Only or principal home…as a tenant?

A recent Court of Appeal case raises interesting questions of statutory construction and housing policy, writes Andrew Lane.

Over five years ago I wrote on the Cornerstone on Social Housing Fraud blog about the important housing concept of ‘only or principal home’. It included reference to the question of future potential changes of behaviour, and by way of example therein two cases:

(1) LB Havering v Dove [2017] P.T.S.R. 1233 – 2 sisters were joint tenants. They however ultimately and effectively lived at their partners’ accommodation, and the appeal was against the making of a possession order (primarily in reliance on a notice to quit). The Court of Appeal rejected their appeal, Lewison L.J. concluding in the lead judgment at [35]:

“In my judgment on the facts that he found the judge was entitled to conclude that neither Ms Elaine Dove nor Ms Evelyn Dove was occupying the flat as her principal home when the notice to quit was served and took effect. Neither, therefore, was a secure tenant. It follows that Havering was entitled to possession without the need to prove a statutory ground. I would dismiss the appeal.”

(2) LB Camden v Goldenberg (1996) 28 H.L.R. 727 – this earlier authority was cited in Dove. It’s an assignment case where this action was refused because the proposed assignee was looking after a house belonging to friends rather than staying at the demised premises. The tenant won the appeal – on the facts the proposed assignee had retained the flat as their postal address and any prospect of their finding anywhere else to live following the period of house-sitting had not displaced their intention to return.

Recent case

This issue came again before the Court of Appeal in December 2024 in LB Hackney v Weintraub [2024] EWCA Civ 1561, citing Dove amongst other authorities. It consisted of relatively unique factual circumstances, looking at 2 “homes” (the demised premises and his daughter’s property) and Lady Justin Asplin explained at [5]:

“The central question before HHJ Saunders and on appeal was whether Rabbi Weintraub was occupying his council flat at 45a Forburg Road, London N16 6HP (the “Property”) as his “only or principal home” at the time of his first and second applications to exercise his right to buy the Property. HHJ Saunders held that he was not and that the Appellant, Hackney London Borough Council (the “Council”) was entitled to possession of the Property. On appeal, Zacaroli J held that the “tenant condition” was met and accordingly, that Rabbi Weintraub was entitled to exercise the right to buy a lease of the Property.”

Lord Justice Males set out the primary trial findings of fact at [71] (as does Asplin L.J. at [6]):

1. The claimant had lived in the property for many years.
2. After his wife died, he continued to live there on his own for nine years, arranging for people to stay overnight with him because he was afraid to sleep there by himself.
3. When it became problematical to get people to stay overnight, he formulated a plan to buy the property with the genuine intention of converting the basement into a separate flat where someone else, such as a grandchild, could live, so that he could continue to sleep in the property.
4. In the meanwhile, he began to spend nights elsewhere, usually at his daughter’s house nearby; however, when his daughter had other guests to stay, as she often did, he arranged to stay with friends.
5. The regular pattern of the claimant’s days was that he would attend the synagogue in the morning, would go on most days to the property in order to study his scripture, would attend the synagogue in the evening, and would sleep at his daughter’s house or, if necessary, elsewhere.
6. He would eat his meals at his daughter’s house, except for a packed lunch which she would prepare for him to eat at the property.
7. He would bathe at the synagogue where there were facilities available.

The right to buy application was therefore a deliberate and genuine route to Rabbi Weintraub which would allow him to “convert the basement into a separate flat in which a grandchild or someone else could live so that he would not be alone at night and would be able to return to the Property”.

The key issue was whether the required objective intention to return to the subject premises had to be as a tenant or whether, as with Rabbi Weintraub’s plan, it could be as the (right to buy) owner. In delivering the primary judgment Asplin L.J. rejected the local authority’s argument for the former. Lord Justice Males further doubted whether the daughter’s house was ever his home having said at [72]:

“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.”

In dismissing the local authority’s appeal Asplin L.J. simply explained at [48]:

“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.”

Whilst Males L.J. confirmed at [68] that the court was merely adopting established principle:

“…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”.

Whilst this case does not make any change to the established only or principal home jurisprudence it does raise interesting questions of statutory construction and housing policy.

Looking at the former, only or principal home is a statutory construct. If a secure tenant does not live at the demised premises as their only or principal home, or at least one of joint tenants does, then they lose security of tenure (see sections 79(1) and 81, Housing Act 1985). For periodic tenancies that would allow the authority landlord to serve a notice to quit to bring to an end, at its expiry, the remaining contractual tenancy.

I don’t know if there’ll be any further attempt to appeal this matter but there is an interesting and somewhat uneasy difficulty for me in equating the fact that demised premises cannot be used as a principal home with the answer that the tenant will return there but not whilst the tenancy – to which the concept applies – persists.

I acknowledge the seemingly comparable scenario of a tenant being absent, say for work purposes, for a long period – as raised in the court below and at [54] of the judgment – more uncontroversially allowing for a retention of security of tenure but one difference there is that the premises’ unsuitability relates to the circumstances of employment not the fundamental lay-out of the “former” home itself.

An interesting case nonetheless!

Andrew Lane is a barrister at Cornerstone Barristers. This article first appeared on the Cornerstone on Social Housing Fraud blog.