James is a Partner and Head of the Dispute Resolution team and primarily handles commercial…View Profile View all
The Supreme Court has just given judgment in possession proceedings in relation to a property let under an Assured Shorthold Tenancy in which receivers acting for the landlord had served a Section 21 Notice seeking possession of the property.
The tenant, who suffered from a personality disorder, had argued at the first hearing in the County Court that the Judge had to consider the proportionality of evicting her in the light of Section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. The County Court Judge had decided that because he was not dealing with a public authority, he did not need to look at proportionality in that context but had he been required to do so, the eviction would have been disproportionate and he would have dismissed the claim.
The tenant appealed to the Court of Appeal which dismissed her appeal. She then made a further appeal to the Supreme Court. The Court considered whether where a claim for possession by a private sector owner was brought against a residential occupier it should be required to consider the proportionality of evicting the occupier in light of the 1998 Act and Article 8. It asked itself a supplementary question which was, if the answer to the principal question was “yes” whether the relevant housing legislation, and in particular Section 21(4) of the Housing Act 1998 could be read so as to comply with that conclusion.
Much to the relief of landlords, the Supreme Court rejected the tenant’s arguments. Amongst other things, the Court felt that parliament had enacted legislation that balanced the parties’ rights and to come to a decision otherwise would give a direct effect to the Convention between private citizens and alter their contractual relationship. The Court took account of the fact that the government’s approach to the private rented sector balances the need to protect tenants against the deterrent effect that over-regulation would give to private individuals making properties available for letting.
There have been some recent judgments in the High Court in which the Court has undertaken a proportionality assessment where claims have been made by private land owners against trespassers but in this very recent decision, the Supreme Court has rejected that approach where residential landlords are concerned.