McCann v UK - A new emphasis on fairness


26 June, 2008

Tenants' lawyers up and down the country are currently anticipating a new uprising of defending possession proceedings on a par with the era of Communism of the 20th Century. Such is the enthusiasm with which they have greeted the European Court of Human Rights decision in McCann v UK. But before landlords immediately resign themselves to yet another victory for tenants, the judgment deserves some scrutiny.

The basic facts were that Mr McCann and his wife were tenants of Birmingham City Council. The relationship ended due to domestic violence and Mrs McCann fled the property. Mr McCann was then evicted temporarily by a non-molestation and ouster order and Mrs McCann returned. She left again and handed in her keys after Mr McCann kept coming back in breach of the Court order. After some time, the relationship improved and Mr McCann returned to the property on his own and carried out repairs, meaning that the house was under-occupied. He then applied for a mutual exchange, which his estranged wife supported.

At this point, Birmingham CC panicked and asked Mrs McCann to sign a tenant's notice to quit, also known as notice to terminate. This irrevocably ended the tenancy, although they did not tell Mrs McCann that this would be the effect of the notice. Mrs McCann tried to retract the notice but was not legally able to. After several years of litigation, Mr McCann was finally evicted.

The European Court accepted that the Council had to manage scarce housing resources and that its ultimate goal was a legitimate one. However, it was struck by the fact that there was no real defence to a claim for possession based on a tenant's notice, and that there was therefore no effective means for Mr McCann to challenge how appropriate the eviction was. This was a fair point: the council's action was at best a cheap shot and at worst an abuse of process. The case was exceptional in that Mrs McCann would not have signed the notice if she had known what it was, and the alternative would have been to evict Mr McCann on Ground 2A (domestic violence), which requires the Court to examine how reasonable the eviction would be. Perhaps if the Council had not resorted to such tactics, then the decision of the European Court might have been different.

The European Court went so far to say that the loss of the home is the most extreme form of interference with the right to respect for the home, and that in principle a tenant facing eviction should always be able to challenge the proportionality of the eviction process. The would mean creating an entirely new defence of "proportionality".

The European Court then offered landlords the reassurance, which will be viewed with some scepticism, that an "arguable" defence will only be raised in exceptional circumstances and the majority of cases will be dealt with at the first hearing. Clearly, European human rights judges have never sat in a busy possessions list on a Wednesday morning!

The reality is that tenants' solicitors and counsel are going to trot out this quote at every possible opportunity, to anyone who will listen, and will continue to turn up unannounced on the day of the hearing and seek adjournments whenever they think they can get away with it in NTQ cases, in Section 21 cases, and in Ground 8 cases. They will argue that the Court has to give effect to the tenant's human rights, even where the landlord is an RSL, to which the Human Rights Act 1998 will not usually apply (since RSLs as private companies are not normally considered part of the "State").

I have four suggestions on how to deal with this:

  1. Ensure that you are evicting a tenant for the right reasons. The European Court agreed that the Council had to manage scarce housing resources. Keep a written record that this is the reason for evicting the tenant, and that you consider this action a justified interference with their right to respect for the home. In coming to this decision, you should consider whether there are any alternatives available, and why your preferred method is better in the circumstances (this can include the relative cost of the lengthier routes).
  2. In Notice to Quit and Surrender cases, ensure that the tenant has been told the effect of the notice or surrender, that they have been offered a chance to get independent legal advice, and they have not been put under any pressure to sign or been given any misleading information.
  3. In unusual cases where you think the tenant might dispute the claim, ask the County Court to list the possession hearing for 30 minutes instead of the usual 5, and brief a Solicitor to attend the hearing. This will enable more claims to be dealt with on the first day as there will be more time to discuss legal arguments.
  4. Write to the tenant well in advance of the hearing date inviting them to provide any evidence they wish to rely on before the hearing. This will help to undermine their credibility if they start to make accusations of abuse of process on the day itself.

In practice, there are going to be more adjournments of these types of case than there were previously. The decision is a welcome reminder to social landlords that they must act fairly when seeking to evict someone from their home. But if basic principles of fairness are adhered to, and sufficient time is given in hearings to demonstrate to the Court that this has been the case, then landlords should not have to fear a revolution in the way possession actions are dealt with by judges.


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