Kay v Lambeth LBC [2006] 2 AC 465
Landlord and tenant; whether Art.8 Human Rights Act 1988 offers defence to action for possession
Facts
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.
Issues
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.
Decision/Outcome
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.
Updated 21 March 2026
This case note accurately summarises the decision in Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465. However, readers should be aware that the law in this area developed significantly after Kay. The Supreme Court reconsidered the relationship between domestic possession proceedings and Art.8 ECHR in Manchester City Council v Pinnock [2010] UKSC 45, departing from the approach in Kay. In Pinnock, the Supreme Court held that where a public authority seeks possession, the court must be able to consider whether doing so is proportionate under Art.8, even where the authority has an unqualified right to possession under domestic law. This was further confirmed and refined in Hounslow LBC v Powell [2011] UKSC 8. The core principle established in Kay — that Art.8 does not guarantee a right to a home — remains good law, but the proposition that a lawful domestic right to possession will ordinarily be sufficient justification under Art.8(2) without any possibility of proportionality review has been substantially qualified by these later Supreme Court authorities. Students relying on Kay should read it alongside Pinnock and Powell to understand the current legal position. The article’s reference to the Human Rights Act 1988 is also a minor error: the correct citation is the Human Rights Act 1998.
