A welcomed court decision on human rights as a defence to residential tenancy possessions

The UK Supreme Court has recently handed down judgement resolving uncertainty over the extent to which Article 8 of the European Convention on Human Rights (the right to respect for one’s “private and family life, home and correspondence”) should apply to a residential tenancy possession claim brought by a private Landlord. The Convention is primarily intended to protect individuals from the excesses of state/public bodies.

In the tenancy possession case of McDonald v McDonald, the main facts were as follows:

1. Miss McDonald occupied a property, owned by her parents, as an assured shorthold tenant (a private landlord and tenant arrangement);
   
2. The property was mortgaged and the parents were subsequently found to be in breach of the mortgage terms;
   
3. A receiver appointed under the terms of the mortgage served Miss McDonald with a Section 21 Notice;
   
4. A County Court Judge at first instance granted a Possession Order against Miss McDonald.

Miss McDonald appealed, firstly to the Court of Appeal and ultimately to the UK Supreme Court, arguing that Article 8 of the European Convention on Human Rights should apply to her case and be taken into account when deciding whether to grant a Possession Order.

Both Courts dismissed her appeals and ruled that it was not open to private residential tenants to involve Article 8. To allow the appeal would essentially mean that the European Convention on Human Rights could be said to be directly enforceable as between private citizens “so as to alter their contractual rights and obligations”. The Supreme Court Judges went further and stated that even if they had been able to find that the Possession Order was disproportionate under Article 8, this did not necessarily mean that the possession claim would have been refused outright. The Judges concluded that at best the involvement of Article 8 may have resulted in an Order for Possession in 6 weeks time as opposed to the usual “14 day” Order.

The Supreme Court Judgment handed down on Wednesday 15th June 2016 provides welcome clarification to both private landlords and those advising them.

See our page Advice for Residential Landlords to see how Holmes & Hills Solicitors' Landlord & Tenant Law specialist, David Dixey, can help you protect your interests as a landlord.