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Housing and Human Rights Round-Up Pt 2


Pelipenko v Russia 16/1/14

We reported the ECtHR’s decision on the merits here. There now follows the Chamber’s decision on the claim for just satisfaction. The Applicants’ claim for the breaches of Art 6 and Art 8 broke down into 4 parts: 1. the purchase costs of a new flat (150K Euros); 2. the costs of maintenance and repair of their former accommodation (17K Euros); 3. temporary accommodation costs following eviction (3K Euros); 4. loss of belongings and ancillary costs (20K Euros); 5. non-pecuniary losses (170K Euros).

The Court noted that this was unlike other cases where the State had thwarted claims against private parties and where it was appropriate for the State to compensate the Applicant directly for their loss. In this case, there was an enforceable judgement requiring the original Defendant to provide the Applicants with a flat. The Defendant was now prepared to comply with the judgement and it was up to the State to take the appropriate steps to ensure it was enforced and to accommodate the Applicants until the judgement was enforced. It was not therefore appropriate to order the State to pay for the cost of a replacement property.

As for the other heads of claim, the Court allowed the cost of lost belongings and the stay in temporary accommodation in the sum of 13K Euros. The Court also ordered the sum of 10K Euros for distress and inconvenience.

Bitto v Slovakia 28/1/14

This case concerned the Applicants’ right to challenge rent controls imposed on their properties in post-communist Slovakia. The Grand Chamber in Hutten-Czapska v Poland had found a breach of Article 1 of Protocol 1 where rent restrictions imposed by the State had prevented the owners from adequately maintaining and keeping their properties in repair. Poland had failed to ensure a fair balance between the owners’ rights to make even a modest profit from their homes and the provision of social housing to those in most need.

In Bitto, the Applicants had had their properties restored to them from 1991 onwards but subject to their existing tenancies, the rents for which were capped at a level set by the State. Furthermore, the owner could not evict their tenant without compensating them and they could not sell their home to anybody other than their tenant. The Applicants calculated that for the relevant period, they were recovering rent from their tenants at a mere 13-19% of the market rate.

While noting the wide margin of appreciation allowed to States in socio-economic matters, the Court found that the Applicants’ right to derive profit from their properties had not been met given the wide disparity between controlled and market rents. A fair balance had not been struck and there was a breach of A1P1. The Court reserved the question of damages in anticipation of a friendly settlement

Zabor v Poland 7/1/14

In this case, Mr Z attempted to enforce his right of succession to a protected tenancy of a flat in Wroclaw held by his late mother, who died on 13/1/01. Mr Z had occupied the flat from 1955 until his marriage in 1980 and once his mother died, Mr Z’s brother was recognised as successor. Mr Z attempted to persuade the Wroclaw municipality to accept him as a successor but it refused, stating that it had ceased to be Mr Z’s home for many years. At some point in 2002, Mr Z was forcibly expelled from the property by his brother.

Mr Z commenced court proceedings and on 6/11/02, his application to succeed was allowed. Nevertheless, the municipality refused to conclude a tenancy agreement with Mr Z and repeated the contention that he had not demonstrated any continuity of occupation. The District Court granted Mr Z a declaration on 25/02/05 that a tenancy agreement existed between him and the municipality and the municipality conceded this right on 28/3/06.

The municipality later commenced possession proceedings for rent arrears. Although an order was made against Mr Z’s brother, the court refused to order Mr Z’s eviction from the flat as Mr Z could not have been expected to make arrangements to pay rent when the municipality had obstructed his succession application, had refused to sign a tenancy agreement with him and had made no demand for rent from him.

On 14/11/2011, Mr Z started an action for damages against the municipality for the 10 years he had been forced to remain homeless following the death of his mother. The Court found that the real reason for Mr Z’s predicament was his dispute with his brother and the municipality could not be held responsible when it had no power to force the brother to allow access to Mr Z and when Mr Z had taken no action of his own against his brother.

Following the dismissal of his damages claim, Mr Z complained to the ECtHR that his rights under Article 8 and Article 1 of Protocol 1 had been breached. The Art. 8 complaint fell at the first hurdle. Despite Mr Z’s obvious intention to return to the property, he had been absent from it for 30 years and had not established the sufficient and continuous links necessary to demonstrate it as his ‘home’ under Art. 8. As regards A1P1, the Court makes a curious comment (para. 79) that the municipality was not exercising public law powers in recovering rent or in taking possession proceedings. However, this is not material to the Court’s decision. Notwithstanding the obstacles that the municipality placed in the way of the applicant’s succession application, the actual cause of Mr Z’s absence from the flat was the conduct of his brother rather than the municipality or the courts. It was not the responsibility of the State to resolve a family dispute in order for Mr Z to obtain possession. Given moreover that Mr Z was not liable to pay rent, there was likewise no breach of A1P1.

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.


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