Court of Appeal Rejects Squatters Human Rights Claim

Private Landowners Rejoice

On 3 July the Court of Appeal handed down it's long awaited judgment in the case of Malik v Fassenfelt, McGahan and Persons Unknown, the case having attracted much media attention, not least because of the support provided to the defendant squatters by some 'celebrities'.

Background

Mr Malik purchased an area of land in the village of Sipson, Middlesex in 2003. He was initially refused planning permission to develop the land and whilst he contemplated applying for permission to build flats, given the uncertainty about the potential development of the land as a third runway for Heathrow Airport, he instead used the land for parking and storing cars in the course of his taxi business.

In 2008 the land was let to a third party who used it unlawfully for the dumping of motor cars and fly tipping which led to enforcement notices being issued against both the third party and Mr Malik. When the site was not cleared, both were convicted.

The land was returned to Mr Malik in 2010. Before he could undertake any new plans for the land, persons unknown entered the land without permission on or around 1 March 2010. The trespassers, part of a group collectively known as Grow Heathrow and also Transition Heathrow, subsequently cleared the land, erected a range of glass houses and created allotments whilst some took up residence on the land.

Mr Malik issued possession proceedings against the trespassers. The possession action was heard by HHJ Walden-Smith who granted Mr Malik a possession order. In the course of her judgment, HHJ Walden-Smith held that as the Court is a public authority and the land in this dispute was being occupied as a home, Article 8 of the European Convention on Human Rights - right to respect for private and family life - was capable of application, even though Mr Malik was a private landowner and the occupiers were trespassers.

Having concluded that Article 8 was relevant in the context of a possession claim by a private landowner, she subsequently concluded that "while Article 8 can apply to private landlords, it [did] not in the circumstances of this matter make an order for possession disproportionate or require the Court to stay the order for possession for a period of time to give effect [to any right under Article 8]".

HHJ Walden-Smith granted permission to Mr Malik to appeal her determination that Article 8 applied in circumstances where a private landowner was seeking possession of land from squatters whilst she also gave permission to the squatters to appeal her decision.to grant an immediate possession order to Mr Malik.

The Court of Appeal

Sir Alan Ward, in the course of the leading judgment in the matter, held that when determining a possession action brought by a private landowner, the Court must consider the claim in a similar way to that adopted in a case where the claim is brought by a public landowner, that is "the test is whether the eviction is a proportionate means of achieving a legitimate aim". Whilst adding that even if trespassers are able to show that they have made a home on the land but have otherwise no legal right to be there it would be "difficult to imagine circumstances which would give [a trespasser] an unlimited and unconditional right to remain" in occupation, Sir Alan Ward's comments, in isolation, would strike fear into the heart of private landowners.

However, as was made clear by Lord Toulson in the opening stages of his judgment, the question of whether Article 8 applies to possession claims brought by owners of privately owned land which is occupied by trespassers was not an issue that the Court of Appeal was required to determine.

Mr Malik, concerned as to the costs of appeal, did not challenge HHJ Walden-Smith's determination that Article 8 applied to a private landowner's possession claim. Lord Justice Lloyd declared that it was "a matter of regret that [Mr Malik] did not pursue the permission to appeal....to challenge the judge's conclusion that Article 8 was engaged as between a private landowner and squatters because of the position of the Court as a public authority."

Though being keen to stress that he reserved his opinion on whether Article 8 applied to trespass of privately owned land, Lord Toulson opined that "it would be a considerable expansion of the law to hold that Article 8 imposes a positive obligation on the state, through the Court, to prevent or delay a private citizen from recovering possession of land belonging to him which has been unlawfully occupied by another". He was also at pains to stress that the Court had been keen to emphasise that nothing in any of the Court's judgments upon public authority possession claims (upon which Sir Alan Ward seemingly based his conclusion that Article 8 applied to private landowners) was intended to bear on any private landowner.

The appeal hearing proceeded on the unchallenged basis that Article 8 was applicable, the sole issue to be determined at appeal being whether HHJ Walden-Smith was correct that an immediate possession order was proportionate. On that issue, the Appeal Judges were unanimous in dismissing Grow Heathrow's appeal against HHJ Walden-Smith's determination that an immediate possession order was proportionate.

Whilst the Court of Appeal rejected Grow Heathrow's application for permission to appeal to the Supreme Court, Grow Heathrow have indicated that they will apply directly to the Supreme Court for permission to appeal. It appears that Grow Heathrow do not to go quietly into the night and Mr Malik's battle appears far from over.

Whilst Sir Alan Ward agreed with HHJ Walden-Smith's assessment that Article 8 does apply in circumstances where a private landowner seeks to remove squatters for their land, that is not to say that the law has now changed. It has not, rather the law remains that that Article 8 offers no defence to any party occupying private land when faced with a possession claim by the landowner.

Rollits' Property Dispute Resolution Team has a wealth of experience in dealing with trespassers, whether it be the removal of trespassers or providing proactive advice on steps to be taken to minimise the risk of falling victim to trespassers in the first place. If you have any queries relating to issues covered by this article or any property related dispute, please contact Ralph Gilbert, partner and Head of the Property Dispute Resolution Group on 01482 323239 or moc.s1721148457tillo1721148457r@tre1721148457blig.1721148457hplar1721148457

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.