The possession process is rarely pleasant. This much is a given, as the procedure for gaining possession of a property costs time, money, and is entered into usually as the very last resort.
Section 21 notices
For landlords, the most common way to regain possession of a property in England and Wales is by serving a Section 21 notice, as introduced in the 1988 Housing Act.
However, the legitimacy of the Section 21 was thrown into question recently by the Supreme Court case of McDonald vs. McDonald, which raised the issue of whether a tenant can appeal to the European Court of Human Rights (ECHR) when faced with eviction on the grounds that it contravenes their human rights.
The case details – McDonald vs. McDonald
The case is extremely unfortunate. The tenant in question has a history of serious mental health difficulties, and after failing to be placed in social property, her parents’ recourse was to buy a home for her to rent. However, her parents were unable to keep up with mortgage payments and receivers were brought in. Subsequently, a Section 21 notice was served, and proceedings for possession commenced.
Invoking Article 8: The Right to Privacy
The tenant appealed her eviction (in this case by the receivers) by arguing that it went against her human right to respect for privacy. Article 8 provides two stipulations:
Firstly, that ‘everyone has the right to respect for his private and family life, his home and correspondence’ and secondly that ‘there shall be no interference by a public authority with the exercise of this right.’
It was argued that Ms McDonald’s forced removal from the property by the receivers constituted a breach of her right to privacy, and the ECHR was used as a defence that the eviction was therefore unlawful. However, the judge dismissed the appeal on the basis that Article 8 was intended to protect citizens from having their rights infringed by the state. The landlord (the receivers in this case) could not be construed as a public authority to that extent.
The Supreme Court has resolved this issue by taking the opinion that Courts are not permitted to entertain Article 8 defences in the face of mandatory right to possession, as is provided by Section 21 of the Housing Act.
It is difficult to see how the Supreme Court would have been able to resolve the issue without undoing Section 21 altogether, which would have removed the only way to guarantee repossession of a property for private landlords. In that sense, the ruling provides a great deal of relief for landlords and the sector at large.
Ultimately, while the rights of tenants and landlords must be respected, so too must the process of delivering an eviction notice.
If you need advice on the possession process, the NLA Advice Line is here to help. NLA Full Members can call the team on 020 7840 8939 or you can buy call credits online. Visit the NLA website for more information.