Brexit and residential possession proceedings.

Lord Denning, former Master of The Rolls, the senior Court of Appeal Judge said: “ The Treaty of Rome is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”

It might be expected that with the Brexit vote laws may change, indeed Sir Paul Jenkins, former Head of Government Legal Department says the Brexit vote “seriously increases” the chance of the UK opting to leave the European Court of Human Rights. However with regard to housing law and procedure for private landlords to obtain possession of a residential property there is unlikely to be a significant effect on possession proceedings following Brexit. The procedures themselves are prescribed by the national Parliaments of England and Wales. Although there have been challenges on the basis of Human Rights defences mainly in cases involving Local Authorities and Social landlords, they have generally failed, for example a challenge that once a possession order was obtained , the request for a bailiff’s appointment , dealt with by a Court Official and without the approval of a Judge was in breach of a Right to an individual’s Private and Family life.

The EU has introduced what has been described by Philip Kolvin Q.C. as “societal protection” legislation involving such matters as health and safety, freedom of information, data protection and public procurement and in particular in regulations a concept of proportionality where public bodies are involved.

This has certainly had an effect in Social Housing, in cases such as Manchester City Council v Pinnock and London Borough of Hounslow v Powell in 2011. Housing Associations have been deemed to be Public Bodies. This has meant that when, for example Councils and Housing Associations take action against a tenant for anti-social behaviour, they have to show that the acts of serving a notice, issuing proceedings and obtaining a possession order are proportionate to the tenant’s conduct.

However in a decision reported in The Times on 29th June 2016 in McDonald v McDonald the Supreme Court had to consider whether that issue of proportionality applied to Private landlords. The Court decided it did not. A private tenant could not contend a different order could be made from that which arose from the contractual relationship between a private landlord and a private tenant.

The Provisions of the Protection from Eviction Act 1977 and the various Housing Acts reflect the State’s assessment of how to strike a balance between the tenant’s right to a Private and Family Life by Article 8 of the European Convention on Human Rights and the Right of Protection of Property guaranteed by Article 1 of the First Protocol to the Convention. Under the most common form of tenancy tenants will occupy a property for a minimum of 6 months, the Landlord has to serve a notice and obtain a Court order to get possession but is entitled to an order if certain requirements are met.

The current political atmosphere may also bring to mind another quotation from Lord Denning “ The House of Commons starts its proceedings with a prayer. The Chaplain looks at the assembled members with their varied intelligence and then prays for the Country “.

Written by Jeremy Teall – Partner