McDonald (by her litigation friend Duncan J McDonald) –v- McDonald & Oths [2016] UKSC 28

The Supreme Court has held that Article 8 of the European Convention on Human Rights (“the Convention”) – right to respect for private and family life, home and correspondence – cannot be invoked where a tenant of a private landlord seeks to resist a properly sought possession order following service of notice under section 21(4) of the Housing Act 1988.

McDonald (“M”), an individual with mental health issues, was a tenant under an Assured Shorthold Tenancy (“AST”) of a property owned by her parents.  Her parents defaulted on the mortgage repayments for the property and the mortgagee appointed receivers.  Following expiry of the fixed term of the AST, the receivers served notice under section 21(4) of the Housing Act 1988 (“the Act”), terminating M’s tenancy.  Following expiry of the notice, possession proceedings were issued and the County Court made an order for possession and that decision was upheld by the Court of Appeal.  M appealed to the Supreme Court.

M’s appeal asked whether, when faced with a claim for possession by a private landlord:

  • a Court was required to consider the proportionality of the interference with the tenant’s article 8 rights of making an order for possession;
  • if it was, whether section 21(4) of the Act could be construed to comply with that requirement; and
  • if the answer to both of these questions was “yes”, whether the trial judge had been entitled to dismiss the landlords’ claim for possession.

The Supreme Court dismissed the appeal.

In coming to its decision, the Supreme Court made a thorough review of the history of private landlord and tenant legislation in England and Wales and of case law emanating from the European Court of Human Rights (“Strasbourg”).  It found that there was no clear and consistent line of Strasbourg cases holding that Article 8 was engaged in possession cases involving private landlords.  In legislating in the way that it had in the Act, Parliament had already carried out a balancing exercise between the Article 1 (peaceful enjoyment of possessions) rights of the landlord and the Article 8 rights of the tenant and it was not for the Court to interfere.

The Court reiterated that, as a matter of general principle, the Convention does not apply to dealings between private individuals.  The purpose of the Convention is to regulate the way in which the State interacts with citizens and to protect them from having their rights infringed by the State, not to alter private rights.

Key points

  • With this decision, the Supreme Court has signalled the death knell for Article 8 defences against private landlords.
  • Attempts to extend Human Rights into private property disputes are not new.  The decision inManchester Ship Canal Developments Limited –v- Persons Unknown (a trespass case) followed Sir Alan Ward’s dissenting comments in the case of Malik –v- Fassenfelt, in which he invited the extension of Article 8 defences into claims involving private landowners.
  • In McDonald, the Court observed that were the suggestion that Article 8 was engaged purely because the Court was a “public authority” being asked to make a ruling on the matter to prevail, it would provide a “somewhat perverse incentive” for private sector landowners to lock occupiers out of property in order to recover possession, rather than “the more civilised course of seeking possession through the courts”.  Whilst the Supreme Court was very careful to confine its judgment in this case to private landowners seeking possession under the procedure laid down by section 21 of the Act, these comments suggest that the Court is uncomfortable with the Malik line of reasoning.
  • This decision is of particular interest to private landlords, who will welcome the clear message from the Supreme Court that it is not open to tenants of private landlords to raise Article 8 as a defence to a claim for possession.  The decision will also be of interest to those who are the target of trespass on their land as it signals a move by the Courts to take a firm line on attempts to extend Human Rights into the realm of private property rights.