A recent decision in the Court of Appeal will probably mean a reduction in Article 8 defences in the future. Article 8 is the provision in the European Convention on Human Rights which creates a right to respect for private and family life. The ECHR was incorporated directly into English law by the Human Rights Act and Article 8 has been an important consideration for social landlords when seeking possession.

There has also been concern that it would find its way into the private sector, of because private landlords are bound by the HRA but because the Court, as an arm of the state, must observe the HRA provisions and might therefore be prevented from making a possession order.

However, the Court of Appeal, in allowing an appeal against a refusal to make a possession order may well have put a stop on most Article 8 defences, at least for now. The Court set out 8 key principles which should apply to Article 8 defences. The most important were that:

  • Article 8 defences against possession actions were only available in highly exceptional cases;
  • They are not normally available to a person who does not have any legal right to remain in the property;
  • They must be pleaded at the earliest possible opportunity; and
  • The County Court should consider at an early stage whether the Article 8 defence meets the necessary, high, standard and summarily dismiss it if it does not.

This decision will be welcomed by landlords as it is likely to lead to the County Courts taking a hard line on Article 8 defences and dismissing many of them immediately. It will also bring relief to private sector landlords who feared an extension of Article 8 to them. This now seems unlikely and the use of section 21 and mandatory grounds under section 8 seem protected.

Clearly there will be concern from those who support occupiers that this will lead to a further increase in evictions of individuals who are vulnerable and might have previously been able to rely on the protection of an Article 8 defence or at least the threat of one. This remains an issue the government will need to address.