Many of our landlord clients have, on occasion, discussed with us how tenant-biased housing law has become. Examples have included the Tenancy Deposit Scheme requirements as well as licensing requirements for houses in multiple occupation and, most recently, the right-to-rent obligations that have been placed on landlords of assured shorthold tenancies. Often in possession proceedings, whilst the landlords get their properties back eventually, they often do not recover rent during the possession process and the landlord, even when he gets a costs order, will quite often end up footing the bill in terms of the costs of the possession proceedings.
However, the case of McDonald v McDonald and another [2014] did not find in favour of the tenant.
The tenant's main argument related to Article 8 of the Human Rights Act 1998 right to home. However, whilst the tenants do have a right to home under this Article, it is only a qualified right and means that the court must look at the impact on the landlord of allowing the tenant to stay in that home.
The outcome following the various arguments raised however was that trying to argue that possession proceedings were disproportionate is unlikely to be a successful argument for a tenant in relation to possession proceedings involving an assured shorthold tenancy. This basically means that for the landlord of an assured shorthold tenancy in the private sector, the law remains as previously being that whilst it is open for a tenant to argue the proportionality argument under the Human Rights Act 1998, it is only a qualified right so unless extremely unique circumstances present themselves, it is unlikely to be a successful defence to possession proceedings under section 21 of the Housing Act 1988.
If you require any advice and assistance in relation to possession proceedings, please contact our general litigation team who will be happy to assist.
