Court gives clarity on what constitutes ‘tenant condition’ in right to buy

The London Borough of Hackney v Yisroel Weintraub ([2024] EWCA Civ 1561), revolves around the interpretation of the “tenant condition” under the Housing Act 1985, specifically in the context of the right to buy.

Case background

The case involves Rabbi Yisroel Weintraub, who was granted a secure tenancy by the London Borough of Hackney. After his wife’s death, Rabbi Weintraub used the property primarily for study but stayed overnight at his daughter’s house, he said, due to safety concerns. He applied to exercise the right to buy the property, intending to return once he could convert the basement into a separate flat.

Legal issues

The primary legal issue was whether Rabbi Weintraub’s intention to return to the property as an owner could satisfy the “tenant condition” under Section 81 of the Housing Act 1985. This section requires that the tenant occupies the dwelling as their only or principal home.

Court’s analysis

The Court of Appeal examined whether Rabbi Weintraub’s absence from the property and his intention to return as an owner met the statutory requirements for exercising the right to buy. The court considered precedents such as Islington London Borough Council v Boyle & Anr [2011] EWCA Civ 1450 and Havering London Borough Council v Dove & Anr [2017] EWCA Civ 156, which addressed the continuity of occupation and intention to return

Judgment

The Court of Appeal upheld the decision of Mr. Justice Zacaroli, allowing Rabbi Weintraub to exercise the right to buy. The court clarified that the tenant’s intention to return to the property as an owner was sufficient to satisfy the “tenant condition”. The court emphasised the importance of genuine intention and objective facts in determining the tenant’s principal home.

Practical implications

This case provides important clarity for local authorities and tenants regarding the right to buy under the Housing Act 1985. It underscores that tenants can exercise their right to buy even if they intend to return to the property as owners, provided they demonstrate a genuine intention and objective facts supporting their claim.

The Birketts view

This decision may impact how local authorities assess similar cases in the future. Proceedings relating to the tenancy condition frequently relate to the possibility of eviction rather than the tenant’s inability to proceed with a right to buy application. The judgment provides that a right to buy application can continue providing the tenant can show an intention to return and providing that their absence from the property has not been sufficiently lengthy that security of tenure is lost. It is conceivable that tenant lawyers will want to rely on this case in defence of eviction on grounds on non-occupation by raising any tenuous evidence possible that the tenant has an intention to return.

How Birketts can help?

Birketts has a specialist team of Housing Management lawyers to assist our clients in staying ahead. Our expert lawyers can advise on all aspects of housing and asset management from complex ASB claims, Equality Act defences, Building Safety issues, defending disrepair claims/EPA prosecutions, subletting/housing fraud cases, service charge disputes, s.20 consultation issues, applications to vary defective leases, to name but a few of the issues we can assist with. Our experts have decades of experience acting for registered providers and local authorities and offer a true ‘one stop shop’ for the issues facing the sector.