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Lease without end?


Ferreira v Portugal App No 41696/07 (21/12/2010) [Link is to judgment in French, the only available version. Update 4/5/2011 – link now works. Can’t link properly to ECtHR site.]

We’re indebted to Legal Action’s ‘Recent Developments in housing law’ for this one, not least because the European Court of Human Rights judgment is only available in French, and my legal French is a bit insuffisant. The translation is welcome…

This is a very interesting judgment in respect of the Court’s attitude to Article 1 Protocol 1 rights, Article 8 rights, statute and margins of appreciation, albeit perhaps of no immediate application outside Portugal.

Mr & Mrs Ferreira held the life interest in a flat. In 1980, they let it to tenants. In 2002, they decided they needed the property for their son and his growing family. They applied to the court to have the tenant’s lease terminated. The District Court refused their application, applying a law which prevented the termination of a lease in any circumstances where the tenant had been living in the property for more than 20 years. The Court of Appeal and Constitutional Court dismissed the F’s appeals. The Fs applied to the ECtHR complaining of a breach of their Art 1 Protocol 1 rights.

The ECtHR found that their Art 1 Prot 1 rights were interfered with by the law complained of. However, the question was whether the interference was justified, as the article shall not ‘in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest’.

The law pursued a legitimate goal of social protection for tenants and tended to promote the economic well-being of the country (Barreto v Portugal App No 18072/91). This was an area in which states had a wide margin of appreciation.

States may justifiably and proportionately afford broader protection to tenants with longer and more secure leases. The Court could not call into question political choices aimed at providing such increased protection. The law served the greater interest and was not manifestly unreasonable.

The Portugese Court had not been able to put the interests of the property owners and the tenant in the balance, the absolute terms of the law after the 20 year period were not per se incompatible with the Convention (Evans v UK [GC] App No 6339/05 at para 89, Salabaiku v France App No 10519/83 at para 28). A clear rule promoted judicial certainty and gave clarity in a sensitive area. Such absolute rules were not rare (James v UK App No 8793/79 para 47).

The ECtHR gave decisive weight to the fact that the law was already in force when the Fs let the property in 1980. They had therefore known that they could request termination of the lease if they or their children needed housing at any point beforre the 20 years, but would be debarred from terminating the lease thereafter.

The restriction on the F’s rights was not disproportionate or unjustified and struck a fair balance between the property owner’s rights and the interests of the community. Complaint rejected.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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