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Can you occupy a property as your principal home when you mainly sleep somewhere else?

The tenant was in his late 80's. His secure tenancy with London Borough of Hackney commenced in 2002. He had initially held the tenancy jointly with his wife, who died in 2008. After her death, he lived at the property alone, however, he was nervous of staying in the property on his own overnight and so he arranged for people to stay with him. However, that arrangement became difficult to sustain by 2017. At that point, the tenant decided that he wanted to buy the property under the Right to Buy legislation and to convert the basement into a separate flat, so that a family member could live with him. Until he could do this he spent time staying overnight with his daughter six nights a week, or with friends and, during the day he returned to the property so that he could study and eat.

For such an application to succeed, the tenant needs to occupy the property as their only or principal home. However, the law here (as with business tenancies) recognises ongoing occupation even where someone may not be physically present or living in the premises. This is a question of fact and degree, and the onus falls to the tenant to explain the position and to show a practical ability to return and prove their intention to do so within a reasonable time. 

In this instance, in 2018, the tenant's right to buy application was refused by the Council on the basis that he was not using the property as his only or principal home. In 2019, the London Borough of Hackney served a Notice to Quit and the tenant subsequently brought a claim for a declaration of his entitlement to exercise the Right to Buy.

A Circuit Judge initially dismissed the claim. The Circuit Judge did not dispute the fact that the tenant visited the property every day, in fact he spent time at the property to study, pray and eat. However, he spent the evenings at his daughter's house or with friends at weekends and he intended to return to the property once the right to buy process was completed. The Circuit Judge concluded that the property was not being used as the tenant's only or principal home. As part of this the Circuit Judge decided that the tenant's intention to return and carry out works to the premises, and occupy them as a principal home, could not be taken into account as that occupation would only take place at a point in time when the Right to Buy had been exercised. In other words, by that point the tenant would no longer be occupying as a secure tenant, but as a former secure tenant having purchased under the Right to Buy legislation.

The tenant appealed, arguing that the Judge had not made the appropriate findings of fact to support a conclusion that the property was not being occupied as the principal home. The High Court disagreed with these arguments. However, it upheld the appeal on the ground that the tenant's intention to return was not limited to returning as a secure tenant and that returning as a purchaser under the Right to Buy legislation would be acceptable. That stipulation did not appear in the legislation or the case law, and the Court considered it was unnecessary to read this in to the provisions. 

This case was unusual on its facts. The reason for leaving the premises and the basis of the intention to return were one and the same, which convinced the Judge that this decision was unlikely to open the doors to a flood of claims from secure tenants not living in their properties. Time will tell.