Judges reject appeal by council in dispute over entitlement to right to buy

The London Borough of Hackney has lost a Court of Appeal case over the eligibility for right to buy of a rabbi who occupied a home for only part of the time.

Yisroel Weintraub had won the case in the High Court and Hackney’s appeal was unsuccessful as Lady Justice Asplin found Rabbi Weintraub satisfied the ‘tenant condition’ to be eligible to buy the property.

Asplin LJ aid: “The main issue on this appeal is whether a tenant in local authority accommodation who uses the property for limited purposes and does not sleep there can, nevertheless, satisfy the ‘tenant condition’ in section 81 Housing Act 1985 for the purposes of exercising the right to buy, if they only intend to recommence full use of the property once they have exercised that right.”

Rabbi Weintraub and his late wife became secure tenants of a Hackney property in 2002, and he continued to live there after her death in 2008 but was nervous about staying alone overnight.

He took to visiting the property for daytime religious study and occasional other times while otherwise staying at his daughter's house,

The rabbi hoped to buy the property and convert the basement into a separate flat in which someone could live near him at night.

Hackney initially offered him a 125 year lease for £305,100, but later reversed this because he did not reside there as his only or principal home.

It served a notice to quit saying he ceased to satisfy the ‘tenant condition' under section 81 of the 1985 Act.

Rabbi Weintraub took legal action but HHJ Saunders found he did not satisfy the tenant condition as he did not sleep at the property.

On appeal, Zacaroli J found Rabbi Weintraub did satisfy the condition because the fact that his intention to return was conditional on buying the property was not in itself a reason to conclude that he did not remain in occupation for the purposes of the 1985 Act.

Hackney appealed on two grounds. The first was that Zacaroli J was wrong to make his own findings of fact. The second was that he was wrong to conclude that an intention to return to the property as owner can satisfy the tenant condition as this is predicated on someone being a tenant.

Asplin LJ said the first ground was “unnecessary and is misconceived” as Zacaroli J did not find any primary facts.

Turning to the tenant condition issue, she said: “It seems to me that there is nothing in the wording of section 81, or its heading when read in context and adopting a purposive approach, which requires the tenant to intend to return to the property as tenant.

“In my judgment, the heading and the reference at the beginning of the section to 'the tenant condition’ are merely signposts to the description and nature of the requirement referred to in section 79(1). They carry no other connotation. Furthermore, there is nothing in the requirement itself which has that effect.”

She said the requirement was that the tenant must be an individual and must occupy the dwelling as their only or principal home.

Hackney’s case would in effect, require the second part to be read as though the words “as tenant” were added at the end.

“The natural and ordinary meaning of the words used in section 81 make clear that the tenant must occupy the dwelling-house, in the sense of the person who is the tenant must be in occupation, no more, no less,” Asplin LJ aid.

“In many cases, the tenant will actually be in physical occupation of the premises. In others, the tenant may be absent. In the case of absence, the question for the court is whether the period of absence breaks the continuity of residence for the purposes of determining whether the individual occupies the premises. Section 81 does not deal directly with that question.”

None of the authorities addressed the question of whether the tenant must intend to return as a tenant.

She said it was sufficient that a tenant genuinely believed the dwelling to be their principal or only home and intended to return to use it as such “albeit once their right to buy has been exercised”.

Asplin LJ said she was unconvinced by Hackney’s argument that finding for Rabbi Weintraub would open “floodgates” of questionable right to buy applications.

The judge said: “[Hackney] says that this drives a coach and horses through the legislation and everyone will be seeking to exercise a right to buy even if they have never occupied the dwelling house of which they are a tenant.”

But she said it was necessary to prove a genuine intention to return and that intention must have “an outward manifestation reflected in reality and assessed by reference to objectively ascertained facts”.

Hackney’s ‘floodgates’ scenario “is unreal,” she added.

Agreeing with the judgment, Lord Justice Males said: “Although many of the cases cited to us were concerned with the question whether a tenant who is temporarily absent from the property nevertheless continues to occupy it as his only or principal home, this is not such a case.

“The claimant was not absent from the property. On the contrary, he went there every day or almost every day, precisely because it was his home. The trial judge described this as 'akin to a library environment', but in my judgment the judge's findings of primary fact do not justify this view. There is a qualitative difference between spending your days in a home where you have lived for many years, which can be regarded as your own personal space, and visiting a library.”

Lord Justice Birss agreed with both judges.

Mark Smulian