Weintraub v Hackney London Borough Council

Landlord and tenant – Right to buy – Tenant condition – Respondent holding secure tenancy of council flat but spending nights elsewhere – Respondent wishing to exercise right to buy – Appellant local authority refusing application – Judge allowing appeal – Whether respondent occupying property as only or principal home so as to satisfy “tenant condition” in section 81 of Housing Act 1985 – Appeal dismissed In 2002, the respondent and his late wife were granted a secure tenancy of a council flat owned by the appellant local authority, pursuant to sections 79-81 of the Housing Act 1985. After his wife died, in June 2008, the respondent continued to live there. However, he was nervous of being in the property on his own overnight and arranged for a succession of people to stay with him. In 2017, it became more problematical to get people to stay overnight and the respondent, in discussion with his family, formulated a plan to buy the property with the intention of converting the basement into a separate flat where someone else, such as a grandchild, could live. Meanwhile, he began to spend the nights elsewhere, although his days were mostly spent at the property. He kept very few possessions at the property, which was practically empty. In October 2017, the respondent applied to the appellant for the right to buy the property under Part V of the 1985 Act. In April 2018, the appellant denied his right to buy, on the grounds that he did not reside at the property as his “only or principal home” as required by section 81 of the 1985 Act. In February 2019, the appellant served the respondent with a notice to quit. The respondent’s claim for a declaration that he had the right to buy was dismissed but the High Court allowed his appeal: [2024] EWHC 845 (Ch); [2024] PLSCS 75. The appellant appealed. Held: The appeal was dismissed. (1) In order to satisfy the tenant condition in section 81 of the 1985 Act, a tenant who was temporarily absent from the property but who had a genuine and realistic intention to return within a reasonable time might continue to occupy the property and need not show that, when he did return, it would be in his capacity as a tenant. Whether or not a tenant had ceased to occupy premises as their home was a question of fact. In the absence of an error of law, the judge’s findings of primary fact could not be overturned on appeal unless they were perverse, in the sense that they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence was possible; but the appeal court might in an appropriate case substitute its own inferences drawn from those primary facts: Robert Thackray’s Estates Ltd v Kaye [1989] 1 EGLR 127, Islington London Borough Council v Boyle [2011] EWCA Civ 1450; [2011] PLSCS 287 and Dove v Havering London Borough Council [2017] EWCA Civ 156; [2017] PTSR 1233 considered. (2) There was nothing in the wording of section 81, or its heading when read in context and adopting a purposive approach, which required the tenant to intend to return to the property as tenant. The heading and the reference at the beginning of the section to the “tenant condition” were merely signposts to the description and nature of the requirement in section 79(1). Furthermore, there was nothing in the requirement itself which had that effect. The natural and ordinary meaning of the words in section 81 made clear that the tenant had to occupy the dwelling-house, in the sense of the person who was the tenant had to be in occupation, no more, no less. In many cases, the tenant would actually be in physical occupation of the premises. In others, they might be absent, in which case the question was whether the period of absence broke the continuity of residence for the purposes of determining whether the individual occupied the premises. Section 81 did not deal directly with that question. Nor did it address the likely factors or indicia relevant to determining whether the requirement that the premises was occupied as the individual’s principal home had been satisfied as a matter of fact. Still less did it deal expressly with the required quality of a tenant’s intention to return to use premises as a principal home. (3) Where the tenant was absent from the premises in which they formerly lived as their only or principal home, their intention to return was critical to the question of whether the tenant condition was fulfilled. Their belief that the premises was their only or principal home and their intention to return had to be assessed by reference to objectively ascertained facts. The intention and belief had to be borne out in reality. All the facts in relation to occupation both before and after any notice to quit would be relevant. Nothing in section 81 required the tenant, in the sense of the individual to whom the contractual tenancy had been granted, to intend to return to a property in the capacity of tenant, or to resume using the property as their principal home in that capacity. It was sufficient that they genuinely believed the dwelling house to be their principal or only home and intended to return to use it as such, albeit once their right to buy had been exercised. At the relevant time they were the tenant and continued to occupy the dwelling-house as their only or principal home in the extended sense which had been understood in case law. If the tenant had an intention to return to a dwelling-house from which they had been absent and use it as their sole or principal home, albeit as owner, and the belief and intention were genuinely held and reflected reality, the tenant condition was satisfied. (4) Per Males LJ: The respondent was not absent from the property. He went there almost every day because it remained at all times his home. It was doubtful whether the daughter’s house was also his home. It was a place where he stayed when a bed was available, which was not always the case, but only because he was afraid to sleep in his own home alone. Although that arrangement lasted for some years, largely because the appellant disputed the respondent’s right to buy, it was intended to be temporary. In any event, on the judge’s findings, the property remained at all times the claimant’s principal home. Michael Paget (instructed by Hackney London Borough Council) appeared for the appellant; Duncan Heath (instructed by Clarke Mairs Law Ltd) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Weintraub v Hackney London Borough Council