The Court examines private versus public landlord-tenant relationships, dismisses case brought by a private tenant complaining about a possession order
JUDGMENT
F.J.M. v. United Kingdom 29.11.2018 (no. 76202/16)
SUMMARY
The case concerned a possession order against a tenant after the landlords, who were also her
parents, defaulted on their mortgage payments. The applicant complained under Article 8 (right to
respect for private and family life and the home) that the UK courts had refused to carry out a
balancing exercise between her rights as a tenant to not lose her home and the mortgagee’s right to
be repaid.
The Court reiterated that losing one’s home was an extreme interference with one’s rights which in
principle should lead to a weighing up of the competing rights involved by an independent tribunal.
However, in a judgment concerning Croatia the Court had recently clarified that there is a distinction
between public authority landlords and private landlords. In particular, where possession is sought
by a private individual or body, the balancing of the parties’ competing interests can be embodied in
domestic legislation, and it is not, therefore, necessary for an independent tribunal to weigh up
those interests again when considering a claim for possession.
The Court confirmed this distinction in the present case, finding that the domestic legislation had
taken account of the competing interests at stake and that the finance company (as mortgagee) and
the applicant (as the mortgagor’s tenant) had entered voluntarily into a contractual relationship in
respect of which the legislature had prescribed how each of their Convention rights were to be
respected.
Indeed, if a private tenant such as the applicant could require an independent tribunal to conduct a
balancing exercise before making a possession order, the resulting impact on the private rental
sector would be wholly unpredictable and potentially very damaging.
The authorities had therefore been entitled to regulate tenancies such as the applicant’s through
legislation intended to balance the Convention rights of the individuals concerned.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, F.J.M., is a British national who was born in 1970 and lives in Abingdon. She suffers
from mental health problems.
In May 2005 the applicants’ parents bought a house with a mortgage, pledging the house as security.
The applicant lived there, paying rent to her parents under an assured shorthold tenancy.
However, the parents fell into arrears on the mortgage payments and in 2012 the mortgagee sought
a possession order to bring the applicant’s tenancy to an end.
The applicant challenged the possession order before the domestic courts, without success. The
courts, ultimately the Supreme Court in 2016, found that she was not entitled to require the courts
to carry out a balancing exercise with regard to the competing interests involved in her case.
THE DECISION OF THE COURT
The Court reiterated that losing one’s home was the most extreme form of interference with the
right to respect for the home. Any person at risk of an interference of this magnitude should in
principle be able to request that an independent tribunal weigh up the competing rights involved.
The Court acknowledged that it has primarily applied that principle in cases where applicants were
living in State-owned or socially-owned accommodation.
However, in a recent judgment, Vrzić v. Croatia (no. 43777/13 of July 2016), the Court had made a
distinction between public authority landlords and private landlords since, in private landlord cases,
other private interests were at stake which had to be weighed against those of the tenant. In that
case, the Court had expressly acknowledged for the first time that where possession was sought by a
private individual or body, the balancing of the parties’ competing interests could be embodied in
domestic legislation, and it was not, therefore, necessary for an independent tribunal to weigh up
those interests again when considering a claim for possession.
The Court developed the Vrzić judgment in the applicant’s case, agreeing with the UK Supreme Court
that what set claims for possession by private sector owners against residential occupiers apart is
that the two private individuals or entities (in the present case the finance company as mortgagee
and the applicant as the mortgagor’s tenant) had entered voluntarily into a contractual relationship
in respect of which the legislature had prescribed how each of their Convention rights were to be
respected. If the domestic courts could override the balance struck by the legislation in such a case,
the Convention would be directly enforceable between private citizens so as to alter the contractual
rights and obligations that they had freely entered into.
Indeed, the Court observed that in drafting the relevant domestic legislation the UK authorities had
had regard, among other things, to the general public interest in reinvigorating the private
residential rented sector, something which the domestic courts had accepted was best achieved
through contractual certainty and consistency in the application of the relevant law. In the present
case the applicant had agreed to the terms of the tenancy, and the applicable legislation clearly
defined the nature of those terms and the circumstances in which the tenancy could be brought to
an end. The Court added, in line with the UK Supreme Court’s view, that if a private tenant could
nevertheless require a court to conduct a proportionality assessment before making a possession
order, the resulting impact on the private rental sector would be wholly unpredictable and
potentially very damaging.
Finally, it noted that the domestic legislation had made provision for cases of exceptional hardship
by allowing the courts to delay enforcement of possession orders for a certain period of time.
In sum, even though this particular applicant’s circumstances were undoubtedly deserving of
sympathy, the Court held that, in view of the specific features of the private rental market, the
authorities were entitled to regulate tenancies such as the applicant’s assured shorthold tenancy
through legislation intended to balance the Convention rights of the individuals concerned.
The applicant’s Article 8 complaint had therefore to be rejected as manifestly ill-founded(echrcaselaw.com editing).
