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Land Law and the Human Rights Act

Land Law Cases referred to in this section:

  • Appleby and Others v United Kingdom (2003) 37 EHRR 783
  • Connors v United Kingdom Application No 66746/01 (27 May 2004)
  • Harrow LBC v Qazi (2004) 1 AC 983
  • Mark Anderson and Others v United Kingdom (1998) 25 EHRR CD 172
  • Wood v United Kingdom (1997) 24 EHRR CD 69; (1997) 2 EHRLR 685

The European Convention on Human Rights (ECHR) identifies a number of rights central to the enjoyment of human life in civil society. It is a requirement that domestic legislation is read in such a way that is compatible with the Convention rights (Human Rights Act (1998) s.3(1)).

Respect for private and family life and the home
Article 8 of the ECHR provides that:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society int he interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The application of Article 8 in terms of proprietary rights is controversial. Does Article 8 confer a new form of proprietary right on citizens, subject only to the issues of proportionality? Could a residential occupier assert his rights under Article 8 in defence of a possession claim from his mortgage lender or Bank, since repossession effectively involves an interference with family life?

In Wood v United Kingdom (1997) 24 EHRR CD 69; (1997) 2 EHRLR 685, the applicant tried to use Article 8 to argue that her right to respect for private and family life and the home had been breached by repossession by her mortgage lender, when she defaulted on her mortgage payments. The EHCR rejected the argument, and responding that the 'interference' was in accordance with the terms of the loan and domestic law, and was necessary for the protection of the rights and freedoms of others, namely the lender. A similar issue arose in Harrow LBC v Qazi (2004) 1 AC 983, involving the eviction of a former tenant of a local authority. By a bare majority, the house ruled that Article 8 could not be used to defeat a contractual or proprietary rights to possession which, apart from the Convention, have already crystallised under municipal law.

Similar principles arose in Harrow London Borough Council v Qazi (2002) HLR 276 (CA); (2004) 1 AC 983 (HL); it was claimed that Article 8 imposed a requirement on the Court to consider the proportionality of an eviction in light of the guarantee of respect for home. By the barest majority, this was rejected, the Lords holding that Article 8 was entirely irrelevant in the context of a claim by a party who was already entitled under domestic law to an automatic possession order against a former tenant - there was "nothing further to investigate" in terms of proportionality (per Lord Millett). However, this case can be contrasted with Connors v United Kingdom Application No 66746/01 (27 May 2004) which suggests that the debate is far from over. The case concerned the eviction of a gypsy applicant and his family following revocation of their licence to occupy a local authority provided caravan site (due to allegations of anti-social behaviour). The Court concluded that, in this case, Article 8 had been violated because the legal framework regulating the applicant's occupancy had failed to ensure 'sufficient procedural protection of his rights'. The Court stated that the local authority's eviction without giving reasons liable to be examined on their merits by an indepedent tribunal served 'no pressing social need' and was disproportionate to the legitimate aim being pursued: damages of 14,000 euros were awarded.

Freedom of expression, assembly and association
Articles 10 and 11 ECHR guarantee rights relating to freedom of speech, assembly and association.

This raises the question as to whether these rights create new entitlements for the citizen to enjoy unconsented access to the land of others for the purpose of exercising the rights of expressional and associational freedom.

The Commission has taken a restrictive view of the application of Articles 10 and 11 in respect of its applicability to proprietary rights (see Mark Anderson and Others v United Kingdom (1998) 25 EHRR CD 172) but there have been some indications that, in certain circumstances, the ECHR may use the convention rights to quantify the private owners' ability to exclude others from private land. In Appleby and Others v United Kingdom (2003) 37 EHRR 783 the Court said that the State may be obligated to 'protect the enjoyment of Convention Rights by regulating property rights' where, for example, a bar on access to land has the consequence of 'preventing any effective excercise of freedom of expression or it can be said that the essence of the right has been destroyed'.