The UK Supreme Court has dismissed the appeal of a tenant fighting eviction on the grounds of her right to respect for private and family life under Article 8 of the European Convention of Human Rights (ECHR).
The case concerned receivers acting for a bank seeking to repossess a property from a defaulting private landlord. The landlord’s daughter – having lost two public housing tenancies on account of severe psychiatric and behavioural issues – was living in the property.
The tenant appealed, first to the Court of Appeal and then to the Supreme Court, relying on the defence of proportionality. The Court of Appeal found that it was not open to it to consider the question of proportionality of the eviction, as possession was not being sought by a public body as provided for under the Human Rights Act 1998. Had the option been open to the Court, it would “have taken the view that those circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate”.
The Supreme Court confirmed the position that Article 8 does not impede a possession order in circumstances where a valid notice has been served to lawfully terminate an assured shorthold tenancy, pursuant to section 21 of the Housing Act 1988. The Court reasoned that the 1988 Act was 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.
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, 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. The most the tenant could ever have even hoped for in this case would have been a six week stay of execution of possession.
While it has been well established that proportionality may be considered when the person seeking possession is a public authority, this is the first case to consider whether the principle applied to a private owner.
Click here to read the judgement in McDonald v McDonald.