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Landlords, tenants and human rights

The European Convention on Human Rights’ principle relevance to tenants’ rights is enshrined in Article 8, the “right to respect for private and family life, home and correspondence.”

As with all the rights set out in the convention, the primary intent is to govern the relations between a state and its citizens and so the ECHR is most often called upon by tenants where the landlord is the state (for example council tenants). In this most recent case, however – that of McDonald v McDonald – the dispute was entirely between private parties – a mortgage company against an individual tenant. So where does the ECHR come in?

McDonald, the tenant, suffered from a personality disorder and lived in a property bought by her parents with the benefit of a loan from Capital Home Loans. Financial difficulties resulted in arrears and Capital appointed receivers who took control of the property. Notice was given to the tenant under her lease and a possession order was applied for.

The tenant sought to invoke Article 8 not against the mortgage company as a private entity, but against the court itself, claiming that as a public institution it was bound to take the ECHR into account in its decisions and that under the circumstances the possession order was a disproportionate act by the lender (acting as landlord) depriving the tenant of her right to home and private life.

On the face of it, one might have thought this was doomed from the outset. However, although the court found against the tenant, the appeal raises some interesting issues. The lender’s receiver stood in the shoes of the property owner, but the tenant’s position was unusual and a mortgage company and a private landlord do not necessarily meet an identical reception in court. Perhaps it was a realistic proposal for the lender to sell the property with the tenant in place – hence the argument about possession being a disproportionate remedy under the circumstances.

A world in which the courts made every decision informed by the basic rights granted by the ECHR as of standard practice, rather than because those rights are woven into UK legislative decisions, might conceivably be a fairer world. One of the great watchwords of the law, however, is certainty. If every court decision was required to consider the ECHR, over and above existing legislation and legal precedent, much of what certainty the law has would be lost. The court’s decision was that the relevant law (in this case the Housing Act 1988) already provided a means of balancing the rights of the landlord and those of the tenant. To pass any decisions through the further filter of the ECHR would represent needless interference with private contractual rights. The judges ruled that even if Article 8 was considered when making the final decision in such a case, this could not justify deviating from the existing legal and contractual position which provided certainty to the parties’ relationship.

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Luke Patel

Partner and Head of Dispute Resolution
Commercial Dispute Resolution
0113 227 9316
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