Article 8 of the European Convention on Human Rights (ECHR) provides that everyone has the right to respect for his home and there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society. This means that, when deciding to grant an eviction order, the Court has to decide whether this is a proportionate means of achieving a legitimate aim.
In a recent Court of Appeal case, members of the Grow Heathrow tried to oppose an eviction order on the grounds that Article 8 gave them the right to squat. Ruling against the group, Sir Alan Ward said that even where squatters had established a home on the land but they had otherwise no legal right to remain there, it was "difficult to imagine circumstances which would give the defendant an unlimited and unconditional right to remain. The circumstances would have to be exceptional," he said.
"The fact that the landowner has a legal right to possession is a very strong factor in support of proportionality: it speaks for itself and needs no further explanation or justification," he said.
Commercial property expert Melissa Thompson of Pinsent Masons, the law firm behind Out-Law.com, said that although the case was the first to look at human rights in the context of private interests, it was incorrect to say that the Court had created "new rights for squatters" by overturning the previous leading case.
"It is not new that the court, as a public authority, must interpret existing law as far as possible in line with human rights principles," she said. "It is helpful that such issues are being discussed and considered by the higher courts, which will give guidance for future cases."
"Far from creating new rights for squatters, the case has once again demonstrated that when balanced with other interests, human rights rarely trump the property interests of landowners," she said.
"Of more concern is the delay that the consideration of such issues can cause to a landowner, here one considering development. It will be important for landowners, and particularly developers, targeted by squatters to take advice and swift action to avoid losses such delay might cause. Hopefully, now the higher courts have ruled on this issue, there will be less scope for lengthy and costly appeals in the future," she said.
Graham Halsall of Pinsent Masons added that although the Court had held that Article 8 could be applied against private landowners, "it was quick to acknowledge that only in the most exceptional of circumstances would this prevail over the landowner's legal right to possession".
"In reality, such circumstances will not arise very often, if ever," he said.
The piece of land in dispute is in the village of Sipson, Middlesex and lies near the northern edge of Heathrow Airport. It was purchased by the landowner, Imran Malik, in 2003 but he had struggled to develop the land due to the ongoing threat of a third runway at the airport. In 2010, the Grow Heathrow group gained entry to the land without the landowner's permission. They have since converted it into a market garden centre, where they now live, with the support of some local residents, according to the Court.
Before the Human Rights Act, which incorporated the ECHR into UK law, came into force in 2000, case law allowed the courts to immediately make a possession order against trespassers. The HRA now prevents public authorities, including courts, from acting in a way which is "incompatible" with ECHR rights. According to the judge, this meant that the 1973 McPhail case, which previously governed the law in this area, could no longer be regarded as "good law".
He refused the campaigners leave to appeal to the Supreme Court, but Grow Heathrow has applied to the Supreme Court to pursue its claim directly, according to its website.
Squatting in residential property became a criminal offence on 1 September 2012, but owners of commercial property can currently only pursue squatters in the civil courts. In May, the Ministry of Justice told Out-Law.com that it was in the process of "gathering evidence" about the impact and scale of squatting in commercial property to see whether further action would be appropriate.