Courts are not to consider the proportionality of eviction in s21 possession cases

Monday 12th September 2016

The Supreme Court has ruled that tenants cannot defend possession proceedings brought by private landlords under s21 Housing Act 1988.

In McDonald v McDonald [2016] UKSC 28, the tenant had an assured shorthold tenancy. The landlord had served a valid s21 notice, providing the tenant with the requisite two months’ notice. The landlord then applied to the County Court for a possession order.

If valid, the s21 possession procedure allows the landlord to obtain possession of its property. In McDonald part of the tenant’s defence was reliance on Article 8 of the European Convention on Human Rights (the right to respect for private and family life and home). The tenant, intending to rely upon Article 8, asked the Court to consider whether it was “proportional” for a Possession Order to be made.

The Supreme Court ruled that Article 8 cannot be relied upon by a tenant against a private landlord. One of the court’s reasons was that the European Convention on Human Rights is not directly enforceable between private citizens but instead is used to protect citizens’ rights from being infringed by the state.

This is a common sense decision which hopefully will finally close the door on tenants using human rights arguments in an attempt to prolong their occupation. Since the 1970s Parliament has deliberated the competing interests between landlord and tenant in the private rented sector at length which has resulted in the current statutory framework. This provides sufficient protection for residential tenants.

This case, of course, does not apply to public sector landlords. It has been clearly established that these tenants can raise defences under public and human rights law.

Despite this ruling it remains important for private landlords to seek legal advice when contemplating commencing the possession process against tenants. There have been numerous recent legislative provisions making the process more difficult for the landlord to obtain possession of their property, but at least private landlords will not have to worry about human rights legislation.

If you would like to discuss this article in further detail, please contact Danny Smith on 0113 227 0312 danny.smith@gordonsllp.com