Jean-Yves Gilg

Editor, Solicitors Journal

Supreme Court rejects claim that possession order infringed tenant's human rights

Supreme Court rejects claim that possession order infringed tenant's human rights


Justices hold that proportionality arguments do not bite against private landlords

The Supreme Court has unanimously rejected an appeal by an assured shorthold tenant who claimed a possession order on her house was in breach of their human rights.

A mortgage on the property had been taken out by the tenant's parents but they fell behind with payments due to financial difficulties with their business. Following payment defaults the mortgagees appointed receivers, who served notice on the appellant seeking possession of the house.

The appellant, Fiona McDonald, 45, who suffers from a personality disorder, opposed the possession order on the grounds that it was incompatible with the right to respect for her home under article 8 of the European Convention on Human Rights (ECHR).

In addition, she also claimed that the receivers had not been entitled to serve notice on her in their own names. The case was heard by the Supreme Court in March after initial hearings at Oxford County Court and the Court of Appeal.

The court considered whether a court, when hearing a possession claim by a private sector landlord, was required by section 6 Human Rights Act 1998 and article 8 of the ECHR to consider the proportionality of evicting the occupier; and if so, whether it was possible to reinterpret section 21(4) Housing Act 1988, under which a mandatory possession order can be obtained, to provide for a proportionality assessment.

The five justices unanimously ruled that it was not open to a tenant to argue that article 8 could justify a different order from that which had been contractually agreed between the parties.

Furthermore, the housing legislation indicated where parliament had decided to strike the balance between the competing convention rights of the landlord and the tenant.

The Supreme Court added that the effect of the appellant's argument would be to alter the contractual rights and obligations of the parties and to interfere with the article 1 protocol 1 (property) rights of the landlord in unpredictable ways, and might result in financial loss to the landlord.

Finally, the court said that, since the proposed article 8 defence depended on the involvement of the court, the appellant's argument would create a perverse incentive for landlords to take the law into their own hands rather than bringing possession proceedings.

Commenting on the ruling, Michael Paget of Cornerstone Barristers said: 'None of the European cases justified modifying the arrangements of private parties beyond the domestic statutory framework.

'Article 8 prevents a public authority from interfering with a person's home life. Yes, technically the court was a public authority but it was obliged to follow clear domestic laws. Section 21 was clear domestic law and reading into it a proportionality defence would be inconsistent with the purpose of the Act.

'The judgment means that where a tenant has failed to dissuade a landlord from seeking possession they can't then ask the judge to stop the possession claim. Ms McDonald's personal circumstances were very challenging but the court held that none of the myriad of potential circumstances can delay a possession order beyond the six weeks "exceptional hardship" allowed for under section 89 of the Housing Act 1980. This is not a situation where pulling on a judge's heart strings is allowed.'

Specialist property litigation lawyers said the ruling will be welcomed by private landlords and mortgage providers as a ruling in the tenant's favour could have prevented them from securing possession of properties through the courts.

Chris Perrin, a partner and national head of property litigation at Irwin Mitchell, said: 'This is a significant case and if the appellant had been successful, it could have led to a major extension of the applicability of human rights into private disputes.

'Whilst the facts are quite tragic the decision will be welcomed by private landlords and their lenders. Had the decision been made the other way it would have led to significant further delays and costs in recovering possession.'