Landlord and tenant – Human rights – Possession – European Convention on Human Rights – Housing Act 1988 – Property let to appellant tenant by her parents in breach of mortgage conditions – Appellant suffering from mental disorder – Receiver appointed by mortgagee seeking possession order – Whether possession order breaching tenant’s rights under Article 8 of Convention – Whether proportionality requirement applying to cases involving private landlord
The appellant was a 45-year-old woman who suffered from a personality disorder, as a result of which she was easily upset by any changes in her environment. She was unable to work and had been evicted from social housing in the past. In 2005, her parents, the respondents, purchased a small property or her to live in, financed by a mortgage secured on the property. The mortgage terms prohibited any letting without the prior consent of the mortgagee or the grant of a tenancy to a tenant who was assisted by social security. In breach of those conditions, the respondents let the property to the appellant on an assured shorthold tenancy, with the rent paid through her housing benefit.
In2008, following a default on the mortgage repayments, the mortgagee appointed receivers under the Law of Property Act 1925. Pursuant to the mortgage conditions, the receivers had the same powers as the mortgagee and acted as the agents of the mortgagor.
The appellant’s assured shorthold tenancy expired in 2009 but she remained in possession under a statutory periodic tenancy to which section 21(4)(a) of the Housing Act 1988 applied. The receivers served a notice of possession on the appellant under section 21 of the 1988 Act and applied to the court for a possession order pursuant to that notice. In her defence to the possession claim, the appellant sought to argue that a possession order would be disproportionate and a breach of her right to respect for her home under article 8 of the European Convention on Human Rights.
The trial judge rejected the proportionality argument and granted a possession order. He held that the court was not required to consider the proportionality of making a possession order against a residential occupier in a case where the person seeking possession was a private landlord and not a public authority. That decision was subsequently upheld by the Court of Appeal: see [2014] EWCA Civ 1049; [2014] 3 EGLR 30; [2014] EGILR 48. The appellant appealed to the Supreme Court.
Held: The appeal was dismissed.
(1) While Article 8 might be engaged where a judge made an order for possession of a tenant’s home at the suit of a private-sector landlord, it was not open to the tenant to contend that Article 8 could justify a different order from that mandated by the contractual relationship between the parties, at least where, as here, there were legislative provisions which the democratically-elected legislature had decided properly balanced the competing interests of private-sector landlords and residential tenants: Di Palma v United Kingdom (1986) 10 EHRR 149 and Wood v United Kingdom (1997) 24 EHRR CD 69 considered. In a case involving a private landlord, as opposed to a “public authority” within the meaning of section 6 of the Human Rights Act 1998, the tenant’s Article 8 rights had to be balanced against the landlord’s own right to peaceful enjoyment of his possessions pursuant to Article 1 of the First Protocol to the Convention. (A1P1). The statutory provisions of the Protection from Eviction Act 1977, section 89 of the Housing Act 1980 and Chapters I and IV of the 1988 Act, as amended from time to time, effectively reflected the state’s assessment of where to strike the balance between the Article 8 rights of residential tenants and the A1P1 rights of private-sector landlords when their tenancy contract had ended. The jurisprudence of the European Court of Human Rights provided no support for the proposition that a judge could be required to consider the proportionality of the order that he would otherwise make under the provisions of the 1980 and 1988 Acts.
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 was to protect citizens from having their rights infringed by the state. It would mean that the Convention was capable of being invoked to interfere with the A1P1 rights of the landlord in an unpredictable way and, if Article 8 permitted the court to postpone the execution of a possession order for a significant period, it could well result in financial loss without compensation.
Further, if Article 8 could be relied on in such cases, it could only be invoked where the private-sector landlord was either required by law, or voluntarily chose, to enforce its rights through the court, as opposed to taking the law into its own lands such as by changing the locks when the occupier was absent. The risk of otherwise facing an Article 8 defence would provide private-sector landlords with an incentive to take the unattractive course of locking out the occupier rather than the more civilised course of seeking possession through the courts.
More broadly, it would be unsatisfactory if a domestic legislature could not impose a general set of rules protecting residential tenants in the private sector without thereby forcing the state to accept a super-added requirement of addressing the issue of proportionality in each case where possession was sought. In the field of proprietary rights between parties neither of whom was a public authority, the state should be allowed to lay down rules that were of general application, with a view to ensuring consistency of application and certainty of outcome. Those were two essential ingredients of the rule of law. It followed that the trial judge in the instant case was not required to consider the proportionality of the possession order that he made under the provisions of the 1980 and 1988 Acts.
Per curiam: (2) Had the court reached the opposite conclusion, and found that Article 8 required a court to consider the issue of proportionality when entertaining a claim for possession by a private landlord against a residential occupier, then it would not have been possible to read the relevant legislation, and particularly section 21(4) of the Housing Act 1988, in a manner that was compliant with that requirement, pursuant to section 3 of the 1998 Act. Section 21(4) of the 1988 Act was a mandatory provision requiring the court to make a possession order where the relevant procedure had been followed and it could not be read down so as to allow the court to assess the proportionality of making the order. The scheme of the legislation drew a careful distinction between those cases in which good grounds for obtaining possession had to be shown and those cases, such as the present, where no grounds needed to be shown. While section 6(1) of the 1998 Act made unlawful for a public authority landlord to act incompatibly with the Convention rights, that provision did not apply to a private landlord; a private landlord was not obliged to act compatibly with the Convention rights. To read into the legislative provisions an obligation to assess the proportionality of granting possession, in the light of the personal circumstances of the individual tenant, would not go with the grain of the legislation but would positively contradict it. Such a result could not be reached by a process of interpretation of the legislative provisions: Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 2 EGLR 132 applied. Accordingly, had the court been persuaded that section 21(4) was incompatible with Convention rights, the only remedy would have been a declaration of incompatibility under section 4 of the 1998 Act.
(3) Further, even supposing that a proportionality assessment were required, the cases in which it would be justifiable to refuse, as opposed to postpone, a possession order would be very few and far between. They could only be cases where the landlord’s interest in regaining possession was heavily outweighed by the gravity of the interference in the occupier’s right to respect for her home. Were a proportionality defence to be available in section 21 claims, it was not easy to imagine circumstances in which the occupier’s Article 8 rights would be so strong as to preclude the making of a possession order, as opposed to a short postponement of it. The court’s powers to suspend or postpone the effect of a possession order were severely limited by section 89(1) of the 1980 Act. On the evidence in the instant case, it was likely that the most that the appellant could hope for on a proportionality assessment would be an order for possession in six weeks’ time, that being the maximum permitted by section 89(1): Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 186; [2011] PLSCS 59 considered.
Kerry Bretherton QC, Rebecca Cattermole and Diane Doliveux (instructed by Turpin & Miller LLP, of Oxford) appeared for the appellant; Stephen Jourdan QC and Ciara Fairley (instructed by TLT LLP, of Bristol) appeared for the respondents; James Eadie QC, Jonathan Moffett and Heather Emmerson (instructed by the Government Legal Department) appeared for the secretary of state for communities and local government, as intervener; Jonathan Manning, Justin Bates and Alice Richardson (instructed by Bury & Walkers LLP, of Leeds) made written submissions for the Residential Landlords Association Ltd, as intervener; Matt Hutchings and Jennifer Oscroft (instructed by Freshfields Bruckhaus Deringer LLP) made written submissions for Shelter, as intervener.
Sally Dobson, barrister
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