Important Decision in European Court of Human Rights which affects all possession cases - tenants and mortgagors

[Webranger]

The ECHR in September gave a final decision on a case that has been running through national and European courts for 10 years - Kay v United Kingdom, originally Lambeth Borough v Kay and others.

 

The ECHR was asked to decide whether occupiers of land should have an opportunity to contest possession orders made against them on the ground that such orders were disproportionate, taking into account the personal circumstances of the occupiers. The challenge was made under Article 8 of the Convention.

 

In finding for Kay the court said that "the loss of one's home is the 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 light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end."

 

The ECHR concluded that the decision by British courts to strike out the defence meant that the procedural safeguards for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal.

 

Although this case was to do with Social Housing tenants, the above paragraphs must apply to any claim for possession including those against private tenants and mortgagors. In fact only this week I used it in assisting a friend to appeal a possession and eviction order gained by Northern Rock. There were other grounds and the decision was made without a hearing, so I cannot tell how much weight the judge gave to this particular ground, but it seems to me that this must now become an essential consideration in all possession proceedings.

[MARTIN3030]

Good post WR.

There has been some posts made with reference to this-but your post here expands on that in some good detail.

[MARTIN3030]

Webranger-maybe a good idea to post this up in the reposession forums too.