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No Article 8 defence for private landlord possession claims

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No-fault divorce suffers another setback as Supreme Court rejects latest appeal

On 15 June 2016, the Supreme Court handed down a landmark ruling which prevents tenants, who rent their property from a private landlord, raising Article 8 defences to possession proceedings.

Article 8 of the European Convention of Human Rights is ‘the right to home and family life’.  In March of this year the Supreme Court - in the case of McDonald v McDonald [2016] UKSC 28 - heard arguments about whether proportionality should be considered by the court in possession proceedings which have been issued by a private sector landlord, and - if so - whether it was possible to reinterpret S21(4)  so as to provide for a proportionality assessment.

The Supreme Court held unanimously that there was no authority for the proposition that a judge could be required to consider proportionality and that it was not possible to interpret S21(4) so as to provide for a proportionality assessment.

The court reasoned that it was not open to a tenant to contend that Article 8 could justify a different order from that which was mandated by the contractual relationship between the parties and that the current legislation struck a balance between the competing rights of the tenant under Article 8 and the landlord under Article 1, Protocol 1.

It was held that the essential purpose of S21 of the Housing Act 1988 was that private landlords letting their property under an Assured Shorthold Tenancy should have a “high degree of certainty” of getting their property back and to read into the legislation a requirement for a proportionality assessment would “positively contradict” this.

It was hoped that the court would decide that human rights arguments could be used by private tenants to prevent or delay evictions in cases of exceptional hardship such, as serious or terminal illness. Unfortunately following the Supreme Court’s decision the defence is no longer available and the most a tenant in these circumstances can hope for would be an order for possession in six weeks time.

It remains to be seen whether this matter is taken further to the European Court of Human Rights and whether Strasbourg will reject the Supreme Court’s ruling. 

However until then it is the end of the line for raising Article 8 Defences in cases taken by private landlords.

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