A landmark decision by the court in a case known as McDonald v McDonald has clarified the issue, making it clear that the rules are different if you are a public sector organisation and Registered Social Landlord to those that apply to private landlords.
Clarke Willmott Partner Kary Withers, who is based in Bristol, said: “There was great concern that the unpredictability of obtaining possession orders in the public sector would be applied to the private sector.
Fortunately for private landlords the Supreme Court has decided that residential occupiers in the private sector are unable to defend a possession claim by relying on the proportionality test laid down in section 6 of the Human Rights Act 1998 and Article 8 of the European Convention of Human Rights.
Accordingly where a valid notice has been served, the Court is not required to consider whether it would be proportionate to make a possession order.
In the landmark decision of McDonald v McDonald [2016] UKSC 28, the Court unanimously held that Parliament had already struck a balance between the competing rights of landlord and tenant in the Housing legislation and it was not for the Court to alter the contractual rights and obligations of the parties or to interfere with the property rights of the landlord in unpredictable ways which could result in financial loss to the landlord.
The essential purpose of the Housing Act 1988 is to allow private landlords to let their properties on Assured Shorthold Tenancies with a degree of certainty that they will get possession when they desire.
If the Court had been required to make a proportionality assessment before making a possession order that may have prevented or delayed landlords from getting their properties back.
This would have inevitably meant landowners being reluctant to rent out their properties in fear of not being able to get tenants evicted and potentially facing financial loss and additional legal costs which would have only fuelled the housing crisis”.
