We’ve had quite a few new visitors to this blog over the last few hours and quite a lot of questions about A1/P1 and how it works in the context of a general abolition of residential rents. So here is our quick guide.
What does it say?
Art.1, Protocol No.1, ECHR provides as follows:
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, 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 or to secure the payment of taxes or other contributions or penalties.
What is a possession?
The European Court of Human Rights takes a broad (or “autonomous”) view of what amounts to a possession: Gasus Dosier-und Fordertechnik GmbH v Netherlands (1995) 20 E.H.R.R. 403; Beyler v Italy (2001) 33 E.H.R.R. 52. One way of looking at it is to ask whether the right is sufficiently certain to amount to an “asset”: Kopecky v Slovakia App. No. 44912/98.; 1) Radomilja (2) Jakelijic v Croatia App. Nos 37685/10, 22768/12.
It seems inevitable that an accrued right to receive rent under a contract (and the right to receive future rent under that same contract) would be regarded as a “possession” for these purposes.
What kinds of interference are dealt with?
There are three kinds of act that A1/P1 regulates. They are (in order of seriousness):
1) a “deprivation”, e.g. expropriation or other extinction of the legal rights of the owner;
2) a “control of use”, e.g. rent control legislation (see the seemingly endless line of cases involving Malta, e.g. Aquilina v Malta App. No.3851/12); and,
3) an “interference” which is less than the previous two.
The distinction matters because the level of justification required in order for the act to be proportionate increases as the interference becomes more serious (i.e. 1) requires more cogent justification than 3)).
Justification
Compensation is a crucial part of justification for the interference. The taking of property “… the without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1…”: James v United Kingdom (1986) 8 E.H.R.R. 123.
Rent control cases are dealt with under the “control of use” provisions. Here, again, the Maltese cases are instructive. In very broad terms, since at least 1979, Maltese law has provided for rent controls in the private rented sector. Those controls have meant that rental levels are now generally less than 20% of the market rent. The European Court of Human Rights has, on a number of occasions, found that domestic law is incompatible with Art.1, Protocol No.1 because it imposes a disproportionate burden on private landlords: e.g. Cessar v Malta App. No. 50570/13 .
If rent control legislation (where the landlord is at least getting *some* money) violates A1/P1 where it sets the rent level too low, then it is almost inevitable that abolition of rental liabilities (which would be a deprivation, not a control of use) would fail.
But what about the existing restrictions?
The various “lockdown” regulations have closed certain businesses and not paid compensation to anyone. Why are those fine under A1/P1? That’s a good question, but, by now, you can probably work out the answer. A short term closure on public health grounds is probably a control of use, rather than a deprivation. And there has been some form of compensation (non-domestic rates relief; wage support; tax deferral; supported loans etc). It isn’t comparable with the abolition of a property right.