Malik v Fassenfelt & Ors [2013] EWCA Civ 798 (03 July 2013)

Malik v Fassenfelt & Ors [2013] EWCA Civ 798 (03 July 2013)

Where trespassers have established a 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 legal right to possession is a strong factor in favour of proportionality, and only exceptional circumstances could justify delay or refusal of possession. The rule in McPhail that the court cannot extend time for possession against trespassers is no longer good law; proportionality may require, exceptionally, that time be given, subject to the limits in section 89 of the Housing Act 1980. In this case, no exceptional circumstances were found, and immediate possession was proportionate.

Citation
[2013] EWCA Civ 798
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
Appeal (civil) / Court of Appeal Judgment on Appeal From Central London County Court
Outcome
Appeal dismissed
Legal Topics
Possession Proceedings, Trespass, Article 8 ECHR, Proportionality, Private Landowner Rights, Squatters' Rights
Property Law Human Rights Law Civil Procedure Possession Proceedings Trespass Article 8 ECHR Proportionality Private Landowner Rights +1 more

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Parties

Imran Malik

Claimant/respondent

Keith Fassenfelt (deceased)

Defendant/appellant

Joseph McGahan

Defendant/appellant

Persons Unknown

Defendant/appellant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal From Central London County Court

Legal Issues

  1. 1 Does Article 8 ECHR (right to respect for home) provide a defence to possession proceedings by a private landowner against trespassers who have established their home on the land?
  2. 2 Is the court required to consider proportionality under Article 8 ECHR in such cases, and can it extend time for possession or refuse an order?
  3. 3 Is McPhail v Persons, Names Unknown [1973] Ch 447 still good law after the Human Rights Act 1998 and subsequent jurisprudence?

Ratio Decidendi

Where trespassers have established a 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 legal right to possession is a strong factor in favour of proportionality, and only exceptional circumstances could justify delay or refusal of possession. The rule in McPhail that the court cannot extend time for possession against trespassers is no longer good law; proportionality may require, exceptionally, that time be given, subject to the limits in section 89 of the Housing Act 1980. In this case, no exceptional circumstances were found, and immediate possession was proportionate.

Court Disposition

Appeal dismissed

Orders

  • Order for possession in favour of the claimant to take effect forthwith; no extension of time granted.