Possession Orders supersede right to family life of Trespassers


07 July, 2009

In the latest of a series of cases where the English and European courts have argued over the role and influence of human rights legislation in landlord and tenant matters, the Court of Appeal was asked to address the issue of whether a Council's decision to take action against trespassers for possession of a property could ever be deemed as unreasonable. The case of Paul Taylor & Others v Central Bedfordshire Council & Secretary of State for Communities & Local Government [2009] EWCA Civ 613 brought into sharp focus the current conflict between the freedom of a landlord to regain possession of their property and the rights of the individual to reside at the premises.

The Facts

The appellants (T) were appealing against a possession order which had been granted for properties on land owned by the Council (C). This land had been leased to another local authority for three years and sub-leased to a housing association to enable it to grant assured shorthold tenancies to homeless people. There were however, protracted negotiations to extend these leases and eventually they came to an end without agreement being reached between the parties. C sought to recover possession of the land and issued proceedings.

T accepted that he and the other individuals were trespassers, but claimed that even if they did not have further legal rights, C's claim for possession constituted an unjustified interference with their protected rights under the European Convention on Human Rights 1950 article 8 which covered the right to a private and family life. At the trial, the judge made the order for possession sought by C.

T appealed, submitting that public authorities such as C, despite the fact that it had an undoubted right to possession, had to have regard for the personal circumstances of the trespassers when making its decision to seek possession and was required to act in a proportionate manner. T argued that acting proportionately would mean that in some situations, it would be bound not to seek possession and that the present case was an example of this.

The Court of Appeal's decision

The Court of Appeal held that although the decision of a public authority was subject to judicial review on ordinary public law principles, it could not be a ground of challenge that the authority, which otherwise had an absolute right to possession, had failed to take account of personal circumstances. A defence to a possession order based on this should be struck out and that the safeguards of article 8 of the Convention were protected by the fulfilment of the requirements for the recovery of the land by C which were demanded by legislation and case law.

Continuing on the theme of adhering to legislation, the court stated that owners of land had been provided with the right to obtain possession against trespassers, but that this could not be achieved unless court proceedings were undertaken.

Even on the assumption that C was aware of the personal circumstances of the trespassers, its obligation to take them into account could never make it unreasonable to bring proceedings for possession. Furthermore, given the period of time which had elapsed from the original demand for possession to the trial indicated that the decision to issue proceedings could not be regarded as one which no reasonable person would consider justifiable. Accordingly, the court dismissed T's appeal.


The decision of the Court of Appeal is the latest in a series of decisions where the domestic and European courts have argued over the influence of human rights law in the determination of tenancies.

Whilst verdicts such as the one reached in this case may be welcomed by landlords, it may not be the last word on having to take into account the rights of tenants and other individuals when seeking possession of properties.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.


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