31 July, 2014
Earlier this week, the Court of Appeal decided that a possession order granted to a private landlord of an assured shorthold tenancy did not breach Article 8 of the European Convention on Human Rights (ECHR).
In the case of McDonald v McDonald  EWCA Civ 1049, the tenant appealed against a decision to uphold a possession order granted in favour of the landlords' receivers. The facts of the case were that the tenant is vulnerable and suffers from a disorder which makes her particularly upset by changes in her environment. The tenant held an assured shorthold tenancy in respect of her property. The landlords of the property were her parents and the property was secured by way of mortgage. By granting the tenancy to their daughter they were in breach of the terms of their mortgage and later became unable to keep up repayments. The lender appointed receivers who served notice under s.21(4)(b) Housing Act 1988.
At the initial possession hearing, a possession order was granted in favour of the landlords' receivers. As the tenant had been granted an assured shorthold tenancy, the judge in the case was bound by the provisions of s.21(4)(b) which impose a duty on the Court to make a possession order if the Court is satisfied the assured shorthold tenancy has come to an end and the appropriate notice has been served on the tenant.
The tenant appealed against this decision on the ground that the possession order did not respect the right to respect for a person's home and was a disproportionate interference with her rights under Article 8 ECHR. The tenant's appeal was dismissed by the Court of Appeal for a number of reasons which are discussed further below.
The Court of Appeal highlighted that the ECHR permits interference with the right provided by Article 8, where this is necessary in a democratic society for the protection of the rights and freedoms of others. It is well established that this means that the interference must be proportionate to the importance of the right provided by Article 8. Additionally, it is also well established that where a landlord is a public authority they may not act in a way which is incompatible with the ECHR and so a tenant of a public authority may be provided with an opportunity to have the proportionality of the possession order determined by a Court.
Since the rulings in Manchester v Pinnock and Hounslow v Powell, a tenant facing possession proceedings by a public authority has been able to defend the proceedings by claiming that possession would be 'disproportionate' under Article 8.
The Court of Appeal in this matter stated that the dispute related to whether this proportionality test applies where a tenant of a private landlord contends that it would be disproportionate under Article 8 to make a possession order against them.
In dismissing the appeal, the Court of Appeal relied on the following reasons. Firstly, there is no clear and constant line of decisions provided by the European Court of Human Rights that the proportionality test applies when Article 8 is raised in a dispute between a tenant and a private landlord. Additionally, the Court of Appeal stated that they were bound by a previous decision - Poplar Housing and Regeneration Community Association Ltd v Donoghue - where it was decided that a s.21 Housing Act 1988 notice was compatible with the ECHR.
At Forbes we consider that this judgment will be a relief for private landlords seeking to recover possession of their properties. We understand that private landlords are often operating on tight margins which can be eradicated by expensive litigation but believe that this judgment will allow private landlords to recover possession of properties under s.21 Housing Act 1988 without costly arguments in relation to proportionality.