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

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

15:31 PM, 11th April 2012, About 10 years ago 56

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I have just read a thread on Property Tribes that says Hounslow Council have been prevented so far from evicting a tenant because she is claiming that they are contravening her human rights under Article 8 of Human Rights Act 1998.

This is what Article 8 says –

Article 8 Right to respect for private and family life

  • Everyone has the right to respect for his private and family life, his home and his correspondence..
  • There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

I can easily see why local authorities are vulnerable to The Act but not how it might relate to a private landlord. The Human Rights Act 1998 does not apply to private individuals, or am I missing something? Particularly since a large landlords organisation are expressing concern?

Something does occur to me though, if this tenant wins using the Act against the local authority where does this leave all local authorities? I’ll bet Ben Reeve-Lewis has something to say about that? Will they need to transfer the ownership of all their stock to private individuals or companies? Is there a business opportunity here for the PRS?

Or will the Secretary of State exercise this power under Section 14.

…does not prevent the Secretary of State from exercising his power under subsection (1) F5…to make a fresh designation order in respect of the Article concerned.



Comments

by Ben Reeve-Lewis

7:44 AM, 14th April 2012, About 10 years ago

Oh I just figured it, Letting Agent.
 
Well yes, I think it is even more unforgiveable for a letting agent to be ignorant of basic law as they advertise themselves as industry professionals and landlords take them on in trust and so they don’t have to bother to learn housing law. Why bother learning about car maintenance if you are paying a mechanic?
 
I have told this story before somewhere but there is a local independent letting agent in my area who do quite well, have many properties on their books. I got a call from an annoyed (and very annoying) tenant complaining about them so I rang the agent for their version of events and spoke to the manager. He complained that he had made the mistake of giving her his personal phone number and she calls at all hours and weekends with daft problems. It was clear that the 2 weren’t getting on and I asked him if her fixed term had ended. He said it had so I suggested he just serve a section 21 and end the misery for all concerned, including me.
 
He replied “Yeah I suppose you’re right, no point dragging things out. So what’s this thing you’re talking about? A Section what?”……..un-bloody-believable, and he is taking money for his services.
 
Whenever I have, as a tenant, been shown around prospective properties I don’t mention what I do for a living and ask the agents pertinent questions and am always amused by the completely clueless answers as they try to look professional and knowledgeable and bluff their way through.
 
I remember once asking a 12 year old in a suit what he knew about the eviction procedure and he professionally assured me that the landlord would have to go to the county court and get them to serve a notice on me and then later on go to the magistrates court to get a possession order haha

by Ben Reeve-Lewis

8:06 AM, 14th April 2012, About 10 years ago

And here I am again. This post has caused me to go into research mode.
 
I was thinking about landlord’s human rights in proportionality, what do judges have to consider? In the case of Gillow v. UK it was observed  that landlords have their own human rights in possession cases. A channel Islands family tried to get their property back from tenants and the judge held that there was a connection to the family home still held by the landlord and his family.
 
Gillow relied on Article 1 of the ECHR which doesn’t get a mention much. It says “"every natural or legal person is entitled to the peaceful enjoyment of his possessions and no one shall be deprived of his possessions except in the public interest and subject to the conditions provided by the law and by the general principles of international law." Bear in mind that a home is also considered under the definition of “Possessions”.
 
I take on board the many complaints about landlords being repossessed if the tenants don’t pay the rent and found how Article 1 could possibly help the landlord raise a ECHR defence. I read the following on the website of a specialist law firm “It follows that possession of the family home should only be interrupted if it is in the public interest. It may be argued that leaving a family homeless in order to pay a bankrupt's creditors is not in the public interest and that the public interest does not dictate the paramountcy of creditors' rights to the interests of a family in not being thrust into the street. Certainly the public receives no benefit from increased homelessness and severe interferences with family stability and, conversely, it may argued that the public suffers no real harm in requiring creditors to collect debts through assets other than the family home or by obtaining a charge on the home not to be enforced until, say, the children reach adulthood and sick relatives are no longer a dependency on the family.”
 
 
 
 
 

by Mary Latham

10:08 AM, 14th April 2012, About 10 years ago

Ben if we evicted every tenant who was unreasonable we would be out of business.The tenants that worry me are the quiet ones, they often let small issues go until they become big problems and cost a lot more than my time.  Give me a moaner any day. After hours I let their calls go to voice mail so that I can decide how urgent they are  - its not rocket science.

I agree that some Agents are not up to speed on regulation and legislation and that is why Mark Reynolds and I are now providing a free forum for them so that they can share, discuss and ask "behind closed doors" where they are not named and can safely admit to lack of knolwedge and support each other. LAsk was launched on 1st April and we have been overwhlemed by the number Agents who have joined and this is a good sign that they do want to learn -as we all must

by Mary Latham

10:16 AM, 14th April 2012, About 10 years ago

Perhaps Im thick but I dont follow how that would help a landlord Ben?  "possession" of a property is held by a tenant during a tenancy not the landlord.
I can see the potential for a tenant, who is on long term "sick" benefit, to remain in the property forever if this legal opion were taken to its logical conclusion

by Ben Reeve-Lewis

10:59 AM, 14th April 2012, About 10 years ago

Thats a great idea about the agents Mary. If I can be of any assistance let me know.

Article 1 refers to people's possessions which, it was established in Gillow includes a house belonging to a landlord even when tenants are in there. So Article 1 kicks in for judges considering proportionality on the landlord's side, so my reading of it is if a tenant owes rent and the landlord is about to lose their home through mortgage arrears caused by the missing rents and for instance a claim is being made under Ground 8 (which is mandatory and the cause of all this hoo haw) I would suggest that Article 1 may well outbalance a tenant's article 8 defence in a judge's mind.

The other point I made is a suggestion by the law firm that wrote the piece that it could be argued that it is theoretically possible to raise an ECHR defence under Article 1  to mortgage repossesion where there is debt and bankruptcy arguing proportionality on the same point. The piece ends saying:-

"it is fervently hoped that the enactment of the Human Rights Act 1998 will redefine a bankrupt family's rights and that practitioners will use it on every possible occasion where the defence of the family home is at stake".
A clear call to arms for defenders. So you see it isnt always just about tenant's rights. They may have Article 8 but it is counterbalnaced by landlords having Article 1 in their corner

by Mark Reynolds

11:37 AM, 14th April 2012, About 10 years ago

I love this! - Two experts in their own right having a conversation and sharing their knowledge! Brilliant for landlords and agents

You may have seen this article already http://www.property118.com/index.php/article-8-evictions-human-rights/27353/ which tries to put to bed any concerns the PRS may have over the stated cases mentions

I do have a question for you Ben. Given the ECHR is not intended to interfere with the law of the land, would a bound tenancy have any bearing on an action brought by a landlord to regain possession his house under article 1?

I would also be interested in your view on the article linked above, over the question of "What if you are a letting agent that is solely or predominately housing tenants on behalf of the local authority? Are you now carrying out a
function of a public nature?"

by Mary Latham

13:38 PM, 14th April 2012, About 10 years ago

Chris you make some good points.  What do you think might happen if a landlord just wanted the property back (Section 21) The tenant may be paying his rent and keeping the property in good order but the landlord might want to sell or take back possession for a number of other reasons.  Do you think that Article 8 might override Article 1 in this case?

by Mary Latham

13:42 PM, 14th April 2012, About 10 years ago

Yes Ben I am on the steering group for MLAS and I also deliver seminars to landlords/Agents as part of the scheme.  Education is key.  Ignorance is too dangerous for us all.  Tenants often know more than landlords or Agents and this is a crazy situation for any business.

by Mary Latham

13:46 PM, 14th April 2012, About 10 years ago

Paul you are willing to learn because you have spent time on fora like this one and you are very aware of many of your areas of low knowledge.  The biggest problem I come accross is the landlords and Agents who don't know what they don't know and they are often not receptvie to being told

Until a person is ready to learn Ben and I and people like us have no chance we are a whisper in the wind.

by Mary Latham

13:54 PM, 14th April 2012, About 10 years ago

Thank you Mark but I don't claim to be an "expert" I am just a well informed landlord.

A Letting Agent is only acting on behalf of a landlord/tenant he is not a party to a tenancy agreement and therefore I would not think that Agents are vulnerable in their own right.  I stand to be corrected What do you think Ben?

Many landlords are now working with local authorities, as you have suggested Mark (either through Agents or directly)  Could the landlord be said to be "carrying out a public function" if they are under contract to that authority?


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