This is an extract of our Human Rights document, which we sell as part of our Landlord and Tenant Law Notes collection written by the top tier of Oxford students.
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These only really apply to public sector tenancies.
There is the right to respect for family and private life (Article 8 ECHR)
Human rights have been an evolving problem in UK law.
The House of Lords have said that proprietary rights cannot be defeated by a defence based on
Article 8 ECHR (Qazi) But Lord Steyn, dissenting, said that this emptied Article 8 of all meaning.
Any tenant subject to a mandatory ground for possession could have a human rights claim.
The previous status of the tenant is unimportant, all that matters is that the local authority is seeking possession of the tenant's home. The court must then balance the rights of individual tenants against the rights of other people and the rights of the landlord will weigh heavily here (Powell)
After Powell, Frisby and Hall there are two situations where is will be possible to bring a defence based on Article 8 ECHR:
1. If the legislation is inherently in contradiction of human rights as the substance of the mandatory ground is flawed. This is not likely to ever succeed.
2. Because of personal circumstances particular to the tenant the process is not sufficient to protect the particular tenant's Article 8 rights.
In a problem question one should first determine whether the local authority has a right to possession and then, if it does, consider human rights.
The occupier must raise human rights and it must be seriously arguable (Powell)
Seriously arguable is a high threshold and this must be satisfied to get a hearing at all. It would be easier to get a judicial review but may be less likely to get a result in judicial review.
Some examples of potentially seriously arguable grounds:
The tenant is completely innocent (Chesterfield)
There is an alternative way to achieve the same result (Chesterfield)
Enforcement of the strict legal right is coloured by a separate motive, but this will not succeed if it is a legitimate but unsympathetic motive (Chesterfield)
A minority with special attributes, e.g. Gypsies, may mean the action is disproportionate
A procedural failure where the tenant was unable to raise the argument at all (Kay or
Very serious illness (McCann)
Special educational needs for children (Barker)
The conduct of a private landlord may exceptionally trigger liability for the state if the law does not protect the rights of the individual tenant (Zehentner v. Austria)
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