Article 8 and McDonald: A Tasty Judgement for Private Landlords but A Hard One to Swallow for Residential Tenants
| Author | Paul Musa |
| Position | University of Southampton |
| Pages | 35-41 |
[2018] University of Southampton Student Law Review Vol.8
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Article 8 and McDonald: A Tasty Judgement for Private Landlords but A
Hard One to Swallow for Residential Tenants
Paul Musa
University of Southampton
Abstract
n 2016, the Supreme Court decided in McDonald v McDonald1 that Article 8 of
the European Convention on Human Rights cannot justify a different mandate to
that of the contractual relationship between private tenants and landlords, and
the mandate that Parliament decided when balancing the competing interests. This
essentially means that judges are not required to assess proportionality when a
Section 21 notice is granted to private tenants. Despite this case being over a year old,
its ramifications are still vast as according to the 2015-16 English Housing Survey,
36% of private sector tenants are families. These are people who could one day be
affected by the consequences of this case. This article through using case law,
legislation and academic literature scrutinises the reasoning of the judges in this case
and uncovers whether it was decided correctly.
Introduction
This essay is split into four components. The first provides a brief context of the
legislation. The second focuses on the facts of McDonald v McDonald. The third
explores the reasoning of the judges in paragraph 40, which is the current balance
struck between private landlords and residential tenants.2 The fourth component
scrutinises the reasoning and provides critical commentary of it. This case comment
will conclude that Zehentner3 and Pinnock4 do not help tenants to contend a
different mandate to that of contract and statute. As well as that the judges were
wrong to focus on contractual relationship, because it is illusory. Issues with the
statutory provisions and how the judges applied them must be acknowledged.
Despite them, unless Parliament amends them or Strasbourg decides, this reasoning
will remain the current balance between private landlords and residential tenants.
Context
The Housing Act 1988 (HA 1988) strikes a balance between the competing interests
of private landlords and residential tenants. The interest of private landlords is that
of Article 1 Protocol 1 (A1P1) of the European Convention of Human Rights 1950
(ECHR 1950), which states every natural or legal person is entitled to the peaceful
enjoyment of his possessions. While the interest of tenants is that of Article 8 of the
ECHR 1950, which states that everyone has the right to respect for his home. The
Rent Act 1977 did not help because tenants had a strong security of tenure. This
made it difficult for landlords to evict them and therefore they could not enjoy their
A1P1 rights. The HA 1988 solves this by creating Assured Shorthold Tenancies (AST)
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2 ibid para 40
3 Zehentner (n 3)
4 Pinnock (n 4)
I
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