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Section 21 and Article 8 of the ECHR

Section 21 and Article 8 of the ECHR

The Supreme Court’s judgement in McDonald v McDonald & Anor is expected in the next month or two.

The issue:
Whether the possession order made in the county court infringed the tenant’s rights under Article 8 of the European Convention on Human Rights (“ECHR”).

The History:
The tenant, Miss McDonald held an assured shorthold tenancy of a property in Oxfordshire. The Landlords of the property were in fact Miss McDonald’s parents who granted the tenancy in breach of the terms and conditions of their mortgage. When the Landlords fell behind with the mortgage payments, receivers were appointed to manage the property. The receivers, on behalf of the Landlords and the mortgage provider, sought possession of the property under the terms of the mortgage.

The Court Decisions:
Oxford County Court made the possession order in April 2013.

Miss McDonald appealed on the grounds that the receivers were not able to bring possession proceedings in the way they had and, that possession would be an interference with her rights under Article 8. The Court of Appeal dismissed the appeal on the following grounds (Arden LJ gave the leading judgment):

– Receivers under a charge had the power to serve section 21 notices.

– There was no sufficient body of case law in the ECHR that amounted to “clear and constant” jurisprudence establishing an Article 8 defence in private proceedings.

– The Landlords’ financial detriment in this case outweighed the Miss McDonald’s health considerations. Thus the Appellant had not met the threshold for a proportionality defence.

– The Court of Appeal was bound by the decision in Poplar Housing and Regeneration Community Association Limited v Donoghue [2002] Q.B. 48. The Court of Appeal had already found that section 21 was compatible with the European Convention.


It remains to be seen how the Supreme Court will view the situation. They may follow the same line as the Court of Appeal and hold that Article 8 has no application to private landlords and tenants. If they do decide that Article 8 applies then that right will need to be balanced with a landlord’s right not to be deprived of their property under Article 1 of Protocol 1 of the European Convention. The balance is very tricky and in reality is likely to mean that only in the most exceptional cases could Article 8 not apply. It may be that even in this case Miss MacDonald’s personal situation is not sufficiently severe to prevent possession being granted.

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