How the Human Rights Act Applies to Private Landlords

... and the European Convention on Human Rights can be invoked against private landlords.

The facts

Ms McDonald, who suffered from mental health issues, was the tenant of a property in Witney which was owned by her parents.

Ms McDonald's parents fell behind on the mortgage payments, which resulted in the bank serving a notice on Ms McDonald under section 21 of the Housing Act 1988 to seek possession, and then bringing possession proceedings in the county court.

Ms McDonald defended the proceedings on the basis that the house was her 'home', and a possession order would not be compatible with Article 8 of the European Convention on Human Rights. Article 8 provides a right in respect of one's "private and family life, his home and his correspondence". She claimed that on the basis that the courts themselves are a 'public authority', under the ECHR, the court was required to consider the proportionality of evicting her.

The county court held that it was not required to consider the proportionality of making an order for possession against a tenant where the landlord was not a public authority, and the court was therefore required to make a possession order. The judge giving judgment did add that, had he been entitled to consider proportionality, he would have concluded that the claim for possession was disproportionate and he would have dismissed the claim.

Ms McDonald appealed the Court of Appeal. The Court of Appeal dismissed Ms McDonald's application, and she then appealed to the Supreme Court.

The Supreme Court's decision

The Supreme Court unanimously dismissed Mrs McDonald's appeal for the following reasons:

• The Court did not agree that the Court itself was a 'public authority' under the HRA 1998. They considered that if this was the case, the ECHR would have 'significant implications' as it could then apply to all private disputes. The Court said that the ECHR was not designed to vary contractual rights and obligations agreed between private citizens.
   
• Whilst there are authorities which have held that Article 8 is engaged on the marking of a possession order against a residential tenant, this does not mean that the court is required to consider the proportionality of the order.  
  
  
• In the rare cases when the court is required to assess the proportionality of making a possession order, the landlord's interest in regaining possession must be "heavily outweighed by the gravity of the interference" in the tenant's right to respect for her home. In this particular case, the court took the view that the bank's right to enforce their security over the property prevailed over the tenant's health considerations.  
  
  
• Any other ruling in these circumstances would destroy the effect of section 21 of the Housing Act 1988, which provides a no fault ground for the landlord to obtain possession.

Conclusion

This is an important decision which has clarified the application of Article 8 in situations where the there is a private landlord. A tenant seeking to rely on the ECHR in cases where a section 21 notice has been served by a private landlord, will find it difficult (if not impossible) to defend possession proceedings in reliance on the ECHR.

If you require advice in relation to ending a tenancy please contact Georgina Little in our Commercial Property Law Team on 0117 314 5348.