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Mortgages.

The editor of this section of the site is Nigel Clayton of Kings Chambers, Leeds and Manchester. Nigel also maintains the specialist website dealing with mortgages at www.legalmortgage.co.uk

Buy to let mortgage

Powers of LPA Receivers to serve notice in respect of tenancy – Article 8

McDonald v McDonald
[2014] EWCA Civ 1049

Summary

The ‘proportionality’ test in Article 8 does not apply to steps taken by an LPA Receiver of a private buy-to-let landlord to recover possession.

Facts

D (who had a mental disorder) was granted an Assured Shorthold Tenancy by her parents to a small residential property which they purchased with a mortgage from CHL. The AST was granted without CHL’s knowledge or consent. The parents subsequently defaulted and CHL appointed LPA Receivers who served a s21(4) Housing Act 1988 notice on D in their own names and subsequently commenced proceedings for possession in the landlords’ names.

Issues

D (acting by her brother as litigation friend) defended the possession claim on two grounds:

(1) Tn order for possession would be in breach of D’s Article 8 rights (right to respect for home; no interference by a public authority etc); and
(2) The section 21 notice was served on D without the authority of the landlords.

The judge found against her on both grounds. D appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal. As to the two points above:

(1) Article 8

There is no ‘clear and constant’ jurisprudence of the Strasbourg court that the proportionality test implied into Art 8(2) applies where there is a private landlord. Even if the proportionality test had applied, the court would still have made a possession order. In any event, the court is bound by Poplar Housing & Regeneration Community Association Ltd v Donoghue [2002] QB 48 to hold that s21 is compatible with the Convention. That precludes the court from holding that the proportionality test applies. In the circumstances, the question of interpreting s21 to conform to Convention rights ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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