Private landlords — the article 8 defence and receivers’ powers

In the recent case of McDonald and Others v McDonald, the Court of Appeal considered whether (1) an order giving a private landlord possession of a premises held on an assured shorthold tenancy would breach article 8 of the European Convention on Human Rights (ECHR) after serving a statutory notice under section 21(4) of the Housing Act 1988 and (2) whether receivers appointed by a mortgage pursuant to the terms of a legal charge were afforded powers for which there was no express provision in the mortgage terms.

In this case, a married couple borrowed money by way of mortgage from a third party (‘the funder’) in order to acquire premises. Upon purchasing the premises, the borrowers (‘the landlords’) granted, in breach of the mortgage terms, an assured shorthold tenancy agreement to their disabled daughter.

The landlord subsequently defaulted on their mortgage and, as a result, the funder appointed receivers pursuant to the terms of the mortgage. The receivers served upon the tenant a notice in their own name pursuant to section 21(4)(b) of the Housing Act 1988 and subsequently commenced possession proceedings in the name of the landlord. At the initial hearing, the County Court made an order for possession of the premises as they were required to do by statute after having satisfied themselves that the tenancy had expired and that the appropriate notice had been served…

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