To what extent do property rights and human rights overlap or coalesce? Has the Human Rights Act 1998 introduced new human rights of property?

However it is often the case that property rights and human rights do not work together, leaving a balancing act for the court. This can be recognised by the introduction of a new right – article 8 under the ECHR – the right to respect for private and family life and the home. This could pose problems as we ask whether the right to respect for ones home subverts existing land law – for example if a land owner seeks to recover premises from a tenant by eviction – could this be a form of contravening article 8 through depriving people of their home? It seems that there are a lot of issues here that need to be addressed. This came to question in the case of Harrow LBC v. Qazi. In this case Mr Q lived with his wife as joined tenants in a council house. When separating Mrs Q gave notice to quit to the local council and was re-housed. Under domestic law Mr Q would then be required to move out because if 1 of 2 tenants quits then the whole tenancy terminates. However, Mr Q continued to live in the house (although now as a trespasser) and even introduced a new partner to live with him. Harrow LBC consequently brought proceedings against Mr Q. As a matter of domestic law Mr Q should have been evicted immediately, however, he argued that eviction would be a contravention of article 8 and that the proportionality test must be used. In this case the House of Lords split two ways with Mr Q losing by 3 to 2. The majority of view in the case felt that article 8 was concerned with privacy rather than property, and could never be invoked to defeat contractual or proprietary rights to possession which are already established under municipal law. Lord Scott stated,

“The article 8 guarantee of ‘respect’ for the citizen’s ‘home’ does not vest in the home-occupier any contractual or proprietary right which he would not otherwise have….. to hold otherwise would be to engage in social engineering in the housing field…”

This interpretation resulted in the Lords in this case having a narrow view of article 8 and basically the result signified the panic among the judiciary of how to balance the ‘bundle of rights’ which a home owner has against the rights and liberties of others. It was of the opinion of the two dissenting judges in this case (Steyn and Bingham) that the majority had allowed domestic law to ‘colour’ their interpretation of article 8. In their dissent they noted that the majority had felt that,

“To withdraw domestic law procedure from judicial scrutiny for conformity with article 8 is to cause the ECHR to be much more remotely engaged in the fabric of our domestic law”

Concluding from this the dissenting judges basically iterated the fact that the whole purpose of the HRA is to impose a new perspective on proprietary rights and so the very thing that the majority worry about (imposing ECHR too far into domestic law) is exactly what the HRA was meant to do.

        Another area to address involving the HRA is that of certain rights introduced such as freedom of expression which could in a sense give certain people rights to remain on the land owner’s property without his consent. In the case of CIN Properties Ltd v. Rawlins the leasehold owner of a large shopping complex brought injunction proceedings against 14 youths with unsubstantiated allegations of misconduct. The effect of this injunction would be to perpetually cut off access to a large part of the centre of the youths’ hometown and so would significantly reduce their chance of obtaining employment. Despite this, the Court of Appeal held that the leasehold owner was entitled to revoke permanently any implied permission otherwise enjoyed by the youths to enter and use the centre. In this instance the HRA did not help the youths as the United Kingdom had never ratified the part of the ECHR on freedom of movement. Thus the absolutist view prevailed in this case, however it is imagined that it will not be long before the United Kingdom moves away from the absolutist view to a more relativist view as many other states lead the way (see the dissenting opinion of Judge Maruste in Appleby and Others v. UK).

        Thus, as can be noted from the cases mentioned above, human rights do not rest easily with property rights and although on the face of it one would imagine that new human rights would add to the home owners ‘bundle of rights’, this only happens in the minority of cases – see European protection against regulatory taking where even severe regulation does not amount to a deprivation and so the home owner is afforded no compensation. With human rights often operating against a home owners ‘bundle of rights’, the domestic courts are again left with the job of balancing the fundamental interests of others.