Article 8: long residence unlikely to give rise to a defence

On the 1 November 2016 the Court of Appeal considered the case of Holley v Hillingdon LBC.

Mr Holley continued to occupy a property owned by the local authority following the death of the tenant, his grandfather, who had previously succeeded to the tenancy. Mr Holley had no right to succeed and was not eligible for a tenancy under the local authority’s ‘second succession’ policy. Therefore he sought to challenge the local authority’s decision to take possession proceedings against him on the basis that this was unlawful and breached his Article 8 rights. In particular he stated he had been in occupation for 34 years and the eligibility criteria for successors in the ‘second succession’ policy were too narrow. Both arguments were rejected by the Court of Appeal.

The Court of Appeal found that whilst length of occupancy can be taken into account, it is “unlikely to be weighty factor” and therefore “of little consequence”. Length of occupancy, even if over many years “is by no means exceptional”, and therefore how long a person has resided in a property will provide little scope for a viable defence to a possession claim based on Article 8 of the Human Rights Act 1998.

As far as the challenge to the ‘second succession’ policy was concerned, the Court of Appeal concluded that the outcome would have been the same even if the local authority had exercised a wider discretion towards succession.

This case further illustrates the narrow scope of Article 8 defences and the importance of the tenant being able to demonstrate truly exceptional circumstances to have a chance of success. The case also highlights that the length of time someone has been in occupation of a property is highly unlikely to give rise to an Article 8 defence to a possession claim.

For further information, please contact Neil Lawlor. Neil is a Partner at Devonshires Solicitors LLP.

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