Regular updates on relevant case law and legislation - November 2008

CHAPTER 15 LEASES

The creation of a lease

Box B2 Under section 54(2) of the Law of Property Act 1925 (legal lease) (page 364)

In Fitzkriston LLP v Panayi [2008] EWCA Civ 283, £4,000 was not the best rent for the property (the best rent would have been somewhere between £12,000 and £20,000) and so no lease was created under section 54(2) Law of Property Act 1925. Lord Justice Laws held that the trial in Shoreditch County Court had been lamentably conducted by Judge Cotran.

Taking possession and human rights (page 387)

The saga of taking possession and human rights continued in McCann v United Kingdom (19009/04) [2008] BLGR 474; 28 EG and Doherty v Birmingham City Council (2008) UKHL 57; [2008] 31 EG 89 (CS). For those of you who simply want a short account of events, the last paragraph of this section gives you this.

First, McCann v United Kingdom. There is a very clear, useful, and indeed comprehensible summary of the decisions in Qazi, Connors and Kay in this case in paragraphs 22 – 28.

In McCann, Mr and Mrs McCann held a joint tenancy of their house which was rented from Birmingham City Council. Following an allegation of domestic violence, Mrs McCann left the original house and moved to a different Council house. Unbeknown to the Council, Mr McCann moved back into the original house. When the Council found out he was there, it asked Mrs McCann to sign a common law notice to quit the tenancy for the original house that she had moved out of. This had the effect of bringing the joint tenancy to an end for Mr McCann as well: see Hammersmithand Fulham LBC v Monk (1992). The same scenario had occurred in Harrow London Borough v Qazi (2003). When she was asked to sign the notice to quit, Mrs McCann received no legal advice and had no idea that signing it would mean Mr McCann would have to leave. Not best pleased, Mr McCann challenged the possession order of Birmingham City Council on the basis of interference with his human rights.

Article 8 of the European Convention on Human Rights provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.


2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In the County Court the judge refused the Council’s claim for possession and held that Article 8 rights had not been properly considered. He commented on the dubious (sneaky?) circumstances surrounding Mrs McCann’s signing of the notice to quit. Furthermore, if she hadn’t signed the notice, the Council would have had to apply for a possession order under section 84 of the Housing Act 1985 to remove Mr McCann from the house. Section 84 of the Housing Act protects the tenant. It allows a landlord to seek a possession order but only if one or more grounds in Schedule 2 is met and the court has to find the order a reasonable one to make. If the Council had used the Act to obtain possession, Mr McCann would have been given the opportunity to argue that it wasn’t reasonable to grant a possession order and he could have raised his concerns about his own housing needs and the need to have accommodation so that his children could visit him. When the Council served the notice to quit on Mrs McCann it had not shown any respect for Mr McCann’s human rights as it would have had to have done had the statutory procedure under section 84 been used to obtain a possession order against Mr McCann. Result: possession order denied.

Birmingham City Council appealed to the Court of Appeal. (In the interim Qazi v London Borough of Harrow (2003) was heard in which it was held by the majority that, although Mr Qazi’s tenancy had come to an end, Article 8 was still engaged. However, the local authority had an unqualified right to possession and there was no infringement of Mr Qazi’s right to respect for his home under Article 8(1) and therefore the Council did not have to justify its actions under Article 8(2)).

In Mr McCann’s case in the Court of Appeal it was held that Section 84 of the Housing Act 1985 did not apply to the notice to quit that Mrs McCann had signed, even though she was unaware of its consequences. Nothing exceptional had happened since the serving of the notice to quit which would affect the ‘rights and wrongs of the notice to quit’ and the Court dismissed Mr McCann’s appeal.

Mr McCann then applied for judicial review. This was also refused on the basis that the Court of Appeal had already decided the issues and that his request for judicial review was simply an attempt to repeat the arguments a second time.

Having now exhausted all domestic remedies, Mr McCann took his case to the European Court of Human Rights. The Court held that the local authority house still continued to be Mr McCann’s home within the meaning of Article 8 although he had no right to be there once Mrs McCann had signed the notice to quit. Serving the notice interfered with Mr McCann’s right to respect for his home within Article 8(1). The Council, however, was justified in taking possession under Article 8(2) because it protected the local authority’s right to regain possession when Mr McCann had no right to be there and it ensured that the local authority could allocate its housing efficiently under the Housing Acts. The question left was whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society” under Article 8(2). The European Court held that the loss of a home was ‘a most extreme form of interference with the right to respect for the home’. Even though the right of occupation might have come to an end, an occupier should be able to have the proportionality of such interference determined by an independent tribunal. Birmingham Council had bypassed the statutory scheme under section 84 of the Housing Act 1985 which would have given Mr McCann the opportunity to put forward his own personal circumstances such as the issues over the alleged domestic violence and his need for accommodation for his children to be able to visit. In bypassing the statutory scheme, the Council had not taken Mr McCann’s human rights into consideration. The County Court hadn’t been able to examine the proportionality of the possession because nothing had happened between the serving of the notice and the court hearing to make the case exceptional. Mr McCann’s application for judicial review had also been turned down. Even so, judicial review wasn’t well adapted in resolving sensitive factual issues and it did not promote any opportunity for the issue of proportionality to be examined by an independent tribunal. This lack of adequate procedural safeguards which would have allowed Mr McCann’s personal circumstances to be taken into account meant that Article 8 had been violated. Mr McCann was awarded 2000 Euros to compensate him for his feelings of frustration and injustice caused by the loss of his home.

The case was distinguished from Connors on the basis that: Connors involved the vulnerable position of gypsies that the State had a duty to take into account; there had been no procedural protection for Connors; the law discriminated against those gypsies on private sites compared to local authority sites.

The importance of the McCann case is that the European court held that the loss of a home is a most extreme form of interference with the right to respect for a home. Any person in this position should in principle be able to have the proportionality of the decision to take possession determined by an independent tribunal. This would be rare and it would only be in exceptional cases that a person would have an arguable case that would require a court to look at the case so the floodgates wouldn’t be opened. Note that in McCann it was the procedure that Birmingham City Council had followed that caused the violation and that even if the Council had considered Mr McCann’s case, possession could still have been ordered, and probably would have been. The decision does not affect private landlords, only public bodies such as local authorities and county councils. This is because section 6 of the Human Rights Act 1998 states that the Act applies to ‘public authorities’.

In Doherty v Birmingham City Council (2008) UKHL 57; [2008] 31 EG 89 (CS), the Doherty family had been given a licence to stay on a caravan site owned by Birmingham City Council. Some 17 years later the Council wanted to improve the land and brought summary proceedings for possession. Mr Doherty claimed that this was in breach of his right to respect for his home under Article 8 of the European Convention on Human Rights and the Council could not act in contravention of those rights.

Following Kay the Council had an unqualified right to possession which in itself was not a violation of Mr Doherty’s rights because the Council was acting under statute.

Also following Kay, the personal circumstances of the occupier could not be taken into account even though the minority in Kay had argued otherwise. The statutory or common law requirements that the Council would have to meet for obtaining possession would protect the personal interests of the occupier.

If you refer back to Kay (page 390) you will remember that Article 8 could be used as a defence when there was a seriously arguable case that the substantive law was incompatible with Article 8, from now on referred to as gateway (a). The problem in Doherty itself was the substantive law. Protection to mobile home owners was available under the Mobile Homes Act 1983 but did not apply to gypsies who occupied local authority sites. The law itself was at fault and incompatible with Article 8.

To counteract the use of Article 8 as a defence under gateway (a) when this happened, a court had to give effect to the law as far as possible in a way that was compatible with Article 8 or else it had to refer the case to a higher court which could make a declaration of incompatibility under section 4 of the Human Rights Act 1998. As far as Doherty was concerned, the court couldn’t use section 3(1) of the Human Rights Act 1998 which allows a court to interpret the legislation to avoid a violation. This was because the court couldn’t change a provision which said one thing to mean something different.

A declaration of incompatibility was also inappropriate and unnecessary. This was because the law relating to gypsies occupying local authority sites was being rectified in the Housing and Regeneration Act 2008 which had received royal assent in July 2008. The Act was not retrospective either so in itself was also of no use to Mr Doherty. This left judicial review, referred to as gateway (b). Section 6(2)(b) of the Human Rights Act 1998 states that a court still has to enforce primary legislation even if it can’t be interpreted in a way that is compatible with the Convention. This is so unless the decision of the authority is, when subject to judicial review, arbitrary, unreasonable or disproportionate. In Doherty the Council was not acting unlawfully because it was simply enforcing the legislation. However, the case was remitted back to the High Court via gateway (b) for judicial review of the council’s reasons for the possession proceedings. This would look at whether no reasonable person would have taken the decision to recover possession taking into account the length of time the gypsies had been on the site and the Council’s reasons for evicting them. It was also held that ‘unreasonableness’ could be extended to include ‘proportionately’. This extends the ‘Wednesbury’ definition of unreasonableness and appears to form a new defence of ‘the possession proceedings are not proportionate’.

And the overall position now? The whole point of Qazi and Kay was that where there is an unqualified right to possession, provided the domestic law has been followed, possession is not a violation of human rights because the domestic law is deemed to be compatible with human rights. This is practical and everyone knows where they are. Connors had been categorized as an exception to Qazi and Kay because the case involved gypsies and gypsies were a special case. McCann, though, said that anybody should be able to have the proportionality of a possession order assessed by an independent tribunal although such cases would be exceptional. In Doherty the decision in McCann was criticised because the European Court had not given guidelines as to when such exceptions would arise. Until it did so, Kay should be followed and individual exceptional cases would have to be decided as they arose. Doherty was a case to do with gypsies and so fell into the same exception camp as Connors. This allowed the decision in McCann to have been taken into account and the decision in Qazi and Kay to stand. Until the next case that is…