McDonald v McDonald & Anor (Rev 1)

Article 8 does not automatically provide a proportionality defence to a possession claim by a tenant of a private landlord under the mandatory regime in the Housing Act 1988. Domestic courts generally follow Strasbourg authority only where there is a clear and constant line of decisions establishing that approach. No such line existed here. The court was also bound by Poplar Housing and Regeneration Community Association Ltd v Donoghue to treat section 21 as Convention-compatible. Even if proportionality applied, the landlord’s property and mortgagee rights would ordinarily prevail where relocation, though distressing, was not shown to cause lasting irreversible harm. Mortgage receivers’ powers include acts necessarily incidental to taking possession and selling the property, including serving a section 21 notice.

Miss Fiona McDonald, who had a mental disorder and lived in the property as her home, held an assured shorthold tenancy from her parents. The property was mortgaged to Capital Homes Ltd, which appointed receivers after the mortgage obligations fell into arrears. The receivers served a section 21 notice and possession proceedings followed after the tenancy became periodic.

The Oxford County Court made a mandatory possession order on 23 April 2013. On appeal, Miss McDonald argued that the order violated Article 8 and that the receivers lacked authority to serve the notice. The central issues were whether proportionality applied to a possession claim by a private landlord and whether the mortgage conditions gave the receivers incidental authority to terminate the tenancy.

1. Appeal dismissed. The possession order was upheld.
2. Article 8 was engaged because the appellant had a home, despite having no proprietary right. The court was a public authority under the Human Rights Act 1998. That did not itself establish that making the possession order would violate Article 8.
3. Under section 2 of the Human Rights Act 1998, domestic courts generally follow Strasbourg jurisprudence where there is a clear and constant line of authority. The Strasbourg cases relied on did not establish such a line requiring proportionality in possession claims by private landlords. Some cases assumed that approach without deciding the issue, the relevant tenancies were not fully examined, and no Grand Chamber decision required it.
4. Even if proportionality applied, the balance would favour the landlords. Relevant considerations included the landlord’s property right to recover possession, arrears and other loss, and the interests of mortgagees or other creditors. The appellant’s vulnerability and risk of distress or self-harm were relevant, but the evidence did not show lasting and irreversible harm from moving. The mortgage debt of approximately £200,000 materially strengthened the landlords’ position.
5. The court was bound by Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48, which held that section 21(4) of the Housing Act 1988 was compatible with the Convention. The clear mandatory wording of section 21(4) therefore did not permit the court to introduce an Article 8 proportionality exception.
6. The mortgage conditions had to be construed purposively. The receivers’ express powers to take possession and sell the property included powers necessarily incidental to those functions. Serving the section 21 notice was necessary to obtain vacant possession and secure an orderly sale, so the receivers had authority to serve it. Lord Justice Ryder additionally observed that horizontality had not been established as a general principle or in housing law.

• Court of Appeal (Civil Division) — On 24 July 2014, dismissed the appeal and upheld the possession order.
• Oxford County Court — His Honour Judge Corrie made a possession order on 23 April 2013 under section 21(4) of the Housing Act 1988 and rejected both grounds of resistance.