Julie Dilcock and Alison Oldfield look at the past and future intersection of the Human Rights Act with private property claims
Rights at a glance
Key Articles of the European Convention on Human Rights, transposed into UK law by the Human Rights Act 1998:
- Article 1 – right to peaceful enjoyment of possessions
- Article 8 – right to respect for private and family life, home and correspondence
- Article 10 – right to freedom of expression
- Article 11 – right to freedom of peaceful assembly
There is a fairly long-running debate over whether the Human Rights Act 1998 (“HRA”) can be used to defeat claims for possession of property. A well-established line of authority covers how public sector landowners should balance their rights as landowners against their HRA duties, but what is the position for private landowners? How – if at all – does the HRA affect their ability to recover possession of land? In relation to private landlords, that was the issue before the Supreme Court in McDonald v McDonald and others [2016] UKSC 28; [2016] PLSCS 169.
Proportionality in private possession claims
McDonald (“M”), was a tenant under an assured shorthold tenancy of a property owned by her parents. Her parents defaulted on the mortgage repayments and the mortgagee appointed receivers. The receivers served notice under section 21(4) of the Housing Act 1988 (“the 1988 Act”), terminating M’s tenancy. Following expiry of the notice, possession proceedings were issued and the County Court made an order for possession. That decision was upheld by the Court of Appeal. M appealed to the Supreme Court.
The appeal considered whether, when faced with a claim for possession by a private landlord, a court was required to consider the proportionality of interference with a tenant’s Article 8 rights. If a court was obliged to consider proportionality, could section 21(4) of the 1988 Act be construed as complying with that requirement?
The appeal was dismissed. Having thoroughly reviewed private landlord and tenant legislation in England and Wales and the case law of the European Court of Human Rights, the court found that there was no clear and consistent line of Strasbourg cases holding that Article 8 was engaged in possession cases involving private landlords. The court was of the view that in legislating in the way that it had, parliament had already carried out a balancing exercise between the Article 1 rights of the landlord and the Article 8 rights of the tenant. It was not for the court to hold otherwise.
The court reiterated that, as a matter of general principle, the Convention does not apply to dealings between private individuals. The purpose of the Convention is to regulate the state’s interaction with citizens and to protect them from having their rights infringed, not to alter private rights.
While the Supreme Court was very careful to confine its judgment in this case to private landowners seeking possession under the procedure laid down by section 21 of the 1988 Act, the case has wider implications for private property claims.
Human rights and other property disputes
Public sector landowners
It is settled that, where a landowner is a public body, Convention rights are engaged in respect of decisions to recover possession. These issues have been extensively rehearsed in relation to housing cases and in trespass claims to recover possession against travellers.
Article 10 and 11 engagement
In relation to private property claims, it is also established that Articles 10 and 11 can be engaged where possession of private property is sought against trespassers who are using the land to engage in protest. However, the courts have also made it clear that it is extremely difficult to see how such rights could ever prevail against the will of the landowner, unless there is no other means by which the protestors can express their views, which is rarely (if ever) the case (The Mayor of London v Hall [2010] EWCA Civ 817 and City of London Corporation v Samede and others [2012] EWCA Civ 160; [2012] PLSCS 40).
Article 8 engagement
The McDonald case is not the first time we have seen attempts to extend Article 8 into private property disputes. Two earlier decisions have considered the same point: Malik v Fassenfelt and others [2013] EWCA Civ 798; [2013] 3 EGLR 99 and Manchester Ship Canal Developments Ltd and another v Persons unknown and others [2014] EWHC 645 Ch; [2014] PLSCS 40.
Malik was a Court of Appeal decision concerning a possession action against protestors occupying land in protest against proposals to expand Heathrow Airport. The question of the engagement of Article 8 was not the subject of the appeal and therefore the comments made in the Court of Appeal on the point are strictly obiter. Nonetheless, in handing down his judgement in that case, Sir Alan Ward opined that the court must consider a possession action by a private landowner in a similar way to one brought by a public landowner, that is: “The test is whether the eviction is a proportionate means of achieving a legitimate aim”.
And though keen to stress that he reserved his opinion on whether Article 8 applied to trespass of privately owned land, a second Malik judge, Lord Toulson, said that “it would be a considerable expansion of the law to hold that Article 8 imposes a positive obligation on the state, through the court, to prevent or delay a private citizen from recovering possession of land belonging to him which has been unlawfully occupied by another”.
Manchester Ship Canal – a decision of the High Court – was another claim for possession against trespassing protestors, this time protesting against fracking. In giving judgment, Judge Pelling elected to follow Sir Alan Ward’s line of reasoning, holding that Article 8 was, in principle, capable of being engaged in relation to claims for possession by private landowners. However, in order for Article 8 to be engaged, those seeking to rely on it must first demonstrate such sufficient and continued links with the land trespassed upon for it to be considered their “home”, which is of itself a difficult threshold for trespassers to cross. Even if that threshold can be crossed, it would be rare that a trespasser’s Article 8 rights will be held to trump a landowner’s Article 1 rights.
The McDonald view on Article 8
While strictly obiter, the leading judgment in McDonald contains conflicting comments on the applicability of Article 8 to trespass claims. At paragraph 42 the court observed that there were a number of residential occupiers – including trespassers – who (not being protected by the Protection from Eviction Act 1977) could be peaceably physically evicted without recourse to the court. Were the suggestion that Article 8 was engaged purely because the court was a “public authority” to prevail, it would provide a “somewhat perverse incentive” for private sector landowners to lock occupiers out in order to recover possession, rather than “the more civilised course of seeking possession through the courts”.
By contrast, at paragraph 46 of the judgment, the court suggested that it can be required to balance competing Convention rights where the dispute arises from tortious or quasi-tortious (as opposed to contractual) relationships and where the legislature has not prescribed how the respective Convention rights are to be respected. This was perhaps an attempt to carefully confine its judgment to private landowners seeking possession under a contract subject to specific legislation, and to distinguish it from tortious claims. Trespass is, of course, a tort and the way in which the courts deal with it is based on common law principles rather than a statutory framework.
What now for Article 8?
While McDonald settled the question of Article 8 engagement in relation to possession claims by private landlords, we have yet to see authority beyond the High Court on the extent to which it is engaged in relation to trespass. On that specific point, the law remains unsettled. In order to minimise the risks involved therefore, landowners should take swift action to recover their land from trespassers before the suggestion that it could have become their “home” (as was argued in Manchester Ship Canal) can even arise. Furthermore, although there are signs that the Supreme Court is uncomfortable with the Malik line of reasoning, there is logic in Judge Pelling’s assessment that it is inconsistent to accept that Articles 10 and 11 can be engaged in possession actions against trespassers but not – at least in principle – Article 8.
There is some comfort to be taken for private landowners: even if the Manchester Ship Canal principles do prevail and Article 8 can in principle be engaged, successfully defending a trespass claim on that basis is likely to be a very different matter. Even if trespassers are able to show that they have made a “home” on the land, it is difficult to envisage how a court could legitimately strike the balance in favour of a trespasser’s Article 8 rights over a landowner’s Article 1 rights other than in very exceptional circumstances. No doubt a relevant case will fall for consideration by the higher courts in due course.
Julie Dilcock is a principal associate and Alison Oldfield is a partner in the real estate dispute resolution team at Eversheds
