Are squatters on privately owned land entitled to respect for their homes under article 8 of the European Convention on Human Rights?
The maxim that an Englishman’s home is his castle came under the spotlight in Malik v Fassenfelt (since dcd) [2013] EWCA Civ 798; [2013] PLSCS 153. The case concerned derelict land near Heathrow Airport, which became occupied by squatters. The group cleared the land and returned it to use as a market garden with a range of glass houses, which became their homes. The landowner subsequently obtained a possession order against the squatters, who appealed to the Court of Appeal for reasonable time to vacate the land.
Are squatters on privately owned land entitled to respect for their homes under article 8 of the European Convention on Human Rights?
The maxim that an Englishman’s home is his castle came under the spotlight in Malik v Fassenfelt (since dcd) [2013] EWCA Civ 798; [2013] PLSCS 153. The case concerned derelict land near Heathrow Airport, which became occupied by squatters. The group cleared the land and returned it to use as a market garden with a range of glass houses, which became their homes. The landowner subsequently obtained a possession order against the squatters, who appealed to the Court of Appeal for reasonable time to vacate the land.
The leading authority on claims for possession brought against squatters who have broken into empty houses to live in them is McPhail v Persons, Names Unknown [1973] Ch 447. The case established that the court does not have jurisdiction to extend the normal time for possession orders to take effect and must, at the request of a landowner, make an order requiring trespassers to give up possession at once.
The squatters relied on Article 8 of the European Convention on Human Rights, which prohibits the state from interfering with a person’s home, except on limited grounds. They submitted that the Human Rights Act 1998 had trumped the decision in McPhail and, although they did not challenge the possession order itself, suggested that it would be reasonable for the court to allow them several months to vacate.
The question whether McPhail remains good law in the case of trespass to privately owned land is inextricably linked to the question of whether Article 8 actually applies in such cases. The county court decided that it was applicable because the court, as a public authority, must give effect to the squatters’ Article 8 rights – but also held that an order for immediate possession would not disproportionately interfere with such rights.
Sir Alan Ward concurred with the trial judge, but Lord Toulson and Lord Justice Lloyd were not so certain. Lord Toulson noted that Article 8 does not ordinarily apply to regulate conduct in the private sector and thought that it would expand the law considerably to hold that Article 8 imposes a positive obligation on the state, through the courts, to prevent or delay a private citizen from recovering possession of land that has been unlawfully occupied by another. He also suggested that this could be contrary to Article 1 of Protocol 1 of the European Convention on Human Rights, which protects the enjoyment of possessions.
However, the landowner had chosen not to appeal the judge’s decision that Article 8 was applicable. Consequently, the court was not required to consider this and needed only to consider whether the judge was right on the question of proportionality. The court had no doubts at all about this; all three judges upheld the judge’s decision to make an order for immediate possession.
The property industry will be relieved by the ruling that, were Article 8 to apply, landowners will, nonetheless, be entitled to the return of their property unless some exceptional circumstances militate against this, but will be disappointed that we do not yet know whether squatters on privately owned land are entitled to respect for their homes.
Allyson Colby is a property law consultant
