The Supreme Court has today unanimously dismissed a landmark appeal over the role of human rights in possession claims between private parties.
An assured shorthold tenant claimed a possession order on her house was incompatible with her right to respect for her home under Article 8.
Appellant Fiona McDonald lives in a house bought by her parents with the assistance of a mortgage. The parents defaulted on the mortgage and the lender appointed receivers, who obtained a possession order.
McDonald opposed the order on the grounds that the receivers had not been entitled to serve notice on her in their own names, and that the order would be incompatible with her right to respect for her home under Article 8. The case was rejected at Oxford County Court and the Court of Appeal before being heard by the Supreme Court.
Lord Neuberger and Lady Hale gave the only judgment, with which the other three justices agreed. They said: “It is not open to the tenant to contend that Article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants” [40]. Were it otherwise, they added, the ECHR could be said to be “directly enforceable as between private citizens so as to alter their contractual rights and obligations” [41].
The Strasbourg authorities reviewed were found to be inconsistent with the appellant’s case.
TLT’s Mark Routley said the judgment raised, for the first time, “the prospect of expanding the use of the Human Rights Act into litigation between private individuals”.
He said: “Had the case succeeded, it would likely have been a deterrent to investment in the buy-to-let mortgage market and in property generally. It could have seen the role of the court significantly extended so as to alter the basic principle of freedom of contract.
“However, the Supreme Court has made it clear that provided a private landlord complies with the relevant regulations in the Housing Act, the court must order possession. It is not for the court to apply its discretion and decide whether granting the possession order is proportionate in the circumstances.”
He added that landlords and lenders would welcome the decision. “Private rented accommodation is a rapidly growing sector. Obtaining possession quickly remains a procedural step giving private sector landlords certainty that as long as they comply with the law they will be able to obtain possession of the property.
“There are a number of cases where appeals are on hold pending the outcome of this case. The human rights arguments in each of those cases will now fall away,” Routley said.
James Driscoll, solicitor and writer, said: “The decision that in a possession claim made by a private landlord a court is not required to consider whether it is proportionate to evict is probably the result that most would have predicted. Although the personal circumstances of the occupier – a woman suffering from a personality disorder – are tragic, the result of this case is that now the most she can hope for as an assured shorthold tenant it the postponement of the possession order for up to six weeks.”
