The Right to Buy and the “tenant condition”

Chloe Rixon analyses the Court of Appeal’s recent dismissal of an appeal by a London borough over an entitlement to exercise the Right to Buy.

On 13 December 2024, the Court of Appeal clarified in Hackney LBC V Weintraub [2024] EWCA Civ 1561whether a tenant in local authority accommodation who uses the property for limited purposes can satisfy the “tenant condition” in Section 81 of the Housing Act 1985 (“the 1985 Act”) for the purposes of exercising the right to buy under Section 118 of the 1985 Act. It is noted that the “landlord condition” under Section 80 of the 1985 Act was not in dispute.

Facts

In November 2002, Hackney London Borough Council (“the Council”) granted Mr Weintraub and his late wife a secure tenancy of the Property. From some time in 2017, for various reasons, Mr Weintraub chose not to sleep at the Property, though he would visit the Property for at least a considerable proportion of the week, if not daily.

In October 2017, Mr Weintraub applied to exercise his right to buy the Property, with his intention being to convert the basement into a separate flat, so that he could return as the owner and sleep at the Property, knowing someone else would be there. In April 2018, the Council denied Mr Weintraub’s right to buy the Property on the ground that he did not reside there as his only or principal home. Mr Weintraub ultimately sought a declaration that he has a right to buy the Property.

At first instance, HHJ Saunders held that Mr Weintraub was not entitled to the right to buy the Property. This decision was appealed to the High Court, with the judgment of Zacaroli J being handed down on 16 April 2024, finding that the “tenant condition” was met and Mr Weintraub was entitled to exercise the right to buy. The Council appealed this decision, the main ground of appeal being that the Judge was wrong to conclude that an intention to return to the Property as owner can satisfy the “tenant condition”.

Law – the 1985 Act

Section 79(1) provides:

A tenancy under which a dwelling-house [in England] is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.

Section 81 provides:

The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.

Section 118(1) provides:

A secure tenant [of a dwelling-house in England] has the right to buy, that is to say, the right, in the circumstances and subject to the conditions and exceptions stated in the following provisions of this Part…

Decision

The Council’s appeal was dismissed, because Mr Weintraub satisfied the “tenant condition”.

The Court indicated that in a case of absence, the intention to return to the Property is critical. However, Asplin LJ found that Section 81 of the 1985 Act does not require Mr Weintraub to intend to return to the Property in the capacity of tenant [52]. It was sufficient for Mr Weintraub’s intention to be to return as the owner.

Males LJ differentiated this case from the authorities cited in any event, commenting that this is not a case where Mr Weintraub was absent from the Property, given he was there every day or almost every day because it remained his principal home [72].

Takeaway points

Though it may seem like the most obvious takeaway point from this case is that an individual does not need to sleep in a property to satisfy the “tenant condition”, it is important to remember that each case is fact specific, and this was not regarded as a judgment that would open up the floodgates to allow tenants who have never lived in a premises to exercise the right to buy [56].

What remains of crucial importance is the ability to demonstrate a genuine and realistic intention to return to the property within a reasonable time frame, as such may allow an individual to be in continuing occupation. What was clarified is that this intention to return does not need to be in an individual’s capacity as a tenant.

Chloe Rixon is a barrister at New Square Chambers.