The European Court of Human Rights reiterates the UK Supreme Court’s decision that tenants facing a section 21 possession claim can not invoke Article 8 of the European Convention on Human Rights in F.J.M v UK.
Background
A tenant occupied a property under an assured shorthold tenancy. Initially the tenant’s landlords were her parents who had purchased the property with the help of a mortgage for their daughter to occupy. The tenant paid the rent with the aid of housing benefit. The tenant was a vulnerable adult with psychiatric and behavioural problems.
The tenant’s parents fell into mortgage arrears and the lenders appointed receivers who served a section 21 notice on the tenant to gain possession of the property.
County Court and Court of Appeal decisions
The tenant defended the possession claim on 2 grounds. The first was that the receivers did not have the authority to serve the section 21 notice and the second that a possession order would violate her Article 8 rights (“right to a private and family life..”). The court found that the receivers did have authority to serve the section 21 notice.
With regards to the Article 8 argument, the tenant presented evidence from her psychiatrist that if she was evicted, she would have real difficulty finding alternative accommodation on account of her mental health history which could lead to homelessness. Furthermore, that if accommodation was found the stress and upheaval would have a significantly detrimental effect on her mental health with the possibility of harm to herself, suicide or violence towards others.
The court held that the making of a possession order would have been proportionate and despite the tenant’s mental health problems, settling into a new home could be achieved with help and support. Furthermore, that the mortgage company was entitled to recover its capital. Simply put section 21 possession orders are not incompatible with Article 8.
Supreme Court
The Supreme Court held that where a private landlord seeks possession, a tenant is not entitled to require the court to consider the proportionality of the order for possession. The purpose of the Convention is to protect the rights of citizens against the state. The Convention is not directly enforceable as between private citizens so as to alter their contractual relationship.
European Court of Human Rights
The tenant complained under Article 8 of the Convention that the possession order was not proportionate. The ECtHR held that there are many circumstances where courts are asked to strike a fair balance between the convention rights of 2 individuals. However, what sets possession claims apart is that the landlord and tenant have entered into a contractual relationship voluntarily which is underpinned by legislation that complies with the Convention. If domestic courts could override the balance struck by the legislation the Convention would be directly enforceable between private citizens and thus change the contractual nature of their relationship.
The Housing Act 1998 reflects the states assessment of where the balance should be struck between the tenants and private landlords rights. Furthermore, a tenant entering into a tenancy agreement agrees to its terms including the provisions relating to how the tenancy can be brought to an end. Where a landlord exercises their right to bring a tenancy to an end if a proportionality assessment is conducted by the courts prior to making a possession order, the resulting impact would be unpredictable and potentially very damaging to the private rental sector.
The ECtHR also noted that the UK courts had in fact made provision for cases where there was clear exceptional hardship. Standard 14-day possession orders could be extended to 6 weeks. Accordingly, while the tenant’s particular circumstances are deserving of sympathy, they do not justify the conclusion that where a private landlord is seeking a possession order the tenant is entitled to request that the court consider the proportionality of the order. The tenant’s Article 8 complaint was therefore rejected.
Comment
This largely ends arguments about whether section 21 notices are a breach of tenant’s human rights. It is now entirely a matter for parliament if there is to be a change. By extension, the decision also makes it very difficult for anyone to argue, as some have, that the use of mandatory grounds for possession on a section 8 notice is a breach of a tenant’s human rights.
