Ashfords Solicitors - Possession and Human Rights - Article 8 (Right to Respect for the Home)

Decision in McCann v United Kingdom (2008) (19009/04)

Until May 2008, it was a well established that one joint tenant could serve a Notice to Quit and bring a tenancy to an end, regardless of whether the other joint tenant knew or consented to the service of the Notice. There were conditions to this rule, but this was represented the basic principale.

However, in a historic decision of the European Court of Human Rights, this principale has been thrown into doubt.

The facts of the case are straightforward. Husband (Mr McCann, the applicant in this case) and wife were joint secure tenants of Birmingham City Council. Early in 2001 the marriage broke down. The wife alleged domestic violence and fled the home with the two children. The wife obtained an injunction and ouster against the husband, requiring him to leave the home,so and she returned. The applicant husband then tried to force his way back in and so the wife applied to be re-housed. Alternative housing was found,and so she returned the keys and signed a Notice to Quit. , although Tthe effect of the Notice was not apparentlyexplained to her and she did subsequently try and withdraw the Notice but (although this attempt to withdraw was unsuccessful and any lack of understanding which the wife had about the effect of the Notice was not something which the ECHR felt was important in this case). The husband was then told he had to leave. He failed to do so and therefore Birmingham City Council commenced possession proceedings.

At first instance, the County Court judge refused to grant possession on the basis that the applicant had rights under Article 8 of the European Convention of Human Rights. The authority appealed to the Court of Appeal and were successful. The applicant then applied for a judicial review of the authority's decision to ask his wife to sign a Notice to Quit and it's decision to issue possession proceedings. The judicial review was proved unsuccessful.

The applicant was evicted in March 2005 and subsequently applied to the ECHR alleging violations of Articles 6 (right to a fair trial), 8 (right to respect of the home) and 14 (prohibition of discrimination). The Court quickly dismissed the claims under Articles 6 and 14 but proceeded to look in detail at the arguments under Article 8 – the right to respect for private life and the home.

Article 8 states that this right shall only be interfered with if in accordance with the law and if necessary for the interests of a democratic society.

The Government argued that the decision to procure a Notice to Quit and then to issue proceedings was a decision taken in accordance with the law and in pursuance of legitimate aims, including the local authority's right to protect the management of it's housing stock. The applicant argued that by asking his wife to sign a Notice to Quit, the local authority had by-passed the statutory possession scheme used to seek possession from secure occupiers and as such he was being deprived of the chance to challenge the loss of his home. The local authority had not therefore given any consideration to his Article 8 rights.

The judgment is interesting. The Court first confirmed that the property remained the applicant's 'home' even thought he had no right under English law to remain once the Notice to Quit had been served. The Court further agreed that the interference with the applicant's Article 8 rights was in accordance with the law.

The issue the ECHR focused on was whether the interference was proportionate to the aim pursued and therefore necessary in a democratic society, as Article 8 requires.

The ECHR found that the loss of a home is an extreme form of interference and that any person faced with such a loss should in principle have an opportunity to have the proportionality determined by an independent tribunal. If the applicant were a secure tenant, then this safeguard would be in place as a Court would have to examine the evidence and decide whether to make an order. However, the Council Birmingham by-passed this scheme by asking the wife to sign the Notice to Quit. Although the Court noted that the applicant had pursued a judicial review, the judicial review, like the unauthorised occupier possession possession proceedings, did not provide an opportunity for anyone to consideration of the applicant's Article 8 rights. In short, the absence of adequate procedural safeguards this was a led to a violation of Mr McCann's Article 8 rights and he . Mr McCann was awarded compensation and costs.

The ECHR went on to say that they did not accept that allowing occupiers in these circumstances to raise Article 8 would have serious consequences on the functioning of the system or on domestic landlord and tenant law, finding that only in exceptional circumstances would a tenant succeed in raising an arguable case.

However, the risk now is that whenever a social housing provider is faced with a situation similar to the facts in this case, if the remaining occupant seeks advice, Defendant solicitors across the Country up and down the land will be quoting this case and pleading violation of Article 8 rights. Local authorities certainly need to be aware of the case; RSLs have for many years been in a rather grey area when it comes to decision whether or not they need to worry about Article 8 rights and the sensible advice is going to be to be wary.

The solution? Probably a case of 'watch this space' to see how the domestic Courts react. The Courts may simply need to case will hopefully not result in landlords having to issue fault-based proceedings against occupants who remain in possession – instead, the Courts will probably be required to consider Article 8 when deciding whether to make a possession order in the usual proceedings which are issued in these cases following the Notice to Quit,. The risk is that even this will make the procedure could become more time-consuming; as if the Court does have to consider Article 8, it they will inevitably by definition be required to consider the wider circumstances of the case.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

9 July 2008

Key Contacts

Possession and Human Rights - Article 8 (Right to Respect for the Home)

Introduction