Test Case: Section 21 evictions and a proportionality appeal

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In this case (F.J.M. v. the United Kingdom, November 2018) the lady tenant had been evicted by her landlord using the Section 21 process and following a possession order granted to the landlord. She claimed that the possession order was disproportionate in her case because of special circumstances and that she should have been able to ask the court to make a “proportionality assessment” before granting the possession order and having her evicted.

The principle of proportionality means that a court, irrespective of the rules laid down in an Act of Parliament, should necessarily go into the pros and cons of of the situation at hand and rule accordingly. But generally, unless the action decided is advantageous and in public interest, such an action cannot be upheld.

This case was the latest in a series of exchanges between the European Court of Human Rights and the UK Supreme Court concerning the compatibility of possession orders with Article 8 of the Convention.

At first, the House of Lords had taken the view that a proportionality defence could not be brought against possession orders in the case of council housing tenants—where the landlord is a public authority.

The UK Parliament had already passed legislation striking a balance between the rights of social housing tenants, on the one hand, and public authorities on the other. In a previous case the European Court of Human Rights had held that the existence of legislation should not prevent a social tenant from raising a proportionality defence. The UK Supreme Court had accepted this ruling but importantly both courts stressed that this reasoning did not apply to the private rented sector—where the landlord is either a private individual or a limited company.

This is an important principle and removed a lot of uncertainty for private landlords.

The Facts of the Case

The applicant, F.J.M., lived in a rented house in England belonging to her parents, who had purchased the property in 2005 with a mortgage loan and had granted her an assured shorthold tenancy. The parents fell into arrears, and in 2012 the mortgage company sought a possession order to bring the tenancy to an end, evicted the applicant, and recovered possession of the house.

The special circumstance were that F.J.M. was suffering mental health issues and her psychiatrist maintained that she would have great difficulty finding alternative accommodation if evicted due to her psychiatric health history. There was a significant possibility that she would become homeless, she had argued, and even if she did manage to find alternative accommodation the stress entailed would make her health worse and it could lead to self-harm, suicide, or violence towards others.

The UK Supreme Court had previously ruled in McDonald v McDonald that the lack of statutory protection for tenants “served to reinvigorate the private residential rented sector, without conferring so much protection as to deter private individuals and companies from making residential properties available for letting” As this ruling had already “struck a balance” between the rights and interests of tenants and those of private landlords, it was ruled not justified that tenants should be entitled, as a matter of principle, to require the court to consider the proportionality of a possession order.

F.J.M. then applied to the European Court of Human Rights, claiming a violation of Articles 6 and 8 of the Convention. She argued that the possession order was disproportionate in her case as explained above.

The final decision by The European Court of Human Rights was that in the private rented sector, a measure prescribed by law with the purpose of protecting the rights of the parties may be seen as necessary in a democratic society. It thus held that the balance between the rights and interests of tenants and private landlords could indeed be as those struck by existing the legislation.

The Court stated that the two parties had entered voluntarily into a contractual relationship in respect of which the legislature had already regulated the balance between the ECHR Article 8 rights of residential tenants and the Article 1 of Protocol No. 1 rights of private sector landlords, having regard to the general public interest in reinvigorating the private rented sector. Consequently, it declared the F.J.M. application inadmissible.

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