Human Rights Act 1998 and the Law Relating to Land

What impact is the Human Rights Act 1998 having on the law relating to land (using ‘land’ in as broad a sense as you can justify necessary in your answer, that is, to include social housing). Consider particularly the decision of the House of Lords in Harrow LBC v Qazi [2004] 1 AC 983 and the cases that have recently followed in its aftermath.

The Human Rights Act 1998 (which incorporate the European Convention on Human Rights into our law (the Convention)) is having a significant impact on domestic law, and when it was implemented in October 2000, there was a lot of speculation about its effect.

The Human Rights Act 1998 was believed to invoke a number of far reaching rights, and it was thought that the area of housing law would be particularly affected as under Article 8 of the Convention:-

(1) Everyone has the right to respect for his private family life, his home, and his correspondence.

(2) There shall be no interference by a public authority with the existence of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country…….. or for the protection of the rights and freedom of others.

Many considered that Article 8 might influence the right to take over the tenancy of a council property. However, the CIAC are of the opinion that Article 8 has made little difference. They go on to point out that recent case law has highlighted the limitations of Article 8.

In Quazi v London Borough of Harrow [2003] UKHL 43 the House of Lords held that an occupier with no legal or equitable interest in the property cannot resist the landlord’s claim for possession by relying on Article 8 rights. Mr Quazi was a former joint tenant of the local authority and had remained in occupation of the flat after his estranged wife had given notice to quit, terminating their joint tenancy. The authority rejected his application for sole tenancy because he was under-occupying and commenced possession proceedings. Subsequently, the tenant remarried and had a further child and he and his second wife sought unsuccessfully to be allocated the property. Accordingly, Lord Scott stated that :-

“An Article 8 defence can never prevail against an owner under the ordinary law to possession”.

It was held that the property was still his ‘home’ within Article 8 (1). However, Article 8 does not give ‘right’ to a home, only ‘respect’ to the home and there is no lack of respect or infringement of Article 8 where the order is made in favour of the person entitled to possession by national law .

Redpath-Stevens comments that:-

“The decision… helpfully puts an end to the absurd charade inherent in the insistence on the justification of proceedings which, as a matter of law were justified. More importantly, it has removed at a stroke, a possibility of the emergence of a new species resident: the Article 8 occupier”.

Property Law UK point out that there have been more hopeless HRA arguments in possession claims post Quasi.

In London Borough of Newham v Kirbata [2003] EWCA 1785 it was held that Quazi applied. In this case it was also alleged that the local authority had acted improperly in getting one joint tenant to serve a notice to quit against the wishes of the other joint tenant. It was stated that :-

The legal position is that, as was held by the House of Lords in Quazi, Article 8 is unavailable to Mr Kirbata as a defence to these possession proceedings. All that the Council are trying to do is to recover possession of their own freehold property from someone who has no legal right to be living in it. Mr Kirbata is a trespasser on the Council’s property. His statutory and contractual right in respect of the flat ceased upon termination of his tenancy, as a result of his wife’s act in giving notice to quit to the Council. The service of the notice to quit was a lawful exercise of her right as a tenant…. There was nothing unlawful in the Council getting her to give a notice, which she was entitled to give, as a condition for being re-housed by the Council in alternative accommodation……………. Article 8 has not been infringed….. “.

Similar decisions were made in the appellant courts in McCann v Birmingham City Council [2004] EWHC 2156 and Bradney v Birmingham City Council [2004] EWCA Civ 1783. These cases both involved termination of tenancies because notices to quit were obtained from partners against their wishes. In these cases Quasi was applied and Article 8 could not be relied upon as a defence.

Needlesstosay, Article 8(2) was not considered in these cases because 8 (1) had not been satisfied and the courts felt that there was no need to consider 8 (2).

However, recent case law has emerged from the European Court of Human Rights which seems to be in conflict with the appellant courts’ decisions and in Price v Leeds City Council [2005] EWCA Civ 289 the Court of Appeal recognised this. According to an article by Eversheds any interference must be proportionate, and the question which fell to be decided in this case was whether, when a local authority has an absolute right to possession, Article 8 would be infringed and whether English domestic law provides sufficient protection of this right where a defendant is facing a claim for possession.

They go on to state that the issue is complicated by two conflicting decisions. In Quasi the House of Lords took the view that the unqualified right to recover possession, following service of a notice to quit, did not go against the essence of Article 8 (1). In the circumstances, Article 8 (2) did not come into play.

However, this case has to be contrasted to the decision of the European Court of Human Rights in Conners v United Kingdom ECHR 26. The case concerned a family that had been evicted from plots owned by Leeds Council. The eviction followed possession proceedings pursuant to a notice to quit after warnings in respect of his visiting son’s anti-social behaviour. It was unsuccessfully argued that they were not in breach and subsequently sought permission, unsuccessfully, for judicial review. They then brought an action in the European Court of Human Rights arguing that eviction from the site interfered unjustifiably with rights under Article 8 as being unnecessary and disproportionate as the anti-social behaviour was by someone other than those living on the site.

The European Court of Human Rights held that there was a breach. They took the view that anti-social behaviour could occur on both gypsy and private sites and did not justify summary eviction of gypsies. There was no benefit to the gypsy population in having a different scheme to the rest of the population. The possibility of judicial review was a safeguard but did not detract from the requirement for proper justification for the interference with Article 8 rights. These actions could not be justified by pressing social need nor were the actions proportionate to the aim.

The European Court of Human Rights in reaching their decision did not, and was not obliged to, consider Quasi. However, the Court of Appeal in Price was bound by Quasi and the fact that Connors was persuasive authority proved difficult. They decided to follow Quasi as they were of the view that to depart from it would mean that they would meet some difficult decisions . However, they did give permission to appeal to the House of Lords due to the importance of this point.

Another area affected by human rights is that of adverse possession of registered land.

According to MacKenzie & Phillips :-

“…. acquisition of title by adverse possession could be said to be incompatible with the provisions of the Human Rights Act 1998.”

Gravell points out :-

“It has been argued that the statutory scheme under the Limitation Act 1980 for the extinction of title by adverse possession involves the infringement of the European Convention on Human Rights, in particular, the infringement of the right to protection of property……”.

The government anticipated that adverse possession would lead to a breach of human rights and, in an attempt for compatibility with the Convention, s.96-98 of the Land Registration Act 2002 introduced a new regime for dealing with adverse possession on registered land. The Act provides that a squatter will now have to apply to be a registered proprietor with possessory title after 10 years adverse possession. If the application is unopposed within the two year period, the squatter will become the new registered proprietor of the land. However, if the application is opposed then the squatter will only become the registered proprietor if:-

i) it would be unconscionable because of an estoppel for the squatter to be dispossessed; or

ii) for some other reason, the squatter is entitled to be registered. (In Bridges v Mee (1957) Ch 475 the purchaser had paid the full price for the land but it was never conveyed to him. He moved into possession and later claimed title by adverse possession); or

iii) where it is a boundary dispute and the squatter reasonably believed, for at least the 10 year period, that the disputed land was his.

However, as this Act did not come into effect until October 2003 there seems to be a discrepancy in the law between dates of the possession and this has been highlighted by recent case law where it appears that the date of the ‘end of the possession’ is paramount in deciding which legislation is to be taken into account.

Whilst it is now acknowledged that adverse possession does affect human rights, in J A Pye (Oxford) Ltd v Graham [2002] UKHL the Human Rights Act 1998 could not be relied upon because the adverse possession had ended prior to the commencement of the Act, which was in October 2000. Gary Webber in Property Law points out that it is, therefore, presumed that any current or future cases which involve squatters who have clocked up 12 years possession prior to October 2000, will still be entitled to be registered as the owners of the land as their claim will not be affected by human rights considerations.

Adverse possession was considered contrary to the Convention in Beaulane Properties v Palmer [2005] EWHC 817 by a High Court judge. However, whilst the end of possession was after October 2000 (and therefore the Human Rights Act 1998 had to be considered) the Land Registration Act 2002 could not be applied as it commenced in October 2003 which was after the end of the possession.

Webber points out that in an attempt for compatibility:-

…… the judge sought to re-interpret domestic law on adverse possession to make it more compatible with the Convention (as he was required to do so by s.3 Human Rights Act 1998). The solution which he came to was to re-interpret s.75 of the Land Registration Act 1925 so that it is only applicable to those cases in which the trespasser has established ‘possession’ in accordance with the case law in existence at the time of its enactment (para 213 of the judgement). At the time the squatter’s action had to be inconsistent with the use of the land of the paper owner i.e. under the rule of Leigh v Jack (1879)”. On the facts in Beaulane, enclosing the land so as to allow the cattle and horses to graze on it was not inconsistent with any use of intended use of the land”.

Webber sees a problem with this solution :-

“The problem arises from the fact that the decision in Leigh v Jack was wrongly decided. The [House of Lords] in Pye v Graham described it as a heresy: “The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong” (para 45 of the decision in Pye). Thus Leigh v Jack did not in fact represent the law at the time the 1925 Act was passed and is an inadequate basis on which s.75 of the 1925 Act can be re-interpreted”.

He goes on to point out the anomaly in the present law and states that :-

“The bottom line is that the law on adverse possession is incompatible with the Convention. However, it is unambiguous and it is difficult to see how it can be ‘re-interpreted’ under s.3 as opposed to changed. This is an area of great uncertainty and will remain so unless and until Beaulane, or another similar case, is the subject of an appeal or the government retrospectively changes the law”.

If Webber’s opinion is accepted, then there appears to be a problem with those adverse possessions that ended after October 2000 but prior to October 2003.

Whilst case law has shown that the Human Rights Act 1998 does not apply to cases where possessions have ended prior to October 2000, the decision by the European Court in A Pye (Oxford) Ltd v Graham [2002] UKHL that Pye’s human rights had been breached by the fact that he lost his title to the land is of significant consequence as compensation can be obtained by the government for the loss of that land. (Pye was not an appeal against the House of Lords’ decision that Graham had acquired the land. It was a claim against the government for damages arising out of the fact that it had lost land to Graham without compensation.) According to Webber much of the reasoning depended on the combination of limitation law under the Limitation Act 1980 and the compulsory transfer of the equitable interest to the squatter under s.75 of the Land Registration Act 1925. Webber goes on state the reasoning for the decision by the European Court :-

“… the Court finds that application of s.15 of the Limitation Act 1980, when read with s.75 of the 1925 Act, clearly had such an impact on the applicant’s property rights, the effect of the provisions being to deprive the applicants of their beneficial interests in the land, which was thenceforth to be held on trust for the Grahams……. The government rely on the judgement of Mummery LJ in the Court of Appeal in the present case to the effect that the extinction of the applicant’s title (under s.75) was simply a logical and pragmatic consequence of the barring of an owner’s right to bring an action (under s.15). However….it is clear that the relevant provisions did more than did more than merely preclude the applicants from invoking the assistance of the court to recover possession of the property concerned: the combined effect of the provisions was both to deprive the applicants of their substantive property rights and to preclude them from lawfully repossessing the land, the beneficial title to which they had lost”.

It appears, therefore, that even where land is lost under adverse possession then compensation may be sought for the lack of protection from the government. Thus, it seems that the Human Rights Act 1998 does seem to being having a significant effect on land law .

BIBLIOGRAPHY

Allen, T, Property and the Human Rights Act 1998, 2005, Hart Publishing

Chappelle, D, Land Law, 7th Ed, 2004, Longmans

Gravells, N P, Land Law Text and Materials, 3rd Ed, 2004, Sweet & Maxwell

McKenzie, J & Philllips, M, Textbook in Land Law, 10th Ed, 2004, Oxford University Press

Journals

Hardy, A, ‘The end of squatter’s rights’, Property Law Journal, 2005, No. 161, Pages 2-5

Higgins, R ‘Get off my land’, New Law Journal, 2005, Vol 155, No 7139, Pages 1408-1409

Murch, S, ‘Adverse possession – be warned’, New Law Journal, 2005, Vol 155, No 7205, Pages 1912-1913

Murdoch, S, ‘Real Property – Human Rights’, Estates Gazette, 2005, No 0549, Page 87

Murdoch S & J, ‘Christmas Medley’, Estates Gazette, 2005, No 0550, Pages 88-89

Peters, E, ‘Property Law Update’, New Law Journal, 2005, Vol 155, No. 7205, Pages 1921-1922

Redpath-Stevens, A, ‘Quasi and the right to a home’, Solicitors Journal, 12th September 2003, Page 1012

Websites

lawtel.co.uk

ciac.org.uk/housing1.htlm

eversheds.com/about/newsreleases/Newsitem-7015.html

propertylawuk.net/residentialhumanrights.html

propertylawuk.net/monthlyupdateboundaries.html