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Human Rights and Possession Orders

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Familiar to many landlords of private residential dwellings is the unruly tenant, bent on remaining in a property even after a valid Section 21 Notice for possession has been presented.  Such tenants can cause even the most law-abiding landlord a serious headache. 

 A section 21 Notice is a legal mechanism, allowing a landlord to take possession of their property at the end of a fixed term tenancy, which, if validly served, should be a straightforward procedure to follow and complete successfully.

Notwithstanding this, a motivated and savvy tenant will try any and every legal argument under the sun to avoid complying with the Notice, causing delay and, in some instances, financial hardship to the landlord.  Until recently, within the tenants' armoury of arguments was that, potentially, a Section 21 Notice would, on the facts, be a breach of their human rights and, as such, unenforceable. 

However, in the recent case of McDonald v McDonald [2014], the Court of Appeal was asked to consider whether a residential private landlord had, by seeking possession of a property by way of a Section 21 Notice, infringed a tenant's qualified right to respect of his private and family life, his home and correspondence, as provided for by Article 8 of the European Convention of Human Rights.

In its decision, which will be welcomed by landlords, the Court of Appeal has held that a possession order granted to a private landlord of a property held on an assured shorthold tenancy, following service of a valid Section 21 Notice, is not a breach of Article 8 of the European Convention of Human Rights (Convention).

Although this decision has removed one possible argument for a tenant to dispute the validity of a section 21 Notice, landlords should still be wary of the potential minefield that possession notices present. Experience has shown that a seemingly minor error and/or typographic on a possession notice can ultimately lead to substantive delay and cost for the landlord, which is usually not recoverable from the tenant.  As such, it is prudent for landlords to seek legal assistance when taking back possession of one of their properties at the end of a tenancy.