Property Focus | Invoking article 8 for squatters in commercial properties

On 1 March 2010, a group of squatters, identifying themselves as Grow Heathrow, moved onto the site of an old plant nursery in a village blighted by the threat of a third runway. They cleared the site, and established a community garden which was widely welcomed by the local community. In the words of the local MP: “This inspirational project has not only dramatically improved this derelict site but it has lifted the morale of the whole local community in the campaign against the third runway and in planning a sustainable future for our area.”

Importantly, the squatters also adopted the commercial site as their home. This set in motion a chain of events which has finally brought before the domestic courts the controversial question of whether article 8 can be used as a defence against private as well as public landlords, in the case of Malik v (1) Persons Unknown (2) Reynolds (3) Matthews (Central London County Court, 17 July 2012).

Article 8 provides that “everyone has the right to respect for his private and family life, his home and his correspondence”, subject to proportionality. In McCann v UK (2008) 47 EHRR 40, the ECHR noted that: “…whether a property is to be classified as a ‘home’ is a question of fact and does not depend on the lawfulness of the occupation under domestic law… The loss of one’s home is a most extreme form of interference with the right for 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...”

A pair of key Supreme Court cases last year, Manchester City Council v Pinnock [2010] UKSC 45 and London Borough of Hounslow v Powell [2011] UKSC 8, put beyond doubt that an article 8 defence could indeed be raised against a local authority seeking possession.

However, the Supreme Court shied away from the more vexed question of whether article 8 has any bearing on cases where it is a private landowner seeking an order for possession, preferring “to express no view on the issue until it arises and has to be determined”.

This is where the Grow Heathrow case comes in. As HHJ Walden-Smith succinctly put it, the issue “has arisen in this case and has to be determined”.

?Order for possession?

The defendants entered the site as trespassers in March 2010. In July 2010, the dispossessed owner, Mr Malik, issued a claim for possession. The defendants raised a defence under three broad heads:

? Alleged procedural failures, namely issues with service and the naming of the defendants in the pleadings.

? That an implied licence had been granted to the defendants to remain on the land and that licence had not been properly terminated.

? That the defendants enjoy the protection of article 8 and that eviction would not be proportionate.

The first two arguments were rejected on the facts. The final argument, of course, has more far reaching implications.

HHJ Walden-Smith, found that “as the court is a public authority and the land is being occupied as a home, article 8 is capable of application even though the landowner is a private individual and the occupiers are trespassers”. Although this is not an unexpected view, this is highly controversial in that it requires the court itself, as a public body, to give effect to article 8.

The judge then went on to address the question of whether the eviction was a proportionate means of achieving a legitimate aim. She highlighted that Malik himself, as a private landowner, enjoyed the protection of article 1 of the convention which provides for “peaceful enjoyment of his possessions”. She echoed Pinnock in emphasising that it would be a “highly exceptional case where the protected rights of a private landowner under article 1 could be interfered with by reason of the defendants’ article 8 rights where, as in this case, the defendants are trespassers” and saying that it was “difficult to envisage” such a circumstance. She acknowledged Grow Heathrow’s arguments that:

? They had invested time and energy improving the land;

? their use of the land had “significantly greater social advantages” than that of the landowner; and

? tndividual squatters would be adversely effected, one by having to return to state benefits, and one by losing his “escape” from terminal illness.

While HHJ Walden-Smith was sensitive to the human side of the story, she had little hesitation in rejecting these points. She observed in particular that “for a private landowner to have to establish that the possession order is justified because his own use of his own land is as useful and attractive to the local community and society at large as the use of the land by the current occupier… runs entirely contrary to the principle of private ownership of land”. Her ultimate conclusion was that, while article 8 can apply to private landlords, it did not in the circumstances make an order for possession disproportionate.

Both parties have been granted permission to appeal, and the matter is listed to come before the Court of Appeal in January 2013.

?Exceptional circumstances?

If the Court of Appeal does confirm that article 8 applies to the private sector, the consequences could be far-reaching.

Most obviously, it may well increase the costs and complexity of removing a trespasser. This is particularly bad news for commercial landlords in a year which has also seen an influx of squatters into commercial buildings in the wake of the criminalisation of squatting in residential properties.

However, landlords should take heart that – public or private – it would be a rare case indeed where article 8 rights would make any difference to the final outcome. Particularly helpful in this regard are the recent findings of the Court of Appeal in a local authority context, Birmingham County Council v Lloyd [2012] EWCA Civ 969. Mr Lloyd’s brother lived in a flat under a secure tenancy. When the brother died, Mr Lloyd moved into the flat without the local authority’s knowledge. The local authority ultimately issued possession proceedings. The case was heard by a recorder, who refused to grant possession on article 8 grounds: he placed weight on Mr Lloyd’s history of depression, his previous history of rent arrears which would make it difficult for him to find other accommodation, the fact that he had secured a start-up business loan which would be wasted if he was evicted, and his good relationship with his neighbours. The Court of Appeal overturned this, with Lord Neuberger remarking that in raising an article 8 defence someone who had never been more than a trespasser “would face a very uphill task indeed, and, while exceptionality is rarely a helpful test, it seems to me that it would require the most extraordinarily exceptional circumstances”.

He examined each element of Mr Lloyd’s plight, and his comments are apt to be applied in many cases: ?

? Mr Lloyd’s depression was “sad, but not exceptional”.

? His difficulty in finding another home was of limited relevance, as article 8 is concerned with respect for a person’s current home and does not involve any duty to ensure a person has a home. It was “not an irrelevant factor, but it is a minor, and, sadly, not by any means an exceptional, factor”.

? The business concerns were at best of “marginal” relevance in considering article 8.

? The fact that Mr Lloyd had not caused nuisance was not a factor that helped him establish an article 8 argument.

Nor would an occupier necessarily be better off with highly unusual facts. In Corby BC v Scott [2012] EWCA Civ 276, Lord Neuberger underlined the criterion of relevance, stressing that the fact that the occupier had been the subject of a murderous attack, while unusual, was “simply irrelevant to the issue of article 8 proportionality”.

?Silver lining

?On a more pragmatic note, it is important to remember that Powell states that the court “will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable”. Many squatters will not raise the issue. Where the issue is raised, in many cases it will not cross this threshold. If the Court of Appeal agrees with HHJ Walden-Smith that it would be a “highly exceptional case” where a trespasser could make out an article 8 defence, this will give DJs the confidence to deal with unmeritorious arguments.