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Article 8(1) of the European Convention on Human Rights provides that ‘everyone has the right to respect for his private and family life, his home and his correspondence.’ An important and necessary right, which has been raised in a number of cases relating to multiple issues. One controversial social and political issue in relation to Article 8 of the Convention is squatting, and whether the rights provided for under the Convention should swing in favour of land owners or squatters.
The current legislation in relation to squatting, criminalises it in residential properties under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Squatting in commercial buildings is governed by sections 6, 7 and 12 of the Criminal Law Act 1977 as amended by the Criminal Justice and Public Order Act 1994, which allows squatters to occupy the premises until they are removed via court order. Cobb and Fox draw on three justifications for squatting: the labour desert theory, the personhood theory and moral utilitarianism. Stating that a relationship with land can occur through productive use of it, it being an aspect of their personhood, and because of the squatter having a greater need than the landowner. These justifications are convincing, and goes against the narrative perpetuated by the media that squatting is a type of anti-social behaviour and therefore the rights of title-owners should be absolute. In addition, these justifications show that a relationship can be formed with land in a way which is not related to money or physical ownership, and it can be argued that this relationship should be protected by Article 8.
In the case of Malik v Fassenfelt, the Court of Appeal found that Article 8 can be engaged, despite dismissing the appeal of the squatters, if there is a “sufficient and continuous link” with the disputed land. This had no effect on the case in question, however it established that in some circumstances the time before eviction may have to be extended. This recognition of the Article 8 rights of squatters raises the debate as to whether s.144 of LASPO is consistent with the ECHR, since squatters can be forcibly removed under this legislation even if they have established a relationship with the land. This seems particularly unjust where the land in question is unused by the title-owner, and the squatter has put purpose back into the land and has more need for it, therefore developing an attachment with it.
The Radical Bank of Brighton and Hove (RadBank) raised human rights arguments in relation to squatting in a commercial building. RadBank was a squatted social centre located in a derelict Barclays bank building, who were given only two days’ notice of the court hearing to evict them from the premises. As a consequence of this, they were unable to find legal representation and were forced to represent themselves before the court. On raising Article 8 as a defence to eviction, the judge stated that “rights cut both ways”, giving dominance to the rights of Barclay’s bank under Article 1 of Protocol 1 (the right to property.) This case engaged not only Article 8, but Article 6, since their right to a fair trial may have been impacted by the short notice of the hearing. This is evidence of the wide range of human rights implications in relation to squatting, and property law in general.
The key question here is whether or not our current legislation is compatible with the right to “private and family life… home and… correspondence”, and although there has been some progression in the case law there is still a long way to go towards achieving this. It can be argued that our current legislation has a capitalist approach, looking at the monetary worth of property rather than the human attachment which can be developed to said property. Judge Fiona Henderson expressed in Voyais v Information Commissioner and the London Borough of Camden that “the public interest lies in putting empty properties back into use”, and this is a statement with which I agree. In the midst of a housing crisis it can be argued that it is immoral to evict or even convict those who find shelter by squatting, leaving empty properties unused. Our current legislation, and application thereof, insinuates that Article 8 should be dependent on the ownership of property when in reality should they not apply to our relationship with property through use, personhood and need.