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Newsflash: Supreme Court confirms no human rights/proportionality defence to eviction by private landlord

Key on tenancy document Print publication

16/06/2016

The Supreme Court has confirmed, in the high profile case of McDonald v McDonald & Ors [1], that tenants cannot resist eviction by a private landlord on the basis of the human rights/proportionality defence. Housing expert Karl Anders explains this important decision.

The ‘proportionality’ defence

Walker Morris has reported previously on the developing application of human rights law to the defence of possession proceedings [2]. Put simply, human rights legislation affords every person the right to respect for his or her home and the peaceful enjoyment of possessions without interference, except in accordance with the law or so far as is necessary or in the public interest in a democratic society.

In the earlier case of Manchester City Council v Pinnock [3], the Supreme Court ruled that a person at risk of dispossession of his or her home is entitled to challenge the proportionality of an eviction by a public authority under Article 8 of the European Convention on Human Rights (the Convention), notwithstanding that, under domestic law, his or her right of occupation may have come to an end.

Tenants hoping to avoid eviction by public authorities have sought to rely on these important human rights principles in myriad ways over recent years. Pinnock did not determine, however, whether tenants facing eviction by a private landlord could also raise the proportionality defence. That question has now been definitively answered, in the negative, by the Supreme Court in the McDonald case.

Public law protections v private contractual rights

The facts of the case are unfortunate. Mrs and Mrs McDonald (together, the Landlord) purchased a house with the benefit of a mortgage loan and rented it, on an assured shorthold tenancy, to their disabled daughter. When the Landlord suffered financial difficulties and defaulted, the lender appointed receivers. In accordance with the terms of the mortgage, the receivers served notice to terminate the tenancy and sought to recover possession of the premises via court proceedings on behalf of a private landlord. The County Court found that the tenancy had been lawfully brought to an end and therefore felt bound to order possession. The tenant appealed, first to the Court of Appeal and then to the Supreme Court, relying on the proportionality defence.

The Supreme Court has now confirmed that a tenant cannot contend that Article 8 could justify an order other than a possession order in circumstances where a valid notice has been served, pursuant to section 21 of the Housing Act 1988 (the 1988 Act), to lawfully terminate an assured shorthold tenancy. The court reasoned that the 1988 Act has been enacted by a democratically elected legislature to properly balance the competing interests of private sector landlords and residential tenants. To find otherwise, and thereby to allow tenants to resist private landlord evictions on the basis of the proportionality defence, would be to allow the Convention to interfere with private contractual rights (whereas its intention was only to protect citizens from having their rights infringed by the state) [4].

The Supreme Court also held that even if the Article 8 defence did apply in this case, the tenant’s only remedy would have been a declaration of incompatibility [5], which would not have assisted her living situation. Furthermore, even if that were wrong and a proportionality assessment was required, the court commented that “very few and far between” would be the cases in which proportionality would render it justifiable to refuse, as opposed to merely postpone, possession [6]. The most the tenant could ever have even hoped for in this case would have been a six week stay of execution of possession [7].

WM Comment

Although this decision is undoubtedly hard on the tenant and her parents, it is legally correct and authoritative, and it is valuable in its affirmation of the importance of individuals’ private contractual rights. From a practical point of view, this case should also enable landlords, practitioners, and the courts where necessary, to deal quickly and simply with possession actions brought under section 21 of the 1988 Act, including dismissing summarily attempts to raise the proportionality defence in private cases.

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[1] [2016] UKSC 28
[2] See some of our earlier, related briefings: https://www.walkermorris.co.uk/publications/increasing-impact-article-8-echr-issues-mortgage-possession-claims/; https://www.walkermorris.co.uk/publications/banking-matters-january-2015/should-i-stay-or-should-i-go-the-position-of-a-joint-tenant-whose-partner-has-served-a-notice-to-quit/ and, for a summary of the Court of Appeal decision in the McDonald litigation, please see our earlier briefing
[3] [2011] 2 AC 186
[4] paras 40 and 41
[5] See section 4 of the Human Rights Act 1998
[6] paras 61 – 70
[7] i.e. the maximum period by which possession may be postponed pursuant to section 89 of the Housing Act 1980 in cases of exceptional hardship to the tenant or other occupier.

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