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Not at home alone, but intending to return


Weintraub v London Borough of Hackney (2024) EWHC 845 (Ch)

An appeal of the dismissal of a claim for a declaration that Rabbi Weintraub had the right to buy, which was dismissed on the basis that he was not occupying the property as his only or principal home.

Rabbi W had a secure tenancy from Hackney, starting in 2002, jointly with his late wife, who died in 2008. After the death of his wife, Rabbi W lived there alone, but, nervous of being alone in the property overnight, he arranged for various people to stay with him. These arrangements came to an end in 2017.  The Rabbi and his family came up with a plan that he would buy the property under the right to buy, and convert the basement into a separate flat where a family member could live. In the meantime, he usually (six nights out of eight) stayed overnights with his daughter, and otherwise with friends. During the day, the Rabbi studied and ate at the property.

The RTB application made in 2018 was refused on the basis that the property was not his only or principal home. In 2019 Hackney served notice to quit. Rabbi W brought the claim for a declaration of right to buy.

At first instance, before a circuit judge, the claim was dismissed. The CJ found as facts

(1) Since 2017, Rabbi Weintraub visits the Property – if not daily – at least for a considerable portion of the week, for several hours at a time between his morning and evening visits to the synagogue (where he also bathes).

(2) He spends his time in the Property in study and prayer, and eating the packed lunch which his daughter prepares for him.

(3) He spends the nights either at his daughter’s house, except at weekends when he stays with friends.

(4) He has an intention to return to the Property once the right to buy process is completed.

The CJ went on to hold that the property was used for study purposes and as a home, but not as a his only or principal home,

The contrary evidence is compelling. He sleeps elsewhere every night – mainly at his daughter and son in law’s. They care for him substantially. Whilst accepting that he is a man who requires little in the way of material possessions, the evidence demonstrates that the premises are used solely for study purposes akin to a library environment. The premises look practically empty and unused. He attends the synagogue each day on two occasions – and they along with his family and friends provide for him.

The CJ also held that an intention to return to the property did not arise because the evidence was of the Rabbi’s

“intention is to retain the secured tenancy enabling him to secure the right to buy. There is no evidence before me that (he) intends to return to his council tenancy.”

Rabbi Weintraub appealed, arguing

In support of the first ground, Mr Heath, who appeared for Rabbi Weintraub, first submitted that it was not open to the judge to find that the Property was not occupied by Rabbi Weintraub as a home, because the council had not pleaded otherwise, and had conceded that Rabbi Weintraub did occupy it as a home.

He then submitted that in order to make a finding that the Property was not Rabbi Weintraub’s only or main home, it was necessary for the judge to identify some other property which was his main home, and that the judge had failed to do so.

In support of the second ground, Mr Heath submitted that the judge had wrongly imported an additional requirement when considering the possibility that Rabbi Weintraub had an intention to return to the Property, namely that he must intended to do so qua tenant.

The High Court allowed the appeal on the second ground.

The Circuit Judge had indeed found that the Rabbi was occupying the property as ‘a’ home. The question was whether it was his only or principal home. In order to decide that, it was necessary for some other property to also be the tenant’s home.

The second question is whether it is necessary, in order to reach a conclusion that a dwelling-house is not a principal or only home, to conclude that some other property is the principal home. I think that it is. In order to conclude that a dwelling-house is not a person’s only home, it is logically necessary to establish that the person has another home elsewhere. Where a person has more than one home, then in order to conclude that one of them is not the principal home, it logically requires that one of the other homes is the principal home.

The first instance Judge may not have said simply said so, but it was clear that he considered the Rabbi’s daughter’s house was his principal home.

The first ground failed.

However, on the second ground, there was no precedent that the intention to return, so preserving the tenant condition, had to mean to return as a tenant under the existing tenancy.

Nor was the Rabbi’s intention an uncertain conditional or contingent one. It was, as per Tickner v Hearn (1960) 1 WLR 1406

“a real hope coupled with the practical possibility of its fulfilment within a reasonable time.”

The description in Dove v Havering LBC [2017] EWCA Civ 156 of

an intention to revert to a previous pattern of existence

was not applicable to the status as tenant or owner, rather just referring to a return to occupation as only or principal home.

As the cases I have referred to earlier make clear, it is not essential that a secured tenant is currently living in the premises as his or her only or principal home. An intention to return to such a pattern of existence is sufficient. If, for example, the secured tenant is spending a year working abroad, with the intention of returning to the premises thereafter, there is no reason why he or she could not exercise the right to buy at some point during that year of absence. The fact that the timing of the intended return is not tied to a particular date, but to the completion of the right to buy process, so that necessary works can be undertaken to enable Rabbi Weintraub to resume spending his nights at the Property, does not in my judgment justify a difference in outcome. As for the label, it is the substance of the condition that matters, and that refers only to occupying the “dwelling-house” – i.e. the physical property – as the only or principal home.

Accordingly, I conclude that Rabbi Weintraub’s intention to return to the Property as his only home, even though this is to happen only once he has exercised his right to buy the Property, is sufficient to satisfy the tenant condition.

Appeal allowed.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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