Intention to return when property bought satisfies tenant condition

A genuine and realistic intention to return to live at a property when a right to buy has been exercised is sufficient to satisfy the tenant condition of a secure tenancy under Housing Act 1985. For a dwelling-house’s tenancy to be secure it must satisfy the landlord and tenant conditions of the 1985 Act. The “tenant condition” set out in s81 is that “the tenant is an individual and occupies the dwelling-house as his only or principal home”. Such a secure tenant will (subject to the conditions of the 1985 Act) have the right to buy a long-lease of the dwelling-house. In London Borough of Hackney v Weintraub [2024] EWCA Civ 1561 [2024] PLSCS 220, the Court of Appeal dismissed the council’s appeal of Weintraub v London Borough of Hackney [2024] EWHC 845 (Ch) [2024] PLSCS 75. A tenant of local authority accommodation who uses the property for limited purposes and does not sleep there and who only intends to recommence full use of the property once they have exercised the right to buy can satisfy the “tenant condition” for the purposes of exercising that right to buy. In November 2002, Rabbi Weintraub (the respondent) and his late wife had been granted a secure tenancy by the council of 45a Forburg Road, N16 6HP. Following the death of his wife in June 2008, the respondent was nervous of being alone overnight in the property and arranged for guests to stay with him. Some time in 2017 this arrangement came to an end, after which time he visited the property if not daily then for considerable portions of the week. Also, in or around 2017 the respondent discussed with his family the plan to purchase the property allowing him then to convert the basement into a separate flat and have someone (such as a grandchild) live there, thereby allowing him to return to the property and not be alone. The council twice rejected his right to buy applications on the basis that the property was not occupied as his only or principal home. On 18 February 2019, the council served a notice to quit on the grounds that the respondent was no longer a secure tenancy as he no longer satisfied the tenant condition.  Possession proceedings were commenced. The respondent then sought a declaration that he had a right to buy pursuant to Part V of the 1985 Act. Although he was unsuccessful in the County Court, his successful appeal prompted the council to appeal. After considering the authorities, the Court of Appeal held that s81 did not require a tenant to intend to return to the property as a tenant. It is sufficient if they genuinely believe the dwelling-house to be their principal or only home and intend to return to use it as such albeit once the right to buy has been exercised. In order to satisfy the tenant condition, a tenant who is temporarily absent from the property but who has a genuine and realistic intention to return within a reasonable time may continue to occupy the property and need not show that when he does return it will be in his capacity as a tenant. Although it was understandable in view of the severe housing shortage in London that local authorities do not wish to see council properties unoccupied, this property was not unoccupied. It was the respondent’s only or principal home. Elizabeth Haggerty is a barrister