Tenant Fails in Human Rights Claim to Stop Eviction

In the case of McDonald (by her litigation friend) v McDonald and another (acting by the joint receivers) a question of human rights was raised in the Court of Appeal in relation to eviction of a tenant (suffering a mental disorder) by the landlord's mortgage lender.

The appellant had a mental disorder which left her particularly upset by changes in her environment. She was unable to work and she lived in a small property under an assured shorthold tenancy which was due to expire on 14 July 2009. Her landlords were her parents, who had bought the property so that she would have a home for the then foreseeable future. They had raised the money for the purchase through a mortgage with a third party lender, C. The appellant paid the rent with housing benefit and her parents used that money to pay the mortgage.

However the conditions for the mortgage prohibited the grant of a tenancy to a tenant who was assisted by social security. Other tenancies had to be assured shorthold tenancies previously approved by C. The parents had failed to apply for approval. Additionally, they had also failed to advise C, in accordance with the mortgage conditions, that they had proposed to enter into a tenancy with a family member.

The parents then became unable to meet their obligations to C under their mortgage payments. On 28 August 2008, C appointed receivers over the property. They had the same powers as C and were agents of the parents as mortgagors. On 13 January 2012, the receivers claimed to use their powers under the mortgage to serve a notice for possession in their own names on the claimant and to commence possession proceedings in the name of the parents, as landlords, on 16 April 2013. Possession was granted by the Court. The Judge rejected the appellant's contention that the order violated her rights under art 8 of the European Convention on Human Rights. The appellant, through her litigation friend, appealed.

She submitted:

1. that the possession order had not respected the right to respect for one's home guaranteed by art 8 of the European Convention on Human Rights.
2. that the notice to terminate her tenancy had been served on her without the appropriate authority from her landlords.

The appeal would be dismissed.

1. It was established law that the domestic courts should in general follow Strasbourg jurisprudence if there was a 'clear and consistent line of decisions'. However there was no clear line of decisions in these circumstances. Furthermore, if the proportionality test did apply, it was not clear how that meshed with the test of 'necessary in a democratic society' in art 8(2) of the Convention. That would, if it applied, require the landlord to show that the possession order had met a 'pressing social need'.
2. The mortgage conditions had to be interpreted purposively: the clear purpose of the mortgage conditions had been to enable the receivers to proceed to realise the charged property in an orderly and efficient way. The powers conferred on the receivers had to therefore include the power to do anything which was necessarily incidental to the exercise of the specified powers. The specified powers had included the power to sell the property and to take possession of it.

Oliver Kew

Published on 30/07/2014