Landlord and tenant – Right to buy – Tenant condition – Appellant holding secure tenancy of council flat but spending nights elsewhere – Appellant wishing to exercise right to buy – Respondent local authority refusing application – Whether appellant occupying property as only or principal home so as to satisfy “tenant condition” in section 81 of Housing Act 1985 – Appeal allowed
In 2002, the appellant and his late wife were granted a secure tenancy of a council flat owned by the respondent local authority, pursuant to sections 79-81 of the Housing Act 1985. After his wife died, in June 2008, the appellant continued to live there on his own. 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 appellant, 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. However, his days were mostly spent at the property. He kept very few possessions at the property, which was practically empty.
On 18 October 2017, he applied to the respondent for the right to buy the property under Part V of the 1985 Act.
On 24 April 2018, the respondent 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 respondent served the appellant with a notice to quit.
The appellant’s claim for a declaration that he had the right to buy was dismissed but the appellant appealed.
Held: The appeal was allowed.
(1) By section 79(1) of the 1985 Act, a tenancy under a dwelling-house was let as a separate dwelling as a secure tenancy at any time when the conditions in sections 80 and 81 were satisfied.
The tenant condition involved two questions: (i) whether the person in question occupied the dwelling as a home; and (ii) if so, whether they occupied it as their only or principal home.
A tenant might continue to occupy a dwelling as their home despite living elsewhere. By section 118, a secure tenant of a dwelling-house had the right to buy it: Dove v Havering London Borough Council [2017] EWCA Civ 156; [2017] PLSCS 75 applied.
(2) The judge expressly addressed and determined the question whether the property was the appellant’s only or principal home. To conclude that a dwelling-house was not a person’s only home, it was logically necessary to establish that the person had another home elsewhere.
The judge found that the appellant’s daughter’s house was his principal home. The judge’s reasoning for ignoring the appellant’s intention to return to the property was simply that there was no evidence that he intended to return to his council tenancy.
However, no authority had been cited which addressed whether an intention to return to a property under a secure tenancy as a principal or only home was sufficient only if the intention was to return to the property as tenant under the existing council tenancy.
(3) Absence by the tenant from the dwelling might be sufficiently continuous or lengthy or combined with other circumstances to compel the inference that, on the face of it, the tenant had ceased to occupy the dwelling as their home.
In every case, the question was one of fact and degree. The onus was on the tenant to rebut the presumption that their occupation of the dwelling as a home had ceased. In order to rebut that presumption, the tenant must have intended to return.
There had to be evidence of something more than a vague wish to return. While there was no set limit to the length of absence and no requirement that the intention had to be to return by a specific date or within a finite period, the tenant had to be able to demonstrate a practical possibility or a real possibility of the fulfilment of the intention to return within a reasonable time: Tickner v Hearn [1960] 1 WLR 1406 applied.
The tenant also had to show that their inward intention was accompanied by some formal, outward and visible sign of the intention to return. That sign had to be sufficiently substantial and permanent and otherwise such that in all the circumstances it was adequate to rebut the presumption that the tenant, by being physically absent from the premises, had ceased to occupy it.
The question of an intention to return was an intention to revert to a previous pattern of existence: Islington London Borough Council v Boyle [2011] EWCA Civ 1450; [2011] PLSCS 287 applied.
(4) In this case, if the judge had considered the test in Tickner, he could only have held that the appellant had a real hope to return, coupled with the practical possibility of its fulfilment within a reasonable time.
That conclusion was inevitable in light of the judge’s finding of fact that the appellant intended to return to the property once the right to buy process had completed, and that, subject only to the satisfaction of the tenant condition, the appellant was entitled to, and was in a position to, exercise the right to buy.
Accordingly, the fact that the appellant’s intention to return was conditional or contingent was not in itself a reason to conclude that he did not remain in occupation for the purposes of the 1985 Act.
(5) It was not essential that a secured tenant was currently living in the premises as their only or principal home. An intention to return to such a pattern of existence was sufficient.
The fact that the timing of the intended return was not tied to a particular date, but to the completion of the right to buy process so that necessary works could be undertaken to enable the appellant to resume spending his nights at the property, did not justify a different outcome.
The appellant’s intention to return to the property as his only home, even though that was to happen only once he had exercised his right to buy, was sufficient to satisfy the tenant condition.
The reason for ceasing to use the property overnight, and the proposed solution, reinforced that the appellant had a real and genuine intention to restart occupying the property as his principal home.
Duncan Heath (instructed by Clarke Mairs Law Ltd) appeared for the appellant; Michael Paget (instructed by Hackney London Borough Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Weintraub v Hackney London Borough Council
