42 BR Housing Law Bulletin - section 21 notices and the ECtHR
FJM v The United Kingdom App no 76202/16
In Manchester City Council v Pinnock  UKSC 45;  H.L.R. 7 the Supreme Court held that a residential occupier should be allowed to rely on Article 8 of the European Convention on Human Rights (right to respect for the home) in order to raise the issue of proportionality as a defence to possession proceedings being brought by a public authority even when, as a matter of domestic law, he or she had no defence to the claim for possession. In Pinnock, The Supreme Court had left open the question of how this principal might apply to claims for possession brought by private landlords. This question has now been considered by the European Court of Human Rights.
The applicant’s parents had bought the subject premises with the assistance of a mortgage and the applicant, a vulnerable adult with psychiatric problems, lived there pursuant to an assured shorthold tenancy. Her parents fell into arrears and the mortgagee served a s.21 notice on the applicant and thereafter commenced possession proceedings. The applicant unsuccessfully defended the proceedings in the County Court on the grounds that the grant of a possession order would amount to a disproportionate interference with her Article 8 rights. She appealed unsuccessfully to the Court of Appeal and thereafter to the Supreme Court.
The Supreme Court found that as between private parties, there was no right to a proportionality review of a decision to grant a possession order made pursuant to s. 21 of the Housing Act 1988 (McDonald v McDonald  UKSC 28  HLR 28).
The applicant then applied to the ECtHR on the grounds that English law should enable a proportionality review to take place pursuant to Article 6 (right to a fair trial) and Article 8 of ECHR in any determination of a possession claim by private landlord under s.21, and that a possession order would be disproportionate on the facts of her case.
In Vrzic v. Croatia (43777/13, 12 July 2016), the ECtHR had previously acknowledged that the principle that any person at risk of losing his or her home should be able to have the proportionality of the claim for possession determined by an independent tribunal did not automatically apply in cases where possession was sought by a private landlord. The balance between the interests of landlords and tenants in the private sector could be struck by legislation. If domestic courts could override the balance struck by the legislature in such a case, the Convention would be directly enforceable between private citizens so as to alter the contractual rights and obligations that they had freely entered into.
It was clear from the Supreme Court judgment in this case that, in striking that balance, the legislature had had regard, inter alia, to the general public interest in reinvigorating the private residential rented sector, something which the court had accepted was best achieved through contractual certainty and consistency in the application of the law. A tenant entering into an assured shorthold tenancy had agreed to the terms under which it could be brought to an end, and if he or she could require a court to conduct a proportionality assessment before making a possession order the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging. Furthermore, the domestic legislation had, in fact, made provision for cases of exceptional hardship by giving the courts the power to postpone the possession order for up to six weeks.
This decision appears to put to rest any argument that domestic courts, as public bodies, are under a duty to conduct a proportionality review pursuant to Article 8 ECHR in cases were possession is being sought by a private landlord on mandatory grounds. However, it does not alter the position of landlords in the social housing sector who will still have to consider the possibility of a proportionality challenge when seeking possession on any mandatory ground.
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