An intention to return to live at a property when a right to buy has been exercised was found to be sufficient to satisfy the tenant condition of a secure tenancy under Housing Act 1985
In Weintraub v London Borough of Hackney [2024] EWHC 845 (Ch) [2024] PLSCS 75, a county court’s decision that the claimant did not satisfy the tenant condition necessary to maintain his status as a secure tenant was overturned.
Under section 79 of the 1985 Act, a tenancy is secure when the landlord and tenant condition are satisfied. The tenant condition requires that the tenant occupies the property as his “only or principal home”. There are two questions to be asked – does the tenant occupy the property as a home and, (2) if so, is it his only or principal home (see Dove v Havering LBC [2017] EWCA Civ 156). The principles to determine whether someone living elsewhere continues to occupy the property as a home are set out in Islington LBC v Boyle [2011] EWCA Civ 1450. In deciding whether an intention to return is sufficient there must be evidence of something more than a vague wish to return. It must be a real hope coupled with the practical possibility of its fulfilment within a reasonable time Tickner v Hearn [1960] 1 WLR 1406.
On 4 November 2002, the claimant and his wife had been granted a secure tenancy of a council flat in Hackney. After his wife’s death and until 2017 the claimant continued to live at the flat on his own but as he was nervous of being there alone overnight he arranged for a succession of people to stay with him. In 2017, (as a result of it being increasingly difficult to find people to stay with him) he (with his family) decided that he would buy the flat and convert the basement into a separate flat where someone else (such as a grandchild) could live. This arrangement would give him the comfort necessary to allow him to spend the night. Until that time, he would not sleep at the flat – he slept mostly at his daughter’s house or (if she had guests) at friends. During the day though, apart from his twice daily visits to synagogue (he was a rabbi), he continued to spend most of his days at the flat, studying and eating a packed lunch prepared by his daughter. There were few possessions at the flat. The council twice rejected the claimant’s right to buy application on the grounds that he did not reside at the flat and served a notice to quit on him.
The claimant’s application for a declaration that he had the right to buy the flat was rejected by the county court on the basis that the flat was not his only or principal home. He successfully appealed. If a court decides that a property is not the principal home it is necessary for it to decide which property fulfils that role. However, it is not essential that a secure tenant is currently living in the premises as his only or principal home. The claimant’s intention to return being conditional or contingent was not in itself a reason to conclude that he did not remain in occupation of the flat. An intention to return to a pattern of existence is sufficient, even if the claimant’s intention was that when he returns to the flat it will be when he is no longer a tenant but the owner.
The High Court did not accept that this decision could open the floodgates to applications to buy from tenants not currently in occupation (who were never intended to fall within the right to buy provisions). It commented that the facts of this case were unusual.
Elizabeth Haggerty is a barrister
