Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Section 21 and Article 8 of the ECHR

Section 21 and Article 8 of the ECHR

The Supreme Court’s judgement in McDonald v McDonald & Anor is expected in the next month or two.

The issue:
Whether the possession order made in the county court infringed the tenant’s rights under Article 8 of the European Convention on Human Rights (“ECHR”).

The History:
The tenant, Miss McDonald held an assured shorthold tenancy of a property in Oxfordshire. The Landlords of the property were in fact Miss McDonald’s parents who granted the tenancy in breach of the terms and conditions of their mortgage. When the Landlords fell behind with the mortgage payments, receivers were appointed to manage the property. The receivers, on behalf of the Landlords and the mortgage provider, sought possession of the property under the terms of the mortgage.

The Court Decisions:
Oxford County Court made the possession order in April 2013.

Miss McDonald appealed on the grounds that the receivers were not able to bring possession proceedings in the way they had and, that possession would be an interference with her rights under Article 8. The Court of Appeal dismissed the appeal on the following grounds (Arden LJ gave the leading judgment):

– Receivers under a charge had the power to serve section 21 notices.

– There was no sufficient body of case law in the ECHR that amounted to “clear and constant” jurisprudence establishing an Article 8 defence in private proceedings.

– The Landlords’ financial detriment in this case outweighed the Miss McDonald’s health considerations. Thus the Appellant had not met the threshold for a proportionality defence.

– The Court of Appeal was bound by the decision in Poplar Housing and Regeneration Community Association Limited v Donoghue [2002] Q.B. 48. The Court of Appeal had already found that section 21 was compatible with the European Convention.


It remains to be seen how the Supreme Court will view the situation. They may follow the same line as the Court of Appeal and hold that Article 8 has no application to private landlords and tenants. If they do decide that Article 8 applies then that right will need to be balanced with a landlord’s right not to be deprived of their property under Article 1 of Protocol 1 of the European Convention. The balance is very tricky and in reality is likely to mean that only in the most exceptional cases could Article 8 not apply. It may be that even in this case Miss MacDonald’s personal situation is not sufficiently severe to prevent possession being granted.

Filed under: England & Wales

Abandoned properties under the Housing and Planning Bill

The Housing and Planning Bill is currently passing through the House of Lords. The Conservative government is hoping to tackle the housing crisis with this Bill by “kick-starting a national crusade to get 1 million homes built by 2020”. The Bill is not without its critics, including Jeremy Corbyn who led a mass demonstration against it in London last month. Criticisms of the Bill include:

– an introduction of market rents and a possible end to subsidised rents for low income tenants;
– the obligation on landlords to check the immigration status of tenants may lead to risk averse landlords refusing to rent to migrant workers; and
– new tenants will no longer be entitled to lifetime tenancies in council homes.
This post is focused on Part 3 of the Bill. Clauses 49-59 provide for an entirely new process for the recovery of abandoned properties by landlords without the need for a court order.

In summary a private landlord may give a tenant notice which brings the tenancy to an end on that day, if the tenancy relates to premises in England and certain pre-conditions are met. These are:
• a certain amount of rent is unpaid (two consecutive months where rent is payable monthly);
• that the landlord has given 3 warning notices at different times in accordance with clause 57; and
• and that neither the tenant or a named occupier has responded in writing to any of the warning notices prior to their expiry dates.


This process has caused concern in some quarters that unscrupulous landlords will take the opportunity to carry our unlawful evictions and attempt to disguise them as abandonment.

Filed under: England & Wales

New Section 8 and Section 13 Notices

We are pleased to confirm the new notices have now been uploaded to our document vault for our Helpline subscribers to download and use.  Remember these are the Notices you must be using now!  If you use the previous notice this will be invalid.

Filed under: England & Wales

Richard Pulford

We are pleased to announce that Richard Pulford qualified as a solicitor on 1st April 2016.

Richard is the latest person trained by PainSmith Solicitors to qualify. Richard joined the firm as a paralegal in 2011 and was offered a training contract in 2014.  Richard has a vast amount of experience in dealing with all aspects of residential repossessions and contentious landlord and tenant.

Richard will be attending the ARLA Conference at ExCel on Tuesday 12th April 2016 although this year PainSmith Solicitors are not exhibiting.

To contact Richard his email is or call 01420 565310.

Photo (2)

Filed under: England & Wales


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