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Article 8 and private landlord update

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In previous blogs I have discussed the progress which has been made in the argument that Article 8 should also apply to private landlords.

The courts in previous cases, such as that Manchester City Council v Pinnock [2010] 3 WLR 1441 and Hounslow LBC v Powell [2011] 2 WLR 287 chose not to consider whether a proportionality defence would be available to tenants of private individuals although concluded that the defence would be available to tenants of local authorities or social landlords when proceedings were brought on mandatory grounds

It is arguable that due to the court being a public body, this would afford a tenant of a private landlord a proportionality defence known as “the horizontal effect”.  Section 6 of the Human Rights Act 1998 expressly provides that for the purposes of the Act, the court is a public body and is subject to an obligation to recognise and secure the rights in Schedule 1 to the Act.

There was a positive step forward in this area following the decision in Malik v Fassenfelt [2013] EWCA Civ 798. In his judgment, Sir Alan Ward concluded that there was no reason in principle why a distinction should be drawn between public and private landlords in this context. Unfortunately this issue did not form part of the appeal and Sir Alan Ward’s comments could only be considered persuasive authority and not binding.

There has now been a further positive step forward following judgment in the case of Manchester Ship Canal Developments v Persons Unknown [2014] EWHC 645 (ch). HHJ Pelling clearly expressed the view that the court, as a public body, should consider the tenants Article 8 rights and that these should be balanced against the landlords Article 1 Protocol 1 rights. He did comment that it would likely only be exceptional cases where the landlords A1P1 rights would be trumped by the tenants Article 8 rights but ultimately concluded that Article 8 was capable of being engaged even in relation to a private landlord.

It is unlikely that this is the end of the story and it is only a matter of time before this issue is considered by the higher courts.

By Amy Tagoe, housing law solicitor