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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Weintraub v London Borough of Hackney [2024] EWHC 845 (Ch) (16 April 2024) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2024/845.html Cite as: [2024] EWHC 845 (Ch) |
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BUSINESS AND PROPERTY COURTS IN ENGLAND AND WALES
CHANCERY APPEALS (ChD)
Fetter Lane London, EC4A 1NL |
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B e f o r e :
____________________
YISROEL WEINTRAUB | Claimant/ Appellant |
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LONDON BOROUGH OF HACKNEY | Defendant/ Respondent |
____________________
Mr Michael Paget (instructed by in-house Legal Department) for the Respondent
Hearing date: 26 March 2024
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VERSION
OF JUDGMENT
Crown Copyright ©
Mr Justice Zacaroli:
Introduction
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.
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.
V
of the 1985 Act.
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.
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
v
Havering LBC [2017] EWCA Civ 156, per Lewison LJ at §17.
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 andvisible
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."
v
Havering LBC (above), per Lewison LJ at §22.
The judge's judgment
(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.
"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 myview,
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 oddvisit
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, thatvery
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."
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 myview,
insufficient for him to demonstrate (on an objective basis) that this is his only or principal home – in accordance with the principles set out in Dove.
77. 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.
78. Mr Heath has suggested that his situation could be categorised as one akin to a sofa surfer and that it must follow that, as he has only one flat, that must be his only or principal home. I cannot agree with that submission – the true test is an objective assessment of whether this is the case. From these findings and those that I have expressed at some length earlier in this judgment (and I refer to paragraphs 21-60), I cannot find this to be the case."
Weintraub
intended to return to the Property, once the right to buy process was completed, the judge found, at §74, that "the question of an intention to return to the premises simply does not arise". That was because: "[his] 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."
Grounds of appeal
Weintraub's
principal or only home. Second, that the judge erred in law 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.
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.
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.
Weintraub
had an intention to return to the Property, namely that he must intended to do so qua tenant.
First ground of appeal
Weintraub
as a home at all, or whether he found only that it was not being used as his only or principal home.
Weintraub
was not using the Property as a home. I disagree. The judge's comment, at §56, that "this is not a case of abandonment but one to determine whether premises are used as the Claimant's only or principal home", and his conclusion at §76 that the fact that Rabbi
Weintraub
"treated" the Property as his home was insufficient to demonstrate that it was "his only or principal home", demonstrate that he was considering, and only considering, the second of the two questions posed by Lewison LJ in Dove. Moreover, that question is only relevant where it is either found, or assumed, that Rabbi
Weintraub
was occupying the Property at least as a home.
Weintraub's
principal home. Although the judge did not say so in terms, I consider that he did reach such a conclusion. Specifically he found that Rabbi
Weintraub's
daughter's house was his principal home. The judge's conclusion (at §78) that the Property was not Rabbi
Weintraub's
principal home was based on the findings reached earlier in the judgment. At §57 (set out in full above), he compared the limited use of the Property with the remainder of Rabbi
Weintraub's
daily – and crucially overnight – living needs, which he found "centred around his daughter's home".
Weintraub's
only or principal home.
Second ground of appeal
Weintraub's
intention to return to the Property is simply that there was no evidence that he intended to "return to his council tenancy".
Weintraub's
intention to return was a conditional or contingent one, and that the condition or contingency was too uncertain.
v
Kaye (1989) 21 H.L.R. 160. In that case, the tenant of the relevant premises, having moved out from them while certain repairs were carried out, intended to return only if certain additional works were carried out by the landlord. Slade LJ, with whom Hollings J agreed, applied the test propounded by Ormerod LJ in Tickner
v
Hearn [1960] 1 WLR 1406:
"I think there must be evidence of something more than avague
wish to return. It must be a real hope coupled with the practical possibility of its fulfilment within a reasonable time."
v
Cumming [1926] 2 KB 417; Wigley
v
Leigh [1950] 2 KB 305) this test was held to be satisfied where the tenant intended to return to the premises if and when their health improved, and where there was a realistic possibility of that occurring.
Weintraub
had a real hope to return, coupled with the practical possibility of its fulfilment within a reasonable time. That conclusion is inevitable in light of (a) the judge's finding of fact that Rabbi
Weintraub
intended to return to the Property once the right to buy process had completed, and (b) the fact that – subject only to the satisfaction of the tenant condition – Rabbi
Weintraub
was entitled to, and was in a position to, exercise the right to buy.
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.
view.
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.
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.
Weintraub
plans to carry out on his return. The reason for ceasing to use the Property overnight, and the proposed solution, reinforce that there is a real and genuine intention by Rabbi
Weintraub to restart occupying the Property as his principal home.