Malik v Fassenfelt [2013] EWCA Civ 798

The Court of Appeal has recently handed down its long awaited judgment in the case of Malik v Fassenfelt [2013] EWCA Civ 798.

In this case the Court had to determine whether the right to a home and family life, under Article 8 of the European Convention on Human Rights 1950, should apply in eviction proceedings against occupiers of the ‘Grow Heathrow’ site on land earmarked for the third runway at Heathrow.

Background

The respondent in this case was Mr Imran Malik, who owned land in Sipson, Middlesex. Having initially used the land for storing and parking cars in the course of his taxi business, Mr Malik decided to let it to third parties in 2007 and 2008.

Following the unlawful use of the land for the dumping of cars and fly tipping which resulted in enforcement notices being served to both the lessee and Mr Malik, the land was returned to Mr Malik in 2010.

Before he could make any plans for the use of the land, unknown persons, part of a group known as ‘Grow Heathrow’ or ‘Transition Heathrow’, gained entry to the land as trespassers and established a home on the land, restoring it to a market garden centre.

Mr Malik brought proceedings for possession to which the defendants raised a number of defences, one of which was that eviction would interfere with their rights under Article 8 of the European Convention on Human Rights (ECHR) and that any such interference would not be proportionate.

The First Instance Decision

Sitting in the Central London County Court, Her Honour Judge Walden-Smith made the following observations:

• Since the court was a public authority and the land was being occupied as a home, Article 8 was applicable although the landowner was a private individual and the occupiers were trespassers. The question therefore was whether the eviction was a proportionate means of achieving a legitimate aim;
• Under Article 1 of Protocol 1 of the ECHR, private landlords are entitled to the peaceful enjoyment of their land. It would be in highly exceptional circumstances that their protected rights under Article 1 could be interfered with by reason of the Article 8 rights of trespassers.

Granting Mr Malik an order of possession, she concluded that “while Article 8 does apply in principle to cases involving a private landowner and a trespasser, it is difficult to envisage circumstances where it would have any consequence and the eviction would not be found to be a proportionate means of achieving a legitimate aim.” (para 82)

The judge went on to consider the defendants’ contention that if an order for possession was granted it should take effect no earlier than 6 weeks from the date of the order.

Having considered section 89 of the Housing Act 1980, she concluded that it did not apply to trespassers and that the court had no jurisdiction to extend time for possession as a result of “exceptional hardship” with respect to trespassers or unless the defendants successfully sought a stay.

The defendants appealed on the basis that the judge had misdirected herself “because she approached the question of possession on the basis of whether or not it was proportionate to make a possession order […] and not when it was proportionate to make a possession order”.

The Court of Appeal Decision

Although all three judges sitting in the Court of Appeal dismissed the squatters’ appeal, they did not achieve a consensus as to their reasoning.

Giving the leading opinion in the case, Sir Alan Ward’s reasoning was that:

• The court must approach a claim made by a private landowner against a trespasser in a similar way to that adopted to claims made by a local authority. The test is whether the eviction is a proportionate means of achieving a legitimate aim;
• Even if the defendants have established a home on the land but without a legal right to remain, “it is difficult to imagine circumstances which would give the defendant an unlimited and unconditional right to remain” (para 28). “An owner is entitled to the return of his property unless some exceptional circumstances militate against it.” (para 38)

Sir Alan Ward went on to consider the trial judge’s finding that the court had no jurisdiction to extend time for possession as a result of “exceptional hardship” in the case of trespassers on private land.

Referring to the leading authority of McPhail v Persons, Names Unknown [1973] Ch 447, he came to the conclusion that it can no longer be regarded as good law for the following reasons:

• The squatters are entitled to respect for their homes by virtue of Article 8(1) having established “sufficient and continuous link” with the land in questions;
• Even if Article 8 was not directly applicable between a private landowner and trespassers, the Court as a public authority was obliged to act compatibly with the right;
• Proportionality being the main issue, it may be necessary, albeit exceptionally, that a trespasser be given some time before being required to vacate;
• Whilst in McPhail there was no defence to the claim of possession, if Article 8 is engaged, then there is at least a potential defence.

This however had no material effect upon the trial judge’s conclusion that an order for possession was not disproportionate.

While also dismissing the appeal, Lord Toulson and Lord Justice Lloyd did not agree with Sir Alan Ward’s reasoning. They emphasised that the point whether or not Article 8 was engaged as between a private landowner and squatters was not an issue raised before them.

Whilst agreeing that the trial judge was right to order immediate possession of the land and that the appeal had to be dismissed, they reserved opinion on the applicability of Article 8 and on whether or not McPhail had ceased to represent the law in cases of trespass on privately owned land.

Despite the differences in reasoning between the judges, permission to appeal to the Supreme Court was refused.

Implications

This case had the potential to provide useful authority on whether or not Article 8 is engaged in possession proceedings against a trespasser on privately-owned land. Regrettably, the case does not answer the question with certainty in light of the majority judges’ refusal to address the issue.

Nevertheless, this is the clearest indication from the Court of Appeal that Article 8 may be relied upon against private landowners. Sir Alan Ward’s reasoning suggests, however, that even if Article 8 is engaged, it will be only in “exceptional circumstances” that a possession order against trespassers will be disproportionate.

Despite the lack of consensus amongst the judges in this case, Sir Alan’s reasoning is likely to prompt more trespassers to raise Article 8 as a defence. This would lead to delays, increased cost and complication of otherwise straightforward applications for possession.

In addition, the case raises the question whether section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which makes squatting on residential premises a criminal offence, is compliant with the ECHR. Whilst the Court of Appeal did not address this issue, trespassers may be prompted argue that section 144 breaches their right under Article 8.

In order to reduce the likelihood of an Article 8 defence being raised, private landowners should take prompt action when dealing with trespassers.