Human Rights and Land

Question 1

What does Gray, ‘Land Law and Human Rights’ say about the principle that no one should be arbitrarily deprived of their property found in A1P1?

Answer 1

The human right to protection from arbitrary dispossession by the state is born of a deep impulse which views lawless seizure of property as a particularly violating kind of molestation—a form of proprietary rape.

For Blackstone, writing in 1765, it was inconceivable that ‘sacred and inviolable rights to private property’ should be postponed to ‘public necessity’ without ‘a full indemnification and equivalent for the injury thereby sustained’.

Question 2

What does Malik v Fassenfelt [2013] say about the sanctity of the home?

Answer 2

The sanctity of the home that forms the basis of Art 8 also reflects the fundamental sentiment that the home is a personal inviolable space reflected in the time-honoured phrase that ‘an Englishman’s home is his castle’.

Question 3

What does Bright say about the far reaching impact of the HRA on our concepts of ownership? (Landmark Cases: Pinnock)

Answer 3

The right to recover possession of land that is occupied as a home by someone with no lawful right to occupy can no longer be seen as automatic, no longer a foregone conclusion that flows from a simple application of a traditional understanding of the hierarchy of rights in land [. . .] Article 8 requires a new way of thinking about the right to recover possession.

When Article 8 is engaged, and raised as defence, the owner will not be entitled to an order for possession merely by showing that the occupier has no lawful right to occupy; it will be necessary to show that the recovery of possession is justified by the pursuit of a legitimate aim [. . .]

The proportionality question does require a shift towards a contextualised, non-hierarchical way of thinking, in which factors extraneous to property doctrine come into play [. . .] This is a different way of thinking about ownership.

Question 4

What two hurdles does Goymour explain that a litigant must clear?

Answer 4

First a State’s liability must be engaged because the law is incompatible with the ECHR, and secondly the HRA 1998 must provide a route by which that breach can be relied upon in the domestic courts.

Question 5

What is the Court’s duty under the HRA 1998?

Answer 5

It must take into account any judgment of Strasbourg jurisprudence in the interpretation of rights enshrined in the ECHR.

Question 6

Can the SC diverge from Strasbourg jurisprudence?

Answer 6

In R v Hardcastle it was suggested that the Supreme Court should enjoy a degree of latitude where they believe that the Strasbourg Court does not appreciate the domestic context. A dissatisfied victim may then appeal to the Strasbourg Court resulting in a dialogue, through the judgments of the two courts, to hopefully resolve any misunderstanding. Nevertheless, no such dialogue is appropriate where there is a clear and consistent line of authority from the Strasbourg Court.

Question 7

Lord Bingham in R (Ullah) v Special Adjudicator

Answer 7

‘[t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.’

Thus, Strasbourg Court decisions have tended to operate as a ceiling on the development of our domestic human rights

Question 8

What are the facts of James v UK (1986)?

Answer 8

The Duke of Westminster, whose estate comprised a significant number of houses in London let on long leases, unsuccessfully questioned the compatibility with Art 1 of the First Protocol of the Leasehold Reform Act 1967. The Act entitled the tenants of the houses to require him to transfer the freehold reversion to them for sums (as defined by the legislation) that were less than their market value.

Question 9

What was held in James v UK re the margin of appreciation?

Answer 9

Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest.”

Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of the problem of public concern warranting measures of deprivation of property and of the remedial action to be taken [. . .] Here as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.

Furthermore, the notion of “public interest” is necessarily extensive, in particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is “in the public interest” unless that judgment be manifestly without reasonable foundation [. . .]

Question 10

When will a State’s actions taken in the public interest under A1P1 be respected?

• standard
• Art 2 HRA?
• how this margin varies

Answer 10

will be respected unless they are ‘manifestly without reasonable foundation’, in the sense that no reasonable government would have come to a similar decision in the circumstances.

It should be noted that in pursuance of their obligations under s 2 of the HRA 1998, the domestic courts, save in exceptional circumstances, will accept the compatibility of a law which the Strasbourg Court has held to be within the United Kingdom’s margin of appreciation

But this margin will depend on the Article in question.

Question 11

What were the facts in Connors v UK (2005)?

Answer 11

The Connors were gypsies. The family occupied the same local authority site under a licence for over thirteen years, but, after their daughter married and their sons grew up, it was alleged that their pitch was a ‘magnet for trouble’. As a result, the local authority terminated their licence to occupy and summarily evicted them from the site, but without citing any reasons. The local authority chose not to rely upon the (p. 95) Connors’ alleged ‘antisocial’ behaviour. The Connor family successfully claimed that their summary eviction breached their rights to respect for their home and way of life as gypsies under Art 8.

Question 12

What was said in Connor about the margin of appreciation?

• why is it left to national authorities?
• how does this margin vary?
• authority?
• what has the Court stated re housing?
• what issues are of great importance with Art 8?

Answer 12

a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions.

This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions.

The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. [. . .]

On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that: “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation”. Buckley v United Kingdom (1997) 23 E.H.R.R. 101 at [75].

The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation.

It may be noted however that this was in the context of Art.1 of Protocol No.1, not Art.8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community.

Question 13

What did Kay v UK (2012) hold re procedural safeguards?

Answer 13

it is clear from the case law of the Court that the requirement under art.8(2) that the interference be “necessary in a democratic society” raises a question of procedure as well as one of substance. (Connors v UK, McCann v UK).

The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (Buckley v UK, Chapman v UK, and Connors v UK).

Question 14

What does Nield (‘Clash of the Titan’) argue?

Answer 14

It would be tempting to conclude that whilst on matters of the substantive content of the law implementing a particular social or economic policy, where a party is granted a right to possession against another, the State’s margin of appreciation remains wide; but as a matter of the procedural operation of that policy, where the consequences dictate repossession of an individual’s home, the margin is narrow. But this distinction is too simplistic. The two issues are intimately entwined because the substantive law will define the circumstances when the occupier may be heard before the court [. . .] As Loveland has succinctly put the issue [referring to McCann v UK]; ‘it is not what the council had done but what the court could not do’.

Question 15

What are the four limbs of proportionality?

Answer 15

1. legitimate objective
2. suitability
3. minimal impairment
4. overall balance

Question 16

What are the two levels of intensity operating in proportionality?

Answer 16

1. fair balance struck between individual convention rights and the general interest of the public or society
2. proportionality of the impact of the law as applied to an individual victim in the particular circumstances (operates at a micro-level)

Question 17

What does Neild note about deference?

• Qazi
• Kay

is this approach surprising?

Thus, should deference be automatic?

Answer 17

In assessing the proper extent of judicial deference, context is everything. Qazi demonstrates an extreme degree of deference in which proprietary rights to possession are not to be questioned at all—they were in fact nonjusticiable!

In Kay the House of Lords has shown, in both the views of the majority and minority, that in relation to the regulation of housing they will show exceptional deference to the policy choices of Parliament.

This is not surprising given both the degree of Parliamentary scrutiny of housing policy and the public funding underpinning that policy. Similar substantial deference is to be expected in relation to proprietary rules governing possession where certainty and due balancing of the rights of third parties is necessary.

However, it should not mean that the ECHR compatibility of proprietary rules should be non-justiciable or even that substantial deference should be automatic. Judicial deference should be assessed on a case-by-case (or rule-by-rule) basis.

Question 18

Direct Effect of HRA

Answer 18

s 7 of the HRA 1998 confers upon a victim of an infringement of his or her human rights by a public authority a direct cause of action so that he or she may bring proceedings against, or defend proceedings brought by, that authority.

A ‘victim’ is a person who is directly affected by the act or omission of the public authority. Where the court finds that a public authority has failed to act as required by s 6, the court may grant such remedy as it deems to be ‘just and appropriate’, including the award of damages

Question 19

What counts as a public authority?

Answer 19

1. Core public authority: A core public authority is required to comply with the ECHR in the performance of all of its functions because it is a public authority ‘through and through’
2. hybrid public authorities: only required to comply with the ECHR when exercising those functions that are of a public nature.

Question 20

London Quadrant Housing Trust v Weaver’s guidance on when an act of terminating the tenancy is a private act?

Answer 20

Elias LJ: it is in my view important to focus on the context in which the act occurs; the act cannot be considered in isolation simply asking whether it involves the exercise of a private law power or not.

Number of features which point to public:

1. Trust’s function in allocating and managing housing; reliance on public finance
2. Does not directly take the place of local government but it operates in very close harmony with it
3. provision of subsidised housing, as opposed to the provision of housing itself, is a function which can properly be described as governmental

Further considerations: (a) charitable objectives; (b) regulation it is subject to designed to render activities more transparent

Therefore, even though termination seems contractual, it is part of a public function so subject to HRA considerations.

Question 21

What did Rix LJ (dissenting in Weaver) argue?

Answer 21

He was strongly of the view that in terminating a tenancy a social landlord was exercising a private right conferred by a private tenancy agreement and didn’t think London Quadrant was a hybrid public authority

Question 22

What is the standard of review when public authority’s decision is subject to JR?

Answer 22

courts look beyond conventional Wednesbury to standard of proportionality when dealing with HRs (Daly, Begum)

Question 23

What is the interface between s. 7 human rights cause of action and public law action by JR?

Answer 23

Walker LJ in Taylor v Central Bedfordshire Council [2009] EWCA Civ 613, [38] that the distinction ‘has, very largely, become academic’.

But, judicial review empowers the courts to intervene to question a public authority’s decision but no overt duty is placed upon the public authority itself. Whereas standards of legality, whether derived from the rules of natural justice or the HRA 1998, impose duties upon public authorities that the courts, as adjudicators, decide whether or not have been met. Standards of legality, thus, look to what the public authority is lawfully able to do and standards of review can question how they do so.

Question 24

What 6 different ways can horizontality operate?

Answer 24

1. Direct statutory horizontality (s. 3)
2. Public liability horizontality (s. 6)

3+4 The courts and remedial and procedural horizontality (s. 6)

5+6 The courts and indirect and direct horizontality (s. 6)

Question 25

A1P1

Answer 25

Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Question 26

What is the object of A1P1?

Answer 26

Article 1 provides a right of property and not to property. Its object is thus to protect existing property that a person holds by both positively guaranteeing that a person is entitled to the peaceful enjoyment of his or her property, and by providing supporting negative prohibitions upon a person being deprived of his or her possession or being subject to controls over his or her enjoyment of those possessions, unless such incursions can be justified in the public or general interest.

Question 27

What 20 philosophical starting points does Gray highlight?

Answer 27

In most areas of property law there exists a tension between two philosophical starting points, which may perhaps be characterised as the perspectives of the property absolutist and the property relativist. Most lay persons tend, by natural disposition, to be property absolutists – in that they believe passionately and instinctively that ownership of an estate in land confers inviolable and exclusive rights of enjoyment and exploitation. By contrast the property relativist pictures property in terms, not of absolute rights, but rather of qualified entitlements based on social accommodation, community-directed obligation and notions of reasonable user. The dominant modern juristic perception of property is, without much doubt, that of the relativist, partly because the pressures of crowded urban coexistence have forced a fresh recognition of the heavily interdependent nature of our social and economic arrangements. There remain today few true property absolutists, although those who tend towards this view maintain that all regulatory interference with land use necessarily constitutes a compensable ‘taking’ of property. In its most unqualified form, the absolutist approach castigates uncompensated regulation as environmental fascism and insists that if the community wants environmental welfare, it must purchase it fairly rather than simply dump the unalleviated cost on isolated owners of real estate.

Question 28

When is A1P1 engaged?

Answer 28

When there has been an interference with possession under one of the three elements of the Article identified by Strasbourg in Sporrong

Question 29

Sporrong

Answer 29

The first rule, which is of a general nature, announces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognizes that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph.

The courts will look to see whether the last two rules are applicable before considering whether the first rule has been infringed.

Question 30

James v UK on the interrelated nature of the rules

Answer 30

The three rules are not however “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.

The rule (in the second sentence) subjects deprivation of possessions to certain conditions concerns a particular category, indeed of the most radical kind, of interference with the right to peaceful enjoyment of property [. . .]; the second sentence supplements and qualifies the general principle enunciated in the first sentence. This being so, it is inconceivable that application of the general principle to the present case should lead to any conclusion different from that already arrived at by the court in the application of the second sentence.

Question 31

Meaning of possession

Answer 31

‘autonomous’ definition, meaning Strasbourg interprets it.

Has done so widely: there is no doubt that our established notions of estates and interests in land fall within its meaning. The term also covers other accepted categories of property rights that fall outside the scope of this book, such as personal and intellectual property, as well as rights that may arise from contractual relations, a tortious claim etc.

But, an expectation that you might receive property (i.e. inheritance) is not possession.

Thus, unclear whether an inchoate equity (i.e. arising by estoppel) constitutes possession for A1P1.

Stretch shows there is the possibility, at least where a public authority raises a legitimate expectation of entitlement

Question 32

What does deprivation of possession mean (second limb of A1P1)?

Answer 32

A ‘deprivation’ is generally defined by a transfer or shift in ownership: examples include the compulsory purchase of land (Howard v UK), the nationalization of a business by the government (Lithgow v UK) or the confiscation of the proceeds of crime (R v May). The transfer need not be to the government, or other public authority; it may be to another private individual, where the State has sanctioned that transfer by legislation.

Question 33

Does determination of a lease count as deprivation of possession?

• example case?

Answer 33

Most obviously, the determination of a lease (whether by the expiry of the term, by a notice to quit, or by a right of forfeiture) does not deprive the tenant of his or her possessions, because the lease is defined by these means of termination from the outset.

For instance, in Sims v Dacorum BC, the Supreme Court held that the exercise of a contractual right to terminate a joint lease by one joint tenant did not constitute a deprivation of possession, it was a feature of the lease itself.

Question 34

Does power to sell/overreaching count as deprivation?

Answer 34

Goymour suggests that the question may turn on whether the power is taken to be expressly conferred, and thus defines the possession, or is a consequence of statutory imposition.

Question 35

What does ‘control over land’ (third limb of A1P1) means?

Answer 35

A government may enact laws that control the use of land, the most obvious example being planning controls.

Rent controls and limitations upon a landlord’s right to recover their property from a tenant are further examples of controls over possessions.

More unusual examples include controls over fishing, and hunting rights over land, or controls over who can actually use the land

Question 36

Deprivation or control? And why is the distinction important?

Answer 36

The distinction is significant when it comes to considering whether or not the interference is proportionate and in particular the payment of compensation. An extensive control over a possession may amount to a de facto expropriation where the victim is deprived of all meaningful use of their property (Sporrong).

For instance in R (on the application of Mott) v Environment Agency, controls over a lease granting a right to fish salmon in the Severn estuary which reduced the catch by 95 per cent was held to be closer to a deprivation than a control and in any event called for the payment of compensation.

Question 37

What are the facts of JA Pye?

Answer 37

Pye owned land that it intended to develop. In the meantime, it licensed the land to a neighbouring farmer, Mr Graham. When the licence expired, Mr Graham continued in adverse possession of the land for a period in excess of the limitation period of twelve years. When Pye eventually tried to evict Mr Graham, the House of Lords dismissed its claim and held that Mr Graham was entitled to be registered as the owner. Pye unsuccessfully claimed that it had been deprived of its ownership in breach of Art 1 of the First Protocol.

Question 38

What was held in JA Pye?

Answer 38

The applicant companies did not lose their land because of a legislative provision which permitted the State to transfer ownership in particular circumstances (as in the cases of AGOSI, Air Canada, Gasus), or because of a social policy of transfer of ownership (as in the case of James), but rather as the result of the operation of the generally applicable rules on limitation periods for actions for recovery of land.

The statutory provisions which resulted in the applicant companies’ loss of beneficial ownership were thus not intended to deprive paper owners of their ownership, but rather to regulate questions of title in a system in which, historically, 12 years’ adverse possession was sufficient to extinguish the former owner’s right to re-enter or to recover possession, and the new title depended on the principle that unchallenged lengthy possession gave a title. The provisions of the 1925 and 1980 Acts which were applied to the applicant companies were part of the general land law, and were concerned to regulate, amongst other things, limitation periods in the context of the use and ownership of land as between individuals. The applicant companies were therefore affected, not by a “deprivation of possessions” within the meaning of the second sentence of the first paragraph of Article 1, but rather by a “control of use” of land within the meaning of the second paragraph of the provision.

Question 39

What does ‘peaceful enjoyment’ (first limb A1-1) mean?

example case falling within this category?

Answer 39

An interference that does not fall within the second or third limb may nevertheless be an interference with the peaceful enjoyment of possession under the residual category provided by the first limb.

Sporrong and Lonnroth v Sweden provides an example. The complainants owed land in Stockholm that was earmarked for development and the authorities issued expropriation notices. Although the notices were never implemented, the complainants’ ability to deal with their land was blighted. The Court found that there was no deprivation or control under the second and third limbs, but did find that there was an infringement of the first rule.

Question 40

When is an interference justified?

1. subject to the law

Answer 40

The interference must be in accordance with domestic law.

Furthermore, that domestic law must satisfy the fundamental requirements of the rule of law. It must not operate arbitrarily, it must be certain and accessible, and it must provide adequate procedural safeguards.

Question 41

When is an interference justified?

2. The public and general interest

Answer 41

It is not thought that there is a distinction between the public and general interest. These expressions define the legitimate interest in respect of which a deprivation or control may be justified. States enjoy a wide margin of appreciation in both identifying what is in the public interest and in formulating the appropriate measures to address that interest. The width of a State’s margin of appreciation is evident from James v UK

Question 42

Hutten-Czapska v Poland (2007) on public and general interest

Answer 42

The notion of “public” or “general” interest is necessarily extensive. In particular, spheres such as housing of the population, which modern societies consider a prime social need and which plays a central role in the welfare and economic policies of contracting states, may often call for some form of regulation by the state. In that sphere decisions as to whether, and if so when, it may fully be left to the play of free market forces or whether it should be (p. 122) subject to state control, as well as the choice of measures for securing the housing needs of the community and of the timing for their implementation, necessarily involve consideration of complex social, economic and political issues.

Question 43

Compensation and A1P1

Answer 43

Article 1 does not expressly do so, but the Strasbourg Court has made clear that where the second limb of the Article is engaged (i.e. where there is a deprivation of property), compensation is to be expected, although that compensation may be less than market value. (Holy Monasteries v Greece (1995) )

Question 44

James v UK on compensation in A1P1

Answer 44

the protection of the right to property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, it does not impose a disproportionate burden on the applicants

Question 45

Procedural safeguards and A1P1

Answer 45

Zehentner v Austria: Strasbourg Court held that in respect of Art 1 Protocol 1 the judicial sale of the victim’s property was a disproportionate interference with the victim’s property, given the relatively small debts involved, and because the process took no account of the victim’s incapacity. Furthermore, the procedural possibility of challenging the debts themselves on the grounds of the victim’s lack of capacity did not constitute a viable alternative.

Chamber’s decision in Pye was also premised on the lack of procedural safeguards afforded to the paper owner whose registered title was automatically extinguished but the grand Chamber thought the safeguards were adequate

Question 46

Article 8 ECHR

Answer 46

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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.

Question 47

When is Article 8(1) engaged?

Answer 47

‘Home’ has an autonomous meaning, being a place of residence with which the individual has ‘sufficient and continuing links’, and is not dependent upon that person having a legal right of occupation. This test was developed by the Strasbourg Court in the case of Gillow v UK, and has been consistently applied in subsequent cases by the Strasbourg Court, the House of Lords, and the Supreme Court.

Question 48

Harrow LBC v Qazi [2004] on ‘home’

Answer 48

Lord Bingham:

Not surprisingly, the need for some protection of the home was recognised in the Convention, since few things are more central to the enjoyment of human life than having somewhere to live. On a straightforward reading of the Convention, its use of the expression “home” appears to invite a down-to-earth and pragmatic consideration whether [. . .] the place in question is that where a person “lives and to which he returns and which forms the centre of his existence”, since “home” is not a legal term of art and article 8 is not directed to the protection of property interests or contractual rights.

Question 49

What do Nield and Hopkins suggest about when Article 8 should be considered?

Answer 49

Accordingly the Art 8 rights of family members with no property interest, for example, children should be considered

Question 50

Is the legality of their possession relevant?

Answer 50

Even though an occupier’s legal right to remain in possession may have ceased, or indeed never arisen, their residence may still qualify as their home for the purposes of Art 8(1).

The legality of their occupation is relevant only to the justification balance under Art 8(2). Looking beyond property rights raises the possibility that Art 8 may offer a new measure of human rights based protection of the home

Question 51

Nield on ‘sufficient and continuing links’ that define home

Answer 51

There must be a physical space within which such links may be forged, but home encompasses more than the physicality of a shelter. The Article 8 concept of home is concerned also with the social and psychological connections that a person develops with a particular dwelling. For instance, in Connors v UK the ECtHR described ‘rights of central importance to the individual’s identity, self determination, physical and mental integrity, maintenance of relationships and a settled and secure place in the community’, and Baroness Hale in R (Countryside Alliance) v AG referred to ‘the inviolability of a different kind of space, the personal and psychological space within which each individual develops his or her sense of self and relationships with other people’. These more abstract functions of home find a synergy with the work of Lorna Fox on the concept of home and the X factor values she describes beyond home as ‘shelter’ and ‘investment’ to home as ‘identity’, home as ‘territory’ and home as ‘a social and cultural expression’.

Question 52

satisfying the ‘sufficient and continuing links’

Answer 52

Generally not been difficult for a victim to pass unless their temporal connection with their home has been brief (Powell). For instance, in Leeds CC v Price, occupation of a traveller’s site for just a few days was insufficient.

Question 53

McCann v UK (2008) on the loss of one’s home

Answer 53

The loss of one’s home is the most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under art 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.

Question 54

What is/is not sufficient to constitute interference?

Answer 54

threat of eviction from the institution of possession proceedings is sufficient to constitute the interference (McCann). However, it appears that the termination of the right to occupy, for instance by the service of a notice to quit, may not amount to a sufficient threat to engage Art 8 (Sims).

Question 55

When will art. 8 be justified?

Answer 55

Article 8(2) sets out the grounds upon which an interference with the home may be justified. These grounds set out the legitimate aims. They are comprehensive and, in many instances, an interference will be justified under one or more grounds. The most common grounds for our purposes are measures that are designed to promote the economic well-being of the country, to protect public safety, or to protect the rights and freedom of others. For example, planning controls and powers of compulsory purchase will often be justified on all three grounds,155 environmental pollution may be justified to attain national economic goals

Question 56

Vertical application of Art. 8

Answer 56

In making their initial assessment of the necessity of the measure, the national authorities enjoy a margin of appreciation in recognition of the fact that they are better placed than an international court to evaluate local needs and conditions. The margin afforded to national authorities will vary depending on the Convention right in issue and its importance to the individual in question.

set out the approach in Connors (i.e. narrower where the right is crucial to individual’s effective enjoyment of intimate key rights)

8(2) raises questions about procedure as well as substance. The Court must examine whether the decision making process is fair and such as to afford due respect to the interests safeguarded

Question 57

Lord Neuberger in Manchester CC v Pinnock [2011]

Answer 57

Draws attention to the unambiguous and consistent approach of the European court:

there is no question of the jurisprudence of the European court failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way. T

Question 58

Will proportionality be effective?

Answer 58

The word ‘exceptional’ has been used to describe the likelihood of a disproportionate result but Lord Neuberger, in Pinnock, criticized its use and tried to articulate a more useful guide. In so doing he suggests that the vindication of a social landlord’s property rights and their duties of housing management in almost all cases will provide the necessary pressing social need to demonstrate proportionality.

Neuberger noted that:

‘Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right—indeed the obligation—of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow London Borough Council v Qazi [2004] 1 AC 983, 997, para 25: “the administration of public housing under various statutory schemes is entrusted (p. 135) to local housing authorities. It is not for the court to second-guess allocation decisions.’

‘in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.’

Question 59

Lord Hope in Powell

Answer 59

Lord Hope emphasized that in the case of social landlords the vindication of their property rights was by itself insufficient. He also went onto reject the need for a more structured approach to proportionality, which would look to the particular policy of the ground for possession under scrutiny.

Question 60

What are the concerns of the domestic courts with prevents them from too readily permitting Art. 8?

Answer 60

First, there is a concern not to upset the social housing regime articulated through detailed statutory schemes emanating from Parliament. Here we have an example of judicial deference to Parliament in a key area of socio-economic policy that attracts significant state funding. The judiciary is keen to acknowledge the democratic mandate of the legislature in determining housing policy and the expertise of those responsible for the articulation and administration of those policy choices

Secondly, there is, as dictated by Strasbourg jurisprudence, the importance attached to procedural safeguards

Lastly, the decisions highlight the Supreme Court’s concern with the practicalities of possession proceedings which occupy much of the business of our County Courts. It is the County Courts which must apply those rules fairly yet efficiently.

Question 61

Summary of the UK courts keeping human rights challenges to social housing proceedings within bounds

Answer 61

In Powell they rejected a structured approach to proportionality, instead compatibility is presumed and it is for the occupier to raise an Art 8 defence.

Question 62

Lord Neuberger in Binrmingham CC v Lloyd

Answer 62

even if procedurally a proportionality assessment is necessary, a squatter would have only a very slim chance of a successful Art 8 defence

‘It would, I accept, be wrong to say that it could never be right for the court to permit a person, who had never been more than a trespasser, to invoke art.8 as a defence against an order for possession. But such a person seeking to raise an art.8 argument would face a very uphill task indeed, and, while exceptionality is rarely a helpful test, it seems to me that it would be require the most extraordinarily exceptional circumstances.’

Question 63

Case where the first instance judge held that it would be disproportionate to evict the tenant

Answer 63

Southend-on-Sea BC v Armour, the local authority sought to terminate an introductory tenancy and regain possession due to the anti-social behaviour of the tenant. However, by the time the proceedings came before the court the tenant had mended his ways for almost a year. As a result the judge at first instance found it would be disproportionate to evict the tenant in the light of his improved behaviour; a judgment that the Court of Appeal refused to overturn.

Question 64

Nield on the types of vulnerability that may tip the balance in proportionality evaluation

Answer 64

The occupier will undoubtedly need to present some particular vulnerability, such as illness, age or mental incapacity. For instance Ms Zehentner was mentally incapable and could not respond adequately to the enforcement process in which she found herself embroiled. In Bedjov v Croatia, age and ill health contributed to a disproportion eviction, with the offer of alterative accommodation being too little too late. But in Thurrock BC v West the Court of Appeal threw cold water on the sufficient vulnerability of a young couple with a young child and limited means to overturn the proportionality of the local authority’s decision to evict them from accommodation they never had a right to occupy and which exceeded their needs. Vulnerability must be seen in the context of the eviction, in the sense that the vulnerability will be exacerbated by the eviction. In Bjedov there was evidence that the health of 78 year old Mrs Bjedov would have been seriously affected by her eviction. By contrast in Corby v Scott a murderous assault on the occupier was discounted because it was unconnected with the eviction.

Question 65

Lord Neuberger on factors which render disproportionate to remove tenant

Answer 65

In Pinnock, he acknowledged that the particular vulnerability of the individual occupier may tip the balance

Question 66

Horizontal application of Art. 8

Answer 66

In Pinnock the Supreme Court decline to pass comment on the application of Art 8 to repossession of a tenancy between private parties.

In McDonald v McDonald they had to answer the question head on

Question 67

McDonald v McDonald Facts

Answer 67

The McDonalds wished to buy a house for their mentally troubled daughter, Fiona. They raised the money by obtaining a mortgage from Capital Homes Ltd. They rented the house to Fiona on an assured shorthold tenancy and used the rent funded by Fiona’s housing benefit, to meet the mortgage repayments. However, the McDonalds were unable to keep up their mortgage repayments and Capital Homes appointed a receiver, who, acting as an agent for the McDonalds, terminated Fiona’s tenancy by serving a two months notice to quit and claimed possession. Fiona argued that this mandatory ground upon which the receiver claimed possession infringed her Art 8 rights to respect for their home because it provided no opportunity for the court, pursuant to the court’s obligations as a public authority under s6 of the HRA 1998, to consider the proportionality of her eviction.

Question 68

Lord Neuberger and Lady Hale in McDonald v McDonald

Answer 68

although it may well be that article 8 is engaged when a judge makes an order for possession of a tenant’s home at the suit of a private sector landlord, it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants.

To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is, as we have mentioned, to protect citizens from having their rights infringed by the state. To hold otherwise would also mean that the Convention could be invoked to interfere with the A1P1 rights of the landlord, and in a way which was unpredictable.

Question 69

What do Lord Neuberger and Lady Hale say re the difference between Art. 8 in contractual relations and tortious cases in McDonald v McDonald?

Answer 69

there are many cases where the court can be required to balance conflicting Convention rights of two parties, eg where a person is seeking to rely on her article 8 rights to restrain a newspaper from publishing an article which breaches her privacy, and where the newspaper relies on article 10. But such disputes arise not from contractual arrangements made between two private parties, but from tortious or quasi-tortious relationships, where the legislature has expressly, impliedly or through inaction, left it to the courts to carry out (p. 145) the balancing exercise. It is in sharp contrast to the present type of case where the parties are in a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected.

Question 70

Nield ‘shutting the door on horizontal effect: McDonald v McDonald’ re the consensual nature of the tenancy agreement in contrast to liability that might arise between private parties in tort where the court has been willing to intervene on human rights grounds

Answer 70

The Supreme Court also emphasised the contractual relationship of the parties under an AST as that relationship is shaped by legislative regulation. But they failed to note that the contractual freedom of tenants in the private rental housing market is illusory. If only ASTs are on offer that is all that private tenants can enter into. The very weak security of tenure afforded to AST tenants may work for those that have the few ties and the resources, both financial and personal, to cope with the frequent changes of home that may result. But not all who have to resort to the private rental market value this flexibility—families with children wishing to maintain local ties are an obvious example. The physically or mentally vulnerable, like Fiona, may also need greater security of tenure on health grounds.

Although the Supreme Court noted that the policy shaping ASTs has not waivered since the Housing Act 1988, it is undeniable that the housing market, and with it housing policy, has moved on. The significance of the private rental sector, and with it ASTs, has grown considerably and now forms an important element of the housing market. The private rental sector in England almost doubled in size between 2000 and 2012 mostly at the expense of the public rented sector. Accordingly, there is growing disquiet at the limited protection it affords the diversity of AST tenants. Admittedly these are policy issues but they are issues which are integral to respect for the home under art.8 which the HRA 1998 calls upon the courts to adjudicate.

Question 71

What does Lees argue? ‘Art 8, Proportionality and Horizontal Effect’ (2017)

Answer 71

At the heart of the court’s conclusion is the view that where the rights and obligations of private parties are determined by statute and/or contract, it is not the role of the court to interfere with that balance (at [40]–[46]). That reasoning is strange. First, the potentially relevant statutory provisions must, on any view, include the impact of the Human Rights Act 1998 since this is precisely what the interpretation obligation in the HRA is intended to achieve. This must be true even where “the effect of those statutes has … been effectively confirmed on a number of occasions by Parliament” (at [40]) since all of these “confirmations” took place against the background of the 1998 Act. This argument is not conclusive as to outcome, but it does mean that we ought not to assume that Parliament “intends” the balance between the rights of the occupier and the landlord to be governed by the Housing Act 1988 alone, but possibly by that Act modified by controls which provide for human rights protection where appropriate [ … ]

Furthermore, although the court acknowledged that art.8 is engaged (since an individual was deprived of their home, at [50]), their Lordships held that no proportionality test should be carried out. However, art.8 itself requires a proportionality assessment to determine whether the rights it embodies have been breached. This is not a matter of judicial precedent, but interpretation of the articles within the Convention as mandated by the HRA [ … ]

These reasons do not therefore support the Supreme Court’s conclusion. The recognition that art.8 is engaged, the jurisprudence of the ECtHR and the Supreme Court in relation to public authorities, and of the wording of art.8 itself, as incorporated into national law by the HRA, mandate that a proportionality assessment be carried out. The court’s concerns about the proper judicial role and the balance struck between occupier and landlord should filter into this proportionality test under the concept of the margin of appreciation or deference. They do not justify no assessment being carried out.

Question 72

What is the effect of McDonald v McDonald in terms of the distinction between public and private tenants?

Answer 72

The decision in McDonald creates a clear dividing line between the protection afforded by Art 8 to tenants of a private and a public or quasi-public landlord.

Given the restrictive approach to proportionality developed in Pinnock and Powell, this difference may not have a significant practical impact but it does leave the respect due to a private tenant’s home in the event of repossession of little meaning.

The Supreme Court in the extracted judgment above suggest that a private tenant does enjoy quite significant protection—a court order is required and the court has discretion to afford tenants a short time before the possession order that the court is bound to make is executed by the arrival of the bailiff.

These ‘protections’ may be of little comfort to a vulnerable tenant, who may need a little longer to find suitable alternative accommodation, or a tenant faced with a retaliatory eviction following a reasonable complaint about their tenancy. The following extract voices these concerns.

Question 73

Nield ‘shutting the door on HDE’ (2017) re two tier protection

Answer 73

we now have a two tier protection between tenants within the public and private sectors. This is increasingly significant given the growth of less secure tenancies in the public sector. Tenants of a public or quasi-public authority may raise a proportionality defence but private tenants cannot. The distinction is further muddied by measures such as a local authority’s ability to discharge its homelessness duties by resort to the private sector. Exactly where the line is drawn between quasi public and private landlords is thus critical. Even if the import of this public/private divide is to some extent ameliorated by the narrow application of proportionality in public or quasi-public authority possession proceedings laid down in Pinnock and Powell. Yet the test to determine a quasi-public authority is not without controversy. Many housing associations will be quasi-public authorities [ … ] [h]owever their status as quasi-public authorities can raise difficult and functionally fact sensitive questions.

The rejection of remedial horizontality, through the court’s duties under the HRA 1998 s.6, reflects the general concern that has been expressed on the impact of human rights on private law in compromising personal autonomy and the constitutional importance of separation of powers. The Supreme Court’s judgment is shot through with statements that these principles must be preserved. They reiterate that any compromise to that autonomy through the balancing of private parties’ respective human rights is a matter for Parliament in their proper constitutional role.

As such the judgment reflects the traditional property law values of clarity and certainty. However, in so doing it empties art.8 of little meaning in the context of possession proceedings brought by private landlords. It is only where the law itself can be challenged as incompatible or where a State is found to be under a positive duty under the ECHR, for instance to protect vulnerability, that human rights may play a role. Whether the Strasbourg Court agrees with this restrictive application of the balance between art.1 Protocol 1 and art.8 to home repossession remains to be seen.

Question 74

The UK SC’s approach in terms of following Strasbourg jurisprudence

Answer 74

Treated it as a ceiling rather than a floor evidence from the claim that they will only follow the Strasbourg Courts where ‘there is a clear and consistent line’ of decisions (Pinnock)

Question 75

Di Palma v UK

Answer 75

here an attempt to claim that the exercise of contractual agreed right to forfeit a lease by a private landlord was a breach of Art 8 was robustly rejected as ‘manifestly ill founded’

Question 76

Khurshid Mustafa v Sweden

Answer 76

a rather different attitude is evident in the more recent forfeiture case

Strasbourg Court held that a repossession by a private landlord, based upon the breach of the tenant’s covenant not to erect a satellite dish on the exterior of a block of flats, was admissible and indeed a breach of Art 10 (freedom of expression).

It made the following general statement demanding human rights compatibility of domestic courts (as a State body) even though the dispute before them is private:

Admittedly, the [Strasbourg] Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary, discriminatory or, more broadly, inconsistent with the principles underlying the Convention.

Question 77

Zehentner v Austria as evidence for HDE

Answer 77

an important decision in which the positive duties of a State to provide adequate procedural safeguards was central to the finding of incompatibility with Art 8 even though the parties to the underlying dispute were private.

Question 78

Vric v Croatia

Answer 78

Post McDonald v Mcdonald:

the court rejected the need to consider proportionality in judicial sale proceedings brought by a mortgagee wishing to recover mortgage arrears. The court emphasized the private contractual nature of the mortgage under which the mortgagor accepted the risk that they could lose their home if they failed to repay.

Question 79

Ivanova & Cherkezov v Bulgaria

Answer 79

Post McDonald v McDonald:

in proceedings concerning the demolition of a home built in contravention of planning laws, the court embarked upon their clearest and strongest reassertion of a victim’s right to question the proportionality of their eviction, in terms which suggest their comments were not restricted to repossession by a public authority—indeed they referred to cases involving private parties including Zehentner.

‘given that the right to respect for one’s home under article 8 [ … ] touches upon issues of central importance to the individual’s physical and moral integrity, maintenance of relationships with others and a settled and secured place in the community, the balancing exercise under that provision in cases where the interference consist in the loss of a person’s only home is of a different order, with particular significance attaching to the extent of the intrusion into the personal sphere of those concerned [ … ] this can normally only be examined case by case.’

Question 80

How far will the HRA impact proprietary rights?

Allen ‘Property and The Human riGHTS aCT 1998’

Answer 80

In the discussion on the applicability of P1(1) [Art 1 of the First Protocol] and other Convention rights, it was said that human autonomy and dignity are values in both human rights law and private law, Similarly, both human rights and private law often require a balance to be struck between competing interests. However, if the values only take effect at a very high level of generality, alongside other private law values such as certainty, fairness and the like, the effect of human rights law is unlikely to be significant. It may add a new rhetorical dimension to the reasoning in private law cases, but without changing the outcome. But once values are identified at a high level of generality, it should be possible to move to two more specific aspects relating to the development of private law doctrines where human rights law may prove significant (and is already proving significant). The first relates to the nature of the balancing process, and the second to the interest which private law seeks to protect.

Question 81

How do Fox and Gray and Gray describe the effect of human rights?

Answer 81

Fox: ‘a useful lens’

Gray and Gray: ‘prism’, through which compliant legislation must pass.

Question 82

What is one justification for McDonald limiting availability of Art. 8 to occupiers of social housing?

Answer 82

The occupier may be more vulnerable; perhaps there is inference as to the occupier’s economic means. Unlike a private tenant, they may not have the economic means to go elsewhere; it may simply be a choice between different council housing.

In line with the restriction on the availability of HDE more generally, misguided belief that it is fair for emanations of the state to be liable for failing to live up to standards of EU law… In practice, the broad definition of ‘state’ has led Craig to criticise this as often the public authority is often no different to a private entity in practice

Question 83

Walsh ‘stability and predictability in english property law’ (2015)

Answer 83

Article 8 has increased the complexity of English property law by introducing scope for contextual considerations without undue loss of efficiency. Thus far, the decisions indicate that the courts favour simplicity and predictability, and with it, the protection of owner’s exclusionary rights. Article 8 is confined to the periphery of property law through the enforcement of a threshold requirement that rules out balancing in all but very complex and exceptional (p. 152) cases…

However, English property law’s exclusionary rhetoric is no longer absolutist – as Ward LJ pointed out in Malik v Fassenfelt, the “castle” has been replaced by balancing.

Question 84

R(on the application of Mott) v Environment Agency [2018]

Answer 84

Environment Agency tried to end Mott’s lease to shut down his fishing activities.

While Mr Mott had been paid compensation before, they ceased.

He brought JR on 2 grounds:

1. irrational
2. breach of right to property (A1P1)

Question 85

R(on the application of Mott) v Environment Agency [2018]

Held CA

Answer 85

1. No irrationality

2. But no compensation so breach of right to property

Question 86

R(on the application of Mott) v Environment Agency [2018]

Held Supreme Court

Answer 86

Carnwath LJ:

Cited 2005 decision Trailer where Neuberger held that there must be a balance between personal interest and public interest

Then proceeded to examine overall impact on Mr Mott - he had depended on it for his livelihood for several years and he had no compensation. Court recognised countervailing environmental factors but held lack of compensation was heinous

NB: this is an extreme example!

No automatic right to compensation and authorities usually have wide discretion but they were vindictive and devastating - they set out to ruin his livelihood. This overbearing approach outweighed the environmental factor.

Question 87

FJM v UK (2019)

Answer 87

The case concerned a possession order against a tenant after the landlords, who were also her parents, defaulted on their mortgage payments. The applicant complained under Article 8 (right to respect for private and family life and the home) that the UK courts had refused to carry out a balancing exercise between her rights as a tenant to not lose her home and the mortgagee’s right to be repaid.

The Court reiterated that losing one’s home was an extreme interference with one’s rights which in principle should lead to a weighing up of the competing rights involved by an independent tribunal. However, in a judgment concerning Croatia the Court had recently clarified that there is a distinction between public authority landlords and private landlords. In particular, where possession is sought by a private individual or body, the balancing of the parties’ competing interests can be embodied in domestic legislation, and it is not, therefore, necessary for an independent tribunal to weigh up those interests again when considering a claim for possession.

The Court confirmed this distinction in the present case, finding that the domestic legislation had taken account of the competing interests at stake and that the finance company (as mortgagee) and the applicant (as the mortgagor’s tenant) had entered voluntarily into a contractual relationship in respect of which the legislature had prescribed how each of their Convention rights were to be respected. Indeed, if a private tenant such as the applicant could require an independent tribunal to conduct a balancing exercise before making a possession order, the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging.

Question 88

Barca v Mears [2005]

Mr Strauss QC

Answer 88

Home was in the sole name of the bankrupt. He asserted two exceptional matters: the so far undetermined interest of his former partner, and the special educational needs of their son, who spent time living with him in the home, and whose education would be disrupted if this could no longer occur.

Nicholas Strauss QC found that article 8 of the European convention might well require a change to the test under section 335A(3) - if the ‘usual melancholy consequences’ of bankruptcy were in fact destructive of family life, then it would not be right to say that they could not be relied on, simply because they were ‘usual’ and not ‘exceptional’ consequences. To place so narrow an interpretation on the word ‘exceptional’ might well offend against the rights enshrined in article 8. In Barca, this issue remained academic, as, on the facts, the creditors’ interests would still have prevailed.

Question 89

Cowan and Hunter

Answer 89

‘where Pinnock opened up the proportionality defence, Powell has dampened expectations about its ambit, leaving a lack of clarity’

Question 90

Chronology of case law on Article 8

Answer 90

Connor v UK (ECtHR)

Qazi (2004) set the high watermark and ignored Connor

Kay (2006) set out gateway (a) and (b) though largely resisted Connor (see minority judgment)

Doherty (2008) refused to depart from Kay, noting that it was not limited to Wednebury review

McCann v UK (2008) - reiterated Connor

Pinnock - finally moved away from Kay and Doherty given the clear and consistent authority from the ECtHR. Opened up the proportionality defence

Powell - application of Pinnock and dampened expectations about its ambit, leaving lack of clarity.

Question 91

Holbrook describing the ramifications of Pinnock and Powell in 2011

Answer 91

‘apocalyptic’ terms

Question 92

What practical considerations against proportionality defence did Lord Hope acknowledge in Powell?

Answer 92

Practical considerations indicate that it would be demanding far too much of the
judge in the county court, faced with a heavy list of individual cases, to require him
to weigh up the personal circumstances of each individual occupier against the
landlord’s public responsibilities.

The court is not equipped to make those decisions, which are concerned essentially with housing management.

This opinion is underpinned by DEFERENCE.

Question 93

What is the issue with the deference that Lard Hope suggests in Powell?

Answer 93

the District Judge is left in the dark as to what a seriously arguable defence might ‘look like’. In the absence of
concrete guidance, we suspect that different courts (and different judges in the same courts) will naturally develop different approaches to this new jurisdiction.

Question 94

What procedural issue do Cowan and Hunter raise?

Answer 94

The occupier cannot call for full disclosure at the initial hearing unless it is decided that the defence is substantial. Although this is intended to stop ‘fishing expeditions’ which lack substance (Brent LBC v Stokes) it is also likely to disable defendants from doing any more than pleading their personal circumstances which are unlikely to to outweigh the ‘public’ landlord’s rights and duties which do not have to be pleaded.

Question 95

What is the difference procedurally between demoted and introductory tenancy cases + homeless cases and vs assured tenancy?

Answer 95

reasons are required by statute in the former whereas reasons are not required for flexible regime for other social landlords)

Question 96

What do Cowan and Hunter note about the nature of tenants?

Answer 96

That social housing settlement is no longer a monolithic entity of predominantly public local authority providers but a messy domain.

Therefore, there is a question about the requisite ‘publicness’ of the landlord to enable an occupier to mount a defence based on Article 8.

E.g. housing associations provide most social housing. Although generally non-profit, it is possible for a profit-making company to register with the relevant agency.

E.g. 2. purely private landlords participate in social housing settlement in provision of temporary accommodation to homeless households

• Arguably such tenants will be held to a higher standard but nothing on the face of the Localism Bill to suggest so

Question 97

What is the multi-factoral approach taken in YL v Birmingham re interpretation of Art. 6 HRA?

Answer 97

‘Core’ and ‘hybrid’ public authorities; London Quadrant Housing Trust was regarded as a hybrid body since decisions regarding management of its properties carry out a public function

Question 98

The Supreme Court in Pinnock whether their judgment affects private landlords

Answer 98

it would not affect possession claims brought by private landlords; however they drew attention to diverging authorities in ECtHR i.e. Belchikova v Russia

Question 99

Which cases show ECtHR allowing Art. 8 defence in private possession proceedings?

Answer 99

SC in Pinnock drew attention to Belchikova v Russia but a better authority is Zehenter v Austria.

The latter involved a straight application of private law principles between two private
parties, in relation to small civil debts, which ended with Ms Zehentner being
evicted from her property by forced judicial sale. Her claim that the forced judicial
sale breached her Article 8 rights was upheld in the First Section of the ECtHR.
Of course it can be said that maintaining an Article 8 proportionality defence against a private landlord with their own Article 8 rights (not to mention rights
under Article 1, First Protocol) will be difficult; but it may provide a remedy in the circumstance of a ‘retaliatory eviction’ - where the landlord issues a possession
claim in response to complaints from the tenant.’ In other cases, it may be easier
to connect private landlords with the exercise of public functions (such as where
they are providing temporary accommodation to homeless applicants).

Question 100

What is the issue if Article 8 is permitted against private landlords?

Answer 100

It would also be available against mortgage lenders where they are seeking possession against an occupier whose rights do not bind them.

Such defences may be easier to mount where the state had a financial interest in the claimant mortgage lender, but even those lenders are private companies

Question 101

How has the rule in Monk been potentially compromised?

Answer 101

Originally allows one joint tenant to determine the tenancy by notice to quit. Given the lack of procedural protection that rule gives to other joint tenants, as well as denial of that other tenant’s substantive rights of security of tenure, it must require modification.

Thus, post Pinnock, possession must be proportionate, though the standard of review must be more intense in the absence of the sort of procedural protections in place for introductory, demoted and flexible tenancies.

NB see Sims v Dacorum.

Question 102

Cowan and Hunter conclusion on Pinnock and Powell

Answer 102

Significant cases but in practice unlikely to be matched by successful defences.

Conceivable that the barriers to raising such a defence i.e. ‘seriously arguable’ case will render the defence impractical.

The most significant practical impact is likely to be the procedural, in terms of possession proceedings and the management of the list, rather than on outcomes.

Question 103

Donohoe v Ingram

Answer 103

The trustee in bankruptcy applied for sale of the matrimonial home. The sale was opposed by the bankrupt’s partner because of the presence of the couple’s four children in the family home which, it was claimed, amounted to ‘exceptional’ circumstances rebutting the presumption that sale would be ordered.

Although Art. 8 was not irrelevant in the present case (since there was no contractual or proprietary interest), the
narrow construction of exceptional circumstances did not involve infringement of the right to respect for family life under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950

Emphasises that Art. 8 is a qualified right: necessary to consider 8(2) before concluding 8(1) had been violated.

Judge made it clear that he would treat Holiday with caution. One aspect of that case - which is constantly referred to - is that on the arithmetic, the creditors could not be said to suffer hardship if the sale was postponed as sought by the wife. That situation has not existed in any of the subsequent cases mentioned above. The decision to postpone during the minority of the middle child in the case of Holliday cannot be relied on in isolation from the arithmetic of the situation in any future case.

Question 104

Re Citro [1991]

Answer 104

This case involved two brothers who were bankrupt, and their respective wives and children. Somewhat in line with Holliday, this decision postponed the sale in each case until the youngest child reached 16 years, on the basis that there was inadequate equity in the wives’ half-share to allow them to rehouse themselves and the children. The matter again proceeded under section 30 of the Act.

On appeal, Lord Justice Nourse said the usual position would be for the rights of the creditors to prevail; only in exceptional circumstances would the rights of the wife prevail. Homelessness for these wives and children was not an ‘exceptional circumstance’, but rather part of the ‘melancholy consequences of debt and improvidence with which every civilised society has been familiar’.

Question 105

How was Re Citro distinguished from Holliday?

Answer 105

Holliday was distinguished on the basis that the arithmetic of that case showed that the creditors would not suffer undue hardship by being made to wait, whereas in Citro they would have suffered hardship.

The result of these decisions has been that only in cases where either the bankrupt or his spouse was seriously or terminally ill have postponements been ordered.

Question 106

What conclusion can be drawn from the trusts of land cases re human rights?

Answer 106

It appears that those seeking postponements, even with article 8 in their armouries, still have a difficult task ahead in persuading the court that family distress and upheaval is ‘exceptional’ within a possibly broadened section 335A(3).

Question 107

Horsham Properties Group v Clark [2009]

Answer 107

The Court (Briggs J) had no difficulty in accepting that, in losing the right to pay off the mortgage, one had lost a “possession” within the meaning of A1P1. However, he did not find that there had been any deprivation of that possession by the State. He gave two reasons for this:

(a) the current situation had arisen because of the contractual provisions (and an admitted default by Mr Clark and Ms Beech) and not because of any State action; however
(b) the position would have been no different if GMAC had relied on its various statutory powers (s.101 Law of Property Act 1925) since those statutory powers did not interfere with any right, but merely created a ‘default’ position which the parties were free to alter as they saw fit.

In case he was wrong about this, Briggs J went on to consider whether the ability of GMAC to sell the property without a court order was in the public interest. He found that it was – the power to sell without a court order was an integral part of the economic basis for mortgage lending, without which, the mortgage market would not exist. There was no need for an individual assessment of the proportionality of exercising this power in any given case because the appropriate bargain had already been struck and relied, by analogy, on Lord Scott in Quazi v LB Harrow [2004] 1 AC 983.

Question 108

The good, the bad and the ugly in Horsham

Answer 108

The good: very encouraging that no-one seemed the slightest bit surprised to be dealing with a Human Rights Act 1998 argument in the context of a dispute between private parties under a private contract. If this case encourages practitioners to raise more HRA arguments in such cases then it can only be a good thing.

The bad: quite a loophole for any lender who wants to get around the protections of the Administration of Justice Acts and in the current market, the temptation to do so will, one suspects, lead many more lenders to use this route.

The ugly: idea that proportionality simply cannot arise on the facts of an individual case because it is presumed that all questions of proportionality have been dealt with at a higher level (whether in statute or in the market place) is, to put it mildly, one of hot topics in current human rights thinking.

Question 109

What changed as a result of Pinnock?

Answer 109

Until this decision, the House of Lords had said that the domestic courts should only determine that a defendant had an Art 8 defence if he or she could get through one of two “gateways” set out by Lord Hope in Kay v Lambeth [2006] 2 AC 465 at para 110. It was gateway (b) that was most pertinent:

“(b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided … that the point is seriously arguable ..”

Those gateways, and the reliance on principles of judicial review, embodied in that statement are now gone. Instead, in all public sector cases (see below) the court must, when faced with an article 8 defence, consider whether or not it is proportionate to make the order for possession:

“A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues.” (para 45(b)).

In earlier cases there was debate about whether or not article 8 and proportionality should be considered in all cases or only in highly exceptional cases (para 51). In Pinnock Lord Neuberger made it clear that the principle applies to all cases. Para 52

“The question is always whether the eviction is a proportionate means of achieving a legitimate aim.”

Question 110

To which land owners do the principles apply? - Private sector?

Answer 110

Pinnock was about a local authority seeking possession of premises that were subject to a demoted tenancy. It is clear that the decision therefore applies to local authorities.

The observations in the “judgment apply equally to other social landlords to the extent that they are public authorities under the Human Rights Act 1988”. The leading decision on whether or not a social landlord is a public authority for these purposes is London & Quadrant Housing Trust v Weaver, where it was held that one must look at the actual act being carried out and decide whether or not it was a public act.

In McDonald v McDonald [2016] UKSC the Supreme Court made it clear that Pinnock does not apply to the private sector. In that case a claim was brought for possession in respect of an assured shorthold tenancy after service of a notice under s21 of the Housing Act 1988. The defendant was highly vulnerable. However, her argument that the court should apply the principles enunciated in Pinnock were rejected. There was a clear contractual relationship between the parties and Parliament in enacting various pieces of legislation relating to the protection of tenants had already weighed up the relevant factors that relate to proportionality. Para 40:

“In the absence of any clear and authoritative guidance from the Strasbourg court to the contrary, we would take the view that, although it may well be that article 8 is engaged when a judge makes an order for possession of a tenant’s home at the suit of a private sector landlord, it is not open to the tenant to con-tend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residen-tial tenants. In effect the provisions of the Protection from Eviction Act 1977, section 89 of the Housing Act 1980 and Chapters I and IV of the 1988 Act, as amended from time to time, reflect the state’s assessment of where to strike the balance between the article 8 rights of residential tenants and the A1P1 rights of private sector landlords when their tenancy contract has ended.”

Having considered and dismissed various arguments against that proposition (paras 41 to 47) the Court went on to hold that there was “some support in the Strasbourg court jurisprudence for the notion that article 8 was engaged” there was no “support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the 1980 and 1988 Acts.” (para 59).

Question 111

Proportionality and the facts

Answer 111

In determining whether or not it is proportionate to make an order for possession it will be necessary to look at the facts of the case. As stated above, the court is not confined to principles of judicial review. If appropriate the court hearing the possession claim must hear evidence and make necessary findings:

“if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.”

Where there is more than one stage to the process it is the proceedings as a whole that need to be considered to see if Article 8 has been complied with (para 45(c)) This would clearly apply to a demoted tenancy but no doubt applies to all cases, in the sense that there is a process which invariably consists of (i) a decision to evict, (ii) the service of a notice, (iii) the taking of proceedings, (iv) the continuation of the proceedings and (v) the eviction itself.

Question 112

Where under the domestic law the land owner has an absolute right to possession - other factors landlord may wish to rely on

Answer 112

Although the order for possession must always be proportionate, the fact that a local authority has an absolute right to possession as a matter of domestic law will be highly relevant. Paragraph 52:

“Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights.”

There may also be other factors that will be relevant in the local authority’s favour. Lord Neuberger continued at para 52:

“It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.”

And at para 54:

“Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow v Qazi para 25:

“[T]he administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification.”

Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.”

Question 113

Personal circumstances

and proportionality

Answer 113

It is the personal circumstances of the defendant that are most likely to be relevant when determining whether or not it is proportionate to make the order for possession. Thus, the local authority is not obliged in any particular case to plead and put forward facts about itself that would support the argument that it is proportionate to make the order but it may do so if it wishes. Para 53:

“the Secretary of State .. submitted that a local authority’s aim in wanting possession should be a ‘given’, which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers’ personal circumstances. In our view, there is indeed force in the point… that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession – for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it.”

Question 114

When is proportionality most likely to be relevant?

Answer 114

The domestic decisions in which Art 8 has so far had most relevance (albeit applying the principles earlier set out by the HL in Kay) have usually concerned vulnerable persons. It is also in these situations where the arguments on proportionality are most likely to have some effect:

”.. the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue ‘in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty’, and that ‘the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases’ seem to us well made.”

Question 115

Trespassers and article 8

Answer 115

A person who has no right to remain in a property under domestic law can only invoke Article 8 in highly exceptional circumstances: Birmingham City Council v Lloyd [2012] EWCA Civ 969. In that case the brother of a deceased secure tenant moved in after the death of the tenant. The brother had no possible legal right to enter into or remain in possession. However, based on the brother’s personal circumstances, which included a history of depression, the judge considered it disproportionate to make an order for possession. The CA allowed the landlord’s appeal.

Lord Neuberger at paragraphs 12 and 13:

“It is now clear that a person who has no right under domestic law to remain in his home can in principle invoke Article 8 so as to defeat a claim for possession. However, as was said by Lord Phillips in paragraph 92 of Powell, this court in Pinnock stated that it is only “in very highly exceptional circumstances that it would be appropriate for the court to consider a proportionality argument”. Lord Phillips added ‘I believe that this proposition is an accurate statement of fact in relation to introductory tenant’. If that is right, then it must be at least as true, indeed in my view even more true, in the case of someone who entered the property as a trespasser and has remained a trespasser.

What is striking about this case, unlike in the cases which I have mentioned, and indeed in the earlier House of Lords cases of Harrow London Borough Council v Qazi [2003] UKHL 43 and Kay v Lambeth London Borough Council [2006] UKHL 10, is that the defendant in this case was not merely a trespasser in the property concerned at the time the possession order was sought but he never has had any right to occupy the premises, whether under contract or statute. He entered the property as a trespasser and a trespasser he has remained.”

And at paragraph 18:

“It would, I accept, be wrong to say that it could never be right for the court to permit a person, who had never been more than a trespasser, to invoke Article 8 as a defence against an order for possession. But such a person seeking to raise an Article 8 argument would face a very uphill task indeed, and, while exceptionality is rarely a helpful test, it seems to me that it would be require the most extraordinarily exceptional circumstances.”

The brother was very short of being able to cross the high threshold required (see paras 19 and 20).

Question 116

When should the court consider proportionality?

Answer 116

Generally speaking proportionately need only be considered when the defendant raises it. Para 61:

”.. as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier.”

Further, it may be dealt with on a summary basis in the first instance.

“… if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.”

Question 117

What should a court do if it is not proportionate to evict?

Answer 117

If the court considers that it is not proportionate to make the order for possession then the usual position will no doubt simply be that no order should be made, at least at that time. Para 45(d):

“If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.”

Further, if the court is of the view that proportionality requires a greater period than 6 weeks is needed before possession is to be given up, because s89 will not permit such an order, the court may in rare cases find itself making no order for possession at all.

Question 118

What is the most important section of Lord Neuberger’s Pinnock’s judgment for practical purposes?

Answer 118

“… in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.”

Question 119

Singer, 94 Cornell L. Rev. 1009 Essay: Democratic Estates: Property Law in a Free and Democratic Society p1035 and 1047

Answer 119

“The law treating property as a form of “propriety” is concerned not with fair market value and market exchange, but with establishing property rights and institutions that are consistent with and help establish the desired set of social and political relationships…… Alexander’s more communitarian and dignity-based approach assumes that we have obligations to others in our community and to those with whom we form relationships.
Every legal right should be understood not merely by reference to the powers and rights it gives the owner but by reference to the impacts of the exercise of those powers on others and the shape and character of the social relationships engendered by those rights and powers.”

Question 120

L Fox O’Mahoney, Current Legal Problems, Vol. 67 (2014), pp. 409–445, ‘Property Outsiders and the Hidden Politics of Doctrinalism’ :

Answer 120

‘…..the traditional methodologies of property law scholarship, centred on the status quo of established rights, obligations, and duties, and invoking the ‘property values’ of certainty, autonomy, and efficiency, have been applied in English law to prioritize the claims of ‘more propertied’ parties and marginalize the claims of ‘less-propertied’ parties. The article raises questions concerning the role of both property law and property scholarship: is it to understand and make the best out of the available material, to achieve or support change in a progressive (or progressive but incremental) way, or to contribute to, or at least not prevent, progress towards greater substantive equality between property’s ‘insiders’ and ‘outsiders’? [From the abstract]

Question 121

Radin, “Property and Personhood” (1982) 34 Stanford Law Review 957

Answer 121

‘One may gauge the strength or significance of someone’s relationship with an object by the kind of pain that would be occasioned by its loss. On this view, an object is closely related to one’s personhood if its loss causes pain that cannot be relieved by the object’s replacement.’

Question 122

FJM v UK App No 76202/16, 29 November 2018 (Eur Ct HR) on why Convention rights should not supplant contractual rights

Answer 122

‘[42]…What sets claims for possession by private sector owners against residential occupiers apart is that the two private individuals or entities have entered voluntarily into a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected…If the domestic courts could override the balance struck by the legislation in such a case, the Convention would be directly enforceable between private citizens so as to alter the contractual rights and obligations that they had freely entered into… [The] Housing Act 1988 reflects the State’s assessment of where the balance should be struck between the Article 8 rights of residential tenants and the Article 1 of Protocol No 1 rights of private sector landlords’.

Question 123

Does an attachment to the particular dwelling influence proportionality?

Answer 123

Walsh notes: To-date, the English courts have not generally treated subjective connections to property as significant factors in their overall proportionality assessment of possession orders. … In Pinnock itself, the Supreme Court gave very little weight to the fact that the property had been occupied by the tenant as a family home for 30 years, along with his partner and children

Question 124

Sims v Dacorum on A1P1 claim re lessor

Answer 124

“100. Where either joint tenant wishes to terminate their interest in a tenancy they must terminate the full tenancy [by 4 weeks notice].
101. We [that is, Dacorum ] will then decide whether any of the other joint tenants can remain in the property or be offered more suitable accommodation.”
A1P1: ‘[15] Given that Mr Sims was deprived of his property in circumstances, and in a way, which was specifically provided for in the agreement which created it, his A1P1 claim is plainly very hard to sustain.’
Cf: ‘inherent limitation’ doctrine

Question 125

Loveland, Twenty years later - assessing the significance of the Human Rights Act 1998 to residential possession proceedings 2017 Conv 174

Answer 125

‘There is an obvious temptation to see Pinnock /Powell ’s art.8 proportionality in the possession proceedings context as little more than dressing up orthodox understandings of Wednesbury substantive unreasonableness in differently labelled juridic clothes, and thus as being a mere symbolic initiative intendedly devoid of any practical effect. It certainly appears that there is little reported authority in which such a defence has succeeded; and there is a great deal of authority in which it has not.’