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Recent Cases and Legislation

 

Housing Law Updates

Possession and Human Rights

Click on the links below to see recent cases in each area of law:

Secretary of State for the Environment, Food & Rural Affairs v Meier

[2009] UKSC 11

Lord Rodger, Lord Walker, Lady Hale, Lord Neuberger, Lord Collins

Where persons occupied land, the court did not have power to grant a possession order in respect of a separate plot of land that was not being occupied by those persons

The appellant travellers (T) had established an unauthorised encampment in woodland owned by the Claimant (C). C applied for a possession order in respect of the woodland and also in respect of additional separate sites nearby. C also applied for an injunction restraining T from re-entering the woodland and the other sites. The Court of Appeal granted both the wider possession order and the injunction.

Held : (1) There was no legitimate basis for making a precautionary possession order in respect of land the persons were not occupying but were threatening to occupy. Such an order was nonsensical as it required the persons to deliver up possession of land that they did not occupy (Drury v Sec State for Environment Food & Rural Affairs [2004] EWCA Civ 2002, overruled).

(2) An order for possession could be made in respect of the whole of a single plot of land, where persons occupied only part of it. However, that reasoning could not extend to apply to land wholly distinct or miles from the occupied land (University of Essex v Djemal [1980] 1 WLR 1301, distinguished)

(3) The court was entitled to grant an injunction preventing the persons entering the occupied land and the unoccupied land. The court should not normally grant an injunction which it would be unable to enforce, but could grant one if it was considered to have a real deterrent effect.

(4) (Per Lady Hale) The Drury wider-order for possession may be developed, provided it can be tailored against known persons, who have already intruded on C's land, are threatening to do so again and have been given an opportunity to contest the order.

Taylor v Central Bedfordshire Council

[2009] EWCA Civ 613

Waller, Lloyd, Richards LJJ

A LA with a right to possession should take into account the personal circumstances of an occupier when bringing possession proceedings. However, it did not follow that there would ever be circumstances in which it would be unreasonable to seek possession against trespassers

The trespassers (T) occupied various dwellings on land owned by the LA. The LA commenced possession proceedings in respect of the land and a possession order was made. T appealed, arguing that the LA's claim for possession was in breach of Art.8 ECHR. T argued that a LA should always have regard to the circumstances of trespassers and act proportionately and, in the instant case, this may have led to a decision not seek possession.

Held : (1) Although a decision of a LA was subject to JR, it could not be a ground of challenge that the LA had failed to take into account personal circumstances when it had an absolute right to possession (Kay v Lambeth applied). Accordingly, a defence based solely on the personal circumstances of the occupier should be struck out. Art 8 rights were safeguarded by the common law requirements that the landowner must establish to gain possession.

(2) One such requirement was to proceed by obtaining a court order where the trespasser resided on the land. The court could then take into account the personal circumstances of the trespasser and had a discretion whether to suspend the order for possession for a short period.

(3) A LA should take into account the personal circumstances of the occupier but it did not follow that there would ever be circumstances in which it would be unreasonable to seek possession against trespassers. Personal circumstances could only be relevant to the extent to which a court was prepared to postpone execution of the possession order - this was a matter for the court itself.

R (Weaver) v London & Quadrant Housing Trust

[2009] EWCA Civ 587

Rix, Lawrence Collins, Elias LJJ

The termination of a tenancy by a hybrid authority (in this case a Housing Trust) was a public act and was, in principle, subject to human rights considerations

This was an appeal from the decision of the Divisional Court, which decided that a registered social landlord is a public authority within the meaning of the HRA 1998 where its functions in managing and allocating housing stock are of a public nature. Accordingly its decisions are open to judicial review and subject to the HRA 1998. The Housing Trust appealed.

Held : The appeal was dismissed. As a hybrid authority, the Housing Trust's action in terminating the tenancy was not a private act when considered in the wider context of the general housing functions being carried out by the Trust. Although the termination of the tenancy involved the exercise of private law rights, this was so inextricably linked with the provision of social housing as a public function that the termination was a public act and therefore, in principle, subject to human rights considerations.

Doherty v Birmingham City Council

[2008] UKHL 57

The House of Lords confirmed the principle of Kay v Lambeth LBC [2006] UKHL 10 should be applied when considering a defence under Art 8 ECHR. The Defendant must fall within one of two gateways to succeed with an Art.8 defence.

Held : When a court is faced with an Art 8 defence to a claim for possession, the assumption is that domestic law strikes a fair balance and the only way a challenge can be made if the Defendant has no legal or equitable right to possession is to prove one of two gateways: (a) if there is a seriously arguable challenge to the law itself under Art.8 (i.e. requiring the court to interpret the law in a compatible way or make a declaration of incompatibility), or (b) on public law grounds that the decision was one which no reasonable person would consider justifiable.

Their Lordships also commented on McCann v UK , which had stated that Art 8 was engaged in every possession claim and would require an examination of the proportionality of making an order for possession. McCann also suggested that the judicial review procedure was not adequate to satisfy the test of proportionality. Lord Scott stated that the decision was based on a mistaken understanding of the procedure in this country.

R (Weaver) v London & Quadrant Housing Trust

[2008] EWHC 1377 (Admin)

Richards LJ, Swift J

A registered social landlord is a public authority within the meaning of the HRA 1998 where its functions in managing and allocating housing stock are a public function. Accordingly its decisions are open to judicial review and subject to the HRA 1998

The claimant (T) was an assured tenant of a RSL, which sought an order for possession against her on the mandatory Gr.8 (8 weeks rent arrears). The RSL's policy stated that Gr.8 was to be used when all alternatives had failed. T argued that the RSL was a public authority amenable to judicial review, was in breach of a legitimate expectation in failing to pursue all reasonable alternatives before resorting to Gr.8 and that its decision to rely on a mandatory ground was in breach of Art.8 ECHR.

Held : (1) The allocation and management of housing stock was a function of a public nature. Landlords operating within the social rented housing sector can be said to have taken the place of LA's. In the circumstances, the RSL was a public authority within the meaning of s.6(3)(b) HRA 88.

(2) There was no evidence that T had relied on the RSL's policy document or held any expectation that it would be complied with. In addition, the reference in the policy was not clear unambiguous and unqualified so as to constitute a legitimate expectation - it was merely guidance, not prescription. Even if the legitimate expectation had been accepted, considering T's history of rent arrears, there had been no breach of it on the facts.

(3) As there was no breach of a legitimate expectation, the decision to evict cannot have been disproportionate. The Art.8 ECHR argument therefore also failed

McCann v United Kingdom

ECHR (App No. 19009/04)

On the facts, the LA's eviction process against H (an occupier with limited security) was in breach of Art 8 ECHR

The appellant (H) and his wife (W) were secure tenants of LA property. W complained of domestic violence and moved elsewhere. Later W and H's relationship improved and she supported his application for a transfer to different accommodation. Throughout this time the LA was under the impression that, when W had moved out, the property became vacant; in fact, H had moved back in shortly thereafter. The LA visited W and asked her to sign a notice to quit. This notice brought to an end the tenancy of H and W. The LA then sought possession against H.

Held : The property occupied by H was his “home” within the meaning of Art 8(1). The notice to quit and possession proceedings constituted an interference with H's Art.8 rights.

Although the interference was in accordance with the law and had pursued the legitimate aim of protecting the rights and freedoms of the LA to regain possession, the question was whether this interference was proportionate to the aim pursued, and thus “necessary in a democratic society”.

If H had the advantage of a full hearing before an independent tribunal [for example if the LA had sought possession on Gr2A], the tribunal could have considered H's personal circumstances and whether W had truly left home because of domestic violence; such a procedure would have been proportionate and in accordance with Art.8. However, the method adopted by the LA in bypassing the statutory regime via the request for a notice to quit from W was a summary procedure and not proportionate.

 

Boyland & Son Ltd v Persons Unknown – 20/12/2006

[2006] EWCA Civ 1860

Ward LJ, Neuberger LJ

A court does not have the power to suspend a possession order against trespassers under s.89 Housing Act 1980

The Court of Appeal so held in refusing the application of travellers to suspend a warrant for possession. The trespassers contended that s.89 HA 1980 allowed the court to give them time to vacate the premises.

Held : Section 89 HA 1980 was concerned with limiting the court's power to postpone possession, where that power already existed. There was no pre-existing power to postpone possession against trespassers; consequently, s.89 could not create a new right. ( Kay v Lambeth LBC (2006) UKHL 10, considered)


Kay v Lambeth LBC; Price v Leeds CC – 08/03/2006

[2006] UKHL 10

HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead , Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond , Lord Brown of Eaton-under-Heywood)

Although the enforcement of a right to possession may be said to interfere with the occupier's rights under Art.8(1) ECHR, the assumption was that the requirements of domestic law regarding possession struck a fair balance and would provide the justification for interference required by Art.8(2)

The House of Lords so held in dismissing the appeals of K & P, who argued that enforcing the landlord's right to possession would infringe their Art.8 rights

Held:
(1) Insofar as Harrow LBC v Qazi [2003] UKHL 43 held that the enforcement of a right to possession could never be compatible with Art.8, this was to be modified in light of Connors v United Kingdom (66746/01) (2005) 40 EHRR 9

(2) Although an occupier may raise an Art.8 defence to possession proceedings in the county court, there is no obligation on the landlord to plead and prove that the order sought was justified. An assumption existed that the requirements of domestic law regarding possession struck a fair balance and would provide the justification for interference required by Art.8(2)

(3) There may, however, be cases of a special and unusual kind where the law entitling the landlord to possession would be incompatible with the occupier's Art.8 rights

 

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