The Court of Appeal (CoA) gave clarity on what constitutes ‘tenant condition’ in the right to buy (RTB).

Background:

On 4 November 2002, the Council granted Rabbi Weintraub and his late wife a secure tenancy of the property. After his wife died in June 2008, Rabbi Weintraub continued to live at the property. Due to his anxiety, he would often stay overnight at his daughter’s or with relatives and friends and thus used the property as a place of study.  He bathed at the synagogue and brought a packed lunch to the property. 

On the 18th of October 2017, Rabbi Weintraub applied to exercise his right to buy the property. That application was admitted and the Council offered the Rabbi a 125-year lease of the property at a ground rent of £9 per annum and a premium of £305,100. The offer was accepted on the 29th of March 2018.

However, on the 24th of April 2018, the Council denied the Rabbi’s RTB the property on the grounds that Rabbi Weintraub did not reside at the premises as his only or principal home. He made a second application on the 23rd of May 2018 which was also rejected on the same grounds. On the 18th of February 2019, the Council served a ‘notice to quit’ on the Rabbi on the grounds that he was no longer a secure tenant, since he ceased to satisfy the “tenant condition” under Section 81 of the Housing Act 1985. 

The High Court decided in favour of Rabbi Weintraub, ruling that the ‘tenant condition’ was met, and the Council appealed. 

Decision: 

The CoA dismissed the appeal and upheld the High Court decision. The Court ruled that the tenant condition requires that the tenant is an individual holding a secure tenancy and occupies the property as their only, or principal home. The Court rejected the Council’s argument and concluded that the intention to return to the property as an owner rather than a tenant does not negate the fulfilment of the tenancy condition.

The Court noted that “none of the authorities addresses the question of whether the tenant must intend to return as a tenant. They were focused on whether the secure tenant in each case had lost that status and could be evicted rather than the secure tenant’s ability to exercise the RTB. It is necessary, therefore, to return to basic principles. As I have already stated, I do not consider that there is anything in Section 81 that requires the tenant, in the sense of the individual to whom the contractual tenancy has been granted, to intend to return to a property in the capacity of a tenant, or to resume using the property as the principal home in that capacity. I agree with Zacaroli J that it is sufficient that they genuinely believe the dwelling house to be their principal or only home and intend to return to use it as such, albeit once their RTB has been exercised. They fulfil the tenant condition because, at the relevant time, they are the tenant and continue to occupy the dwelling house as their only or principal home in the extended sense which has been understood in the case law since Brown v Brash and Ambrose, in 1948, if not before.” Rabbi Weintraub was, therefore, still a secure tenant and enjoyed the RTB. 

Implications:

This is an important decision on the right-to-buy legislation. It is now clear that a person can satisfy the tenant condition despite not occupying the property as their only or principal home at the time of the application to buy. The tenant condition under Section 81 of the Housing Act 1985 can be met if the tenant demonstrates a genuine and realistic intention to return to the property as their main residence.