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District Heating and quantification of benefits

By J

Strezovski and others v North Macedonia (App. Nos. 14460/16 and others) might not seem immediately relevant to readers. After all, housing law in North Macedonia is, I think we can safely say, quite different to England or Wales. But district heating systems are a source of tension between local authorities and RTB leaseholders and so I think it’s worth a note on this case.

The applicants all lived in flats in buildings which had district heating systems. Their flats did not benefit from the DHS (either because they were not connected to the system when built or had come off it at some later date). They did not get a charge from the DHS for their own heating and hot water but did get a fixed charge to reflect the fact that the building received benefits from a DHS (even if their flats did not).

As you might imagine, the applicants were rather miffed at this. They were paying a charge a system which did not benefit them. So they challenged the domestic law in the courts. Their claim failed. The domestic courts reasoned that, although they did not receive any direct benefit, they nonetheless received an indirect benefit from heat provided to other flats in the building.

The applicants alleged that this charge was a violation of their rights under Art.1, Protocol No.1 (peaceful enjoyment of possessions) and, slightly to my surprise, the ECtHR agreed. It was common ground that the imposition of a charge amounted to an interference with the right to peaceful enjoyment of possessions. It was also clear that the interference was permitted in domestic law and that there was a wider public interest being pursued in ensuring that a DHS could provide a safe, secure and efficient heat supply.

The real issue was whether it was proportionate to require these applicants to pay the charges. The domestic courts had not engaged in any consideration of the individual circumstances. Indeed, there was no analysis of the degree to which the applicants actually received any indirect benefit; the domestic courts had just accepted that this was the case. There needed to be some analysis – an “objective assessment” – of that indirect use in each case and the failure of the domestic law or courts to do so meant that there was a violation of A1 P1.


J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


  1. Giles Peaker

    Isn’t the key bit in the case that the liability for the district heating was imposed by (secondary) legislation? Hence the state responsible, rather than a private law contract.

    • J

      I’m not so sure. Paras 61-63 seem to me to be saying it doesn’t matter whether you look at it as a state act (imposing the charge) or a state failure to regulate the market properly (i.e. in an A1/P1 compliant way). The point of distinction with most English cases seems to me to be that, in most of the DHS cases I’ve done, the leaseholder came off without the consent of the LL.

  2. Giles Peaker

    That is a stretch, I think. There may obviously be situations where the state would be expected to protect A1P1 rights as a positive duty, but it is noticeable that the only example given here – as far as individual and private companies go – is to provide a proper judicial procedure (process not law) to enable effective and fair adjudication (para 61).

    The rest on a positive duty is hugely vague. I don’t think it can be extended to ‘a failure to regulate the market properly’ – or not at least without a LOT more.

    • J

      Possibly – I’m not as up on all the A1/P1 stuff as I once was. As I say, the English/Welsh relevance is likely to be limited because (a) if you came off your DHS without LL consent, then I don’t see how A1/P1 can re-write your contractual oblgiation to pay (e.g. under the terms of your lease); and (b) if you came off with consent then you presumably negotiated (or should have negotiated) your future contributions (if any) at the time.

  3. Giles Peaker

    Although I have just come across a freeholder (RTB) with estate charge covenants facing a £15K fee for disconnecting from estate heating… Which is another issue.


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