Legal brief: Resident or non-resident?

Clive Lewis commissioned Westfields to carry out a refurbishment of the property.  A dispute arose which Westfields referred to adjudication. Lewis objected to the jurisdiction of the adjudicator, contending that he intended to occupy the property as his residence once the works were complete. The Adjudicator found that he had jurisdiction and ordered Lewis to make payment to Westfields. No payment was made and Westfields commenced enforcement proceedings in which Lewis again disputed the adjudicator’s jurisdiction, contending for the first time that he was in occupation at the date of the contract. Unusually, the matter was adjourned and the parties ordered to give disclosure and call oral evidence.

Mr Justice Coulson handed down judgment on 27 February 2013 and held that Lewis did not intend to occupy the property as his residence as at all relevant times he made it clear that his intention was to let the property.  Mr Justice Coulson held that his finding on intention was fatal to the entirety of Lewis’s case. Nonetheless the judge went on to find that there was also no ongoing residential occupation which is not to be tested by a single snapshot in time but instead requires ongoing occupation.

This case concentrates on whether Lewis, in resisting enforcement of an Adjudicator’s Decision, could rely on the exception set out in Section 106 of the Housing Grant’s Construction Regeneration Act 1996.  It is one of four reported decisions concerning Section 106 and determines at what point the Court should assess whether or not a defendant occupies a property as his residence. If Lewis was able to show that he occupied or intended to occupy the property as a residential occupier he would not be bound by an adjudicator’s decision.

Nik Haria is a partner in law firm SGH Martineau. He represented Westfields Construction in this case