One of the well-established principles of the law relating to obtaining possession of residential property that applies in the case of a possession order sought by a public authority is that of ‘proportionality’, which broadly speaking means that if, on the facts of the case, obtaining possession is a disproportionate response compared with the responsibility to provide housing for the socially disadvantaged, then a possession order will not be granted.

Recently, a private sector tenant sought to avoid the granting of a possession order. The case, which was fought all the way to the Supreme Court, has left private sector landlords with a clear ruling on their rights in such cases.

The tenant in question suffered from a personality disorder and had not worked for more than 15 years. She had lost two public sector tenancies and so her parents assisted her by obtaining a mortgage and letting a flat to her under an assured shorthold tenancy. They were unable to keep up the payments on the mortgage, however, and the lender appointed receivers, who sought a possession order in the name of the parents against their daughter.

At the first hearing, the judge held that the court was not required to consider the issue of proportionality in a case where the person seeking possession against a residential occupier was not a public authority and allowed the claim. However, he went on to say that, had he been entitled to consider proportionality, he would, on balance, have dismissed the claim. This led to the case being appealed and it ended up in the Supreme Court.

The Court ruled that Article 8 of the European Convention on Human Rights (on which the proportionality argument is based) could not apply in a case such as this.

In essence, the ruling provides a clear demarcation of the rights of ‘public’ landlords, such as local authorities and housing associations, and ‘private’ landlords.