HRA Can Be Used to Oppose Possession Claim

The Human Rights Act 1998 (HRA) may give tenants the basis of a valid defence against a possession order sought against them.

This was the ruling of the Supreme Court in a case in which a council sought to ‘demote’ the tenancy of a tenant as a first step to obtaining possession of his flat. Demotion is a process by which the security of tenure is removed. Following the switch to a demoted tenancy, the landlord is then able to obtain possession of the property more easily.

Demotion is used in cases, such as this one, where those living in the property cause a serious nuisance. In the case in point, there was significant anti-social behaviour on the part of the tenant’s sons and partner, though not by the tenant himself.

The tenant opposed the council’s application, claiming that his right to respect for his private and family life, guaranteed under Article 8 of the HRA, was infringed by the application.

Although the Supreme Court granted the demoted tenancy application, considering it to be ‘proportionate’ given the serious and persistent nature of the anti-social behaviour, it did agree that the HRA could be engaged in this way in these cases.

More worrying for private landlords is that although the decision was clearly stated to apply only to public sector landlords, some of the discussion of the principles of the case by the Supreme Court judges indicates some uncertainty as to whether the HRA could also apply to landlords in the private sector.

It is surely only a matter of time before a tenant of a private landlord seeks to attempt to use the HRA to oppose a possession order in similar circumstances.