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Supreme Court rejects Article 8 defence by tenant in possession claim brought by private landlord

On 15 June 2016 the Supreme Court handed down its much anticipated decision in McDonald (by her litigation friend Duncan J McDonald) v McDonald and others [2016] UKSC 28

The court unanimously held that a tenant of a property owned by a private landlord could not rely upon Article 8 of the European Convention on Human Rights as a defence to possession proceedings.

The tenant had suffered from psychiatric and behavioural problems since she was five years old; she lost two public sector tenancies owing to her behaviour. Her parents bought her a property for her to occupy using a mortgage and granted an assured shorthold tenancy to her. Unfortunately, they ran into financial difficulties and the mortgage company appointed receivers. The receivers served a section 21 notice under the Housing Act 1988 and brought a claim for possession.

If it had been a public authority seeking possession of the property, the tenant would have been able to raise a possible defence under Article 8 of the European Convention on Human Rights. This provides that everyone has the right to respect for his private and family life and home. In Manchester CC v Pinnock [2010] UKSC 45; [2011] 2 AC 104 the Supreme Court held that at a person at risk of being dispossessed of his home by a public authority has the right to challenge the proportionality of his eviction despite the fact that, under UK domestic law, his or her right of occupation has come to an end.

In McDonald, the Supreme Court refused to extend this possible defence to tenants of private landlords. The Housing Act 1988 had been reviewed a number of times and amended by Parliament after the passing of the Human Rights Act 1998. While a public landlord is a ‘public authority’ under section 6 of the 1998 Act, a private sector landlord is not. The purpose of the Convention is to protect citizens from having their rights infringed by the state. Furthermore, if a proportionality defence could be raised, the Convention could interfere unpredictably with the landlord’s rights under article 1 of the First Protocol to the Convention, which provides for a ‘right to property’.

The case also throws an interesting light on the limits of a proportionality defence where it can be raised. At first instance, the trial judge had held that if proportionality had arisen, the appellant’s personal circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate. The Supreme Court disagreed. The loan secured against the property was due and best chance to recover it was to sell the property with vacant possession. It was held that it would be difficult to see how the appellant’s circumstances could justify postponing indefinitely the lender’s right to be repaid. This confirms the widely held view that the Pinnock Article 8 defence hardly ever succeeds.

David Sawtell / 16th Jun 2016


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