The decision has implications for landlords and tenants in the private sector, but also gives guidance as to the application of the Human Rights Act 1998 more generally and how proportionality assessments operate in the public housing realm.

The Supreme Court in McDonald v McDonald [15 June 2016] has considered whether a possession order granted to a private landlord of a property held on an assured shorthold tenancy, following service of a notice to quit under section 21(4)(b) of the Housing Act 1988, was in breach of Article 8 of the European Convention on Human Right.

The Facts

The tenant had a personality disorder which made her particularly susceptible to changes to her environment, rendering her psychotic, violent and suicidal. Her landlords were her parents. The landlords had obtained a loan secured by a mortgage over the property.

The grant of the tenancy was in breach of the terms of the mortgage. The landlords became unable to meet the repayments on the mortgage and the lender appointed receivers. The receivers issued a notice to quit and commenced possession proceedings. The County Court granted a possession order and, on appeal, that decision was upheld by the Court of Appeal.

The tenant appealed to the Supreme Court raising three issues:

  • whether when hearing a claim for possession by a private sector landlord against a residential occupier, the court should be entitled to consider the proportionality of eviction in the light of the S6 of the Human Rights Act 1998 and article 8 of the Convention.
  • If possession was disproportionate, whether section 21(4) of the Housing Act (under which the notice to quit was served) compatible with Convention rights?
  • If the answer to both of the above was yes, would the trial judge have been entitled to dismiss the claim for possession?


The Supreme Court dismissed the Appeal saying that in the absence of clear and authoritative guidance from the European Court of Human Rights, it was not open to tenants to contend that article 8 could justify a different order from that which was mandated by the contractual relationship between them and their landlord. The 1988 Act, the Protection from Eviction Act 1977, and the Housing Act 1980 all reflected the state’s assessment of how to balance the article 8 rights of residential tenants and the rights of private sector landlords to the peaceful enjoyment of their possessions when a tenancy ended. To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, when the purpose of the Convention was to protect citizens from infringement of their rights by the state.

Domestic legislature should be allowed to lay down rules of general application with a view to ensuring consistency of application and certainty of outcome and finding for the tenant would involve diluting those rules.

The Court went on to comment that it was not possible to read s.21(4) of the 1988 Act so as to allow the court to assess the proportionality of making what were otherwise mandatory orders.


The decision will reassure private landlords; had the Court decided otherwise it would have driven a coach and horses through the legislation and the fundamental right that a landlord has to recover possession of a property let on an AST.

The decision is also welcome as the Supreme Court has clarified that there are distinctions to be drawn between private sector tenancies and public sector tenancies and the application of Article 8 of the Convention to each of them is different.

The decision has implications for landlords and tenants in the private sector, but also gives guidance as to the application of the Human Rights Act 1998 more generally and how proportionality assessments operate in the public housing realm.

For further help or information please contact Johanne Spittle.

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