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  • Published:
    02 August
  • Area of Law:
    Landlord & Tenant

Article 8 of European Convention on Human Rights doesn’t apply in private possession claims

In a landmark appeal over the role of human rights law in possession claims between a tenant and a private residential landlord, the Supreme Court ruled in McDonald v McDonald [2016] UKSC 28 that there was no breach of a tenant’s right to live in a house where there were arrears of mortgage and possession was sought.

Facts

Fiona McDonald, the tenant, suffered from psychiatric and behavioural difficulties. The disorder made her very upset by changes to her environment. She had an assured shorthold tenancy in respect of a property in Oxfordshire. The landlords were her parents, who had a mortgage with Capital Home Loans Limited (CHL).

Under the terms of the mortgage it was prohibited to grant a tenancy to someone who was assisted by social security, and any tenancy to a family member had to be approved by CHL. Due to these breaches and the fact Mr and Mrs McDonald were unable to pay their mortgage instalments, CHL appointed LPA Receivers. Even though the tenant, continued to pay rent the mortgage arrears continued and the appointed receivers served a notice under Section 21(4)(b) of the Housing Act 1988 in order to obtain vacant possession and sell the property.

On the expiry of the notice, the Receivers issued proceedings against the tenant for possession of the property. Her doctor gave evidence stating that “if she was evicted from her current accommodation, this would have a major detrimental effect on the tenant’s mental health and she would decompensate entirely, very probably requiring admission to hospital”.

The tenant argued that her rights under Article 8 of ECHR were incompatible with a possession order being made.

Article 8 – what does it protect?

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety etc.

Both the district judge at first instance and the Court of Appeal concluded Article 8 did not apply as a private sector landlord was not a public authority.

The main question for the Supreme Court to answer was whether a “court” could be deemed to be a public authority for Article 8 to engage.

Decision

It was held that, although the “court” was a public authority, it merely provided a forum for the determination of civil rights in dispute between the parties and once it concludes that the private landlord is entitled to an order for possession, there is nothing further to investigate.

The statutory provisions governing residential possession cases are intended to balance the competing interests of private sector landlords and residential tenants removing any need for the court to consider whether the landlord’s actions are proportionate in individual cases. Section 21 of the Housing Act 1988 gives a landlord certainty that he can get his property back and a further evaluation of proportionality would contradict this entirely.

Comment

Private landlords and Receivers can breathe a sigh of relief. Any other outcome would have opened the floodgates to a swathe of defences based on human rights whenever a landlord tried to obtain possession of a residential property. The court has relied on a there being a distinction between private and public sector tenancies. When a local authority landlord applies for a possession order, the court must consider the proportionality of granting an order balanced against the human rights of the tenant. This is not the case where the tenant is in private rented accommodation. Otherwise the freedom of private parties to agree contractual arrangements between themselves would have been severely restricted with the unpalatable consequence that the number of properties to rent in the private rented sector would be likely to reduce at the very time the Sector is required to grow to compensate for the reduction in social housing.

For more information on the issues raised above, please contact Marina Perry.

"This is exactly why we like to work with people who understand the industry and can identify potential issues and create solutions."

Jon Saltinstall, Senior HealthCare Banking Consultant, Lloyds Bank