Human rights rejected in private tenancy case

The Supreme Court has ruled that Article 8 of the European Convention on Human Rights (ECHR), which relates to the right to respect for private and family life, cannot be relied upon to challenge a possession order.

In the case of McDonald v McDonald, the appellant, Fiona McDonald, was aged 45 and had psychiatric and behavioural problems. She had been unable to hold down any employment, and had not worked since 1999; since that time she lost two public sector tenancies owing to her behaviour. Consequently, her parents, who were technically the respondents to the appeal, decided to buy (with the assistance of a loan) a property for her to occupy. Following financial difficulties, they could no longer afford to repay the loan provided by Capital Home Loans Ltd (CHL).

CHL appointed receivers of the property under section 109 of the Law of Property Act 1925. Having been appointed, the Receivers, although appointed by the chargee, CHL, were entitled to take steps in relation to the property on behalf of, and in the name of, the chargors, the respondents. Because the arrears continued, the Receivers served a notice, in the name of the respondents, on the appellant, saying they would be seeking possession of the property.

On the expiry of that notice, the Receivers then issued the proceedings, in the name of the respondents, for possession of the property in the Oxford County Court. The proceedings came to trial before His Honour Judge Corrie, who held that, subject to the appellant’s reliance on article 8, the court had no alternative but to make an order for possession.

He then turned to consider the appellant’s article 8 case. Fiona McDonald had claimed that in light of section 6 of the Human Rights Act, which makes it unlawful for public bodies to act in a way incompatible with the ECHR, the court was required to consider the proportionality of evicting her. Judge Corrie ruled that the court was not required to consider proportionality; but that if it could, he would have said the possession order was disproportionate.

The Court of Appeal dismissed her appeal and the Supreme Court unanimously upheld the previous rulings.

Lord Neuberger and Lady Hale: (with whom Lord Kerr, Lord Reed and Lord Carnwath agreed) said that while they accepted that the Strasbourg court jurisprudence relied on by the appellant did provide some support for the notion that article 8 was engaged when Judge Corrie was asked to make an order for possession, “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”.

Essentially, the outcome of the case is that article 8 of the ECHR cannot be used to challenge an order that had been contractually agreed 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”.

The Supreme Court indicated that to hold otherwise would mean the ECHR could be used to alter contractual rights and agreements between private citizens.

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