Test Case McDonald v McDonald [2016]:

On the 15th of June 2016 the Supreme Court in London held that an occupier of land occupied by a private individual, in a residential tenancy in this case, could not raise an Article 8 defence (Article 8 of the European Convention on Human Rights ECHR) to a claim for possession.

This article applies primarily to English law. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions.

[Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”, which is subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty drawn up and agreed to protect human rights and fundamental freedoms in Europe.]

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Following a recent case (McDonald v McDonald) the law regarding an Assured Shorthold Tenancy remains as it was previously assumed to be, that is that Article 8 of the ECHR cannot be a defence to possession proceedings brought by a private sector landlord. Therefore, the court is not required to consider proportionality.

It had previously been established that Article 8 ECHR can be used as a defence to possession proceedings brought by a public sector landlord. In this case the appellant was inviting the Supreme Court to extend this right to private sector landlords.

McDonald v McDonald [2016] – the case

Ms Fiona McDonald was a private sector tenant.  The landlords of the property were her parents who had purchased the property on a secured loan from a private finance company.  They fell into arrears with the monthly finance payments, and the finance company sought possession using Section 21(4) of the Housing Act 1988, a periodic tenancy notice. Apparently, the arrears were not substantial, but they had persisted for some time.

Ms McDonald had a mental disorder which made her particularly vulnerable and the claim was she would be considerably upset by any change to her environment. Her parents had raised finance from Capital Homes Ltd, to buy a small property so that she could have a place to live for the foreseeable future.

The conditions of the mortgage prohibited the grant of a tenancy to a tenant who was on benefits, but Mr and Mrs McDonald granted their daughter an assured shorthold tenancy and Ms McDonald paid the rent with her housing benefit (HB) money, which Mr and Mrs McDonald used to pay the mortgage to Capital Homes Ltd.

However, after a while, due to a change in the McDonalds’ circumstances, they became unable to keep their mortgage commitments. As a result, receivers were appointed, who, as agents of Mr and Mrs McDonald, served a Housing Act (HA) 1988 s21(4) notice seeking possession.

The possession claim was defended by Ms McDonald, contending that a possession order would infringe her human rights, the right to respect for her home guaranteed by article 8 of the European Convention on Human Rights, and also that the notice to terminate her tenancy was served on her without the appropriate authority from her landlords (her parents).

However, the judge made out a possession order and Ms McDonald appealed. The Court of Appeal then dismissed her appeal, following which Ms McDonald appealed to the Supreme Court.

To the relief of landlords, the Supreme Court then dismissed the further appeal.

Lord Neuberger and Lady Hale, in a joint speech with which the other justices agreed, stated that:

“In the absence of any clear and authoritative guidance from the Strasbourg court to the contrary … it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants.”

In other words, the existing tenancy laws dictating the relationship and rights between landlord and tenant were deemed to be adequate, striking the right balance between the competing rights and were considered not to be in breach of the European Convention on Human Rights.

The statutory provisions reflected the state’s assessment of where to strike the balance between the article 8 rights of residential tenants and the Article 1 Protocol No. 1 rights of private sector landlords when their tenancy contract ends.

According to the Court the balance was struck by: (1) the Protection from Eviction Act 1977 which precludes eviction without a court order; (2) s.89 of the Housing Act 1980, which allows the court to postpone possession for up to a maximum period of 6 weeks in cases of exceptional hardship, and (3) Chapters I and IV of the Housing Act 1988, which required a valid notice under s.7 or s.21 to be served and a court order to be made before the landlord could obtain possession, as well as damages for those who are unlawfully evicted or harassed.

“To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is … to protect citizens from having their rights infringed by the state. To hold otherwise would also mean that the Convention could be invoked to interfere with the A1P1 rights of the landlord, and in a way which was unpredictable,” Lord Neuberger and Lady Hale added.

The Court concluded that, although the European Convention on Human Rights showed some support for the notion that Article 8 may be engaged against a private landlord, there was no support for the argument that a judge could be required to consider the proportionality of an order made under the Housing Act 1988.

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