Published: Fri, 12 Oct 2018
Kay v Lambeth LBC  2 AC 465
Landlord and tenant; whether Art.8 Human Rights Act 1988 offers defence to action for possession
The appellants appealed against decisions that Art.8 provided no defence to possession applications. They occupied land owned by the council which was leased to a trust and the appellants became tenants of the trust. The council terminated the lease and sought possession. The appellants claimed they became tenants of the council upon termination of the lease, and that Art.8 afforded them a defence to a claim for possession.
The appellants claimed they were tenants of the council and not trespassers. Further, they argued that where public authorities brought possession proceedings, Art.8 provides a defence without having to bring proceedings to challenge the decision by way of judicial review. The appellants also contended the council were in breach of their statutory obligation to provide gypsy sites. The council submitted that Art.8 did not guarantee a right to a home, and nor does it require landlords to justify their possession orders when they are within their lawful rights to recover possession. Further, they argued the appellants were trespassers who had no right to remain on the land.
The appeal was dismissed. As the trust was a licensee of the premises with no estate in the premises, the appellants were never sub-tenants of the council. A public authority landlord has a right to enforce a claim for possession under domestic law, and this will usually provide sufficient justification under Art.8(2) for any interference with any Art.8 rights. In exceptional cases, it may be arguable that Art.8 rights have been infringed in this context but the appellants had no lawful right to remain on the land and so Art.8 was not available to them.
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