Malik v Fassenfelt & Ors

Malik v Fassenfelt & Ors

Where trespassers have established their home on private land, Article 8 ECHR is engaged and the court must consider whether eviction is a proportionate means of achieving a legitimate aim. The owner's right to possession is a strong factor in favour of proportionality, and only in highly exceptional circumstances would eviction be disproportionate. The court has jurisdiction to consider proportionality and, if appropriate, delay possession, but in this case, immediate possession was proportionate and justified.

Parties
Claimant / Respondent: Imran Malik; Defendant / Appellant: Keith Fassenfelt (deceased); Defendant / Appellant: Joseph McGahan; Defendant / Appellant: Persons Unknown
Jurisdiction
England and Wales
Judgment Date
03 July 2013
Procedural Posture
Civil Appeal / Appeal From Central London County Court to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Eviction of Trespassers, Article 8 ECHR, Possession Proceedings, Proportionality, Private Landowner Rights
Property Law Human Rights Law Eviction of Trespassers Article 8 ECHR Possession Proceedings Proportionality Private Landowner Rights

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Parties

Imran Malik

Claimant / Respondent

Keith Fassenfelt (deceased)

Defendant / Appellant

Joseph McGahan

Defendant / Appellant

Persons Unknown

Defendant / Appellant

Procedural Posture

Civil Appeal / Appeal From Central London County Court to Court of Appeal

Legal Issues

  1. 1 Does Article 8 of the European Convention on Human Rights apply as a defence to possession proceedings brought by a private landowner against trespassers?
  2. 2 Is the eviction of squatters from private land a proportionate interference with their Article 8 rights?
  3. 3 Does the court have jurisdiction to delay possession orders against trespassers in light of Article 8?

Ratio Decidendi

Where trespassers have established their home on private land, Article 8 ECHR is engaged and the court must consider whether eviction is a proportionate means of achieving a legitimate aim. The owner's right to possession is a strong factor in favour of proportionality, and only in highly exceptional circumstances would eviction be disproportionate. The court has jurisdiction to consider proportionality and, if appropriate, delay possession, but in this case, immediate possession was proportionate and justified.

Court Disposition

Appeal dismissed

Orders

  • Immediate possession of the land granted to the claimant
  • No extension of time for possession granted to the defendants