The London Borough of Hackney v Yisroel Weintraub

For the tenant condition in section 81 of the Housing Act 1985, a tenant who is absent from the dwelling may continue to occupy it as their only or principal home. The condition does not require an intention to return in the capacity of tenant. The tenant’s belief and intention must be genuine and supported by objectively ascertained facts, including an outward manifestation and a real practical possibility of return within a reasonable time. A return linked to completion of the right-to-buy process and works within the tenant’s control is not necessarily too remote. The appeal was dismissed.

The respondent held a secure local-authority tenancy but, from about 2017, used the flat mainly for study and did not sleep there. He stayed overnight with his daughter, relatives or friends. He applied to exercise the right to buy, but the Council rejected his applications on the ground that the flat was not his only or principal home and sought possession.

HHJ Saunders held that the tenant condition was not satisfied and that the Council was entitled to possession. On appeal, Zacaroli J held that the condition was satisfied and that the respondent’s intention to return after exercising the right to buy was relevant: [2024] EWHC 845 (Ch). The Council appealed, arguing that section 81 required an intended return as tenant. The central issue was whether a tenant could continue to occupy a dwelling as their only or principal home while intending to return to it as owner.

The appeal was dismissed unanimously. Lady Justice Asplin gave the lead judgment, with which Lord Justice Males agreed; Lord Justice Birss agreed with both judgments.

1. Construction of section 81. The “tenant condition” in section 81 of the Housing Act 1985 requires an individual with a contractual tenancy to occupy the dwelling-house as their only or principal home. Neither the heading nor the words “tenant condition” require the tenant to intend to return in the capacity of tenant. Reading those words into the section would alter its natural meaning.
2. Absence and intention to return. Occupation is a question of fact and degree. A tenant may continue to occupy a dwelling during physical absence where the tenant genuinely believes it remains their only or principal home and genuinely intends to return to use it as such. The belief and intention must be tested against objectively ascertained facts and outward signs. The authorities, including Boyle and Dove, require a real or practical possibility of return within a reasonable time, but no particular return date is necessary.
3. Return as owner. The reference in Dove to reverting to a previous pattern of existence concerns resuming occupation as the principal or main home. It does not require resumption of occupation qua tenant. The relevant observations in Dove were obiter because neither tenant in that case intended to change their pattern of residence. A return conditional on exercising the right to buy was not too remote here. The proposed works were within the respondent’s control.
4. Application and subsidiary matters. The respondent’s regular daytime use of the flat, his genuine intention to return and the objective circumstances were sufficient. Lord Justice Males additionally considered that the flat remained his principal home and was not unoccupied. The first ground of appeal concerning a supposed factual finding by Zacaroli J was misconceived and immaterial. The Respondent’s Notice did not need to be determined, although Asplin LJ considered that Zacaroli J’s implicit conclusion about the respondent’s daughter’s home was correct if the issue had arisen.

• Court of Appeal (Civil Division): dismissed the Council’s appeal.
• High Court, Business and Property Courts: Zacaroli J held that the tenant condition was satisfied and that the respondent was entitled to exercise the right to buy: [2024] EWHC 845 (Ch).
• Trial decision: HHJ Saunders held that the property was not the respondent’s only or principal home, that the secure tenancy had ended and that the Council was entitled to possession.