An occupier of land held by a private individual could not raise an Article 8 defence to a possession claim
Ms McDonald had a mental disorder, which made her particularly upset by changes in her environment. Her parents raised money from a third party lender, Capital Homes Ltd, to buy a small property so that she could have a place to live for the foreseeable future. The money was secured by a mortgage over the property. The conditions of the mortgage prohibited the grant of a tenancy to a tenant who was assisted by social security. Mr and Mrs McDonald granted their daughter an assured shorthold tenancy. Ms McDonald paid the rent with housing benefit and Mr and Mrs McDonald used that money to pay the sums payable to Capital Homes Ltd. In time, due to a change in circumstances, they became unable to pay the instalments needed to meet their obligations under the mortgage. As a result, the mortgagee appointed receivers, who, as agents of Mr and Mrs McDonald, served a Housing Act 1988 s21 notice seeking possession. Ms McDonald defended the subsequent possession claim, contending that a possession order would infringe the right to respect for her home guaranteed by Article 8 ECHR and that the notice to terminate her tenancy was served on her without the appropriate authority from her landlords. HHJ Corrie made a possession order. Ms McDonald appealed. The Court of Appeal dismissed her appeal ([2014] EWCA Civ 1049).
The Supreme Court dismissed a further appeal. Lord Neuberger and Lady Hale, in a joint judgment with which the other justices agreed, stated
In the absence of any clear and authoritative guidance from the Strasbourg court to the contrary … 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]
The statutory provisions reflected the state’s assessment of where to strike the balance between the Article 8 rights of residential tenants and the Article 1 of Protocol No 1 rights of private sector landlords when their tenancy contract has ended. They continued
To hold otherwise 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. To hold otherwise would also mean that the Convention could be invoked to interfere with the A1P1 rights of the landlord, and in a way which was unpredictable. [41]
After reviewing a number of Strasbourg authorities, Lord Neuberger and Lady Hale concluded:
while we accept that the Strasbourg court jurisprudence … does provide some support for the notion that Article 8 was engaged … there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the 1980 and 1988 Acts. Accordingly, … we would dismiss this appeal. [59]
In any event, section 21 could not be read in a way that could permit a court to dismiss a claim for possession if it had decided that the eviction was disproportionate.