ECHR conclusively rules out the employment of Article 8 defences in possession proceedings between private individuals

18 December 2018

Alistair Cantor considers the decision of the European Court of Human Rights in FJM v United Kingdom, App No 76202/16 which conclusively rules out the employment of Article 8 defences in possession proceedings between private individuals

The facts

FJM was a vulnerable individual suffering from mental health disorders.  She became the assured shorthold tenant of her parents, who bought a property specifically for her to live in.  When the mortgage fell into arrears, receivers were appointed and subsequently served a s21 notice on FJM.  FJM defended the possession proceedings by arguing that a possession order would infringe her Article 8 rights.

A possession order was made in the county court, and that decision upheld in the Court of Appeal and Supreme Court.  The Supreme Court ruled that an Article 8 defence was not open to FJM, Parliament having determined the appropriate balance to be struck between the rights of privately contracting landlords and tenants in legislating for mandatory possession grounds.

The ECtHR Decision

The court reviewed previous ECtHR jurisprudence, noting the various previous cases where the court had applied the principle that any person at risk of losing his or her home should be able to have the proportionality of the measure determined by an independent tribunal with reference to Article 8 of the Convention.  Those cases showed that the principle had ordinarily been applied in cases where the applicant had been living in state- or socially-owned accommodation, but there were examples of its potential relevance in a private context (e.g. Brezec v Croatia (2013) ECHR 705).

However, in Vrzić v Croatia App No 43777/13 the court distinguished those past cases and expressly acknowledged that the principle did not automatically apply in cases where possession was sought by a private individual or enterprise; in fact the balance between the interests of the private individual or enterprise and the residential occupier could be struck by legislation enacted to protect the Convention rights of the individuals concerned.

Following the decision Vrzić, the court rejected FJM’s application as manifestly ill-founded.

The court ruled that private landlords and their tenants enter voluntarily into contractual relationships in respect of which the legislature has set down a prescribed fashion in which their Convention rights are to be respected.  It was not the role of either the domestic courts or ECHR to override that prescribed balance.  Were that permitted, the impact on the private rental sector would be wholly unpredictable and potentially very damaging.


The ECtHR’s decision appears conclusively to spell the end for Article 8 defences in possession proceedings between private individuals, certainly where mandatory grounds are relied upon and made out.

The ECtHR’s decision can be found here.  The Court of Appeal and Supreme Court judgments can be found here and here.