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McDonald v. McDonald revisted

In McDonald v McDonald, the Supreme Court held last week that a Court is not required to consider proportionality when evicting a tenant when a Landlord seeks possession under section 21 of the Housing Act 1988.

A summary of the case and the Court of Appeal decision can be read here.

The Supreme Court stated that any decision which required the Courts to consider proportionality “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 is…to protect citizens from having their rights infringed by the state.”

The effect of this judgment in relation to private residential tenancies is that it is now not possible for a tenant who is being faced with Section 21 possession claim to invoke Article 8 of the Convention. As the Court said in relation to private residential possession proceedings:

“Once it [a court] concludes that the landlord is entitled to an order for possession, there is nothing further to investigate.”

Comment

This judgement largely puts to bed any ability to challenge a private landlord’s eviction of their tenant on human rights grounds. While the case is a sad one in which the tenant did and should attract sympathy it will be of considerable relief to landlords. The effect of human rights arguments entering the private rented sector were, as the Supreme Court held, too horrible to contemplate.

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