owner-occupiers who, having let their home, want it back to live in, then change their minds.

A family rented out their Essex house, initially for a term of six months, and then on a month-by-month basis. The wife decided to come back to England, so the family asked for possession of the house for the wife and her daughter.

The Rent Act allows a homeowner to regain possession of the property if it is required as a family home. The owner has to give notice to the tenant at the beginning of the tenancy to this effect.

In this case, the tenants refused to move. The case went to court, and a possession order was granted as the judge was satisfied that the wife needed the house to live in. But after only a few weeks the wife moved out again to live with other members of the family.

The property was put up for sale with vacant possession. The tenants appealed against the earlier court decision, arguing that the wife had never intended to live in the property.

They lost again. The Court of Appeal decided that at the time the intention was genuine, and was not nullified by the subsequent change of heart.

You have to go to court to get possession of residential property if the tenant will not leave voluntarily. It is not unknown for homeowners to try to regain possession of their home by saying that they want to live in it, and then selling it as soon as the tenants have left.

The tenant needs to prove that the owner's intention to occupy the property is not genuine. If the property has not already been sold, the tenants can ask the court for possession or claim compensation. It can cost homeowners a lot of money if the case goes against them, and a court action can be inconvenient for everyone.

John Samson, property partner with solicitors Nabarro Nathanson, has a cheaper solution. He advises tenants to ask for an undertaking that if the owner moves out within, say, six months, the tenant will be re- offered the accommodation on the previous terms. Mr Samson says: 'If the homeowner refuses, it is tantamount to undermining his case that he has a genuine intention to live there.'