This article will examine the case of McDonald v McDonald and others.

The case of McDonald v McDonald and others (2016) has confirmed that in a claim for possession by a private landlord against a residential occupier, the proportionality of evicting the occupier under Article 8 European Convention on Human Rights (ECHR) need not be considered

The facts

The case concerned a tenant, Fiona McDonald, who suffered from psychiatric and behavioural problems. Her parents bought her a property for her to occupy in May 2005. They granted a series of Assured Shorthold Tenancies (ASTs) to her on the basis that her rent would be covered by housing benefit.

The property was purchased with the aid of a loan secured against the property. The loan required interest to be paid by monthly instalments and was repayable in full after eight years. The parents fell into arrears with the interest and in 2008 the loan provider appointed receivers to manage the property. Although Ms McDonald paid the rent, the mortgage arrears persisted and so the receivers served notice under Section 21 of the Housing Act 1988. S.21 provides that the court must make a possession order for a dwelling house let on an AST if it is satisfied that the landlord has given the proper written notice to the tenant requiring possession.

On expiry of the s.21 notice, the receivers issued possession proceedings against Ms McDonald. Her doctor reported that there was a real risk that, if possession was granted, her health would deteriorate and she would be unable to find suitable alternative accommodation. As such, she argued that her rights under Article 8 ECHR would be affected and would make the ordering of possession disproportionate.

Article 8 provides:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with.this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety etc

At trial the judge held that Article 8 did not fall to be considered in this case because the landlord was not a public authority. The court therefore had no option but to order possession.

Ms McDonald appealed. The Court of Appeal dismissed the appeal, agreeing that Article 8 couldn't be invoked against a private sector landowner. Ms McDonald appealed to the Supreme Court.

The primary question the Supreme Court was asked to consider was:

Should a court, in a claim for possession by a private sector owner against a residential occupier, be required to consider the proportionality of evicting the occupier in light of s.6 Human Rights Act 1998 (which requires public authorities to act in a way which is compatible with Convention rights) and Article 8 ECHR?

Conclusion

In light of European and domestic case law, the Supreme Court held that, although it was a public authority, the court merely provided a forum for the determination of civil rights in dispute between the parties.

A tenant cannot claim that Article 8 justifies a different order from that which is required by the contractual relationship between the parties. In residential possession cases, there is legislation which is intended to balance the competing interests of private landlords and residential tenants. Therefore the court does not need to consider whether the landlord's actions are proportionate in an individual case. S.21 Housing Act 1988 ensures that a landlord can rely on getting its property back and a further assessment of the court of proportionality would contradict this.

If the Supreme Court held otherwise then:

  • the ECHR would be directly enforceable between private citizens to alter their contractual rights and obligations - but the purpose of the ECHR is to protect citizens from having their rights infringed by the state
  • the court could postpone the execution of an order of possession which could result in financial loss without compensation. It could also be an incentive for landlords to take the law into their own hands and change the locks rather than going through the courts.

The appeal was therefore dismissed.

Comment

While the result is unfortunate for Ms McDonald and other tenants suffering from serious illness in private residential accommodation, this case has provided long-awaited clarification of the law in this area. Having certainty of possession of residential properties let on ASTs is a cornerstone of domestic housing legislation and it is hoped that the decision will reduce the number of possession cases being disputed at court with the time and resources that they require.