FJM – v – The United Kingdom, European Court of Human Rights, application number 76202/16 – 6th November 2018

The applicant is a vulnerable adult with psychiatric and behavioural problems. She had lost two public sector tenancies on account of her behaviour. In May 2005 the applicant’s parents purchased a property with the assistance of a mortgage. They then granted the applicant an assured shorthold tenancy of the property and she claimed housing benefit to pay the rent. The parents fell into arrears with the mortgage repayments and, in August 2008, the finance company exercised its powers under the mortgage to appoint receivers. The mortgage arrears persisted and, in January 2012, the receivers served notice on the applicant under Section 21 of the Housing Act 1988 which permitted the Court to make an order for possession of a property let under an assured shorthold tenancy if it was satisfied that the landlord had given the tenant at least 2 months’ notice in writing that possession was required. The applicant sought to resist the possession order on the basis of violation of her rights under Article 8 of the European Convention (the right to respect for private, family life and home). The Supreme Court had previously rejected the possibility of such a defence. The ECtHR also rejected this possibility. The ECtHR concluded:-

As the Supreme Court made clear, a tenant entering into an assured shorthold tenancy agrees to the terms – clearly set out in the 1988 Act – under which it could be brought to an end and if, once it comes to an end, he or she could require a Court to conduct a proportionality assessment before making a Possession Order, the resulting impact for the private rental sector would be wholly unpredictable and potentially very damaging. Furthermore, the Court notes that the domestic legislation has, in fact, made provision for cases where exceptional hardship would be caused by requiring possession to be given up within 14 days of the making of an Order; in such cases the courts may postpone the giving up of possession for up to 6 weeks after the making of the Order…Therefore, while the applicant’s particular circumstances are undoubtedly deserving of sympathy, having regard to the considerations set out above they cannot justify the conclusion that in cases where a private sector landlord seeks possession, a residential tenant should be entitled to require the Court to consider the proportionality of the Possession Order (paras 43-45).

It would appear that this reasoning would also apply in cases involving Gypsies and Travellers on unauthorised encampments on private land. However, it should be noted that the ECtHR have approved the possibility of a suspension of an order where there are exceptional circumstances and we would argue that the previous Court of Appeal authority (McPhail – v – Persons Unknown [1973] 3 All ER 393) which held that you could not suspend an order against trespassers must no longer be applicable.