Chapter 14 Audio: The relationship between land law and human rights

It's fair to say the relationship between Land law and Human rights is rather rocky. The two systems are not natural bedfellows and they do sit rather uncomfortably next to one another. Property rights are all about one person's superiority over another, an assertion of one's superior rights over that of the other party. It's about possession and ownership and appropriation. Human rights on the other hand are about global universal notions of human freedoms, human dignity and equality.

In this short audio I want to discuss the case of McDonald v McDonald. This is a case investigating the relationship in domestic property law between private individuals and whether human rights arguments can be made in disputes between private individuals. In this case, a landlord and the tenant.

In the case of McDonald, the Court of Appeal and then the Supreme Court considered this issue and held quite emphatically that the answer was no. Human rights arguments, for example Article 8 ECHR, could not operate horizontally, i.e. between private parties, and so the matter went up to the European Court of Human Rights.

In the European Court of Human Rights, the case was known as FJM v UK (2018). And in the case, the Strasbourg court restated that the loss of one's home is the most extreme form of interference with the right to respect for home under Article 8. But it held that Fiona could not succeed in arguing her human rights case in a private dispute between a private landlord and a private tenant.

The Supreme Court held and confirmed what had been held by the Court of Appeal and the Supreme Court: that the ECHR did not operate horizontally. And the court reiterated that eviction proceedings brought by private parties were quite distinguishable from those of social landlords. Why? Because private property rights, said the Strasbourg court, arise from the contractual relationship entered into voluntarily by the parties.

So where does that leave us? Well, it seems to settle the argument on the issue of horizontality of the ECHR, certainly for now. And the Strasbourg court reiterated that it's for parliament through legislation to make any changes to the balance of rights between private landlords and their tenants. But this is unlikely to be the final say.

What do you think? What do you think this tells us about domestic Land law? Watch this space.