Joint tenancy – Possession proceedings – Human rights– One joint tenant ending tenancy by serving notice to quit – Whether council landlords entitled to possession against remaining tenant – Whether breach of right to respect for home under Article 8 of the European Convention on Human Rights – Claim allowed
In 1998, the claimant and his wife became joint tenants of a three-bedroom house owned by the local council. They were secure tenants under the Housing Act 1985. In 2001, the wife and the couple’s two children were rehoused by the council in accordance with their domestic violence policy. The property remained empty.
However, the claimant moved back into the house and subsequently applied for an exchange of accommodation on the ground that he required a suitable home in the area to enable him to visit his children. A housing officer, having realised that the property was occupied, asked the wife to sign a notice to quit. She did so without realising that it would extinguish the claimant’s right to live in the house or to exchange his accommodation. His wife tried to withdraw the notice but without success.
The claimant was given notice to vacate; he refused to leave and the council brought possession proceedings. The claimant argued that the property constituted his home and was therefore protected by Article 8 of the European Convention on Human Rights. The county court dismissed the claim for possession on the ground that the claimant’s Article 8 rights had not been properly considered.
The Court of Appeal allowed the council’s appeal against that decision on the basis that Article 8 was not available as a defence to possession proceedings brought to enforce the council’s ordinary property rights, even though the property in question constituted the “home” of the occupant for purpose of the Article: Birmingham City Council v McCann [2003] EWCA Civ 1783, [2003] PLSCS 283. The claimant complained to the European Court of Human Rights that, inter alia, the eviction proceedings violated his rights under Article 8.
Held: The claim was allowed.
Article 8 had been violated owing to the lack of adequate procedural safeguards in the UK’s system for allocating public housing. That had resulted in an otherwise lawful interference with the claimant’s right to respect for his home, pursuant to the legitimate aim of protecting the rights and freedoms of others by limiting the protection of the Housing Acts to the categories to which it applied.
The property that the claimant had formerly occupied as a joint tenant and had solely occupied from November 2001 continued to be his “home” within the meaning of Article 8(1). That was the case despite the fact that, following the service by his wife of the notice to quit, he had had no right under domestic law to continue in occupation. The effect of the notice to quit, together with the possession proceedings brought by the council, interfered with the claimant’s right to respect for his home.
That interference accorded with the law and pursued the legitimate aim of protecting the council’s right to regain possession of the property as against an individual who had no contractual or other right to be there. However, the interference was not proportionate to the aim pursued and was therefore not “necessary in a democratic society”, as required under Article 8(2). The loss of one’s home was a most extreme form of interference with the right to respect for the home, and any person at risk should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, his right of occupation had come to an end: Connors v United Kingdom (667461/01) [2004] 4 PLR 16 considered.
Had the council sought to evict the claimant under the statutory scheme of the Housing Act 1985, he could have asked the court to examine whether: (i) his wife had actually left the family home because of domestic violence; and (ii) in his personal circumstances, it was reasonable to grant the possession order. However, the council had chosen to bypass the statutory scheme by requesting the claimant’s wife to sign a common law notice to quit and they did not appear to have considered the claimant’s right to respect for his home under Article 8: Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLR 109 and Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 considered.
Eileen O’Grady, barrister
