It has long been established that when a tenant is not occupying their home but has an intention to return, they may retain their security of tenure. 

There has been some judicial decisions recently that provide further clarification on this principle. 

We previously reported on the case of Weintraub v Hackney LBC here. 

To recap: Mr W had originally been a joint secure tenant with his wife. He became a sole tenant when his wife died. He struggled to sleep alone in the property after his wife died and so in the short term, he would stay with relatives overnight but be in the property during the day. 

The plan for the longer term was to buy the property pursuant to his Right to Buy (RTB) so that he could convert the basement to a flat for a family member to stay in and then he could begin to sleep in the property again. 

Hackney LBC denied his RTB, saying that he had lost it because he didn't occupy the property as his only or principal home (although they conceded that he did still use it as a home). The court on appeal decided otherwise. 

The council had failed to identify an alternative property that was Mr W's only or principal home and therefore the property remained his only or principal home. The court held that he had a clear intention to return to the property following the RTB and works. The contingency nature of these aspects did not matter to the intention to return. 

There is now a new decision in this case, resulting from an appeal by Hackney LBC. Hackney LBC appealed the above decision on the basis that because Mr W's intention to return was as an owner rather than a tenant, that intention could not satisfy the ‘tenant condition’ and therefore Mr W had indeed lost his security of tenure. 

The tenant condition for secure tenancies comes from Section 81 of the Housing Act 1985. It says that part of the criteria for a secure tenancy to exist is that ‘the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.’ This is largely mirrored for assured tenancies. 

In a Judgement dated 13 December 2024 the Court of Appeal decided against Hackney LBC. It held that the wording of Section 81 HA85 (the tenant condition) does not specifically specify occupation as a tenant (as opposed to a homeowner). Therefore an intention to return does not have to be an intention to return as a tenant. It could be an intention to return as a homeowner, as was the case here. 

Mr W genuinely believed that he would be able to return to the property once he had exercised his RTB and converted the basement to allow a family member to live there. This belief reflected reality when assessed objectively. Therefore, the tenant condition was satisfied and the RTB could be exercised.

This case is unlikely to have wide application as the facts are so specific. However, the principals at play are not limited to the context of a RTB applications and secure tenancies only. It goes to the issue of security of tenure more generally - both secure and assured. It demonstrates that an intention to return can and will be widely interpreted. This means that security of tenure can be retained despite apparent non-occupation and limited scope for return. The facts of each case will need to be considered on a case by case basis. 

As a general point when it comes to a property that appears not to be occupied, we always recommend that when serving a Notice to Quit (NTQ), you also serve a Notice of Seeking Possession (NSP) on whatever grounds apply (even if just breach of tenancy for non-occupation).  And then when you issue a possession claim, you plead the NSP in the alternative to the NTQ. That way, if an intention to return is established in possession proceedings and the NTQ becomes ineffective, you still have an NSP to fall back on. 

This could help you salvage the claim (perhaps an SPO on terms of occupation if not outright possession) or could assist with the issue of costs even of no order is made (because your cause of action didn't fall away entirely). 

This case highlights again that relying on loss of security of tenure and an NTQ only leaves you as the landlord more vulnerability in a possession claim because the issue of ‘intention to return’ can be generously interpreted by the court.