Under Article 8 of the European Convention on Human Rights (ECHR) everyone has the right to respect for his private and family life, his home and his correspondence and there is to be no interference by a public authority with an individual’s exercise of that right except in certain circumstances, such as in the interests of national security or for the prevention of a crime. In what is being hailed as a landmark decision concerning the role of human rights law in possession claims between a tenant and a private residential landlord, the Supreme Court recently ruled in McDonald v McDonald that there was no breach of a tenant’s right to live in a house where there were arrears of mortgage and possession was sought.
Miss McDonald was in her mid 40s and had suffered from a personality disorder and psychotic symptoms since childhood. In 2005 her parents purchased the property for her with the assistance of a loan and granted her a series of Assured Shorthold Tenancies on the basis that the rent would be covered by housing benefit payments. When the parents fell behind on their loan repayments, the loan company appointed a Receiver who served a notice, in the name of the parents, indicating that it would be seeking possession of the property and on expiry of that notice they issued possession proceedings.
At the initial possession hearing, Miss McDonald claimed that a possession order would violate her Article 8 rights and that the Judge should take into account the proportionality of making such an order. The Judge disagreed and found that he did not need to do that where the person seeking possession was not a public authority. Miss McDonald appealed but her appeal was turned down by the Court of Appeal.
She therefore appealed to the Supreme Court arguing that because the Court, as a public body, was granting the Possession Order, Article 8 and the test of proportionality would therefore be engaged despite the loan company being a private organisation.
However, the Supreme Court held that, although the Court was a public authority it merely provided a forum for the determination of civil rights and disputes between the parties and that any decision which required the courts to consider proportionality “would involve the Convention effectively being directly enforceable as between private citizens as to alter their contractual rights and obligations, whereas the purpose of the Convention is … to protect citizens from having their rights infringed by the state”. The appeal was therefore dismissed.
This decision will be welcome news for private landlords because if the Court had reached a different decision it could potentially have opened the floodgates to a variety of defences based on human rights whenever a landlord tried to obtain possession of a residential property. This case also highlights that a distinction must be drawn between private and public sector tenancies – the ECHR applying in public sector tenancies.
If you are involved in any property dispute and require advice and assistance then please contact Luke Patel of Blacks Solicitors on 0113 227 9316 or email him at “LPatel@LawBlacks.com”.
