‘You can’t choose your family’ so the saying goes… and perhaps resonating in some quarters more than others. But in the UK Supreme Court and now the European Court of Human Rights?

When Mr & Mrs McDonald granted a lease to their daughter, it is unlikely they would have ever thought they could be facing a lawsuit against them in the European Court of Human Rights at its termination. But that’s what happened when the parents fell behind on their mortgage repayments for the property. The lender served notice on the daughter, in the name of her parents, seeking possession of their house. The tenant decided to fight back citing human rights… so does it stack up?

ECHR in Social Rented Sector vs Private Rented Sector

The European Convention on Human Rights (ECHR) and in particular Article 8 – the right to respect for private and family life – in the social rented sector requires the courts to balance the rights of both parties in the eviction cases – landlords and tenants and assess the proportionality of making the order to evict a tenant. This has been the law since 2010 when the Supreme Court ruled in the case of Manchester City Council v Pinnock CSIH 78.

The impact of the ECHR in the private rented sector, however, has been challenged by academics during the consultation process for the Private Tenancies (Scotland) Act 2016. The questions that had been raised were: Does the ECHR apply when considering mandatory grounds for possession or the landlord’s automatic right to recovery at the end of the lease under the short assured tenancy? Can the proportionality argument be ignored by a court considering the eviction of a private tenant?

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McDonald v McDonald Case And The Supreme Court Ruling

In the landmark case of McDonald v McDonald and Others (15th June 2016) where a tenant living in her parents property tried to avoid eviction by triggering the Article 8 of the ECHR, the Supreme Court decided that although courts were public authorities in terms of the ECHR, their role was merely to provide a forum for the determination of civil rights between the landlord and tenant. Any balancing of rights between the parties had been done by parliament therefore there was no need for the courts to give it a consideration when deciding on evicting a private tenant. To do otherwise, would make the Convention rights directly enforceable in such a way as to alter the private parties contractual rights, whereas the purpose of it is to protect individuals from having their rights infringed by the state.

Now, a few months down the line, the tenant is challenging the Supreme Court’s rule and planning to go to the European Court of Human Rights, a route that has never been used by any tenant before.

The Residential Landlords Association warns that: “If the appeal had been allowed by the Supreme Court it would have completely undermined the ability of landlords to reclaim possession of their property at the end of a tenancy and opened the door to tenants who might want to remain in a property based on situations of which the landlord was entirely unaware.” (David Smith, policy director for the RLA).

The McDonald v McDonald and Others case was raised under English Law and looked at the terms of the Housing Act 1988 and the mandatory grounds for possession which are virtually identical to those found in the Housing (Scotland) Act 1988. Therefore, it is suggested, the same principals would apply in Scotland.

It’s hard not to draw the conclusion that whatever the final outcome of the case, a family Christmas at the McDonald household seems unlikely.