In a recent case, the Court of Appeal confirmed that the Housing Act 1988 is compatible with the European Convention of Human Rights (ECHR). Tenants cannot therefore rely on Article 8 of the ECHR to defend against a claim for possession issued by a PRIVATE landlord…for now, that is.
Ever since the 2010 case of Manchester City Council v Pinnock, it has been recognised that tenants can utilise Article 8 of the ECHR in countering an order for possession made by a public authority landlord, e.g. a housing association. This meant that tenants could defend possession proceedings commenced by public landlords based on the tenant’s human right to ‘a private life’, ‘a family life’, ‘respect for one’s home’ and ‘respect for one’s correspondence’.
However, what was left unanswered, and open to contest, by the Supreme Court decision in the above case was whether the same Article 8 (human rights) defence existed for tenants where a possession order was issued by a private landlord. Crucially, the Court of Appeal had clarified the position through its decision in the case of McDonald v McDonald & Anor, heard earlier this year. However, the tenant has now been given permission to appeal the decision.
The circumstances of the case were that Miss McDonald rented her property from her parents. When the parents defaulted on their mortgage payments, receivers were appointed by the lender, who subsequently sought possession of the property under the Housing Act 1988 by issuing a s.21 notice. The tenant’s response was to lodge an Article 8 proportionality defence, citing a range of psychiatric conditions that would make moving home particularly distressing for her. The defence was dismissed and the tenant lodged an appeal.
The Court of Appeal was unanimous in dismissing the appeal, arguing there was no prior case law support for an ‘Article 8 defence’ against a private landlord’s claim for possession. Further, the court argued that even if such a defence had been plausible, the property rights of the landlords – and the associated financial losses – would have outweighed the health concerns of the tenant in the circumstances of this particular case. Since the decision, the Supreme Court has granted permission to the tenant to appeal the decision, and so the saga continues.
Article 8 of the ECHR is a far-reaching piece of legislation that has been widely scrutinised for its broad application, from defending against the deportation of terrorists to attempting to secure prisoners’ right to vote in elections. It was only a matter of time before it reared its head in relation to private ASTs (Assured Shorthold Tenancies).
If the decision in the above case eventually settles in favour of the tenant, it is likely to lead to a similarly broad application of Article 8 to a wide range of new possession claim defences based on arguments of human right breaches. This may make it significantly more difficult (and costly) for landlords and managing agents to seek possession of rented properties. I will be keeping a particularly close eye on this appeal case as it proceeds though the courts since a decision in favour of the tenant will see the law governing the relationship between landlords and tenants fall further in favour of the tenant at the very real expense of landlords.
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