06 August, 2013
Since the rulings in Manchester City Council v Pinnock and Hounslow v Powell a tenant facing possession proceedings by a public authority has been able to defend the proceeding by claiming that eviction is 'disproportionate' under Article 8 ECHR. The latest case discussing this defence brings closer the possibility of Article 8 also applying to private individuals.
Social landlords are becoming increasingly familiar with the European human rights concept that any occupier of residential premises - whether a tenant, squatter or whoever - has the right to defend their eviction based on Article 8 of the European Convention on Human Rights (the right to respect for private and family life), which has been incorporated into British law since the Human Rights Act 1998. The HRA 1998 technically only applies to "public bodies" and not private entities, but the arm of European law gets longer every year. The case of Malik v Fassenfelt should sound alarm bells for private landlords as to the direction in which the law is heading.
The applicants in this case were squatters who appealed against the decision to grant their private landlord a possession order. They had entered Mr Malik's land without permission and established a home on the land.
When the possession order was granted, the trial judge decided that Article 8 applied even though Mr Malik was a private individual - as the Court was a "public authority" and the land was being occupied as a home. Consequently, the trial judge had to ask whether the eviction was a proportionate means of achieving a legitimate aim and concluded that it was appropriate to order possession. The judge gave the landlord permission to appeal that part of her ruling, but he chose not to do so for unspecified "financial reasons".
The second part of the original judgment was that the judge was bound to follow the rule in McPhail v Persons Unknown, which held that there is no discretion to suspend or postpone a possession order against squatters. This means that a court must make a possession order against squatters to take effect immediately, as opposed to former tenants and licensees who are entitled to a maximum of 42 days before being evicted (under section 89 of the Housing Act 1980).
The squatters appealed against the decision that possession had to be granted immediately. They suggested that the rule in had to be relaxed in order to comply with Article 8 following the decisions in Manchester City Council v Pinnock and Hounslow v Powell, and that a period of several months would be more appropriate.
The Court of Appeal ruling must be treated with some caution and requires careful analysis. The squatters' appeal was dismissed but for a variety of reasons - some good and some not so good.
The first point to note was that the original judge at first instance had operated on the basis that even if Article 8 had no direct application between a private landowner and the trespassers on his land, the court as a public authority was obliged by the Human Rights Act 1998 to act consistently with that right and so the court had to consider whether the making of the possession order was a proportionate means of achieving a legitimate aim.
Sir Alan Ward gave a lengthy reasoned judgment in support of Article 8 and against the rule in McPhail - and agreed strongly with the trial judge.
However, Lord Toulson and Lord Justice Lloyd did not agree with Sir Alan Ward's opinion on this issue. They were concerned that the matter had not been properly argued before the court, because for financial reasons the landlord chose not to argue it. Accordingly, they did not choose to overrule the trial judge's decision on Article 8, but they did not actively endorse it either.
Sir Alan Ward then proceeded to state that section 89 of the Housing Act 1980 was effectively available to the squatters as a result of an Article 8 Proportionality defence being available - contrary to the established rule in McPhail. This would entitle the squatters to 14 days before being evicted, or a maximum of 42 days if they could show "exceptional hardship". This was the key point of the squatters' appeal. However, Sir Alan Ward felt that on the particular facts, the trial judge had been right to make an order for possession to take effect immediately, as he was willing to concede that the landowner's legal right to possession is a very strong factor in support of proportionality and a landowner was entitled to the return of his property unless some exceptional circumstances militated against it.
Lord Toulson and Lord Justice Lloyd again disagreed on this point. Since they had not reached a reasoned conclusion on whether Article 8 was applicable, equally they were not in a position to overrule McPhail. Without providing further or more detailed reasoning, they chose to dismiss the squatters' appeal out of hand.
This ruling leaves the law in an unsatisfactory state of affairs.
According to the majority reasoning, Article 8 might apply to private landlords, but then again it might not. They wished to defer the matter to another day. As such, the suggestion that Article 8 does apply has technically only been decided at the County Court level, which is not binding on other courts.
McPhail v Persons Unknown is also still good law for the time being. Tenants and former tenants facing mandatory possession orders (such as Ground 8 rent arrears, or Section 21 notices) can avail themselves of section 89 Housing Act 1980, but mere squatters cannot and must be summarily evicted.
However, the decision of the majority not to actively criticise the trial judge's ruling means that the Article 8 discussion will rumble on for some time to come - subject in the meantime to the cryptic remarks made by Lord Justice Lloyd about "assuming, therefore, without deciding, that the judge was right" and that Article 8 applied.
Some may wonder at the significance of this decision, if essentially nothing has changed yet. This author would humbly suggest that the significance lies in the "footnote" to the retiring Sir Alan Ward's minority judgment, in which he indulged in a parting comment to the judiciary and the world at large. The learned judge expressed noble sentiments about the value of judicial scrutiny in every area of litigation, in an apparent effort to lend credibility to the interventionist approach he would seemingly support. However, with respect to the learned judge, he takes no account of the fact that many private landlords across the country - including many who are reluctantly forced to rent out their homes because they cannot sell them - do not have the luxury of owning large areas of vacant development land as Mr Malik did in this case. The vast majority of private landlords operate on tight margins which are easily obliterated by the damage caused by one malicious tenant, or the expense involved in litigating an increasingly complex and specialised area of law which is now practically inaccessible to the legally untrained mind. Faced with the sort of delaying tactics frequently employed by tenants in county court possession hearings, facilitated by access to legally aided representation and thereby immunised from any risk of monetary loss on their own part, it is cold comfort to such individuals to suggest that their considerable financial expenditures are for the greater good of "the best of British" justice.