Supreme Court finds no Human Rights defence to possession claims made by private landlords

Written on 15 Jun 2016

In a judgment handed down on 15 June 2016 (here), the Supreme Court has upheld the position that a tenant cannot invoke Article 8 of the European Convention on Human Rights (ECHR) as a defence against possession proceedings brought by a private landlord.

What was the dispute about?

Article 8 of the ECHR provides that: (i) everyone has the right to respect for his home, and (ii) there may be no interference with that right by a public authority except in accordance with the law and so far as is necessary in a democratic society.

In McDonald (by her litigation friend Duncan J McDonald) v McDonald and others, Ms McDonald, the tenant of a property owned by her parents, was defending a claim for possession, brought by receivers (in the name of her parents). Ms McDonald argued that a possession order would violate her rights under Article 8, and that the judge should therefore have taken into account the proportionality of making an order for possession.

The County Court found against Ms McDonald, granting the receivers a possession order, but gave permission to appeal on the question of whether Article 8 should be taken into account in the making of any possession order. That appeal was dismissed by the Court of Appeal and a further appeal was made to the Supreme Court.

What did the Supreme Court decide?

In a unanimous judgment, the Supreme Court has held that the court is not required to consider proportionality in possession claims brought by private landlords against a residential occupier.

It is well established that when the landlord is a public authority (under section 6 of the Human Rights Act 1998), proportionality should be taken into account where an order for possession is sought. Ms McDonald argued that as the court is itself a public authority, a judge is required to take into account proportionality before granting an order, even where this concerns a private landlord.

The Supreme Court dismissed this argument, finding that the court is “merely the forum for the determination of the civil right in dispute between the parties” and whilst Article 8 may technically be engaged by the court’s involvement “… it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where there are legislative provisions through which the democratically elected legislature has balanced the competing interests of private sector landlords and residential tenants.”

In other words, parliament has already decided (through the provisions of the Protection from Eviction Act 1977, the Housing Act 1980 and the Housing Act 1988) where to strike the balance between the competing interests of the tenant and a private sector landlord.

Osborne Clarke comment

This decision provides welcome reassurance for private sector landlords that contractual rights can continue to be relied on. Where a person seeking possession is not a public authority, the court is not required to consider proportionality. Had the Court decided differently it would potentially have opened the floodgates for the ECHR to be used as a defence in private contractual matters.