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Tenant's right to respect for private and family life does not trump a landlord's right to possession

The Supreme Court has ruled in favour of receiver landlords seeking possession of a house occupied by a tenant. In so doing it has made it clear that provided a private landlord complies with the requirements of section 21 of the Housing Act 1988, the court must order possession. It is not for the court to apply its discretion and decide whether granting the possession order would be proportionate in the circumstances. 

The tenant in the case argued that granting a possession order was in breach of her human rights under Article 8 of the European Convention on Human Rights and section 6(1) of the Human Rights Act 1998. 

  • Article 8 guarantees a right to respect for private and family life. Interference with this right is permitted by a public authority where such interference is necessary in a democratic society for the protection of the rights and freedoms of others. 
  • Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. However, section 6(1) does not apply if the authority is required to act in this way as a result of primary legislation or provisions made under that legislation which cannot be construed in any other way.

It is already established that if a landlord is a public authority, the court may be asked to determine whether or not the grant of a possession order is proportionate in the circumstances. However, the Supreme Court stated back in 2011 that the circumstances would have to be exceptional for it to be appropriate for the court to consider whether or not the grant of a possession order is proportionate.

In this case, the tenant wanted to take the role of the court in possession claims further. She argued that a court is a "public authority" and, therefore, no judge can make a possession order without first considering whether it would be proportionate to do so. 

The Supreme Court rejected this argument. An obligation to consider whether the grant of a possession order was proportionate where the landlord is an individual would interfere with the private sector landlord's right to peaceful enjoyment of its possessions. The court would thus be required to strike a balance between the human rights of the tenant and those of the landlord. It also commented that a landlord who applied to Court for a possession order would be worse off than a landlord who did not need to do so (in certain circumstances this is permitted). The Supreme Court's view was that tenants already have adequate protection under existing legislation. It was not for the court to extend this protection; this would be a matter for Parliament.

The decision is welcome news for landlords. Obtaining possession under section 21 remains a procedural step, affording private sector landlords the certainty that, provided they have complied with the correct procedures, they will be able to obtain possession. 

It is also positive news for private individuals generally, and provides assurance that the court will not interfere in the freedom of parties to contract as they wish, even if the outcome in an individual case may not be fair for one party.

TLT acted for the receivers in the case. Mark Routley commented that "this decision answers a question that has remained unanswered since the Human Rights Act was introduced namely whether its provisions can be used horizontally between private individuals. Had the appellant in this case won, the result would have been a significant deterrent to investment in the buy to let mortgage market and in property generally".

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com

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