EHRM, 13-05-2008, nr. 19009/04

In common law, where a valid notice to quit is given by one joint tenant, it has the effect of bringing the joint tenancy to an end, whether or not the other joint tenant knew of or consented to the service of the notice to quit (Hammersmith and Fulham London Borough Council v. Monk [1992] 1 All ER 1). Once a tenancy has been validly brought to an end, a former tenant remaining in the property is in law a trespasser and the landlord has a right to immediate possession.

By section 82 of the Housing Act 1985, a secure tenant of a local authority or other public authority, such as the applicant, has security of tenure. Under section 84(1) of the Act, a court shall not make an order for possession of a dwelling house let under a secure tenancy except on one or more of the grounds set out in Schedule 2 to the Act. Ground 2(a) of Schedule 2 gives a ground of possession where a couple live in a dwelling-house, one or both is a tenant, one partner has left because of violence or threats of violence by the other, and the court is satisfied that that partner who has left is unlikely to return. Section 84(2) provides that the court shall not make an order for possession on one of these grounds ‘unless it considers it reasonable to make an order’.

According to Birmingham City Council's Allocations Policy Manual (§ 30.8):

However, where there has been domestic violence the Allocations Policy provides (§ 3.7.1):

It would be open to a person who has been made homeless following an allegation of domestic violence to challenge the truth of the allegation and claim that he has been made unintentionally homeless and that the local authority have a statutory duty to re-house him.

Qazi v. London Borough of Harrow ([2003] UKHL 43 similarly concerned the making of a possession order in respect of a council house held under a joint tenancy of a husband and wife. The marriage broke down and the joint tenancy came to an end when Mrs Qazi served a notice to quit. Mr Qazi was refused a sole tenancy by the local authority, but he nonetheless remained in occupation with his new family, and sought to resist possession proceedings on the ground that they constituted an interference with the right to respect for his home under Article 8 of the Convention.

The House of Lords were unanimous in holding that, despite the fact that the tenancy had come to an end, the property continued to be Mr Qazi's home and Article 8 was therefore engaged. However, the majority (Lords Hope of Craighead, Millett and Scott of Foscote) held that Article 8 could not be relied upon to defeat the local authority's proprietary or contractual rights to possession. Since the local authority had an unqualified right to immediate possession, there was no infringement of Mr Qazi's right to respect for his home under Article 8 § 1 and so no issue arose under Article 8 § 2 as to justification. Alternatively, the effect of the authority's proprietary or contractual rights was that any assessment under Article 8 § 2 would inevitably be determined in the local authority's favour. The majority variously referred to a number of decisions of the Commission in which similar complaints, regarding the eviction of a former joint tenant from local authority property after the joint tenancy had come to an end, had been declared manifestly ill-founded (S. v. the United Kingdom, no. 11716/85, Commission decision of 14 May 1986, Decisions and Reports (DR) 47, p. 274; D.P. v. the United Kingdom, no. 11949/86, Commission decision of 1 December 1986, DR 51, p. 195; Ure v. the United Kingdom, no. 28027/95, Commission decision of 27 November 1996; Wood v. the United Kingdom, no. 32540/96, Commission decision of 2 July 1997).

Lord Hope, having held that Article 8 was applicable, continued:

Lord Millett similarly held that:

As regards the balancing exercise envisaged by Article 8 § 2 he stated:

Lord Scott concurred with Lords Hope and Millett, although on somewhat different grounds:

As to the question of remedies in exceptional cases, Lord Hope referred (in paragraph 79 of the judgment) to Sheffield City Council v. Smart [2002] EWCA Civ 4, where the Court of Appeal had held, in a case where a non-secure council tenant was evicted following nuisance proceedings, that a challenge under Article 8 of the Convention to the local authority's decision to serve notice to quit could be made by judicial review within the appropriate time limits. Lord Hope continued by observing that the Court of Appeal in Smart had further held:

Lord Millett also stated:

The dissenting minority (Lords Bingham of Cornhill and Steyn) held that where there was a proposed interference with a person's right to respect for his home, the question of justification, if raised, did fall to be considered and should, in the instant case, be remitted to the County Court. Both cited with approval the following extract from the judgment of the Court of Appeal in Sheffield City Council v. Smart (cited in paragraph 24 above):

Lord Bingham nonetheless emphasised that the administration of public housing under various statutory schemes was properly entrusted to local housing authorities and that the occasions on which a court would be justified in declining a possession order would be highly exceptional. He concluded:

In Kay v. Lambeth Borough Council; Price v. Leeds County Council, 8 March 2006, [2006] UKHL 10, the House of Lords constituted itself as a seven judge Committee (rather than five judges as usual) in order to revisit its decision in Qazi in the light of the Court's judgments in Connors v. the United Kingdom, no. 66746/01, §§ 81–84, 27 May 2004 and Blečič v. Croatia, no. 59532/00, 29 July 2004 (the latter judgment was subsequently referred to the Grand Chamber which found, on 8 March 2006, that because domestic remedies had not been exhausted, it was unable to take cognisance of the merits of the case). The Lords were unanimous in limiting their consideration to cases were the landlord was a public authority.

The majority (Lords Hope, Scott, Brown and Baroness Hale) held that the judgment in Connors was not incompatible with the view of the majority in Qazi that there was no need for a review of the issues raised by Article 8 § 2 to be conducted by the County Court if the case was of a type where the law itself provided the answer, as in that situation a merits review would be a pointless exercise. In such a case an Article 8 defence, if raised, should simply be struck out. However, in the light of the judgments in Connors and Blečič it was necessary to emphasise that a person evicted might have a defence to possession proceedings in exceptional cases, namely

The minority (Lords Bingham, Nicholls and Walker) held that a defendant to possession proceedings brought by public authorities should be permitted in principle to raise an Article 8 defence during the County Court possession proceedings. Lord Bingham expressed it as follows:

The applicant alleged a violation of Article 6 § 1 of the Convention, claiming that the local authority was not an independent and impartial tribunal when it brought about the termination of the tenancy to the property.

Article 6 § 1 provides as follows:

This provision ensures procedural guarantees in the determination of civil rights and obligations. In the present case, the ‘rights and obligations’ were those arising out of the tenancy which the applicant and his wife had with the local authority. The tenancy was terminated by the applicant's wife's notice to quit of 4 January 2002. The determination of the civil rights and obligations, however, took place before the domestic courts — the Birmingham County Court, which gave judgment on 15 April 2003, and the Court of Appeal, which gave judgment on 9 December 2003. Any complaints concerning the fairness of the proceedings must therefore relate to the proceedings before those courts. The applicant makes no submissions as to the fairness of the proceedings before the courts, and does not submit that anything outside the proceedings as such could have had an impact on them.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

The applicant also alleged a violation of Article 8 of the Convention, contending that because of the way in which the council procured the notice to quit in the case, and because the resultant proceedings were limited to bare property law issues, his right to respect for his home was not observed.

Article 8 of the Convention provides, so far as relevant, as follows:

The Court considers that this part of the application raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other ground for declaring it inadmissible has been established. The application must therefore be declared admissible. Pursuant to Article 29 § 3 of the Convention, the Court will consider the merits of this complaint below.

Finally, the applicant, comparing his position with that of spouses of tenants who leave premises because of a relationship breakdown where there is no allegation of domestic violence, alleged a violation of Article 14 of the Convention in connection with Article 8 because the local authority has different policies for the two categories. Article 14 provides:

The Court notes that the applicant did not raise the issue of Article 14 in any of the domestic proceedings, and has failed otherwise to challenge the different policies before the domestic courts. There is thus a real question as to whether the applicant has exhausted domestic remedies, as required by Article 35 of the Convention.

In any event, cases involving domestic violence are not the same as cases which do not involve domestic violence, such that different treatment of them cannot, as such, be discriminatory for the purposes of Article 14 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

The parties were agreed that the right to respect for the home contained in Article 8 of the Convention was engaged on the facts of the present case. They disagreed, however, as to whether the impugned measure was ‘necessary in a democratic society’.

The Court has noted on a number of occasions that whether a property is to be classified as a ‘home’ is a question of fact and does not depend on the lawfulness of the occupation under domestic law (see, for example, Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, § 54, in which the applicant had lived on her own land without planning permission for a period of some eight years). In the present case, it was found by the national courts and accepted by the parties that the local authority house which the applicant formerly occupied as a joint tenant with his wife and where he lived on his own from November 2001 continued to be his ‘home’, within the meaning of Article 8 § 1, despite the fact that following service by the wife of notice to quit he had no right under domestic law to continue in occupation. The Court agrees with this analysis.

It was further agreed that the effect of the notice to quit which was served by the applicant's wife on the local authority, together with the possession proceedings which the local authority brought, was to interfere with the applicant's right to respect for his home.

The Court considers that this interference was in accordance with the law and pursued the legitimate aim of protecting the rights and freedoms of others in two respects. First, it protected the local authority's right to regain possession of the property as against an individual who had no contractual or other right to be there. The domestic courts laid considerable emphasis on this aspect, which applies equally to all landlords who are trying to repossess property. However, the interference also pursued the aim of ensuring that the statutory scheme for housing provision was properly applied. The ‘others’ in such a case are the intended beneficiaries of the complex arrangements set up by, amongst others, the Housing Acts. The Court accepts that it is only by limiting the protection of the Acts to the categories to which it applies that the policy underlying the Acts can sensibly be implemented.

The central question in this case is, therefore, whether the interference was proportionate to the aim pursued and thus ‘necessary in a democratic society’. It must be recalled that this requirement under paragraph 2 of Article 8 raises a question of procedure as well as one of substance. The Court set out the relevant principles in assessing the necessity of an interference with the right to ‘home’ by the application of summary possession proceedings in the case of Connors v. the United Kingdom, (no. 66746/01, §§ 81–84, 27 May 2004), which was decided subsequent to the House of Lords' judgment in Qazi (see paragraphs 22–25 above), but before its decision in Kay (see paragraphs 26–28 above), as follows:

The Court is unable to accept the Government's argument that the reasoning in Connors was to be confined only to cases involving the eviction of gypsies or cases where the applicant sought to challenge the law itself rather than its application in his particular case. The loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.

The Court notes that the legislature in the United Kingdom has set up, through the Housing Acts inter alia, a complex system for the allocation of public housing, about which the applicant does not complain. That system includes, in section 84 of the Housing Act 1985 (see paragraph 20 above), provisions to protect secure tenants of public authority landlords, such as the applicant during the course of the joint tenancy. In accordance with these provisions, a court cannot grant a public authority landlord possession of a property occupied by a secure tenant except on one of the specified statutory grounds and where it is in addition satisfied that it is reasonable to make such an order. Had the local authority sought to evict the applicant in accordance with this statutory scheme, it would have been open to the applicant to ask the court to examine, for example, whether his wife had really left the family home because of domestic violence and whether in his personal circumstances, including his need to provide accommodation for his children during overnight visits several times a week, it was reasonable to grant the possession order.

In the present case, however, the local authority chose to bypass the statutory scheme by requesting Mrs McCann to sign a common law notice to quit, the effect of which was immediately to terminate the applicant's right to remain in the house. It does not appear that the authority, in the course of this procedure, gave any consideration to the applicant's right to respect for his home. Moreover, under domestic law (see the majority opinions in Qazi and Kay, 22–28 above), in summary proceedings such as those brought against the applicant, it was not open to the county court to consider any issue concerning the proportionality of the possession order, save in exceptional cases where, as the Court of Appeal put it in the present case, ‘something has happened since the service of the notice to quit, which has fundamentally altered the rights and wrongs of the proposed eviction’. No such exceptional circumstances applied in the present case. Furthermore, although since the applicant's landlord was a public authority it was open to him to challenge the decisions to obtain the notice to quit and to bring possession proceedings in an application for judicial review, his application failed because the local authority had not acted unlawfully.

As in Connors, the ‘procedural safeguards’ required by Article 8 for the assessment of the proportionality of the interference were not met by the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the local authority's decisions. Judicial review procedure is not well-adapted for the resolution of sensitive factual questions which are better left to the County Court responsible for ordering possession. In the present case, the judicial review proceedings, like the possession proceedings, did not provide any opportunity for an independent tribunal to examine whether the applicant's loss of his home was proportionate under Article 8 § 2 to the legitimate aims pursued.

The court does not accept that the grant of the right to the occupier to raise an issue under Article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. As the minority of the House of Lords in Kay observed (see paragraph 28 above), it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings.

It is, for present purposes, immaterial whether or not Mrs McCann understood or intended the effects of the notice to quit. Under the summary procedure available to a landlord where one joint tenant serves notice to quit, the applicant was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that, because of the lack of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case.

The applicant claimed a total of EUR 50,000 in compensation for non-pecuniary damage, including EUR 20,000 for the loss of his home, EUR 20,000 for the interference with his relationship with his children and EUR 10,000 for suffering and distress occasioned by the humiliation of being evicted in the knowledge that the County Court judge had found it to be unjustified.

The Government commented that, unlike the applicant in Connors who was evicted at short notice from his home of 15 years, and to whom the Court awarded EUR 14,000 in respect of non-pecuniary damage, the present applicant had lived in the house in question for only three years before his marriage broke down and he was ordered to leave under the molestation order of April 2001. Furthermore, the applicant had applied for an exchange of property on 4 January 2002, as the house was too big for his needs. In these circumstances, and given that it was impossible to ascertain what the applicant's position would have been had there been no breach of Article 8 (which was, in any event, denied), the Government submitted that the finding of a violation would in itself constitute sufficient just satisfaction or, in the alternative, an amount significantly lower than that in Connors should be awarded.

The Court notes that it has found Article 8 violated in its procedural aspect only. Given the allegations of domestic violence against the applicant, his status as a single man (albeit one who wished to maintain regular overnight contact with his children) and the shortage of local authority housing stock, it is far from clear that, had a domestic tribunal been in a position to assess the proportionality of the eviction, the possession order would not still have been granted. Nonetheless, the applicant was deprived of his home without the opportunity to obtain a ruling on the issues under Article 8, and the Court thus concludes that he suffered some non-pecuniary damage, in particular feelings of frustration and injustice, not sufficiently compensated by the finding of a violation of the Convention (see Connors, § 114). Deciding on an equitable basis, it awards the applicant EUR 2,000 under this head.

In addition, the applicant claimed costs incurred during the domestic and Strasbourg proceedings, claimed at the national inter partes rate, amounting to a total of GBP 75,570.18, of which GBP 7,691.32 represented his costs before the Court.

The Government submitted that GBP 45,000 in respect of the domestic costs and GBP 6,000 for the Strasbourg costs would be more than adequate.

The Court awards EUR 75,000 for costs and expenses, together with any value added tax that may be payable, less the EUR 850 already received in legal aid from the Council of Europe.

The Court considers it appropriate that the default interest should be charged, based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.