European law and private evictions: property, proportionality and vulnerable people

An eviction is a most extreme form of interference with the right to respect for the home. European case law pushes towards more protection of (vulnerable) residents in housing law relationships, and limits property rights and the freedom of contract of property owners. This has resulted in intense debates about the horizontal effects of human rights law and the impact of human rights in landlord-tenant relationships. This article deepens our understanding of the meaning and the influence of human-rights based proportionality enquiries in eviction cases in the rental sector. It assesses how the right to advance a proportionality defence is implemented and whether any indications exists that human-rights based proportionality enquiries improve the legal position of tenants. Doctrinal research and comparative legal analysis show that this is not the case in a large share of the contracting states due to the unwillingness of national judges and lawmakers. Besides that, a quantitative case law analysis shows that there are no indications for a true paradigmatic shift. Although tenants do put forward proportionality defences, no significant differences are found between cases in which the tenant raise a proportionality defence and cases in which they do not advance such a defence. Yet, the European law’s push for more protection of vulnerable people might in the end lead to some systemic as well as practical changes. Proportionality enquiries may influence property owners’ litigation strategies, and as a result, have an impact in the stages before and after the court procedure too.