Date of the decision: November 6th 2018
Country: United Kigdom
Jurisdiction: European Court of Human Rights
Legal Basis: Article 8 (right to respect for private and family life and the home)
Relying on Article 8 (right to respect for the home), the applicant complained that the possession order against her had been disproportionate and that the domestic courts had refused to carry out a balancing exercise between the competing interests involved, namely her right to not lose her home and the mortgagee’s right to be repaid.
Subject: In its decision in the case of F.J.M. v. the United Kingdom (application no. 76202/16) the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final.
The case concerned a possession order against a tenant after the landlords, who were also her parents, defaulted on their mortgage payments. The applicant complained under Article 8 (right to respect for private and family life and the home) that the UK courts had refused to carry out a balancing exercise between her rights as a tenant to not lose her home and the mortgagee’s right to be repaid.
The Court reiterated that losing one’s home was an extreme interference with one’s rights which in principle should lead to a weighing up of the competing rights involved by an independent tribunal. However, in a judgment concerning Croatia the Court had recently clarified that there is a distinction between public authority landlords and private landlords. In particular, where possession is sought by a private individual or body, the balancing of the parties’ competing interests can be embodied in domestic legislation, and it is not, therefore, necessary for an independent tribunal to weigh up those interests again when considering a claim for possession.
The Court confirmed this distinction in the present case, finding that the domestic legislation had taken account of the competing interests at stake and that the finance company (as mortgagee) and the applicant (as the mortgagor’s tenant) had entered voluntarily into a contractual relationship in respect of which the legislature had prescribed how each of their Convention rights were to be respected. Indeed, if a private tenant such as the applicant could require an independent tribunal to conduct a balancing exercise before making a possession order, the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging.
The authorities had therefore been entitled to regulate tenancies such as the applicant’s through legislation intended to balance the Convention rights of the individuals concerned.
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English
Jurisdiction:
Council of Europe - European Court of Human Rights
Article 8 - Right to respect for private and family life
Subject:
Principle of proportionality
Country:
