Judgments - London Borough of Harrow (Appellants) v. Qazi (FC) (Respondent)

(back to preceding text)

    136. Similarly article 8 could never be successfully prayed in aid by a vendor to prevent a contractual purchaser from obtaining specific performance of a contract for the purchase of the house which was the vendor's home. This must be so unless it be said that article 8 diminishes the contractual and proprietary rights of the mortgagee in the case of a mortgage of residential property or of a purchaser in the case of a contract to purchase residential property.

    137. Marzari v Italy (1999) 28 EHRR CD 175 was, like Wood v United Kingdom and Di Palma v United Kingdom, a case where no attempt was made to strike a balance between the interests of the applicant and those of the person responsible for the eviction of the applicant from his home. The applicant, a council tenant was evicted following service of a notice to quit for non-payment of rent. The Strasbourg Court found the undoubted interference with the applicant's home that the eviction constituted to be justified under article 8(2) but without any attempt to address the proportionality of the eviction. As in Wood and Di Palma the failure of the article 8 complaint was inevitable in view of the absence of any answer under the ordinary law to the landlord's, or mortgagee's, contractual and proprietary right to possession. It could be said that in these cases article 8 is simply not applicable. Or it could be said, applying article 8(2), that the recovery of possession by the person entitled to possession is in accordance with the law and is necessary to protect that right to possession. It comes to the same thing. Article 8 does not attack the owner's legal right to possession.

    138. Larkos v Cyprus (1999) 30 EHRR 597 was a decision of the Strasbourg Court. The applicant was tenant of a house. It was his home. His landlord was the government. The tenancy was terminated by the government and an eviction order was made against the tenant by the domestic court. Under the local law, the tenant would have had security of tenure if his landlord had been a private landlord; but as his landlord was the government he had had no security of tenure. His complaint to the Strasbourg Court was not that his article 8 right of respect for his home had been infringed. It was that he had suffered discrimination in that as a government tenant he had had no security of tenure. His complaint was of a breach of article 14. The eviction order, sought by the government and made by the domestic court, had certainly interfered with his home. He had been evicted. The absence in such a case of any claim by the tenant that his article 8 rights had been infringed or of any suggestion by the Strasbourg court that he might have so claimed seems to me highly significant. The reason, surely, is that the recovery of possession by a landlord entitled to possession could not have sustained such a claim. The discriminatory element, enabling a claim under article 14 to be made, was essential.

    139. I have referred to these Strasbourg decisions in order to try and demonstrate the consistency with which the principle which, to my mind, underlies article 8 has been applied. In no case has article 8 been applied so as to diminish or detract from the contractual and proprietary rights of the person entitled to possession.

Domestic case law

    140. Your Lordships have been referred to three Court of Appeal cases in which article 8 was in issue in proceedings for possession brought by a landlord against a tenant whose tenancy had expired. In none did the landlord fail to recover possession. In each the case was decided on the ground that the interference was justified under article 8(2). In my respectful opinion, however, the approach by the court in each of these cases is open to criticism.

    141. The first of these cases was Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48. The landlord sought a possession order against an assured shorthold tenant. The relevant legislation bars recovery of possession by the landlord otherwise than under an order of the court but requires the court to make the order if the requisite statutory conditions are met. In this case they had been met. But article 8 was relied on by the tenant. It was accepted, of course, that an order for possession would constitute an interference with the tenant's home. Whether it would have constituted an interference with the tenant's "right to respect" for the home was not considered. Argument centred on whether justification for the interference under article 8(2) could be shown. The Court of Appeal attributed weight to the impact that eviction would have on the tenant's family life but held, on balance, that the interference was justified. It is implicit in this approach that, if the facts had been different, the balance might have come down the other way, in favour of the tenant. This would, in effect, have amended in favour of the tenant the relevant housing legislation. It would have given the tenant possessory rights in respect of the house and correspondingly diminished the landlord's proprietary rights. It would, in my opinion, have given article 8 an effect it was never intended to have and ought not to have. It would have denied the landlord the necessary protection for its contractual and proprietary right to possession. In my respectful opinion the court, having noted that the eviction would have constituted an interference with the tenant's home, should have held that in view of the landlord's right to possession article 8 was not applicable. The case was, in my view, correctly decided but for the wrong reason.


    R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 concerned an introductory tenancy. The tenancy had been duly terminated by the local authority landlord in accordance with the procedures prescribed by the relevant legislation. The tenant had no contractual or proprietary right, as against the landlord, to remain in possession. Counsel for the landlord submitted that "the rights of the tenant to occupy the premises were simply in accordance with [the introductory tenancy] scheme" (para 37) and that article 8 had no application. But the Court of Appeal disagreed and held that "the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others" (per Waller LJ in para 42). Waller LJ went on to say that even in a case where the landlord was a private landlord, in which case article 8(2) would appear to have no application, the court, as a "public authority", would have to consider, before making a possession order, whether an article 8(2) justification was established.

    143. My Lords, the remarks of Waller LJ to which I have just referred, which follow with inescapable logic from the proposition that in all cases where possession is sought of property which constitutes the defendant's home an article 8(2) justification must be shown, demonstrate, in my respectful submission, why the proposition cannot be right. Waller LJ's remarks have the effect that the words in article 8(2) "by a public authority" are deleted from the article for the purpose of its application in domestic law. A court, being a public authority, cannot, it is said, give a private owner of residential property the possession order to which under the ordinary law he would be entitled against a person occupying the property as his home but who has no contractual or proprietary right to remain there, unless the making of the order can be justified under article 8(2). If this is right, it would give article 8 a significantly broader scope in its application than its language justifies. The words "by a public authority" become otiose.

    144. The error is not in Waller LJ's logic, but in the proposition itself. If article 8 does not vest in the home-occupier any contractual or proprietary right that he would not otherwise have, and does not diminish or detract from the contractual or proprietary rights of the owner who is seeking possession, the problem identified by Waller LJ does not arise. The fate of every possession application will be determined by the respective contractual and proprietary rights of the parties. Article 8 can never constitute an answer. In my opinion the McLellan case, like the Donoghue case, was correctly decided but for the wrong reason.

    145. The third of these cases is Sheffield City Council v Smart [2002] HLR 639. This case concerned non-secure tenancies. The tenancies had been duly determined by the local authority landlords. Possession was sought. Laws LJ, with whose judgment the other two members of the Court of Appeal agreed, said, at p 655, para 26, that

    "…. the premises …. were without question the women's homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amounted to an interference with the appellants' right of respect of their homes"

    and, at para 27 that

    "…. eviction of these appellants would constitute a prima facie violation of their right to respect for their homes."

I respectfully disagree. Each home had been established on the basis of a proprietary interest in the premises obtained under the contractual tenancy granted by the landlord. How could the termination of that tenancy in a manner consistent with its contractual and proprietary incidents be held to constitute a lack of respect for the home that had been thus established? The home was always subject to those contractual and proprietary incidents. The contrary view seems to me to treat a "home" as something ethereal, floating in the air, unconnected to bricks and mortar and land.

    146. I need not set out the whole of Laws LJ's reasoning. It has already been extensively set out in the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn. Lord Bingham comments that the reasoning, like that of Arden LJ in the present case, reflected the tenor of the Strasbourg jurisprudence. But nowhere in the Strasbourg case law is there to be found any case in which a landlord's claim to possession has failed on article 8(2) grounds. In each case, of course, the landlord has had to show that his claim is "in accordance with the [ordinary] law". So what is left? If the landlord is entitled to possession under the ordinary law, how can it be otherwise than "necessary in a democratic society" to make a possession order "for the protection of" and to give effect to his right to possession? It is true that in a number of cases the Strasbourg tribunal (whether court or Commission) has held article 8 to be prima facie applicable but has held the "interference" constituted by the claim or the order for possession to be justified under article 8(2). But there is no case in which this conclusion has been reached by considering the degree of impact on the tenant's home life of the eviction. There is no case in which a balance has been struck between the tenant's interests and the landlord's rights. In every case the landlord's success has been automatic. And so it must be unless article 8 is to be allowed to diminish or detract from the landlord's contractual and proprietary rights. In my opinion, the Strasbourg jurisprudence has shown, in effect, that article 8 has no relevance to these landlord/tenant possession cases.

This case

    147. As I have said, in the present case Mr Qazi failed at trial because the judge held that in order to have an article 8 home the occupier must have a legal or equitable interest in the premises. I agree with Arden LJ in the Court of Appeal and with your Lordships that that bald proposition cannot be supported. If the judge had held that an occupier with no legal or equitable interest enabling him to resist the landlord's possession claim could not resist the claim by relying on article 8 rights to respect for his "home", I would have agreed with him.

    148. In the Court of Appeal, Arden LJ held, following the test prescribed in Buckley, that Mr Qazi did, for article 8 purposes, have a "home" at 31 Hutton Lane. I agree with that conclusion. But she then went on to propose that the case be remitted to the county court "to determine whether interference with Mr Qazi's right to a home is permitted by article 8(2), and the Court of Appeal made that order.

    149. In my opinion, the Court of Appeal, having correctly held that Mr Qazi had an article 8 "home", should have held that his rights under article 8 could not prevail against the council's admitted and undoubted right to possession under the ordinary housing law. I would, for my part, have said that article 8 was not, in these circumstances, applicable. But it could also be said that a possession order was "in accordance with the law" and was necessary in order to protect and give effect to the council's right to possession. To express the point in that way would be to follow the Strasbourg tribunals in S, in Di Palma and in Wood. But it comes to the same thing. Article 8 cannot be raised to defeat contractual and proprietary rights to possession.

    150. In arguing the case for Mr Qazi, Mr Luba QC seemed to me to be in an impossible quandary. He conceded that article 8 did not vest in the home-occupier any contractual or proprietary rights in the property. He accepted that the expectation in every case would be that the owner entitled under the ordinary law to possession would succeed in establishing an article 8(2) justification for the possession claim. But he insisted that article 8 did allow for the special case where the possession claim could be resisted or the possession order denounced on the ground that the recovery of possession by the owner otherwise entitled thereto constituted an unlawful interference with the home-occupier's right to respect for his home. The circumstances, he accepted, would have to be exceptional but the possibility had to be kept open. Naturally he said that, in due course, on the remission to the county court, he would contend that the circumstances of Mr Qazi brought the case within that exceptional category so as to prevent the council from justifying under article 8(2) their recovery of possession.

    151. In my opinion, your Lordships should reject these arguments. They seem to me inconsistent. If Mr Qazi has no contractual or proprietary right under the ordinary law to resist the council's claim for possession, and it is accepted he has not, the acceptance by the court of a defence based on article 8 would give him a possessory right over 31 Hutton Lane that he would not otherwise have. It would deprive the council of its right under the ordinary law to immediate possession. It would constitute an amendment of the domestic social housing legislation. It would give article 8 an effect it was never intended to have and which it has never been given by the Strasbourg tribunals responsible for implementing the Convention.


continue previous