Yisroel Weintraub v London Borough of Hackney

For the tenant condition under the Housing Act 1985, the court asks whether the dwelling is occupied as a home and, separately, whether it is the tenant’s only or principal home. A finding that a dwelling is not the only or principal home requires identification of another home which is the principal home. A tenant need not be physically living in the dwelling at the relevant time. A genuine intention to return as the only or principal home is sufficient where there is a practical possibility of returning within a reasonable time. The intention may be conditional on completing the right-to-buy process and may be an intention to return as owner rather than under the existing tenancy.

The claimant, a secure council tenant, spent his days at the property but slept elsewhere because he was afraid to stay there alone overnight. He intended to exercise the right to buy and convert the basement so that another person could live there, after which he intended to return to living at the property as his only home.

The council refused his right-to-buy applications on the ground that the property was not his only or principal home. The trial judge dismissed his claim. The appeal concerned whether the judge had identified the claimant’s principal home and whether his intention to return only after exercising the right to buy was legally sufficient.

1. Appeal allowed. The trial judge had correctly treated the case as concerning whether the property was the claimant’s only or principal home, rather than whether he occupied it as a home at all.
2. It is logically necessary, when concluding that a dwelling is not a person’s only home, to identify another home. Where there is more than one home, a conclusion that the relevant dwelling is not the principal home requires identification of the other property as the principal home. Reading the judgment as a whole, the trial judge had found that the claimant’s daughter’s house was his principal home.
3. The principles in Islington LBC v Boyle and Dove v Havering LBC apply. Absence does not by itself end occupation. The relevant question is fact and degree, including whether the tenant has a real intention to return and a practical possibility of fulfilling that intention within a reasonable time.
4. The fact that the intended return was conditional on completing the right-to-buy process did not prevent it from being sufficient. Applying the test identified in Tickner v Hearn and used in Robert Thackary’s Estates Ltd v Kaye, the claimant had a real hope of returning coupled with a practical possibility of doing so within a reasonable time.
5. There was no additional requirement that the intention to return must be an intention to resume occupation as tenant. The reference in Dove to reverting to a previous pattern of existence concerned resuming occupation as the principal or main home, not returning under the existing tenancy. The substance of the tenant condition concerns occupation of the physical dwelling-house as the only or principal home.
6. The claimant’s intention to return as his only home after exercising the right to buy therefore satisfied the tenant condition. The unusual facts, including the specific reason for his overnight absence and the proposed alterations, reinforced that the intention was real and genuine.

The judgment states that HHJ Saunders dismissed the claimant’s claim after a two-day trial, finding that the property was not his only or principal home. The High Court (Chancery Division) allowed the appeal.