Move away from home
Private sector landlords can no longer rely on possession orders, says Justin Bates, barrister at Arden Chambers
Source: Transition Heathrow
Article 8 of the European Convention on Human Rights guarantees, among other things, that everyone has the right to respect for their home. It goes on to say that no public authority can interfere with that right unless the interference is provided for by law and is proportionate, having regards to the rights of the occupier and the wider public interest. The European Court of Human Rights has previously held that this means anyone occupying property as their home is entitled to require a court to decide if their eviction is proportionate, even if domestic law gives them no right to do this or even if domestic law gives them no rights at all.
Widening the net
In two cases from late 2010 and early 2011, the Supreme Court held that the same right - to have a court decide if an eviction is proportionate - should apply to domestic law whenever the landlord is a public authority, whether a local authority or a housing association.
The Supreme Court left a major issue open, however. How, if at all, does this right apply to those renting from a private sector landlord? On the one hand, a private sector landlord would not be a public authority, but the court which is being asked to make the possession order, is.
In Malik v Persons Unknown in July this year, Judge Karen Walden-Smith had to deal with this issue. Mr Malik owned a plot of land near Heathrow Airport, which had been occupied by the Grow Heathrow group, which was protesting against the airport’s proposed expansion.
Mr Malik argued that they were trespassers and issued proceedings.
The judge accepted that the protestors were occupying the land as their home, which meant they were entitled to raise their article 8 rights. It did not matter that Mr Malik was not a public authority. The court itself was a public authority and, as such, was not allowed to grant a possession order unless it was proportionate to do so. On the facts, it was proportionate, having regard, among other things, to the fact that Mr Malik owned the land and had not consented to the occupation.
Important for the industry
This is only a county court judgement, so sets no binding precedent, but that is not to say it is unimportant. If - as judge Walden-Smith held - the court is a public authority and is obliged to ensure that any possession order is proportionate, this means that private sector landlords will now no longer be able to count on recovering possession on a mandatory ground.
For example, if the tenant requests it, the court may have to conduct a proportionality hearing for a case based on a notice under section 21 of the Housing Act 1988 or ground 8, schedule 2 of the Housing Act 1988.
It should be noted that the recent flurry of excitement concerning the criminalisation of squatters would not be relevant in this case, as the squatters are not occupying residential property.