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Unlawful eviction and harassment
By SJM
11/11/2014

Human Rights Round-Up Part 1

Tijardovic v Croatia [2014] ECHR 637  (19/6/2014)

Mrs T and her family occupied a flat in Split, Croatia, which her father-in-law had held under a specially protected tenancy with the Split Municipality, from 1983 onwards. Between 1985 and his death in 1998, Mrs T’s father-in-law resided at another flat in Split. After his death, Mrs T applied to purchase the flat but the Municipality refused, seeking instead Mrs T’s eviction from the flat on the basis that she had no legal right to occupy it.

Mrs T complained before the national courts that the flat had been the family home for nearly 30 years, that she had paid the rent and other bills for the property, that the municipality had never asked her to leave once her father-in-law moved out in 1985 and that her modest income would hamper her in finding alternative accommodation.

The parties accepted before the ECtHR that the flat was Mrs T’s ‘home’ for Article 8 purposes (even though no formal licence or tenancy was ever granted to Mrs T) and the question boiled down to whether the eviction (which had not yet been executed) was proportionate and ‘necessary in a democratic society.’

The ECtHR found that by confining themselves to considering whether Mrs T had a legal entitlement over the flat, the national courts had not analysed the proportionality of the eviction and had thereby deprived Mrs T of the necessary procedural Article 8 safeguards. Particular weight was given in the Court’s assessment to both the length of the applicant’s occupation and the State’s acquiescence to her occupation of the flat once her father-in-law moved out in 1985 (a feature too of the Brezec v Croatia judgement-see our note here)

The Chamber therefore found a violation of Art 8 but declined to award damages.

 

R & L, SRO v Czech Republic [2014] ECHR 703 (3/7/2014)

The applicants were the owners of flats in various locations within the Czech Republic, the tenancies for which were subject to regulated rents that were far below the amounts the applicants could expect to obtain on the open market. The applicants sought compensation from the State for the difference in value between the amount of rent they actually received and the market rent they might have received. The national courts dismissed those claims.

The applicants then complained to the ECtHR that the regulation of the rent was an unlawful interference with their property rights under Article 1 Protocol 1 of the Convention. Firstly, the Court rejected the argument that in purchasing their flats, the applicants had consented to the regulated rents which were in place. The applicants could only waive their right to set a market rent if they had the right to exercise that waiver in the first place, which they did not. There was accordingly an interference with their property rights.

In finding the interference to be unlawful, the ECtHR pointed to various orders of the Constitutional Court declaring the continued operation of the rent control scheme unconstitutional. It was not therefore necessary for the Court to consider whether that interference was disproportionate. The Court found that A1P1 had been violated and it reserved the question of just satisfaction.

 

Statileo v Croatia [2014] ECHR 743 (10/7/2014)

In a similar A1P1 case, the applicant was the owner of a flat in Split that was subject to a protected lease, whose rent was substantially below the market rent. The applicant refused to conclude a new lease with the tenant following a change in the law in 1996 and the tenant sought a declaration from the court that the tenancy was subject to a protected rent (14 Euros pcm). At the same time, the applicant brought possession proceedings against the tenant. The national courts found in favour of the tenant and the applicant petitioned the ECtHR.

The Court accepted that the restriction was in accordance with the law but found that the interference was disproportionate. Given that the applicant would be unable to let out the property at a market rent during his lifetime and the significant disparity between the market and protected rents, the Court found this case to be one where a disproportionate and excessive burden had been placed on the applicant as landlord and that A1P1 had been violated. Damages of 9,700 Euros and costs were awarded to the applicant’s heir.

 

Berger-Krall v Slovenia [2014] ECHR 603 (12/6/2014)

This is a lengthy judgement running to over 300 paragraphs and given the narrow application of the facts, this note will be short. The applicants were previously holders of specially protected tenancies, which were converted to normal leases during a process of post-Communist law reform. This entailed a change from state controlled rent to a fully negotiated contractual rent. The applicants complained about the excessive nature of the changes to the ECtHR but the Court dismissed their various claims under A1P1, Art 8, Art 6 and Art 14. In what is effectively a mirror image of the R&L and Statileo cases above, the Court found that, in balancing the difficult and sensitive issues affecting both owners and tenants, the State did not exceed its margin of appreciation and the applicants’ Convention rights were not violated.

 

 

 

 

 

 

 

 

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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