At what point in time is the para 106-(1)(a) Residential Occupier exception to adjudication test to be undertaken
Judgment 29 April 2026
RBH Building Contractors Ltd v James [2026] EWCA Civ 511 LJs Coulson, King and Males
Summary
The court considered the principles that applied when determining whether a person intended to occupy a property as their
residence for the purposes of the residential occupier exception in the Housing Grants, Construction and Regeneration Act
1996 s.106.
Intention to occupy: applicable principles -
The following principles applied when determining whether a person "intends to occupy" a property as their residence for the purposes of s.106:
1) the burden of proof was on the party seeking to trigger the statutory exception;
2) an intention to occupy was a matter of fact that might be capable of being summarily determined because the threshold was not high;
3) the determination must be made as to the existence of the intention to occupy at the time that the contract was made;
4) the first element of the test was whether there was a bona fide, subjective intention to occupy in the future;
5) the second element was whether the person wishing to occupy had an objectively realistic, rather than a fanciful, prospect of
bringing that occupation about and there must be an intention to occupy within a reasonable time after completion of the works,
Westfields Construction Ltd v Lewis [2013] EWHC 376 (TCC), [2013] 1 W.L.R. 3377, [2013] 2 WLUK 753, Gregson v Cyril
Lord Ltd [1963] 1 W.L.R. 41, [1962] 10 WLUK 104, Gatwick Parking Services Ltd v Sargent [2000] 3 P.L.R. 25, [2000] 1
WLUK 495 and Islington LBC v Boyle [2011] EWCA Civ 1450, [2012] P.T.S.R. 1093, [2011] 12 WLUK 158 applied (see paras
40-52 of judgment).
Discussion - The starting point was the limited scope of the s.106 issue before the judge, which arose in a claim for summary
judgment. The judge's conclusion that there was a realistic prospect that the respondents could show that they intended to occupy
the property on completion was not a final determination, and the judge was entitled to find that the respondents had crossed the
relatively low threshold. The respondents' subjective evidence as to what they intended to do at the time the contract was made
was unequivocal, and other evidence, when considered objectively, supported those statements of subjective intent. While the
development loan and undertakings pointed in the other direction, they were not a trump card in law so as to override all the other
evidence. The court rejected the contractor's argument that an intention to occupy could not realistically be achieved because any
occupation would be unlawful for failing to comply with the development loan. At most, occupation of the house as a dwelling
might have rendered the respondents in breach of the development loan, but it would not have given rise to unlawful occupation,
Howsons Ltd v Redfearn [2019] EWHC 2540 (TCC), 186 Con. L.R. 222, [2019] 7 WLUK 782 distinguished (paras 53-67).
