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by Jim Bauld
15:00 PM, 8th May 2012, About 12 years ago 6
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Regular readers of the Daily mail will no doubt have a healthy disregard for “human rights” or “yuman rites” as dubbed by their esteemed columnist Richard Littlejohn.
As a regular reader of the Property 118 blogs, I notice that there have been two recent columns relating to the impact of “human rights” on evictions of tenants in the private rented sector.
Mary Latham produced an excellent blog raising a genuine concern about the impact of the Human Rights Act upon private sector landlords. Mark Reynolds then replied, setting out his view that there should be no significant impact on private rented sector evictions.
The question of the impact of a tenant’s “human rights” on evictions in the private sector seems to be exercising many minds at present. As indicated in Mark’s reply, the Human Rights Act was and is designed to ensure that public authorities act towards individual citizens in a manner which is compliant with the rights set out in the European Convention on Human Rights. The Convention dates back to 1950 and the United Kingdom has been a signatory since that date. “Human Rights” were not invented by the Labour Government in 1998!!
As Mark also points out, the phrase “public authority” is defined in the Act. It does go further than what might be considered as obvious public authorities (e.g. local councils). It is clear from the Act that any organisation which is exercising “functions of a public nature” will be deemed to be a public authority and will require to act in a manner which is compliant with convention rights. This definition clearly means that housing associations for example will have certain duties towards tenants when they are pursuing eviction actions or deciding on allocations.
The initial idea, when the Human Rights Act was enacted, was that the duties would apply in a “vertical” fashion. In other words, the State would owe duties to individuals. Generally speaking it was not thought that the Act would work in a “horizontal” fashion. In other words, if no public authority was involved the courts would not apply the principles of the Human Rights Act in dealings between private individuals.
It has to be remembered, however, that the courts themselves are public authorities and they must act in a way which complies with convention rights. Accordingly, in any action for eviction, the court would be entitled to have regard to the tenant’s rights under article 8 of the Convention, namely their right to respect for their private and family life and their home.
As a lawyer who specialises in the field of evictions, I have not yet seen any decision in any court in which a tenant has been able to successfully defend an eviction action in the private sector based simply on “human rights”.
I have recently seen an attempt in Glasgow Sheriff Court by a tenant’s solicitor to argue that the mandatory ground which exists in Scotland for eviction based on rent arrears was not “human rights compliant” and thus should be struck out. This was done by attempting to raise what is called “a devolution issue”.
When the Scottish Parliament was set up in 1999, the relevant law which set it up indicated that all laws passed by the Scottish Parliament must comply with the Human Rights legislation. In Scotland, if we think that any law passed by the Scottish Parliament fails that test we can raise a challenge to it by means of “devolution issues”. The lower court would then pass the challenge to a higher court to enable it to determine whether the law passed by the Scottish Parliament was “Human Rights Act compliant”.
In this particular case, the challenge was to an Act made by the UK parliament ten years before the passing of the Human Rights Act and ten years before the passing of the Scotland Act. The sheriff quite correctly took the view that the raising of a devolution issue to challenge the competency of a prior UK Act was entirely outwith the scope of the idea of devolution issues. Accordingly he rejected the challenge. The mandatory ground remained open to the landlord subject to the court’s over-riding duty to acknowledge the concept of human rights.
I share the view expressed by Mark Reynolds that the recent Supreme Court cases have taken a pragmatic view of the interpretation of human rights and have not led to any decision being made that evictions are always a breach of human rights.
I would certainly be telling any private sector landlord that they should not be significantly worried about any challenges under the Human Rights Act when they raise eviction actions. Assuming that they have followed the relevant procedures laid down in the various Acts, and that they have a relevant proven ground for eviction, then it will always be open to the court to grant the appropriate decree for eviction.
In conclusion, we should bear in mind the words written in large friendly letters on the front cover of the Hitchhikers Guide to the Galaxy . . . “Don’t panic”.
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Confidence in housing market is falling, say estate agents
Mark Reynolds
17:47 PM, 8th May 2012, About 12 years ago
Hi Jim and thanks for the clarification - I have had a few conversations recently about the point of what is and what is not a public body - concentrating on the "Functional Public Authority" aspect as opposed to the "Pure".
The reason for this discussion is because there are many landlords in the PRS who are fed LHA tenants on a regular basis and have a business relationship in this regard. So the question came up are they a "Functional Public Authority". That said I still don't think there is any need to panic, because as these PRS landlords are already doing things properly the HRA should not bite them in the A***
Or will it? 🙂
19:39 PM, 8th May 2012, About 12 years ago
If evictions were not allowed under the HRA it would destroy the BTL industry in ALL of it's forms overnight.
I'm sure no lender with a first charge on a property willl like the prospect of the tenant not paying rent anymore and the LL not able to make mortgage payments anymore and they cannot evict the tenant
Those with RGI will last as long as the claim is for, mine is about 4 1/2 years before my £50000 claim allowance runs out.
Then about 5 months later my property would be repossessed and the lender would have the problem of evicting the tenant.
RGI companies would be looking at possible massive claims if this eviction prevention comes in.
I just cannot see how a Bristish govt could allow billions of property value etc to be effectively held to ransome by wrongun tenants refusing to pay rent and vacate a property.
There would be mass bankrupticies amongst LL.
Lenders would have to make massive provisions for bad debt which could bankrupt them.
The ramifications of preventing evictions under the HRA are so enormous as to not even be considered as viable.
However when you see the govt not coming out directly and stating that EU BTL regulation would NOT be allowed; it doesn't give you much faith that the govt will not roll over and acquiesce to the EU regarding evictions..
Mark Reynolds
20:36 PM, 8th May 2012, About 12 years ago
That's right Paul the implications are huge.
What every PRS landlord has to remember is that it is the court that will be held to account as they are a public body. If the landlord does everything correctly, for example serving a section 21 notice, then the court will have no option but to grant possession and the proportionality aspect will simply not be an issue.
The cases that have been highlighted recently are involving the local authorities v the tenant, and by the way are quite old cases going back some years, and as you know the local authority are a public body. As a PRS landlord I wouldn't worry too much. As long as you cross the t's and dot the i's, do what you are doing now, you will find that you will not come up against too much to hinder you when seeking possession if you ever need to.
13:30 PM, 9th May 2012, About 12 years ago
I completely disagree with the proposition that the European Human Rights Convention was written only with the idea of dealing with rights of individuals or groups in their dealings with public authorities.
Quite the opposite, the Convention sets out the "rights" and then in each Article it sets out what are the limits of those rights that the public authorities may impose. Thus no-one may be subject to forced labour - that's the "right" - but the state may impose military service - that's the limit to the "right".
Is anyone going to claim that it was never intended to stop forced labour by one individual over another - say, by a diplomat over his imported servant? or by a sweatshop clothes manufacturer over its workers?
Of course not, stupid idea.
So Article 8 grants a right of privacy and of family life, but there are limits. British courts at present are allowing this Article to be used to protect very rich celebrities to avoid exposure of their peccadilloes, but are doing their utmost to stop it being used to protect vulnerable families from eviction when alternative solutions are possible. So much for the ethics and humanity of the courts!
I am a landlord myself, so I have no illusions about tenants and realise that some have to be evicted, but I also recognise that tenants have rights too and should not be forced out just because a landlord doesn't like them or wants to cash in on the Olympic Games bonanza. The EHRCourt have declared that possession claims should be dealt with under the concept of proportionality - in other words there should be consideration by the courts of the balance of the damage done to landlord/lender on the one hand and tenant/borrower on the other by allowing or denying possession.
At present courts are not carrying out any such consideration of balance - they recognise the rights of money far above those of humans.
Mark Alexander - Founder of Property118
13:50 PM, 9th May 2012, About 12 years ago
Wow! That's quite a rant Peter. Unless I'm missing something it appears that you are questioning the humanity of allowing possession under section 21? Without that crucial amendment to the housing act the UK Private Rented Sector would have continued to fail. The starting point was a high of 90% PRS in the UK in the early 1900's, it fell to around 7% by the mid 1980's and is now recovering at around 14%. We are still well behind the more financially stable Nations of the European economy though which are 50% PRS+
Mary Latham
15:50 PM, 9th May 2012, About 12 years ago
I agree with Mark without Section 21 most landlords would sell up and most banks would pull their buy to let funding.
I do not defend those landlords who are repossession property so that they can cash in on the increased rents during the Olympic and I think they may suffer voids afterwards BUT I do defend the rights of those landlords to take back possession of the properties that they own as long as they do so through the legal Possession process.
You are surely not suggesting that landlords are prevented from withdrawing their properties from the market if they choose to do so - or in fact need to do so for economic reasons? Or that landlords should not have the choice of removing tenants who they prefer not to house - for whatever reason? If you are, as Mark said Wow!