Fair Rents (Scotland) Bill or Artificial state manipulation of free market rent?10:34 AM, 6th November 2020
About 4 weeks ago 36
Having read Mary Latham’s article about landlord’s not being able to evict due to human rights law, I have been giving some thought to the speculation. I have worked for the public sector for over 25 years and during that time I have been heavily involved in considering human rights in everything I do. Therefore, I would like to think that I have some experience of article 8 and the implications it has.
In recent cases, for example Manchester v Pinnock 2010, one of the questions raised was the question of proportionality and this case was referred to in Hounslow v Powell 2011. One thing the reader has to remember is that the HRA is directed at Public Bodies and how their actions impact on the people they deal with. But what is a public body? Section 6 of the HRA explains all – the words “public authority” for the purposes of section 6 are defined in section 6(3) as including courts and tribunals, and “any person certain of whose functions are functions of a public nature”.
This is an extract from the act but if you want to read the whole document on what is or what is not a public authority, you can download a pdf here.
So where does this leave a private landlord?
My own opinion, and I stress my own opinion, is that it leaves you exactly where you were before these cases came to a conclusion and changes nothing.
Because you are a private landowner and not subject to the HRA. There is a case currently in the appeal courts but I am not aware what that case is or what the circumstances are. If you are aware then maybe you could shed some light on the circumstances if you are able to.
There are some questions we might want to consider that could well concern private landlords and letting agents
My personal view is that the judges in the appeals mentioned have taken a realistic view on what has gone on and my interpretation of the decisions, particularly in the Pinnock case, are not directed at the private rental sector. Here is a direct lift from the Pinnock case
On the other hand, we should emphasise at the outset that nothing in this judgment is intended to bear on cases where the person seeking the order for possession is a private landowner. We briefly explain why at para 50 below.
And paragraph 50:
We emphasise that this conclusion relates to possession proceedings brought by local authorities. As we pointed out at para 4 above, nothing which we say is intended to bear on cases where the person seeking the order for possession is a private landowner. Conflicting views have been expressed both domestically and in Strasbourg on that situation. In Harrow v Qazi  1 AC 983 the views of Lord Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord Hope, at para 52. In Belchikova v Russia (App no 2408/06, 25 March 2010), the application was held to be inadmissible, but the EurCtHR (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner. Presumably, this was on the basis that the court making the order was itself a public authority. But it is not clear whether the point was in contention. In the rather older admissibility decision of Di Palma v United Kingdom (App no 11949/86)  ECHR 19, (1986) 10 EHRR 149, 155-156, the Commission seems to have taken a different view, but the point was only very briefly discussed. No doubt, in such cases article 1 of the First Protocol to the Convention will have a part to play, but it is preferable for this Court to express no view on the issue until it arises and has to be determined.
Yesterday, I was in conversation with a senior member of my local housing department who was well aware of the Pinnock case and it is also their view that this will in no way affect PRS. That is not to say another challenge may not come up later, but at the moment, as both a landlord and as a letting agent, I won’t be panicking just yet!
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