Out-Law News 5 min. read

Supreme Court: tenant cannot bring human rights claim against repossession by private landlord


The courts do not need to have regard to the tenant of a private landlord's rights to respect for her home under human rights laws when issuing a possession order, the Supreme Court has confirmed.

It had been asked to rule on a case brought on behalf of a woman with mental health problems who was the assured shorthold tenant of a house owned with a mortgage by her parents. Receivers appointed by the mortgage company, Capital Home Loans Ltd (CHL), had applied for a possession order under the 1988 Housing Act following defaults on the mortgage payments.

The 1998 Human Rights Act (HRA) prevents public authorities from disproportionately interfering with the rights of private citizens under the European Convention on Human Rights (ECHR). The tenant in this case, Fiona McDonald, had argued that the definition of 'public authority' extended to a court which was otherwise required to make a possession order. The Supreme Court disagreed, saying that to hold otherwise would allow private citizens to "alter their contractual rights and obligations".

Property law expert Craig Downhill of Pinsent Masons, the law firm behind Out-Law.com, said that the decision would "give comfort to landlords in the private rented sector".

"Whilst the decision will have been disappointing for the tenant and her landlords, it confirmed that it is not open to a tenant to take an 'article 8 defence' to possession proceedings under the 1988 Act in respect of an assured shorthold tenancy," he said.

"The Supreme Court's view was that the 1988 Act, and other statutes enacted by parliament which protected the rights of residential occupiers, sought to balance the competing interests of private sector landlords and their residential tenants; and that they provided clearly defined circumstances and mechanisms by which a landlord could recover possession of residential premises. The ECHR is concerned with protecting individuals from having their rights interfered with by the state. It is not its purpose to interfere with private contractual rights which had been tempered by these statutes," he said.

McDonald's parents had purchased the house in May 2005, which she rented through a succession of assured shorthold tenancies (ASTs). The last of these was granted in July 2008, for a term of one year, although McDonald continued to live in the property. The landlords missed a number of payments on the loan due to financial difficulties with their business, and in January 2012 receivers appointed by CHL issued a possession notice against McDonald. When that notice expired, they began court proceedings.

The 1988 Housing Act provides that a judge must grant an order for possession against an AST tenant who has been served with the appropriate order. In 2013, the county court judge in this case did so, after finding that the court was not required to consider the proportionality of such an order under human rights laws as the receivers and CHL were not a 'public authority'. However, he said that had he been entitled to consider proportionality he would have concluded that the possession claim was disproportionate. The Court of Appeal upheld the possession order, and also ruled that the judge would have been wrong to dismiss the claim on proportionality grounds had he been entitled to do so.

Giving the judgment of the court, Lord Neuberger and Lady Hale said that it was "now well established" that a tenant faced with a possession order was entitled to make an article 8 claim if the party seeking possession was a local authority landlord or other 'public authority'. If this was the case, the court had to decide whether the order was a proportionate means of achieving a legitimate aim. The judges noted, however, that in the "great majority of cases" these challenges "could and should be summarily rejected" given the statutory protections extended to tenants.

The preliminary view of the judges was that even if article 8 was engaged by a judge making an order for possession on the application of a private landlord, it was "not open" to the tenant to claim that this could "justify a different order from that which is mandated by the contractual relationship between the parties". Again, the fact that there were legislative protections in place which "the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants" was of relevance here.

"In effect, [these provisions] reflect the state's assessment of where to strike the balance between the article 8 rights of residential tenants and the [property] rights of private sector landlords when their tenancy contract has ended," the judges said.

"To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is, as we have mentioned, to protect citizens from having their rights infringed by the state. To hold otherwise would also mean that the Convention could be invoked to interfere with the [property] rights of the landlord, and in a way which was unpredictable," they said.

The judges then went on to consider similar cases which had been decided by the European Court of Human Rights in Strasbourg. They found that there was "no support" in these cases for the claim that the county court judge should have been required to consider proportionality when making the order for possession.

Although their judgment made it "unnecessary" to consider whether the trial judge would have been entitled to dismiss the claim on proportionality grounds, the judges said that doing so would give guidance to judges faced with a similar argument in the context of a possession claim by a public sector landlord. In this case, the amount due under the loan was nearly £164,000, and the best chance the lender had to recover that money was by selling the property with vacant possession.

"It is difficult to see how [McDonald's] circumstances, most unfortunate though they undoubtedly are, could justify postponing indefinitely the lenders' right to be repaid," the judges said. "In the circumstances, therefore, and on the evidence available to the judge, it seems likely that the most [McDonald] could hope for on a proportionality assessment would be an order for possession in six weeks' time."

Property law expert Craig Downhill said that although an article 8 defence by the tenant would not have been successful in the circumstances of this case, there would have been serious repercussions for private landlords had the Supreme Court found that tenants were generally entitled to argue their case on those grounds.

"The effect of such a defence is that proceedings would inevitably be delayed to the detriment of a landlord who might already be owed arrears of rent, and who might have had very valid reasons – quite apart from a tenant who was not paying the rent - for wishing to obtain possession of his premises," he said. "Bear in mind that the landlord also enjoys a right under the Convention to the peaceful enjoyment of his possessions, which will include the property he has let to his tenant."

"The introduction of such uncertainty and delay could only have served as a potential deterrent to those who might have wished to bring properties to the market for rent in the private sector, thereby adding to the difficulties in a housing market where it has been anticipated that in just a few short years, the private rented sector will be providing housing for one in four households," he said.

We are processing your request. \n Thank you for your patience. An error occurred. This could be due to inactivity on the page - please try again.