UK: Court Of Appeal Decision In The "Grow Heathrow" Case Leaves Uncertainty For Private Landowners

Summary

Private land owners may face Human Rights Act arguments when taking action to evict trespassers following the Court of Appeal decision in Malik v Fassenfelt and Others [2013] EWCA Civ 798. The court left open the question of whether the right to respect for the place where a person lives under Article 8 of the European Convention on Human Rights can give trespassers a defence against private land owners seeking to evict them.

The defendant trespassers in Malik (who style themselves the "Grow Heathrow" movement) cleared a disused area of privately owned land and started living there without the permission of the owner. The trespassers argued that Article 8 applied because they occupy the land as their home. They argued that, even though the owner is not a public authority, the court, as a public authority, must take the defendants' Article 8 rights into account under section 6 of the Human Rights Act 1998. The judge hearing the case at first instance accepted this argument but gave judgment in favour of the landowner on the basis the defendants' Article 8 rights were outweighed in the circumstances by the landowner's right to possession of the land.

The Court of Appeal turned down the trespassers' appeal but did so without deciding whether Article 8 applies to claims by private land owners. One of the three appeal judges commented that, in his view, Article 8 would apply in cases involving private land owners. This comment does not form a binding part of the decision.

Implications

• The terms of this decision are likely to prompt more trespassers to raise Human Rights Act defences in cases brought by private land owners.
• The courts are more likely to give such arguments closer attention in light of the Malik case and this could lead to possession claims taking longer to deal with.
• Land owners should take prompt action to deal with trespassers. Turning a "blind eye" to an unauthorised occupation could increase the likelihood of an Article 8 defence being raised depending on the circumstances.

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