In a recent appeal on a possession order in the case of McDonald v McDonald and others , a Supreme Court decision will grant some much needed relief for landlords throughout the UK.
Generally speaking, there are many reasons why a landlord may wish to reclaim possession of a leased property. At present, however, even when a landlord has the right to reclaim possession of their residential property, they must ask the court to order their tenant to leave. This is known as a possession order and is the only way by which landlords may evict a residential tenant under current law.
In certain circumstances the court has no choice but to simply make the order to evict the tenant, but this does require certain conditions to be met (in the case mentioned above, for example, these conditions were contained in Section 21 of the Housing Act 1988).
This relatively standard area of English Law was challenged as being in breach of the Human Rights Act 1998 in the 2014 in the case of McDonald. The Act prohibits public authorities from disproportionately interfering with the rights of private individuals under the European Convention on Human Rights (ECHR). Article 8, an individual’s right to their home, was argued strongly.
McDonald was a tenant who claimed that the court should be considered as a public authority, and therefore fall within the prohibition created the Human Rights Act. This would have made it more difficult for the court to decide in favour of the landlord and grant an order evicting the tenant, as it would have had to consider the proportionality of making such an order first. Such a consideration would potentially lead to no order being made or the terms of any such order being more lenient towards the tenant.
McDonald’s case continued to appeal, and in 2016 the Supreme Court decided against the tenant. This decision now means that a tenant cannot challenge a possession order on the basis of proportionality under the ECHR, particularly where existing law has already taken into account the balance of interests between the landlord and tenant.
Had the Supreme Court decided in favour of the tenant, McDonald, it would have meant that private individuals would be capable of altering their contractual rights and obligations with other private individuals. This notion contradicts the principle of freedom of contract, and also contradicts the purpose of the ECHR, which is mainly for the protection of individuals from interference by the state, and not other individuals.
This decision will of course be a huge relief to many landlords, who after all are also protected by the ECHR, and who may well have been concerned that a contrary decision would have allowed tenants to withhold rent and prevent or stall possession proceedings with Human Rights claims at a substantial cost to them.
A decision the other way could have resulted in landlords facing serious difficulties with removing unruly tenants from their properties, potentially causing a knock-on effect deterring landlords from even becoming involved in property letting altogether. In our current, uncertain climate, this could have clearly had detrimental effects on the housing market.
If you would like any advice in relation to your property dispute, including on any possession order, please contact Paul Davis on 0116 281 6231.
For more information on this case, please click here.