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Article 8 ECHR cannot be invoked against private landlords in a possession claim

In McDonald v McDonald [2014] EWCA Civ 1049 the Court of Appeal provided clarity that a tenant cannot invoke Article 8 of the European Convention on Human Rights as a defence to possession against a private landlord.

The appellant, a vulnerable individual represented by a litigation friend, had been granted an assured shorthold tenancy (“AST”) by a private landlord.  The landlord relied on s 21 of the Housing Act (“HA”) 1988. Section 21 provides that once an AST has come to an end, and provided that the landlord has given not less than 2 months’ notice in writing, an order for possession shall be made. Therefore, the court does not need to consider reasonableness. A possession order was made. The appellant argued that the possession order contravened the right to respect for one’s home guaranteed by Article 8. 

Where the landlord is a public authority, it is well established that a tenant may invoke Article 8. This imposes a procedural obligation to provide the tenant with an opportunity to have the proportionality of the possession order determined by the court.  However, the CA held that this does not extend to a private landlord.

In dismissing the tenant’s appeal, LJ Arden set out [19]:

  1. There was no “clear and constant” jurisprudence of the Strasbourg court that the proportionality test implied into art 8(2) applies where there is a private landlord.
  2. Even if the proportionality test had applied in this case, the court would still have made a possession order. Although there was clear medical evidence that the tenant would suffer distress on moving home, the evidence did not go as far to say that she would suffer lasting and irreversible harm. As regards the rights of the landlord, the landlord owed £200,000 to a third party lender. Indeed in most cases, the balance is almost always going to be struck in the landlord’s favour because the landlord is enforcing his proprietary right to return of the property.
  3. In any event, the court is bound by Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, to hold that s.21 of the HA 1988 is compatible with the Convention. That precluded the court from holding that the proportionality test applies.
  4. In the circumstances, the question of interpreting s 21 of the 1988 Act to conform to Convention rights did not arise.

Philippa Seal / 1st Oct 2014


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