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Issue of proportionality and private landlords: MacDonald (by her litigation friend Duncan J McDonald) v McDonald and others

In the case of MacDonald (by her litigation friend Duncan J McDonald) v McDonald and others [2016] UKSC 28 the Supreme Court unanimously rejected the notion...

...that a court is required to consider the proportionality of making an order for possession where the person seeking possession was not a public authority - a question left unanswered in its judgment in Manchester City Council v Pinnock [2011] 2 AC 186.

(A) suffered from a personality disorder; her parents (R) purchased a property with the assistance of a mortgage; they let it to A under an assured shorthold tenancy. R were unable to meet loan repayments and the lender appointed receivers who served notice on A under s.21 Housing Act 1988 seeking possession. Possession was not given up, proceedings were issued and an order for possession made. The trial judge said that he was not required to consider proportionality but indicated that if he had been entitled to do so he would have dismissed the claim as being disproportionate. The Court of Appeal dismissed A’s appeal.

The Court held that where a public body within the meaning of s.6 Human Rights Act 1998 seeks possession, an occupier can question the proportionality of making such an order; however in Pinnock the Court made clear this did not apply to cases where the person seeking possession was a private landowner. A argued that the same reasoning should apply because the court which would grant the order for possession is a public authority for the purposes of the HRA.

In its ‘preliminary view’ the Court concluded that Article 8 could not be used to justify a different order than that mandated by the contractual relationship between the parties particularly where legislation had been enacted to balance the competing interests of private sector landlords and residential tenants; to do otherwise could render the ECHR directly enforceable as between private citizens so as to alter their contractual rights and obligations.

Other Strasbourg authorities were inconsistent with A’s case and there was no support for the proposition that the judge could be required to consider proportionality under s.89 of the Housing Act 1980 or the Housing Act 1988. Very rarely would be it justifiable to refuse to grant an order for possession and this would occur only where the landlord’s interest in regaining possession was heavily outweighed by the gravity of the interference in the occupier’s right to respect for her home. 

Erol Topal / 14th Jul 2016


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