We saw the case of McDonald v McDonald through the Court of Appeal and the Supreme Court. The Supreme Court found that as between private parties, there was no right to a proportionality review of eviction under the Section 21 possession claim procedure.
Now, in FJM v United Kingdom, App No 76202/16, 29 November 2018, the European Court of Human Rights has had its say on private possession claims via section 21 Housing Act 1988 and human rights. This was McDonald, taken to the ECtHR.
With a complete disregard for the arts of narrative tension, the outcome is that there is no requirement in private possession proceedings under section 21 that there be a proportionality review. If that was all you wanted to know, you can look away now.
The ECtHR considered its previous case law regarding proportionality reviews in possession cases, in particular those that had touched on private claims, rather than claims by public bodies.
In Zehentner v Austria (2009) ECHR 1119; Brezec v Croatia (2013) ECHR 705, (2014) HLR 3; Zrilić v Croatia (2013) ECHR 921) the ECtHR had found, at least in principle, that someone at risk of losing their home should have a right to an independent determination of the proportionality of that action, even where the landlord was a private party. But none of these were categoric on the point, or the cases involved circumstances where the home had previously been public property. On the other hand, in Vrzić v Croatia App No 43777/13, (2016) HLR 37, the ECtHR had found that there was no right to a proportionality assessment where there were competing private interests.
The present court followed and extended the finding in Vrzić. What was at issue was effective extending convention rights into a contractual relationship between two private parties, in such a way as to alter the contractual rights.
As the Court noted in Vrzić, in such cases there are other, private, interests at stake which must be weighed against those of the applicant. However, the distinction in fact runs deeper than that. As the Supreme Court acknowledged in the present case, there are many instances in which the domestic courts are called upon to strike a fair balance between the Convention rights of two individuals. What sets claims for possession by private sector owners against residential occupiers apart is that the two private individuals or entities have entered voluntarily into a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected (see paragraph 16 above). If the domestic courts could override the balance struck by the legislation in such a case, the Convention would be directly enforceable between private citizens so as to alter the contractual rights and obligations that they had freely entered into.
Both parties had convention rights, but in a private contractual situation where the state had legislated for how the balance of those rights was achieved, and the statutory rights and obligations formed part of the contract, the ECtHR considered that this should not be overridden, (though I’ll come back to this).
the case still concerns a contractual (landlord-tenant) relationship between two private individuals or entities, which is governed by legislation prescribing how the Convention rights of the parties are to be respected. In this regard, the Housing Act 1988 reflects the State’s assessment of where the balance should be struck between the Article 8 rights of residential tenants and the Article 1 of Protocol No. 1 rights of private sector landlords. Indeed, it is clear from the Supreme Court judgment that in striking that balance the authorities had regard, inter alia, to the general public interest in reinvigorating the private residential rented sector (see paragraph 15 above); something which the court accepted was best achieved through contractual certainty and consistency in the application of the law (see paragraph 16 above). As the Supreme Court made clear, a tenant entering into an assured shorthold tenancy agrees to the terms – clearly set out in the 1988 Act – under which it could be brought to an end and if, once it comes to an end, he or she could require a court to conduct a proportionality assessment before making a possession order, the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging.
Furthermore, the Court notes that the domestic legislation has, in fact, made provision for cases where exceptional hardship would be caused by requiring possession to be given up within fourteen days of the making of an order; in such cases, the courts may postpone the giving up of possession for up to six weeks after the making of the order (see paragraph 24 above; see also the findings of the Supreme Court, set out at paragraph 20 above).
FJM’s case had been mounted on the basis that the courts should have enabled a proportionality review to take place in determination of the possession claim, on Art 8 and Art 6 grounds. There was apparently no challenge to the compatibility of section 21 Housing Act 1988 with convention rights (ie, a challenge to exactly the balance of rights that was framed in the legislation). So that argument was not tested here. However, from the wording of this judgment, it seems doubtful that it would have had any degree of success.
In light of the foregoing, the Court considers that the authorities of the respondent State were entitled to regulate tenancies such as the applicant’s assured shorthold tenancy through legislation intended to balance the Convention rights of the individuals concerned. Moreover, the applicant does not challenge the Convention compliance of that legislation as such. Her Article 8 complaint must therefore be rejected as manifestly ill‑founded pursuant to Article 35 § 3 (a) of the Convention.
The same conclusion applied to the Article 6 argument.
Well, that would seem to be that. Now some caveats.
This is not a ruling on the s.21 procedure per se (no challenge to compatibility, remember), but specifically on the application of Art 8 to require a proportionality review on possession proceedings between private parties.
It is therefore doubtful that it would apply to, say, a housing association trying to end a ‘starter’ or fixed term social rent tenancy by section 21 (though no doubt someone will try to argue it). In those circumstances, I’d argue Pinnock etc. would still apply.
However, the same principles would seem to apply to Housing Act 1988 Schedule 2 mandatory grounds (like ground 8) where it is a private tenancy.
Any change (or end) to section 21 from here, though, will have to be legislative. Though the prospects for that seem more likely than they have done since, well, 1988.