Articles
Further Hurdles to a Landlord's Right to Possession of Residential Property
The application of occupiers' human rights pursuant to the European Convention on Human Rights ("the Convention") in claims for possession of residential premises has come under significant judicial scrutiny in the past few weeks. The upshot of these recent determinations could have a significant impact on private as well as local authority landlords.
Under domestic law, both private and local authority landlords will often have a right to possession of residential premises against occupiers. For example, a landlord may rely upon the mandatory grounds in schedule 2 of the Housing Act 1988 (the "HA") or the provisions of s.21 of that act when seeking an order for possession from the court. The position was that the court was not required to give any further considerations to the matter and if the landlord had made out his case under a mandatory ground or complied with the provisions of s.21 then the court had no discretion and had to make an order for possession.
The European Court of Human Rights ("ECHR") published a decision on 21st September 2010 [1] which addressed whether a Court was required to consider and determine any human rights defences, based upon Article 8, raised by the occupier when asked to make a Possession Order despite the fact that under domestic law an order for possession had to be made. Article 8 provides, amongst other rights, for the right of respect for a persons home and that there should be no interference of this right by a public authority.
The matter related to local authority landlords and the decision picked up the thread of several previous ECHR decisions on the issue and determined that in limited circumstances the court had to consider the Article 8 defences and assess the reasonableness of making the order for possession.
The UK Supreme Court ("UKSC") then gave Judgment on 3rd November 2010 in the case of Manchester City Council v Pinnock [2] on issues including whether certain parts of domestic law relating to possession of residential property were compatible with Article 8 of the Convention and whether Article 8 arguments should be dealt with in proceedings for possession in the domestic courts. Again, the decision in Pinnock dealt with a local authority landlord.
The conclusion of the UKSC was that if domestic law is to be compatible with Article 8, if a Court is asked to make an Order for Possession of residential property by a local authority landlord, the Court must have the power to assess the proportionality of making the Order and to resolve any relevant disputes of fact when making that assessment. That means that the Court will consider the tenant's circumstances and the reasonableness and effect of making the order even though the landlord has a right to possession.
Both the ECHR and the UKSC expressed the view that it will only be in exceptional cases that Article 8 proportionality will give even an arguable right to continued possession where the occupier has no right under domestic law to remain. The UKSC described this question of exceptionality as whether the eviction is a proportionate means of achieving a legitimate aim.
It is not clear whether the decision will apply to a private landlord who inherits a local authority tenant by virtue of a tenancy expiring and the tenant's local authority sub-tenant remaining in occupation of the property. However, private landlords letting premises to tenants that are sub-letting to local authority tenants should be wary of the possible consequences of the decisions.
Lord Neuberger, who gave the Judgment of the UKSC (with the other 8 Lords contributing), did stress that; "nothing in this Judgment is intended to bear on cases where the person seeking the Order for Possession is a private land owner". So, whilst the UKSC have distinguished local authority landlords from private landlords in respect of the application of Article 8, the Court did not go as far as to say that Article 8 would not apply to private landlords. The Court actually went on to say that it would have to wait to see a case presented against a private landlord before determining whether the same application of Article 8 would be required.
The UKSC could therefore be seen to be inviting a case concerning whether Article 8 is equally applicable to private landlords as it is to local authority landlords to come before the Court. It seems likely therefore that residential occupiers will seek to rely on Article 8 grounds at possession hearings far more often in light of the recent decisions and that an unsuspecting private landlord may find his simple claim for possession appealed to the UK Supreme Court to determine the Article 8 point if a residential occupier is able to obtain LSC funding for such a claim. The costs consequences for a landlord in that situation would be very serious indeed.
If the rationale applied in Pinnock is deemed to apply equally to private landlords then the ability of private landlords to recover possession of their property relatively quickly may be severely restricted and the effect on the private rental market could be enormous. Private landlords may be reluctant to let their property if they will be faced with a potentially lengthy and costly battle to recover the same at a later stage.
Furthermore, the terms of Assured Shorthold Tenancy agreements may have to be revised to include rent review provisions if a tenant has greater security of tenure and therefore potential to remain in occupation for a longer period. Landlords without rent review provisions in their tenancy agreement at the moment may find themselves with a tenant that they are unable to remove who is paying rent at a rate that is significantly below market rent.
What is perhaps more certain is that the question of whether private landlords are subject to the same Article 8 considerations is likely to be tested by the courts in the near future.
[1] (Kay & Ors v United Kingdom (Application No. 37341/06)
[2] [2010] UKSC 45
The article above was written by Neil Curbison a senior associate in Colman Coyle's property litigation team
For more information on the above or for advice on any other property litigation issue please contact us on 020 7354 3000 or e-mail neil.curbison@colmancoyle.com
Date: November 2010