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Private tenants can use human rights to prevent s21 eviction

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  • Private tenants can use human rights to prevent s21 eviction

    Further to my post here asking for help with defending possession proceedings:

    PRIVATE TENANTS CAN NOW ARGUE ARTICLE 8 OF HUMAN RIGHTS ACT 1998 IN S21 POSSESSION PROCEEDINGS, WHERE THERE HAS PREVIOUSLY BEEN NO LAWFUL DEFENCE.

    It has been my experience that Housing Workers and Shelter are NOT AWARE of this defence, and advise that there is none, despite precedents being set in 'Manchester City Council v Pinnock' in 2010, and 'Hounslow v Powell' in 2011.

    Because of those cases, a county court now MUST hear a public law (= human rights defence) based on article 8 'right to respect for private and family life' - including home, work, correspondence, relationship and development of personality. The court must only hear the defence if it is 'seriously arguable' and raised by the tenant.

    I have asked for adjournment to allow time for an amended defence in my s21 proceedings. So far I had only succeeded in gaining an exceptional hardship hearing for 15 minutes in 13 days from receiving notice from court. That hearing would allow up to an extra 6 weeks only, before I could be forcible evicted from my home.

    Note, a public authority, such as a court, has a positive responsibility to protect an individual from interference with their home, even if it is caused by an individual. (In my case, this is the same court who have awarded a possession order).

    An individual who is the victim of a public authority, such as a court, acting in a way that breaches their human rights, can take that authority (court) to court, under s7 of the Human Rights Act 1998.
    Tags: None

  • #2
    Re: Private tenants can use human rights to prevent s21 eviction

    To:
    xxxxxxxxxxxxxx County Court
    xxxxxxxxxxxxx
    xxxxxxxxxx
    xxxxxxxxxxx
    xxxxxxxxxxxxx xxx xxx

    3rd December 2012

    Dear Sirs,
    Case no xxxxxxxx
    xx xxxxxx xxxxxxx – Claimant
    xxxx x xxxxx – Defendant

    Thankyou for your communication which arrived on x xxxxxxxx awarding possession as of xxth xxxxxxxx 2012, and hearing for xxth xxxxxxxxx 2012.

    This response has been written without legal advice or assistance or any kind and as such I hope it offends no court procedure or understanding. I would ask the judge to take my use of the law in spirit rather than otherwise, despite my perhaps unusual level of understanding.

    I draw attention to the fact that section 21 notices have been tried at the European Court of Human Rights and that action failed, and that scant attention has been paid to the counter force of the Human Rights Act 1998. I understand this Act to encode the treating of a person with respect and dignity into enforceable law.

    In particular, public authorities (such as xxxxxxxxxxx and xxxxxxxxxx xxxxx xxxxx) have a positive responsibility to protect an individual from interference with his private and family life, home, work, correspondence, relationship and development of personality, even if that home, etc is being interfered with by an individual.

    Request for Adjournment and Mediation

    1. The landlord and court seek to remove me forcibly from my home within weeks of xx/xx/xx.
    2. This is an act of contempt (lack of respect) on my person and I believe it to violate my human rights in articles (Part I): 3 (degrading treatment), 5 (right to liberty and security of person), 6 (right to a fair trial), 7 (no punishment without law), 8 (right to respect for private and family life) and (Part II): 1 (right to peaceful enjoyment of possessions).
    3. Furthermore, this is not a time of war or other public emergency (article 15).
    4. My home has been resident in the property for 2.5 years and I believe this commands respect.
    5. I therefore wish to bring a public law defence to the proceedings, in an amended defence.
    6. As a tenant, the (county) court is, to my belief, obliged to hear my public law defence.
    7. The precedents in this type of defence were set in Manchester City Council v. Pinnock in 2010 and Hounslow v. Powell in 2011. The right to use public law defence under article 8 was extended then to private tenancies.

      The following points 8-11 are an attempt to describe how the landlord and agent's procedures have made it almost impossible for me to know what to do, or seek right of address, since start of tenancy, but more so since xxxx 2012 notices.
    8. Although the claimant issued notices in xxxx, he did not give a definitive position on whether he wished to take possession, or continue tenancy for so-called 'rent arrears', until 28/11/12, and on that day decided he did not wish to continue tenancy, after being informed of my involving the council, Shelter and press. Please see e-mail correspondence sent after this e-mail.
    9. Prior to this, claimant issued Sxx (x) (x) notice on xx/x/xx and Sx notice (grounds x, xx and xx) on xx/xx/xx. I warned him of counterclaim to Sx notice. He sent unsolicited and confusing correspondence essentially offering repairs in return for payment of 'rent arrears', without stating an intention to continue tenancy in writing.
    10. Rent had been withheld before moving out when I was constructively evicted in xxxx/xxxx 2012 after yet another refusal to repair, and an accusation that I had done malicious damage. I then noticed I had a serious complaint of repair and reputational injury issues still unanswered, dating back to xxxxxxxx xxxx. The claimant's agent had persistently (4 times I believe) completely ignored e-mail complaints, despite responding to other e-mails. The complaint was re-written on xxth xxxxxxxxx at agent's request, and once again, completely ignored. Complaining to the agent was likely to be my only hope of redress, as court action would almost certainly bring retaliatory eviction (I understood, until xx/xx/xx, there to be no defence to possession proceedings). The situation had become so unpleasant and incomprehensible as to cause me to move. But I found nowhere to go. My circumstances are difficult: self-employed, work-at-home xxxxxxxxxxx and xxxxxx (profession) (www.xxxxxxxxxxxxxxxxx), housing benefit. I also needed to sell furniture, which I still have not been able to do, having no final answer till 5 days agoThe following points 12-14 attempt to describe why I am bringing defence at such a late stage, particularly when first notice was sent xx/x/xx.
    11. After hearing landlord did not wish to continue tenancy, I called court same day, xx/xx/xx, to see if there was a result. I was informed by xxxxxxx papers had been sent back with none, and sent back up to judge that day. xxxxxxx then told me I could enter an 'amended defence'.
    12. Prior to this date, I was advised forcibly, and repeatedly, despite discussion, by xxxxx xxxxxxx, Housing Advisor at xxxxx xxxx xxxxxxxxxx (govt advisory body for housing), and xxxxxx xxxxx, senior Shelter advisor who helped me on legal help, as well as Shelter helpline (another senior advisor) that there was “no defence”. I had never heard of an amended defence.
    13. Shortly after midnight on xx/xx/xx I learnt online that I could bring a public law defence.

      The following points describe further developments and argument.
    14. I spent xx/xx/xx – x/xx/xxagain in servitude to my landlord (a breach of article 4, HRA 1998) researching said defence, in order to protect my home (the threat to which I see as a breach of article 8).
    15. My Shelter advisor resigned when asked for help with amended defence, on xx/xx/xx, on 'professional grounds'. This is because I had commenced amended defence – even though I had written the first one myself, as the court can see. I thus have no advisor.
    16. On x/xx/xx I received possession order and hearing date from yourselves. As I understand it the 15-minute hearing could at best delay forcible eviction by 6 weeks.
    17. Realising successful defence of Sxx proceedings has perhaps never been achieved, I contacted firm of xxx xxxx, xx, who won the two leading cases where precedents were set on grounds of article 8 (please see point 7). Since these are the only successful instances of grounds 8 defence, I believe, xx xxxx is the only person qualified to help.
    18. Today, Monday x/xx/xx, I was asked by xx xxxx'x firm (xxxxxx xxxxx xxxxxxxx) to instruct solicitor. I have done so but await reply. I also contacted a local solicitor, but was informed there was no-one in xxxxxxxxxx who could help. Please see e-mail to follow.

      Request for adjournment.
    19. Following helpful discussion with xxxx xxxxx and xxxxxxx of the court today, will you please adjourn proceedings, therefore, until I have had adequate time and advice to prepare a defence, and also allow for the schedule of perhaps a busy xx if I am able to retain his services?

      (a) I am being held in servitude by the actions of claimant, and the complexities of the law, and my utilities are in arrears. I must, after 6 days now of preparing amended defence, ask to be allowed to return to my usual work for personal survival.

    (b) I believe the proper preparation of a public law defence to be in the public interest.

    (c) I believe this to be justified on the amount of evidence, my own robustness as defendant, and my IQ (148 as tested by Mensa. Result available).

    (d) In terms of the court's need to assess whether I have a “seriously arguable” defence, this this would involve article 8, and if allowed procedurally, up to 11 other articles; offences under Harassment Act 1997 S1; Protection from Eviction Act 1977 S1 (1), (2), (3), (3a) and (6), in connivance; Housing Act S(12) and (29); consumer Protection from Unfair Trading Regulations 2008 Part 3 offences (8), (9), (10), (11), (12) and (15), in connivance and, contributing to these offences, refusal of Data Protection Act 1998 S7 request. There are also complex issues involving status of tenancy when document was signed under circumstantial (no options) and direct, interpersonal duress, and also complex issues with deposit protection.

    (e) Writing as I am under duress (threat of physical eviction), some illness, lack of legal advice and in hurried circumstances, I may have made errors. Nevertheless, the reasons for my statements remain the same, and can be proven.

    Request for mediation.

    21. I would ask the court to offer mediation between myself and claimant with regard to what claimant would perhaps see as delay and attendant rent arrears, and what I would see as necessary time to prepare for defence after constructive eviction with no effective legal or other redress to serious complaint, as well as new issue of public law defence. I would point to claimant's switch from Sx notice, to accelerated hearing with no money claim at present. I ask for this mediation to be offered whist public law defence is being prepared.

    Yours cordially, and with respect and gratitude for the court,

    xxxxxxxxx xxxxx (xxxx)

    xxxx x x xxxxx (Defendant)
    Last edited by christianpassy; 3rd December 2012, 20:02:PM. Reason: reducing over-spacing

    Comment


    • #3
      Re: Private tenants can use human rights to prevent s21 eviction

      Referring to the last post (#2), the court denied adjournment and mediation.

      Yesterday (12/12/12), I attended a hardship hearing.
      This can at best delay eviction by up to 6 weeks, and the bar in my area is exceptionally high.
      I was awarded an extra 4 weeks.
      Possession date was postponed from 14/12/12 to 09/01/13.

      I was advised by the judge on how to proceed with an amended defence.
      He said I should do this in the 7 days following the hearing.
      I now have 6 days, having spent much of today applying for discretionary payment of housing benefit.

      I have written to several appropriate solicitor firms asking for help.

      There is no precedent of human rights quashing s21 ownership rights in the UK courts.
      There is, however, a case on 15/16th Jan 2013, which could change everything.

      Comment


      • #4
        Re: Private tenants can use human rights to prevent s21 eviction

        I was awarded 4 weeks' extension for exceptional hardship.
        I have spent that entire time writing an amended defence.
        This will be submitted tommorrow.

        Comment


        • #5
          Re: Private tenants can use human rights to prevent s21 eviction

          Good luck with this and let us know how you get on please?

          Comment


          • #6
            Re: Private tenants can use human rights to prevent s21 eviction

            Originally posted by TUTTSI View Post
            Good luck with this and let us know how you get on please?
            Hi Tuttsi,
            Thanks for that comment, which I just found today. A hearing has now been set for 23rd January 2013.

            You can bet I'll be letting you know. Enough of this 'right' to evict for no reason - and courts 'forgetting' tenants' human right to a hearing - here it ends!
            Last edited by christianpassy; 8th January 2013, 12:07:PM. Reason: addition

            Comment


            • #7
              Re: Private tenants can use human rights to prevent s21 eviction

              Originally posted by christianpassy View Post
              A hearing has now been set for 23rd January 2013.

              You can bet I'll be letting you know. Enough of this 'right' to evict for no reason - and courts 'forgetting' tenants' human right to a hearing - here it ends!
              I'm keeping my fingers crossed for you on 23rd January. Will you be making the DJ aware of this Supreme Court Case which embraced Article 8 which he should respect and not ignore : http://www.bailii.org/uk/cases/UKSC/2011/8.html

              Were you advised against filing a counterclaim if you've suffered as a result of the disrepair to your property if the council failed to address the problems? It may not be too late to do that even now but you'll need help to prepare it.

              I presume you're a LIP so when you get to the court on 23rd ask to see the Duty Solicitor who can be your advocate at the hearing. It's a free service provided by most County Courts. DJs like talking to lawyers more than they like talking to LIPs. Good representation can make all the difference to an outcome.

              I see you've not had much luck getting help from a solicitor even though you may be entitled to Legal Aid if you're on a low or no wage (that includes self-employed). Have you tried getting free help through LawWorks http://www.lawworks.org.uk/index.php?cID=10354 They normally need 4 weeks notice to source a volunteer solicitor in your area but they can sometimes step in when it's an emergency. They may also be able to get you a barrister from the Bar Pro Bono Unit to represent you at the hearing http://www.barprobono.org.uk/overview.html Shelter and/or the CAB can refer you to the BPU too.

              Good luck :hug:

              Comment


              • #8
                Re: Private tenants can use human rights to prevent s21 eviction

                Originally posted by PlanB View Post
                1. I'm keeping my fingers crossed for you on 23rd January. Will you be making the DJ aware of this Supreme Court Case which embraced Article 8 which he should respect and not ignore : http://www.bailii.org/uk/cases/UKSC/2011/8.html

                2. Were you advised against filing a counterclaim if you've suffered as a result of the disrepair to your property if the council failed to address the problems? It may not be too late to do that even now but you'll need help to prepare it.

                3. I presume you're a LIP so when you get to the court on 23rd ask to see the Duty Solicitor who can be your advocate at the hearing. It's a free service provided by most County Courts. DJs like talking to lawyers more than they like talking to LIPs. Good representation can make all the difference to an outcome.

                4. I see you've not had much luck getting help from a solicitor even though you may be entitled to Legal Aid if you're on a low or no wage (that includes self-employed).

                5. Have you tried getting free help through LawWorks http://www.lawworks.org.uk/index.php?cID=10354 They normally need 4 weeks notice to source a volunteer solicitor in your area but they can sometimes step in when it's an emergency.

                6. They may also be able to get you a barrister from the Bar Pro Bono Unit to represent you at the hearing http://www.barprobono.org.uk/overview.html Shelter and/or the CAB can refer you to the BPU too.

                7. Good luck :hug:

                Hi Plan B, 1. thanks so much for your support from the beginning. Yes, the precedent for article 8 was set in Manchester v Pinnock in Nov 2010, followed by Hounslow v Powell in Feb 2011.

                If either the Heathrow squatters, (15/16th Jan 2013, Court of Appeal) or I succeed, this/these will be the first case/s of article 8 succeeding over mandatory possession orders in private tenancies.

                2. I knew about counter claims around 26 years ago when I did some legal training in college. I've started the claim for repair and other issues. Please see message to follow.

                3. At the time of writing I'm a LIP. Thanks so much for the advice re. the duty solicitor - really much appreciated. I was aware Shelter are sometimes available - maybe that's who you mean.

                4. I couldn't get legal aid until I got a hearing. Despite the fact that I'm eligible, which I know full well.

                FOR EVERYONE: YOU HAVE A RIGHT TO A HEARING IN A SO-CALLED 'NO DEFENCE' / MANDATORY POSSESSION/EVICTION GROUNDS CASE UNDER SCHEDULE 1, PART II, ARTICLE 6, HUMAN RIGHTS ACT 1998 - see herehere

                5. Yes, I tried LawWorks before. Today I rang them and they said they could only help me by if I went through the usual application procedure, which takes 4 weeks. My hearing is in 15 days. The lady I spoke to couldn't comment on whether I'd get an adjournment. I already asked for maximum extension of time to apply for legal aid, and it wasn't granted by the court. Considering their possession order is unlawful - read illegal - that's pretty ripe.

                6. Yes, I'm aware of the Bar Pro Bono unit, having done nothing for the last 41 days or so but prepare my defence, counter claim and other points in application notice.

                I had been offered help by a leading QC, but had no solicitor, and the QC does not do direct access work. I am eligible for legal aid, but not able to apply until today, when the court finally offered a hearing.

                7. Thankyou very much, the country needs a change.
                Last edited by christianpassy; 8th January 2013, 17:06:PM. Reason: making text clear, updates

                Comment


                • #9
                  Re: Private tenants can use human rights to prevent s21 eviction

                  Message for mercury-the-messenger
                  Thanks to this anonymous friend who pointed out to me that in counter claim for damages, the landlord (claimant) has vicarious liability for the actions of the agent. This simplifies the presentation greatly. How do you bring a third party into a two-party case, I was asking myself this morning? - oh lord. Messenger, you must have heard me.

                  Later, I will post all the orders, etc, I applied for in the application notice. Meantime, I must finish it before the hearing.
                  Last edited by christianpassy; 8th January 2013, 16:41:PM. Reason: changes

                  Comment


                  • #10
                    Re: Private tenants can use human rights to prevent s21 eviction

                    Maybe the question you should ask yourself is do you really want to stay in this particular property or are you fighting this battle on a matter of principle? If you're entitled to Housing Benefit is there any reason why you wouldn't want to move elsewhere and live happily ever after to avoid all the stress and expense of this case - especially if the property is suffering from disrepair?

                    Normally if you're evicted for rent arrears you would be deemed *Intentionally Homeless* by your local authority and they would not have a legal duty to re-house you. But you should still be entitled to Housing Benefit to cover your rent in private accommodation. You've not said whether anyone else is living in the property with you which could be relevant to the advice you're being given.

                    Obviously the current Landlord could pursue you through the court for those rent arrears even if you move out, but he/she may be happy to cut their losses to save on legal costs. Likewise it's possible that you could be responsible for the other side's costs if you lose this case so keep that in mind too.

                    If your case is referred to the Bar Pro Bono Unit you will hopefully be allocated a barrister keen to make his/her name on this interesting case. Because if a judge rules that tenants can stay put despite section 21 protection for a Landlord, then the private rented sector would be up in arms and an appeal could be in the pipeline.

                    You seem to have received a lot of support from various resources so I hope all goes well with your fight in court on the 23rd :fencing:

                    Comment


                    • #11
                      Re: Private tenants can use human rights to prevent s21 eviction

                      Unfortunately it can be hard to find private rented accommodation when you are on HB, most landlords and letting agents shun HB claimants. Once you are settled in you can easily claim HB without informing the landlord/agent, who will be happy as long as you pay your rent, :okay: but moving whilst on HB can be tricky.

                      Comment


                      • #12
                        Re: Private tenants can use human rights to prevent s21 eviction

                        Thanks for the above points.
                        Does anyone know the quick answer to how to stay proceedings pending legal aid claim?
                        I asked the court for maximum extension of time to do this - and they? - gave me nothing,
                        despite the fact that the possession order awarded is "unlawful".
                        Thanks.
                        P.S. I have the best barrister bar "NONE" offering to help me. No solicitor to link me to him.
                        Landlord is being paid full rent, court knows this.
                        How much more?
                        Last edited by christianpassy; 8th January 2013, 18:35:PM. Reason: additions

                        Comment


                        • #13
                          Re: Private tenants can use human rights to prevent s21 eviction

                          Just realised I can apply for legal aid at Community Legal Advice.
                          Opened an account there before Christmas.

                          Comment


                          • #14
                            Re: Private tenants can use human rights to prevent s21 eviction

                            Originally posted by FlamingParrot View Post
                            Unfortunately it can be hard to find private rented accommodation when you are on HB, most landlords and letting agents shun HB claimants. Once you are settled in you can easily claim HB without informing the landlord/agent, who will be happy as long as you pay your rent, :okay: but moving whilst on HB can be tricky.
                            Evening FP!

                            One of the reasons that HB is difficult for landlords is to do with insurance (sometimes HB is specifically excluded). This can sometimes be resolved by direct and honest communication between all parties! Many landlords actually prefer HB as it can mean that the rent (or the proportion supplied by HB) will be paid on time. As the landlord would usually have to provide info for the tenant to get the HB and it is often sent directly to the landlord it might not be feasible to follow the above route.

                            IMHO the landlord/tenant relationship doesn't have to be one of conflict - both sides (ideally) want a quiet life, a secure, well-kept property and a fair rent - that elusive win-win relationship.

                            :behindsofa: FMx
                            “Find a place inside where there's joy, and the joy will burn out the pain.” Joseph Campbell

                            Comment


                            • #15
                              Re: Private tenants can use human rights to prevent s21 eviction

                              Have you tried Watsons Solicitors?

                              http://www.watsonssolicitors.co.uk/

                              Comment

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