Last Updated on May 14, 2019 by LawEuro
Information Note on the Court’s case-law 223
November 2018
F.J.M. v. the United Kingdom (dec.) – 76202/16
Decision 6.11.2018 [Section I]
Article 8
Article 8-1
Respect for home
Inability to raise defence on grounds of proportionality to possession order sought by private sector landlord: inadmissible
Facts – The applicant’s parents had bought a house with the assistance of a mortgage and the applicant, a vulnerable adult with psychiatric and behavioural problems, lived there, paying them rent. Her parents fell into arrears on the mortgage repayments and the mortgagee sought a possession order, the grant of which would have brought the applicant’s tenancy to an end. The applicant unsuccessfully resisted the grant of the order in domestic proceedings.
Law – Article 8: In Vrzić v. Croatia (43777/13, 12 July 2016), the Court had expressly acknowledged, for the first time, that the principle that any person at risk of losing his or her home should be able to have the proportionality of the measure determined by an independent tribunal did not automatically apply in cases where possession was sought by a private individual or enterprise. On the contrary, the balance between the interests of the private individual or enterprise and the residential occupier could be struck by legislation which had the purpose of protecting the Convention rights of the individuals concerned.
What set claims for possession by private sector owners against residential occupiers apart was that the two private individuals or entities had entered voluntarily into a contractual relationship in respect of which the legislature had prescribed how their respective Convention rights were to be respected. 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.
The relevant legislation reflected 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 was clear from the Supreme Court judgment that, in striking that balance, the authorities had had regard, inter alia, to the general public interest in reinvigorating the private residential rented sector; something which the court had accepted was best achieved through contractual certainty and consistency in the application of the law. A tenant entering into a tenancy, such as the applicant’s, had agreed to the terms – clearly set out in the relevant legislation – under which it could be brought to an end and if, once it had come 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 domestic legislation had, 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 could postpone the giving up of possession for up to six weeks after the making of the order.
While the applicant’s particular circumstances were undoubtedly deserving of sympathy, they could not justify the conclusion that, in cases where a private sector landlord sought possession, a residential tenant should be entitled to require the court to consider the proportionality of the possession order. The authorities of the respondent State had been entitled to regulate tenancies such as the applicant’s tenancy through legislation intended to balance the Convention rights of the individuals concerned.
Conclusion: inadmissible (manifestly ill-founded).
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