Human rights and property law, the potential impact of the decision in Malik v Fassenfelt



1. Property lawyers have not generally needed to take a great deal of notice of Human Rights law. Particularly in the field of commercial property the impact of the Human Rights Act 1998 has been fairly minimal. The reason for this is that the HRA 1998 does not, generally, impose any obligations on private individuals. In the lexicon of human rights jargon, the effect of the Act is vertical not horizontal; that is to say it regulates relations between state and citizen and not between private individuals or companies.

2. As a result, property law, which by and large involves disputes between private individual (or, sometimes, the government in its capacity as private landowner, not exercising public law duties) has continued largely unaffected by the Act.

3. That picture may be about to change in a rather dramatic fashion. A line of recent decisions, culminating in the Court of Appeal decision in Malik v Fassenfelt [2013] EWCA Civ 798 (a case which appears at first sight to involve a “run of the mill” claim for possession against squatters by a private landowner) has left the door firmly ajar for arguments that whenever a landowner (private or public) seeks an order for possession of someone’s “home” the court must consider the possibility of a defence based on human rights principles.

4. Furthermore, the concept of home within Article 8 of the ECHR is not necessarily confined to premises that would fall within familiar definitions of residence or dwelling under English law. Therefore, even property lawyers who deal primarily with commercial property owned privately may soon need to have at least a passing acquaintance with the operation of Article 8 and its potential application to a claim for possession.

Human Rights Act 1998 – The Basics

5. Before considering the potential significance of the decision in Fassenfelt it is first helpful to consider briefly the basic structure of HRA 1998. The Act operates by incorporating the European Convention on Human Rights into English Law in two distinct ways.

6. First, the Act it imposes a positive obligation on public authorities to act in a manner which is compatible with Convention Rights. This obligation is created by s. 6 (1) of the Act which states, simply:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right”

7. The concept of public authority is therefore a key feature of the operation of the Act and, unsurprisingly, the question of whether a particular body falls within the definition has spawned a great deal of litigation. For present purposes, the key point to note is that the Act does not impose any direct responsibility on private individuals.

8. This is consistent with what might be termed the orthodox theory of Human Rights Law – that Human Rights are primarily, if not exclusively, intended to regulate the possible abuse of government authority. Human Rights govern the relationship between state and citizen not the relationships between private individuals or corporations.

9. As already mentioned, in the jargon of Human Rights theory, this is referred to as the “vertical effect” of Human Rights as contrasted with the “horizontal effect” of imposing duties between private legal entities.

10. It must also be noted that s. 6 of the 1998 Act expressly includes the courts within the definition of what constitutes a public authority. Accordingly, whenever the court acts (so for example when it makes a possession order) it must not infringe a person’s Convention rights since otherwise it would, by s. 6 (1) be acting unlawfully.

11. The second way in which the Act incorporates Convention Rights into domestic law is to impose an interpretative obligation in relation to legislation. By section 3 (1) of the Act it is provided that:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention Rights”

12. The correct application of this interpretative obligation has caused the higher courts much difficulty. The basic question is the extent to which it is permissible under s. 3 (1) to re-interpret existing legislation so that it is compatible with Convention rights. That is a topic in itself. However, what is clear is that s. 3 (1) imposes an obligation of the court to provide a reading of legislation that means that it does not infringe Convention Rights.

13. These two aspects of the HRA – the duty on public authorities to act in accordance with Convention rights and the interpretative obligation requiring statutes to be read so as to give effect to those rights – permeate the case law which has considered the impact of convention rights on domestic property law.

ii) The position of the courts

14. Before turning to that case law it is necessary to make mention of another key feature of the Act – the extent to which it seeks to preserve the concept of parliamentary sovereignty, a cherished principle of English constitutional law.

15. At the time the Act was brought into force and subsequently, much debate (both academic and in the popular media) centred on the concern that Parliament would no longer be sovereign. The Act seeks to deal with this concern in a subtle and far from uncontroversial way.

16. We have already seen that the courts (and other public authorities) are obliged to give effect to legislation in a way which is compatible with Convention rights. What if, however, the primary legislation is unambiguous and incompatible? The Act attempts to deal with that politically controversial situation in two ways.

17. First a public authority is exempted from the duty to act in compliance with Convention Rights if, by s. 6 (2)

“as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”

18. Second, if satisfied that the interpretative obligation cannot save the legislation, the court is given the ultimate sanction of issuing a declaration of incompatibility. The court may declare that the statute it is considering cannot be read so as to be given effect in a manner that does not breach a right secured by the ECHR. Even if the court does this, however, this will not effect the continuing operation of the provision in question which must be applied even in the case where the declaration is made – s. 4 (6). Ultimately it will be for Parliament to decide whether to amend or repeal the Act in question or continue regardless (thereby putting the UK in breach of its obligations as signatory to the Convention).

19. In practice the UK courts have striven to avoid resorting to a declaration of incompatibility. On the whole this has been achieved by employing the interpretative obligation to re-read existing statutes in novel, sometimes radically different ways, so as to ensure compliance with Convention rights.

HRA & Property Law

20. With that basic framework in mind, I turn to the impact of the HRA on property law. The Convention right which is most obviously capable of impacting upon our field of practice is Article 8 of the Convention which states that:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

21. The right, like the majority of convention rights, is a qualified right because it is subject to the proviso that:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

22. The Strasbourg jurisprudence has given an extremely broad meaning to the word “home” in Article 8. In Giaconelli v Italy the ECHR described a “home” in the following terms:

“the place, the physically defined area, where private and family life develops”

23. Most startlingly, at least from the perspective of an English Property Lawyer, the ECHR does not confine the concept of “home” to what we might equate with familiar definitions such as residential or dwelling-house. The term can extend to open land. A caravan on a plot of land has been held to be a home (Chapman v UK). The high water mark of ECHR jurisprudence are a number of cases in which the “home” of a professional person or private businessman has been held to include his business premises (including in one case, a lawyer’s offices). (Niemetz v Germany, Societe Colas v France).

24. It will be readily apparent that given this extremely broad definition, the variety of cases which might engage Article 8 is very large indeed. Article 8 will be engaged and potentially infringed unless the interference can be justified whenever the court is asked to make an order impacting upon someone’s enjoyment of their home, which can, in appropriate circumstances, include their office or place or work.

i) English cases on the impact of Human Rights in Property Law

25. The interpretative obligation under s.3 of the Act has already impacted upon domestic property law in a variety of ways. To take two diverse examples which demonstrate the breadth of the reach of the Act, in Ghaidan v Godin-Mendoza [2004] 2 AC 557, the House of Lords held that it was possible to read the provisions of the Rent Act 1977 dealing with succession tenancies so as to extend to homosexual couples. In the sphere of commercial landlord and tenant, in PW & Co v Milton Gate Investments [2004] 1 Ch 142, Neuberger J held that sections 141 and 142 of the Law of Property Act 1925 could be construed in such a way as to enable covenants in a sub-tenancy to be enforceable as between a head landlord and subtenant in the event of the head tenancy being determined by a break notice.

26. S.3 therefore has the potential to impact upon dealings between private individuals (so called horizontal effect) since it requires the court to re-interpret legislation to comply with Convention rights.

27. The potentially more dramatic developments in recent case law culminating most recently in Fassenfelt involve s. 3 only tangentially. These cases centre on the fact that the court is itself a public authority and, therefore, whenever it acts it must, act in compliance with Convention rights unless unambiguously enjoined from doing so by primary legislation.

28. The cases concern claims for possession and begin with a number of authorities in the context of housing law – claims for possession brought by local authorities. These cases are of primary significance in that field and full discussion is unwarranted. What they have in common, however, is a claim for possession where domestic law confers an unqualified right to possession so that the court would be bound, absent HR considerations, to make a possession order.

29. The impact of Article 8 in such cases has developed over a series of decisions beginning with the decision of the House of Lords in Harrow v Qazi [2004], through the ECHR decision in Connors v UK and culminating, most recently in the important decision made by nine members of the Supreme Court in Manchester City Council v Pinnock [2011].

30. In that case the local authority sought a possession order against a demoted tenant. A demoted tenancy is closely akin to an AST; the landlord has, in domestic law at any rate, an automatic right to recover possession provided that it has given the requisite period of two months notice. The tenant’s security of tenure is limited. The court has no discretion to consider whether or not the circumstances make it reasonable to make an order. The right to possession does not depend on a breach of covenant.

31. The dilemma posed by the provisions of the Act already discussed can be shortly stated. Under domestic law the occupier of the property has no defence. The statute says the court must make an order for possession. Article 8 is plainly engaged since the possession order will deprive the occupier of their home. The court, as a public authority bound by s. 6 of the Act, must however, not make a possession order unless, in accordance with the proviso to Article 8 it is proportionate to do so. Domestic law, does not, however, permit the judge to consider proportionality since he has no discretion – if the notice has been properly served, the possession order must follow.

32. The solution arrived at in Pinnock and other similar cases is the reinterpretation of the relevant statute pursuant to the interpretative obligation in s. 3. A possession order for a demoted tenancy is governed by the provisions of the Housing Act 1996. Under s. 143E the council must serve a specified form of notice and under s. 143F the tenant may call for a review of the decision to seek possession. The critical provision for present purposes is s. 143D which provides:

“The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed.”

33. Despite the apparently unambiguous and mandatory nature of this provision, the Supreme Court in Pinnock held that this provision:

“should be read as allowing the county court to exercise the powers which are necessary to consider and, where appropriate, to give effect to, any article 8 defence which the defendant raises in possession proceedings brought in that court.”

34. The Supreme Court in Pinnock was at pains to stress two important qualifications.

First, their decision had no bearing on private landowners. Although there were compelling arguments either way as to whether s. 6 (1) should operate in the same way in the case of a private owner seeking possession on mandatory grounds, the point did not arise for decision and would be left open. Second, the court stressed that it would only be in exceptional circumstances that it would be disproportionate to make a possession order, since in refusing to make an order on the grounds of proportionality the court would also be undermining the entitlement of the public authority to recover possession of its own property, which could only be justified in extreme circumstances.

iii) Malik v Fassenfelt

35. So far, it may not be apparent what relevance all of this might have outside the field of public law. Hopefully, this will become clearer as we turn to consider the recent decision of the Court of Appeal in the case of Malik v Fassenfelt.

36. The facts of that case do not at first sight appear particularly ripe for dramatic developments in the field of Human Rights Law. The Defendants were squatters. Without any licence or consent they took up occupation of a site near Heathrow Airport which belonged to a private individual, Mr Malik. The site had become contaminated when it was previously used for storing cars. It had been used for fly-tipping and was an eyesore. The squatters, operating under the banner “Grow Heathrow” cleared the land and created a market garden centre, with a range of glass houses. The land became their home and it was not disputed that their project had significant local support. Mr Malik wanted his land back and claimed possession on the grounds of trespass.

37. It is well established that in English law, trespassers have no defence to a claim for possession. Assuming proceedings are served properly and the owner can prove title and the absence of any licence to occupy or proprietary right, the court must order possession. Furthermore, the only order the court can make is an order for possession forthwith, there is no jurisdiction to extend time or postpone the order, even on the grounds of exceptional hardship – so much has been clear since the judgment of Lord Denning in McPhail v Persons Unknown (1973).

38. In Malik v Fassenfelt the squatters argued, however, that Article 8 was engaged since the land had become their home. Mr Malik did not seek to challenge that assertion. Following Pinnock, the squatters then argued, they were entitled to a review by the court of the proportionality of making a possession order. McPhail could no longer stand as good law because the court was enjoined by s. 6 (1) to consider proportionality and under the principle in McPhail the court was deprived of the opportunity to do so.

39. The County Court judge, HHJ Walden-Smith, held that Article 8 does apply to private landowners. Her Honour said:

“As the court is a public authority and the land is being occupied as a home, Article 8 is capable of application even though the landowner is a private individual and the occupiers are trespassers.”

40. The judge went on to define the question under Article 8, pace Pinnock, as being whether the eviction is a proportionate means of achieving a legitimate aim. The squatters argued that their use of the land had significantly greater social advantages than the use to which Mr Malik had put the land. The judge rejected this argument in forceful terms on the basis that a requirement for a private landowner to justify possession on the grounds that his own use of it was useful and attractive to the local community “ran entirely contrary to the principle of private ownership of land”.

41. Entitling private landowners to recover possession of their property was a legitimate aim and evicting the squatters was, in the circumstances, a proportionate means of achieving that aim. One can easily see the inherent radicalism involved in the contrary conclusion.

42. The squatters appealed against that conclusion. Perhaps unfortunately from the perspective of legal certainty, Mr Malik decided not to make a cross appeal against the finding that, in principle, the court was required to consider Article 8 in a possession claim against squatters. This allowed the majority of the Court of Appeal to avoid the main issue. Both Lord Toulson and Lord Justice Lloyd limited themselves to upholding the judge’s conclusion on proportionality on the facts of the immediate case. Their Lordships were concerned that they had not heard full argument on such a significant issue. Lord Toulson did, however, express the obiter view that “Article 8 does not ordinarily apply to regulate conduct in the private sector”.

43. The lengthiest judgment in Fassenfelt was delivered by Sir Alan Ward. After reviewing the cases dealing with claims for possession by public authorities, his lordship reached the conclusion that there was an irresistible logic to the argument that Article 8 must also be engaged in a case where a private landlord seeks an order for possession against an individual occupying land as their home. The court is a public authority which must act in a way which is compatible with the Convention. It would only be an exceptional case where a court would be able to conclude that a defendant without any legal right under English law to remain in possession should be permitted to remain, since this would involve depriving a private owner of their legal right to possession. Nevertheless:

“…the rule in McPhail that the court has no jurisdiction to extend time to a trespasser can no longer stand against a requirement that proportionality may demand, albeit most exceptionally, that a trespasser can be given some time before being required to vacate.”

iv) The potential consequences

44. There is as yet no binding authority to the effect that Article 8 has a bearing on possession claims brought by private landlords. However, the decision in Pinnock, coupled with the first instance decision in Malik v Fassenfelt and the obiter remarks of Sir Alan Ward in the Court of Appeal amount to persuasive authority in that respect.

45. It is difficult to find fault with the logic. The court is undoubtedly a public authority and therefore bound by s. 6 (1) to act in accordance with Convention rights. Where legislation or the common law dictates a mandatory order for possession, it is difficult to escape the conclusion that the court must either re- interpret the legislation, effectively reading in words which are not there, refuse to follow previous authority or, where these options are not available, issue a declaration of incompatibility.

46. It is difficult to overstate the potential ramifications of a determination that proportionality must be taken into account. The vast majority of short term residential lettings are AST’s which are specifically designed to provide a landlord with an automatic entitlement to recover possession. 100,00s of thousands of buy-to-let mortgages will have been entered into limiting sub-letting to AST’s on the basis of this automatic entitlement.

47. The tactic of the higher courts in the housing cases considered earlier has been to stress the exceptional nature of a successful HR defence. It has been repeatedly stressed that it is only in extreme circumstances that Article 8 can be relied upon to deprive the landlord of what would otherwise be an indefeasible right to possession. However, in practical terms, the effect would be that a judge would have to at least allow a Defendant an opportunity to advance an argument based on HR and in many circumstances this may mean that the case cannot be dealt with during the initial 10 minute possession list hearing.

48. The possible consequences extend beyond residential landlord and tenant, however. If the court is obliged to consider proportionality whenever Article 8 is engaged (which it will be, remember, whenever a possession order is sought against a persons home, recalling the wider definition afforded to that term), a HR defence could be maintained in surprising circumstances. There is no obvious reason why Article 8 would not be engaged, for example, in the case of a lease of mixed use premises (e.g. ground floor shop premises with residential accommodation above) which may raise difficult questions in terms of the proper application of the provisions of the Landlord and Tenant Act 1954.

Philip Sissons
Falcon Chambers