Landlords face possibility that they may not be able to evict tenants under Human Rights Law!

Certainly do. It’s the RLA spreading panic, probably to increase membership ha-ha (Sorry Dave).
 
The issue has been doing the rounds following the decision to refer the case of Khela v. Dainter to the court of appeal for a decision and follows in the wake of a high profile public sector case on human rights in possession proceedings called Manchester v. Pinnock.
 
Sorry about the legalese but I can’t explain it without setting the scene.
 
Pinnock was an introductory tenant of Manchester who behaved like an arse during the 12 month period and so the council sought possession because he didn’t pass probation. As is the case with S21 claims there is no defence when a possession claim is made against an introductory tenancy, although there are procedures which have to be followed.
 
Pinnock actually lost his human rights defence to possession but it was clarified that courts are public bodies and therefore they have to consider proportionality in possession cases IF it is raised by the tenant.
 
Which in theory raises the possibility of a proportionality defence for PRS landlords if the tenant tells the court they want to consider it.
 
Khela raised this defence in their claim and the case was allowed to progress to the court of appeal for a full decision.
 
The Powell v Hounslow case revolves around a 2 month rent arrears claim, whereas Khela is a S21 claim. The RLA seem to confuse these 2 arms. Even if the judge in the court of appeal hearing Khela finds for the tenant it will depend on their specific circumstances in a S21 claim, not in a rent arrears claim generally.
 
Now. Proportionality. What is it? A good question and it’s very loosely defined because it relates to individual circumstances which are different for every case. Sticking with a possession claim as an example, basically a judge has to take into account a number of factors, such as the tenant’s individual circumstances, their conduct, the circumstances of the landlord, whether a possession order is a suitable remedy to what they are being presented with AND perhaps most importantly, what is after all a legitimate pursuit under domestic law.
 
UK domestic law has created the AST and with it the S21 claim. Despite the tabloids and general pub talk it isn’t the intention or working practice of the European Convention on Human Rights to interfere with any signatory country’s pursuit of their own domestic laws. It only kicks in when in a specific instance, taking into account the individuals personal circumstances when subjected to that law would be considered to be manifestly unfair.
 
So even if the Kehla case does find for the tenant it will only be in those specific circumstances and doesn’t in any way open the flood gates for ECHR defences to possession claims by PRS landlords.
 
Also bear in mind that proportionality also means taking into account the landlord’s circumstances too. So it isn’t imbalanced.
 
For the record, I will say again that even if Khela wins in the court of appeal ECHR defences to PRS possession applications will be minimal following the case. Although I am sure the tabloids will make much of those cases where people try.

So in a nutshell Ben its a storm in a rentbook?  Thank you for clearing things up.

After having a discussion about this with a colleague he has raised some other issues that may impact on the PRS but I will let him post himself...... the plot thickens

Yeah a bit like the recent petrol panic
 
The passage of law is tediously slow and many nightmare scenarios get projected onto possibilities that end up coming to naught.
 
As a housing law nerd I do find it fascinating though I have to confess, and in the past I have done my fair bit of panic spreading but age and experience has tempered that. Do you remember the Millennium bug scare? Haha
 
The big blocker in this matter is, as I said above, domestic law. ECHR doesn’t cancel out a country’s own laws. If Khela goes the tenant’s way you can bet there will be a rash of copycat cases for a while which the papers will make the most of.
 
My advice? Stay calm and carry on as the posters say…….or to quote a picture recently sent to me by a friend which I have stuck on the front of my work interview notebook, reading  “F***k calm, we’re from South London” haha

Hi Ben

I agree, this is old news that been dug up for who knows what motive. We carried a similar Human Rights story back in Feb 2011 here on Property118 - see http://www.property118.com/index.php/judges-block-eviction-that-mars-a-tenants-human-rights/4152/

Its daft scaremongering. All this stuff about human rights. A couple opf other fairly recent cases that illustrate how courts look at ECHR defences in possession claims are Corby BC v. Scott and West Kent Housing Association v. Haycraft.
 
Without going into the legal nitty gritty too far. Scott mounted a defence to possession on rent arrears against her social landlord on the basis that she had recently suffered a serious “Murderous assault”. The trial judge used this as an excuse to bat back Corby’s possession application. Corby unsurprisingly appealed the decision and the courts held that the assault was neither here nor there as a defence because it had no effect on her ability to pay her arrears.
 
Haycraft was on a starter (introductory) tenancy with West Kent and his neighbour accused him of flashing. He tried to defend partly on the basis that he would be homeless if evicted and that he was in poor health.
 
The judge held on the homelessness argument that Article 8 affords a person “Respect for a home” not “A right to a home”. And the health issues were similarly dismissed as an Article 8 defence as having no relevance on human rights.
 
It has been widely said in articles on Article 8 defences to possession across the housing law world and by people far more qualified than me, that the threshold of proportionality will only be crossed in very exceptional circumstances.

Whenever I hear about cases like this I think "If I were trying to keep a tenant in a property when the landlord has taken legal action to evict would I be able to use this? Not that this is what I do but it gives me a perspective on where I stand as a landlord.   On this one the answer is Yes I would.

Ben said "Which in theory raises the possibility of a proportionality defence for PRS landlords if the tenant tells the court they want to consider it."

So if a tenant gets to court on a S21 or for that matter a S8 and raising the issue of proportionality it could at best delay the eviction and potentially give a bad tenant, and who evicts a good one, extra time in the property even rent free? 
Tell me I've got that wrong please Ben

A good point Mary and astutely noticed. Even a doomed Article 8 defence could theoretically drag a case out and the judge might even lean the tenant’s way, as the judge in Scott did until overturned at a higher level.
 
What it comes down to is the District Judge’s and the hypothetical advice worker’s knowledge and understanding of the vagaries of Article 8 defences.
 
DJs are a very mixed bag in terms of expertise in specific fields. County courts deal with a wide range of problems and judges are drawn from the ranks of lawyers who cut their teeth in the same courts. Some specialise in family law, some in contract, some in housing and they mix and match cases. A good knowledgeable family law judge might be sketchy in housing cases and vice versa.
 
Advice workers too are a mixed bag in terms of subject knowledge and leanings. I think we all go through periods early on when we just want to win our case regardless of whether or not it ultimately helps the tenant or mortgage borrower.
 
Without blowing my own trumpet (too much) I would say I am one of the more experienced housing frontliners, helped by the fact that I train lawyers in housing law too but I wouldn’t go anywhere near an Article 8 defence. I don’t even think it is a job for a housing lawyer, more a human rights lawyer to be honest. Highly specialist work.
 
At the moment these cases are in very early days. It will take years of court of appeal judgements before arguing for and against ECHR defences to possession claims becomes routine enough for people to deal with without too many complications.
 
If an untrained person tried to mount one I can’t see a DJ allowing it to go too far and if it was skilfully put together and was allowed permission to appeal then the case would obviously have some merit. But remember nobody legally qualified who specialises in this area foresees these defences being anything other than exceptional cases, even for social landlords.

Ben, surely,(no I'm not calling you Shirley!;'Airplane, 1976), Section 21 is a straight forward situation of the DJ MUST give possession; no excuses or any reasons needing to be given, end of.
If tenant can put forward defences to Section 21 this can cause severe financial detriment to a LL.
Particularly a small LL who does not have a large pile of cash to cover mortgage payments whilst the legal system wends it's merry way.
Such a Section 21 defence is used invarably by LL's in preference to Section 8 as a guaranteed way of obtaining possession.
Section 8 being sometimes a more contestible possession situation; paticularly if the possession is not being sought due to rent arrears.
The problem is for small LL an impossible situation.
They may win the case eventually.
A bit pointless though if the LL has his property repossessed as he has been unable to pay the mortgage as the tenant stopped paying rent.
There may well be knock on events such as bankruptcy,damaged credit rating,AOE order on LL wages,bailiffs removing LL possessions,CCJ's, garnishee orders etc.
And all to satisfy a wrongun tenant's spurious claim under the ECHR.
To give you a bit of a laugh I had a criminal idiot fraudster tenant who advised me that she would be submitting a claim against me for a million pounds under the ECHR, LOL.
I wasn't intimidated by this idiot.
She did however know how to manipulate the system.
Unfortunately I DID NOT have a RGI policy in place, DOH!
So very much my fault.
Cost me over £12000 in losses.
Believe me I won't get bitten again!
These cases more than ever show how for a small LL without vast cash reserves or credit facilities needs to have RGI in place on all his tenants.
The unintended consequences of this are that a LL will possibly take a pragmatic business decision NOT to rent to anyone who fails a RGI check.
This will then deprive perfectly legitimate tenant applicants from obtaining rental property!
Not everyone can pass a RGI check though maybe perfectly acceptable tenants.

£1,000? haha

Small landlords are always in a more precarious position anyway, even without a bad tenant. I advised a landlrod the other day with only 1 property. The boiler blew up and needed replacing but she didnt have any reserves to pay for it as she was maxed out all the time, surving from one rent/mortgage payment to the next. My sympathies didnt take away her obligations under Section 11 to fix the boiler.

On the S21 issue and Proprtionality the problem of all the case laws I listed above relates to possession being granted where the tenant has not defence, so S21, termination of introductory/starter tenancies, and Ground 8 are in that ball park. Article 8 prohibits a public body from interfering with someone's home. And just to clarify again, although PRS landlords arent public bodies, courts are and therein lies the issue.

Proportionality means that a judge would have to take into account both party's circumstances, that includes small landlords facing repossession without the rent money to pay the mortgage.

As with Haycraft defences based on 'I'll be homeless if you grant possession' dont wash, neither do arguments of 'I've been ill' as used in Corby BC v. Scott.

Any ECHR defence chucked before a judge would have to be substantial indeed if it is to get anywhere. And as I keep saying, human rights lawyers all state quite categorically that even for social landlords ECHR defences with have to be exceptional if they are to get anywhere.

Mary's concern that advisers/lawyers/tenants could simply chuck in an Article 8 defence to delay things is also highly unlikely to result in anything. Judges arent daft and can spot a spurious defence quickly enough.

There really is no need to worry about these types of cases. The trouble is, I'm sure that someday, somwhere a tenant will have a go and it wil reach the papers who will yell "This is an outrage - Human rights gone mad" and make it look like the sky is falling,.

Keep it in perspective

The human rights law clearly state that the local law prevails. Therefore, if the tenant is in breach of the tenancy (Ex.: damaging the property, using the property for illegal activities, not paying rent etc), then the local law states that the tenancy is void and the tenant must leave the property. The human rights law was never intended to shelter lawbreakers.

This particular case would just waste public funds and Court's time but will not succeed.

Also, the human rights law applies to everybody including landlords. Therefore, a tenant not paying rent would cause financial hardship and stress on the landlord  who could loose the property, loose money,
have a bad credit history and even jeopardise his own home. Why should be expected for a private landlord to keep for free a tenant or pay for his damages.

The human rights
law clearly states that it does not apply if that interferes with the rights of
others. Hence, the landlord (be it private or council) has the right to receive
rent and have an undamaged property whilst the tenant cannot use human rights
to damage property or not pay rent as this breaches the rights of others (in
this case the landlord’s).