A housing association wanted to terminate the tenancy agreement with a retired tenant. The tenant spent most of the year at a holiday park or travelling. According to the association, he no longer had his main residence in the rented property. Did the tenant lose his right to the property?
What happened?
A tenant had been renting a flat from a housing association since 2003. The tenancy agreement included the following obligation for the tenant: “The tenant shall occupy the rented property themselves during the tenancy period and have their main residence there."
Following various indications that the tenant was living in a holiday park and only kept his rented property as a postal address, the housing association wrote to the tenant by registered letter to terminate the tenancy agreement. The tenant was informed that if he did not terminate the tenancy agreement, the housing association would apply to the subdistrict court for termination and eviction on the grounds that he was not maintaining his main residence in the rented property, in breach of the tenancy agreement.
The tenant did not terminate the contract. The housing association then took the matter to the subdistrict court.
Proceedings at the subdistrict court
The subdistrict court rejected the housing association's claims. According to the subdistrict court, the fact that the tenant was not present in the rented property for the greater part of the year did not mean that he did not have his main residence there. The tenant spent the summer season at the campsite, in his caravan, but after that season ended, it was apparently the tenant's intention to return to the rented property. During the winter season, the tenant apparently only stayed at temporary addresses in Southern Europe, because even after that season ended, he always returned to the rented property.
Positions of the parties in appeal
The housing association disagreed with the subdistrict court's ruling and lodged an appeal.
The housing association disputed that the tenant left the campsite during the winter months and that it would not be permitted to stay there during the winter months. It also disputed that the tenant returned to the rented property for a few weeks each year to use it for purposes other than as a postal address and argued that this period of a few weeks was in any case too short to be able to say that the requirement of primary residence had been met. In addition, the housing association had received reports of pollution and neglect, no repair requests had ever been made by the tenant, and the tenant himself had stated to a housing consultant that he did not live in the rented property but stayed at the campsite all year round and used the property as a postal address. Neighbours also stated that the tenant was never there. According to the housing association, its interest in pursuing an efficient distribution policy in these times of housing shortage should in any case prevail over the tenant's possible future interest in keeping a rented property for his old age.
The tenant, who was single, argued that he still had his “main residence” in the rented property. Even when he was still working as a coach driver, he was rarely present in the rented property. He would be home for two or three days and then away again for ten or fifteen days. Now that he was retired, he liked to spend the summer season in his caravan at the holiday park, within cycling distance of his home. However, he was not allowed to stay there permanently. In the winter months, he travelled to southern Europe in a motorhome for cultural and climatic reasons. In between, he would stay in his home for four to six weeks at a time. The home was fully furnished and he used it to take care of administrative matters, among other things, for which he did not have the necessary facilities at the holiday park. Since the start of the tenancy on 18 February 2003, he had been registered at that address in the municipality's Personal Records Database. When he was at the park, he went to his home every week to collect his post and to check that everything was in order.
The tenant also submitted the agreement with the holiday park. This agreement stated that the site and the camping equipment were intended for recreational stays and that permanent residence was not permitted. Nor was it permitted to register at the address of the camping equipment in the municipal personal records database. The agreement could be terminated by the holiday park if the tenant failed to comply with these obligations. According to the tenant, he could therefore become homeless if he terminated the lease. The tenant added that, given his age, he would be increasingly dependent on the property in the coming years.
Judgment of the Court of Appeal
The court of appeal agreed with the subdistrict court that the factual circumstances could only lead to the conclusion that the tenant still had his “main residence” in the rented property: "The tenant has been living there since 2003, although he was often absent at the time due to his work as a coach driver. He has been retired for several years. In his increased free time, he likes to stay in his caravan at the nearby recreation park, often for long consecutive periods. When he is staying at the park, the tenant hardly ever visits the rented property. He only cycles there to collect his post. The tenant argues that this situation currently suits him best at this stage of his life, in which he has more free time and, due to his good health, wants and is able to use it for numerous outdoor activities, such as going on holiday with his camper van. There is no factual evidence to suggest that the tenant intends or has intended to change the nature of the rented property at this stage of his life or to move his main residence elsewhere. His stay in the holiday park is, by definition, always temporary, as permanent residence is not permitted according to the agreement of 23 April 2005 submitted by the tenant. The tenant is also still registered at the address of the rented property in the BRP. He visits weekly to collect his post and always returns when he can no longer stay at the holiday park or when he has been away with his camper van. It is clear that the lifestyle chosen by the tenant for this phase of his life, in which he is often on the road and hardly ever stays in the rented property, is only temporary, namely for as long as his health permits. As he gets older, the tenant will be able to make less use of his temporary addresses elsewhere and will increasingly depend on the security of the rented property. In short, for the tenant, the rented property has remained his main residence, even though he hardly ever stays there at this stage of his life, i.e. temporarily."
The court saw no reason to require the tenant, in the context of his increased obligation to provide reasons, to prove that he actually stayed in the rented property for a certain number of consecutive days each year. The court did recognise that, in these times of housing shortage, the housing association has a great interest in an efficient, balanced and fair distribution policy, but because the tenant had kept his main residence in the rented property unchanged, the court did not have to weigh up the interests involved.
Conclusion
The housing association's appeal was therefore unsuccessful. The tenancy agreement remained in force and the tenant could not be forced to leave.
The interpretation of the term “main residence” is therefore more than simply counting the number of nights spent there. As long as there is a clear intention to return and the stay elsewhere is temporary, the rented property remains the main residence.
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