Yisroel Weintraub v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Mr Justice Zacaroli |
| Judgment Date | 16 April 2024 |
| Neutral Citation | [2024] EWHC 845 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH-2023-000205 |
[2024] EWHC 845 (Ch)
Mr Justice Zacaroli
Case No: CH-2023-000205
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN ENGLAND AND WALES
CHANCERY APPEALS (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr Duncan Heath (instructed by Clarke Mairs Law Limited) for the Appellant
Mr Michael Paget (instructed by in-house Legal Department) for the Respondent
Hearing date: 26 March 2024
Introduction
Rabbi Weintraub and his late wife were granted a secure tenancy of a council flat in the borough of Hackney, London (the “Property”) on 4 November 2002, pursuant to ss.79–81 of the Housing Act 1985 (the “1985 Act”). After his wife died, in June 2008, Rabbi Weintraub continued to live there on his own. Nervous of being in the Property on his own overnight, however, he arranged for a succession of people to stay with him. Those arrangements came to an end in 2017.
At the time that it became more problematical to get people to stay overnight with him, Rabbi Weintraub, in discussion with his family, formulated a plan to buy the Property with the intention of converting the basement into a separate flat where someone else, such as a grandchild, could live. As there was no-one who could stay in the Property with him overnight, he began to spend the nights elsewhere – usually (approximately six nights out of every eight) at his daughter's house nearby, but on other nights (when his daughter had other guests staying) with friends. Apart from his twice daily attendance at the synagogue, Rabbi Weintraub's days were mostly spent at the Property, where he spent his time in study and eating meals made for him by his daughter. He kept very few possessions at the Property, which was practically empty.
On 18 October 2017 he applied to the council for the right to buy the Property under Part V of the 1985 Act.
On 8 January 2018, Rabbi Weintraub was offered a 125 year lease, at a premium of £305,100, which he accepted on 29 March 2018. On 24 April 2018, however, the council denied his right to buy, on the grounds that he did not reside at the Property as his only or principal home. A second application for the right to buy the Property was also refused and, on 18 February 2019, the council served Rabbi Weintraub with a notice to quit.
Rabbi Weintraub, who is now in his late eighties, brought a claim against the council for a declaration that he had the right to buy the premises. After a two-day trial, HHJ Saunders dismissed the claim on the basis that Rabbi Weintraub did not occupy the Property as his only or principal home. This is an appeal against that decision.
The law
By s.79(1) of the 1985 Act, a tenancy under a dwelling-house is let as a separate dwelling as a secure tenancy at any time when the conditions described in ss.80 and 81 as the “landlord condition” and the “tenant condition” are satisfied. The landlord condition includes, by s.80(1), that the landlord is a local authority (and is therefore satisfied in this case). The tenant condition is, in the case of an individual, that “the tenant … occupies the dwelling-house as his only or principal home”: s.81.
By s.118 of the 1985 Act, subject to certain conditions which are not relevant to this appeal, a secure tenant of a dwelling-house has the right to buy it.
The tenant condition involves two questions: (1) does the person in question occupy the dwelling as a home and (2) if so, does he or she occupy it as his or her only or principal home? – see Dove v Havering LBC [2017] EWCA Civ 156, per Lewison LJ at §17.
A person may be in occupation of a dwelling as a home, even though they are not currently living there. The principles to be applied in determining whether a tenant continues to occupy a dwelling as his or her home despite living elsewhere were summarised by Etherton LJ in Islington LBC v Boyle [2011] EWCA Civ 1450, at §55:
“First, absence by the tenant from the dwelling may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree. Secondly, assuming the circumstances of absence are such as to give rise to that inference:
(1) the onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased;
(2) in order to rebut the presumption the tenant must have an intention to return;
(3) while there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a “practical possibility” or “a real possibility” of the fulfilment of the intention to return within a reasonable time;
(4) the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it. Thirdly, two homes cases, that is to say where the tenant has another property in which he or she voluntarily takes up full-time residence, must be viewed with particular care in order to assess whether the tenant has ceased to occupy as a home the place where he or she formerly lived. Fourthly, whether or not a tenant has ceased to occupy premises as his or her home is a question of fact. In the absence of an error of law, the trial judge's findings of primary fact cannot be overturned on appeal unless they were perverse, in the sense that they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts.”
The same principles are “also engaged where the tenant ceases to occupy the property as his or her only or main home even if he or she continues to occupy it as a home; as for example where what has once been the tenant's only home becomes no more than a weekend holiday home. Moreover, the question of an intention to return … is in reality an intention to revert to a previous pattern of existence”: Dove v Havering LBC (above), per Lewison LJ at §22.
The judge's judgment
The facts were not materially in dispute before the judge. His findings, at §51 to §55 of his judgment, may be summarised as follows:
(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.
I set out the judge's findings at §56–58 in full:
“56. However, this is not a case of abandonment but one to determine whether the premises are used as the Claimant's only or principal home. In my view, the premises are used (or were used at least from 2017 onwards) mainly for study purposes – however laudable that is.
57. The Claimant does not sleep there. He does not entertain there, apart from the odd visit such as family or friends. Not unnaturally in view of his age, he is heavily reliant on his daughter and son-in-law, and Mr Schiomoni (and indeed the local synagogue) for the remainder of his daily and, crucially, overnight living needs – but, in my view, that activity is largely centred around his daughter's home not the premises.
58. I do find it surprising that, irrespective of his frugal nature, that very little of his personal belongings are left in the premises. The basement contains only a few, as can be seen from the photographs taken by Mr Seridag. More importantly, the premises are practically empty, even if one recognises that the photographs, I have seen may not be completely exhaustive.”
On the basis of these findings, the judge concluded that the Property was not Rabbi Weintraub's only or principal home. At §76 to §78 he concluded as follows:
“76. Accepting that certain bills and bank account statements in the Claimant's name are delivered to the premises, and that he at least has a presence there during the daytime, such that he treats the premises as his home, that is, in my view, insufficient for him to demonstrate (on an objective basis) that...
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