Walking a tightrope: balancing the right to property with the right to housing in the European Court of Human Rights
Over the past several decades, the European Court of Human rights (hereinafter: the Court) has developed a substantial and significant jurisprudence addressing the human rights issues incumbent to the relationship between landlords and tenants. Said relationship has been addressed under both Article 8 of the European Convention on Human Rights (hereinafter: the Convention), which provides for the right to private life and home, as well as Article 1(1) of the Convention, which contains an explicit right to property, providing for the peaceful enjoyment of one’s possessions. Within the ambit of Article 1(1) of the Convention, the landlord-tenant relationship is frequently evaluated as an individual interest (of the landlord) vs. a national policy which seeks to promote housing or tenant’s rights in some way. This balancing act is illustrated particularly well in the case of Kasmi v. Albania (2020), where the Court had to balance the applicants right to property with the public interest of protecting the housing rights of vulnerable tenants.
Kasmi v. Albania (2020)
In Kasmi v. Albania, the applicant claimed that there had been a violation of his right to property as he believed that he had been denied proper restoration of his property rights following the end of the communist regime in Albania in 1992 and the subsequent privatization of the housing market. The applicant had inherited the property rights to two buildings from his father, whose property rights were recognized by the Tirana Commission on Property Restitution and Compensation prior to his death. In order to take possession of his property, the applicant sought the eviction of the tenants. Although his request was initially granted by the District Court of Tirana in May 2003, the decision was overturned by the Court of Appeal in April 2004. The Court of Appeal held that three of the four tenants were lawfully occupying the flat on the ground of being legally homeless, and therefore entitled to maintain their tenancy. The decision of the Court of Appeal was upheld by the Supreme Court of Albania in July 2005. In December 2005, the applicant filed a complaint before the Court, alleging a violation under Article 1(1) of the Convention. In 2010 the tenants died, and the applicant was able to take possession of his property. Yet, the death of the tenants did not halt the application against the Republic of Albania lodged with the Court.
With regard to the domestic law, the state of Albania passed several pieces of legislation after 1992 to facilitate the transition from state-controlled housing to a free market system. These include the Privatisation of State-Owned Dwellings Act, which set out a basic plan of action for handling properties which had no former owner; the State Contribution to Homeless Households Act, which regulated loans and rental allowances paid by the state to homeless households, and the Property Acts of 1993, 2004 and 2006, which attempted to regulate the relationship between tenants and their new landlords (the former owners who had regained their property). In 2004 and 2007 the State Contribution to Homeless Households Act and the Privatisation of State-Owned Dwellings Act were consolidated into the Social Programmes for the Housing of Inhabitants of Urban Areas Act. In sum, the state of Albania was working to return nationalized property to its former owners, to assist tenants of the nationalized property over which there were no legitimate claims in becoming property owners themselves and transitioning the remaining tenants to new forms of social housing. It is in this context that the applicant claimed restitution of his property, but as was detailed above, such restitution did not come to fruition until the tenants had passed. Furthermore, due to the Constitutional Court’s ruling on the State Contribution to Homeless Households Act, the applicant was unable to raise rent above the rates set in 1993.
The applicant argued before the Court that his rights under Article 1(1) of the Convention had been violated, as the interference with his property rights had not been in the public interest and had been disproportionate. In short, he held that there had been no public interest in allowing the tenants to remain in possession of the dwelling, as only one of the legally homeless tenants had continued to reside at the property (the other two were living abroad). Furthermore, he held that the government’s general policy allowing tenants to continue living in buildings which had been reclaimed by former owners was not necessitated by public interest. There were only a few properties in Tirana where this was the situation and, as such, they contributed little to the governments overall housing scheme. Additionally, he argued that the state had failed to prioritize the relocation of these tenants as they were obliged to do under the domestic legislation. Even if the Court found that there was a legitimate public interest in the matter, the applicant held that the state had failed to proportionally balance his interest as a property owner against the interest of the tenants, as he had possessed no mechanism to seek the end of the tenancy agreement (following the rejected eviction proceedings) or an increase in the rent to the market value.
The Government countered by arguing that the interference in the applicant’s property rights had been in pursuit of a legitimate aim, namely the provision of housing to the tenants, many of whom were retirees or low-income, and as such, considered by the state to be particularly vulnerable. Furthermore, in the view of the Government, the interference had been proportionate, given the complexity of the situation facing the state, and the fact that the interference had been temporary, awaiting action by the state to provide alternative housing to the tenants – an action which would have restored the applicant’s property rights.
The Court, firstly, sought to clarify which period fell specifically within their purview to review. They considered that only the years between 1996 (when the Convention entered into force in Albania) and 2010 (when the applicant had regained possession of his property) were relevant for examination. Secondly, the Court affirmed the undisputed points of the case specifically that there had been an interference with the applicants right to property, and that that interference had been provided for by domestic legislation.
Thirdly, the Court examined whether or not the interference was in pursuit of a legitimate aim, which was contested by the applicant. The Court considered that it must give due deference to national authorities on the needs of their particular society, and thereby significant leeway on the state’s implementation and pursuance of economic and social policy. Furthermore, the Court accepted the interpretation given to the national housing policy by the Constitutional Court of Albania, it being that the policy sought to ensure housing for vulnerable communities in a depleted housing market. As such, the Court determined that the interference with the applicant’s rights under Article 1(1) of the Convention had been in pursuit of a legitimate aim and was in the public interest.
Fourthly, the Court considered whether Albania had properly balanced the public interest against the applicants right to property. The main question the Court dedicated itself to, in this respect, was if the interference had forced the applicant to bear an excessive burden of a societal problem disproportionate to his position as an individual. The Court considered that two of the three legally homeless applicants had been living abroad for several years when the applicant had regained his property rights, and thus, their interest as tenants should not be measured. Additionally, the Court gave weight to the fact that the applicant was unable to obtain reasonable rent from the tenants, and that, although the Government purported the situation was temporary, the tenancy agreement had no time limit. These facts together meant that, once the eviction proceedings were rejected, the applicant had no means to fully regain possession of his property, and thus was left in a state of ‘perpetual uncertainty’ for a significant period of time.
The applicant had been made to bear too excessive a burden of the public housing issue
For these reasons, the Court found that the applicant had been made to bear too excessive a burden of the public housing issue. Accordingly, the Court determined that the interference with the applicants right to property had not been a proportionate measure as regards the aim being pursued, and as such, there had been a violation by Albania of Article 1(1) of the Convention. Having determined that there had been a violation, the Court awarded the applicant 30,000 euros, in accordance with Article 41 of the Convention. Given that the judgement was finalized in 2020 and that the tenants had passed away in 2010 (allowing the applicant to regain possession of his property) the decision had little impact on the domestic situation.
In Kasmi v. Albania, the Court ruled in favor of the landlord, predominantly because it considered the measures taken by Albania to be disproportionate to their stated aims. This decision reflects the pattern evident in the Court’s jurisprudence on Article 1(1) of the Convention and national housing measures: many of them are decided on the basis of proportionality. For example, in the cases Hutten-Czapska v. Poland, Bittó and Others v. Slovakia, and Statileo v. Croatia, which relate to rent control schemes imposed by the state after the fall of a communist regime, the Court ruled that such measures disproportionately impacted the landlords, and as such, violated their rights under Article 1(1) of the Convention. The Court came to a similar conclusion under very different socio-economic circumstances, in Lindheim and Others v. Norway, where legislation which permitted tenants to renew their lease on their holiday homes indefinitely was found to disproportionately damage the position of the landlords. The test of proportionality protects not only landlords however: within the ambit of Article 8 of the Convention, proportionality is often utilized by the Court to protect the rights of the tenant. The Court has ruled that Article 8 of the Convention requires domestic authorities to ensure that an eviction is a proportionate measure to take, and that failure to ensure the proportionality of the eviction results in a violation of the tenant’s rights under Article 8 of the Convention. This dynamic use of proportionality reflects the attitude of the Court more generally; it maintains a firm belief that the Convention offers tangible rights that are to be effectively protected.
The balancing of the rights of landlords with the rights of tenants before the European Court of Human Rights has, over the years, proven to require a delicate hand. Some have been critical of the seemingly inconsistent way in which the Court has applied art. 1(1) of the Convention. Be that as it may, the Court has been challenged with finding solutions amidst complex societal dramas and complicated fact patterns.