Please Note: This Article is 9 years old. This increases the likelihood that some or all of it's content is now outdated.

The Court of Appeal has today rejected the appeal by Grow Heathrow in Malik v Persons Unknown. The case is the first time an appeal Court has considered the application of Article 8 of the Human Rights Convention to private landlords and occupiers.

Caroline DeLaney, partner and head of real estate disputes at Kingsley Napley LLP, comments:

“The Court of Appeal’s conclusion is not surprising, as to prefer squatters’ rights over those of a private landowner who has acted promptly to recover possession cannot, by any stretch of the imagination, be considered proportionate.

“The case marks a watershed moment in property cases by expressly applying human rights principles to private landowners. For owners of real estate, this is a worrying development because it allows squatters to delay claims for possession and add cost and uncertainty to cases which should proceed as straightforward applications for possession.

“It also opens the way for Human Rights Act defences to be brought in actions involving private real estate, so private landlords should be particularly concerned.”

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Background to the case:

Grow Heathrow, also known as Transition Heathrow, is part of a local community campaign to regenerate the villages surrounding Heathrow Airport that have been blighted by the threat of the third runway. A number of them have unlawfully occupied a piece of land belonging to Mr Malik in the village of Sipson, a village lying adjacent to the northern perimeter of Heathrow Airport.

The land was purchased by Malik in 2003 having once been a market garden and then a plant nursery that was subsequently closed down. It was subsequently used for storing cars. In March 2010 the Defendants trespassed onto the land and some four and half months later in July 2010 Mr Malik commenced a summary claim for possession against the squatters.

The claim was defended, named Defendants were added to the original “Persons Unknown”, and eventually in June 2012 Mr Malik obtained an order for possession against them. By this time the occupiers had cleared the site and restored the land inot a market garden, living and growing fruit and vegetables on the land.

Unfortunately for Mr Malik this was not the end of the matter and the Defendants obtained permission to appeal to the Court of Appeal on one aspect of their defence, namely whether eviction from the land would be incompatible with the right to respect for the home guaranteed by Article 8 of the European Convention on Human Rights.

Although Mr Malik is a private land owner, the convention applies because the Court is a public authority. So far the Supreme Court has avoided making a decision as to whether Article 8 applies to private as well as public landlords. In Manchester City Council v Pinnock [2010] UKSC 45, a case with nine Justices of the Supreme Court sitting, Lord Neuberger avoided answering the question.

The County Court in Malik concluded that the Court is a public authority and the land is being occupied as a home, and so Article 8 is capable of application even though the land owner is a private individual and the occupiers are trespassers.

The question before the Court, therefore was whether the eviction by way of summary possession is a proportionate means of achieving a legitimate aim. The County Court decided that while Article 8 can apply to private landlords, it did not in the circumstances make an Order for possession disproportionate.

The Court of Appeal has agreed. Leave to appeal was refused but the squatters intend to appeal to the Supreme Court.

Please Note: This Article is 9 years old. This increases the likelihood that some or all of it's content is now outdated.


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