Appellant wins High Court dispute over right to buy council flat

A rabbi who mostly lived away from his council flat was still entitled to buy it from the London Borough of Hackney since the council could not establish that his main place of residence was elsewhere.

Mr Justice Zacaroli heard the case in the High Court, brought by Rabbi Yisroel Weintraub and rejected Hackney’s suggestion that his decision would “open the floodgates" to improper right-to-buy claims.

Rabbi Weintraub became a Hackney tenant in 2002 but after his wife’s death in 2008 grew nervous of being in the property on his own overnight - he is now aged in his late 80s - and arranged for others to stay.

Finding such companions became difficult and he decided to buy the property to convert the basement to a separate flat where someone else could live.

He meanwhile spent most nights at his daughter's house nearby or with friends, though he spent days at the property, where he kept very few possessions.

Hackney in January 2018 offered Rabbi Weintraub a 125 year lease, at £305,100, which he accepted.

But three months later the council denied his right to buy, on the grounds that he did not reside at the property as his only or principal home and in February 2019 it served notice to quit.

Rabbi Weintraub brought a claim against the council for a declaration that he had the right to buy the premises, which was dismissed by HHJ Saunders on the basis that he did not occupy the property as his only or principal home.

Two grounds of appeal were argued before Zacaroli J. The first that HHJ Saunders judge erred in law when finding the property was not Rabbi Weintraub's principal or only home.

Second, that the judge erred when holding that Rabbi Weintraub's intention to return to living exclusively at the property was not relevant because he only intended to return as an owner.

Rabbi Weintraub’s counsel argued that to make a finding that the property was not his only or main home, it had been necessary for the judge to identify some other property which was his main home, but this had not been done.

Counsel also argued HHJ Saunders had wrongly imported an additional requirement that Rabbi Weintraub must return to the property as a tenant.

Zacaroli J said he had to decide whether it is necessary to reach a conclusion that a dwelling-house is not a principal or only home, to also conclude that some other property is the principal home.

He said: “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.”

Zacaroli J said HHJ Saunders had found that Rabbi Weintraub's daughter's house was his principal home, having compared the limited daytime use of the property with the remainder of Rabbi Weintraub's daily and overnight life which centred around his daughter's home.”

HHJ Saunders’ reasoning for ignoring Rabbi Weintraub's intention to return to the property was a lack of evidence that he intended to "return to his council tenancy".

Zacaroli J said: “Neither party was able to point to any authority which addressed the question of whether an intention to return to a property held pursuant to a secure tenancy as a principal or only home was sufficient only if the intention was to return to the property as tenant under the existing council tenancy.”

He added: “I do not think the fact that Rabbi Weintraub's intention to return was conditional or contingent is in itself a reason to conclude that he did not remain in occupation for the purposes of the 1985 Act.”

The judge explained: “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.”

Zacaroli J added: “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.”

He rejected a claim by Hackney that his conclusion would ”open the floodgates to applications from tenants who were not currently in occupation of secure tenancies, and who were never intended to fall within the right to buy provisions of the 1985 Act”.

Zacaroli J said: “I consider that this overstates the dangers. It will always be necessary to identify a real and genuine intention to resume occupying the premises as the only or principal home.

“The facts of this case are unusual: there was a highly specific reason for ceasing to occupy the property as a principal home – the fear of sleeping in the property alone – which can readily be overcome by the alterations which Rabbi Weintraub plans to carry out on his return.”

Mark Smulian