Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Recap - What is an Article 8 Defence?
Where a tenant seeks to persuade the Court that eviction from their home would not be proportionate. The Court will be asked to take into consideration the tenant’s own personal circumstances and the effect that eviction would have on them. The Court balances that against the landlord’s ultimate aim of regaining possession of the Property in question.
The Courts Approach – What does the case law say?
The existing cases decided by the Court in relation to Article 8 challenges in mandatory possession proceedings have increasingly eroded away a tenant’s ability to argue such Defences. They are often raised in cases where the tenant may lack security of tenure – failed successors are an example of this and this is the issue that was considered in the Holley case.
The Holley Case - the Facts and Decision
Mr Holley’s grandmother held a tenancy of a 3 bed Property and when she passed away her husband succeeded to the tenancy. The husband passed away in 2012 leaving Mr Holley and his brother living at the Property. With the succession right having been “used” up by the husband, Hillingdon served a Notice to Quit and sought possession on the basis that Mr Holley had no right to succeed to the tenancy.
Mr Holley sought to rely on Article 8 to say it wasn’t proportionate to make a Possession Order against him based on, amongst other matters, the fact that he had lived at the Property for all of his life. The County Court Judge decided that this was not a seriously arguable defence and granted a Possession Order.
Mr Holley appealed to the Court of Appeal stating that (1) the Judge should have considered his length of occupation but also on the basis that (2) Hillingdon had the ability to use their discretion in their policy to allow a second succession and had not considered doing so.
The Court of Appeal did not agree with Mr Holley. They stated that the length of occupation on its own could not be sufficient to create a successful Article 8 Defence. It could be considered together with other relevant factors in a proportionality assessment but, because Parliament has lawfully excluded second successions and that provision was compatible with the European Convention on Human Rights, it was “of little consequence”.
The Court also declined to accept Mr Holley’s argument in relation to the discretion to allow a second succession. This public law challenge (rather than a Human Rights argument) suggesting that the decision not to allow him a second succession was unlawful failed. The Court had evidence before it that even if full consideration had been given to a second succession request, the decision would ultimately have been the same – it would not have been granted.
It’s difficult to see many situations, other than extreme vulnerability, where an Article 8 Defence will actually be successful in light of this and the many cases already decided. The clarification provided in the Holley case simply reinforces this. This does not stop the defence being raised and having to be argued however. Tenant advisors will no doubt instead continue leaning towards Equality Act Defences should the tenant suffer from a disability of any sort.
Holley is also helpful in that it confirms that if a landlord has made an error in making a decision e.g. by not fully following its policy, the Court can take into account evidence showing that even if the error had not been made, the outcome would have been the same.
For more information
Please contact Alex Loxton.
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