Conceptualising Home: Theories, Laws and Policies 9781474200554, 9781841135793

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To Bernadette In memory of my father, Des Fox

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PREFACE This book is about the homes in which we live, and, particularly, about how law responds to the occupier’s interest in property as a home. The decision to write this book was prompted, in part, by my instinctive feeling that home is important and should be recognised as such in law. I remember reading, as an undergraduate, the decision in Kaur v Gill,1 a case concerning the registration of a wife’s statutory right of occupation against the matrimonial home, and whether or not the circumstances of the purchaser should be taken into account as part of ‘all the circumstances of the case’. Lord Justice Bingham wrote that ‘[d]uring the argument of this appeal, my mind repeatedly changed direction, like a weather vane in stormy weather.’2 It struck me then that, when law is brought to bear on something as important as whether people will lose their homes, the outcome should follow wellthought-out, coherent and justifiable principles. As one of the reviewers of the proposal remarked, ‘[t]his book has an agenda.’ The agenda is to establish the case for a more coherent concept of home within legal discourse, and to consider how the concept of home could be worked out within existing legal frameworks. My vague instinctive idea that it was important to work out what ‘the home’ meant in law was challenged in the viva for my doctorate, which focused on the role of legislative and judicial policy in disputes between creditors and non-debtor occupiers of domestic property. The thesis focused on the ad hoc approach towards creditor/occupier disputes in English law, governed as they are by a collection of principles and statutory provisions, scattered across different legislative schemes. The overarching policy that emerged from these provisions and their judicial application was the persistence of the pro-creditor approach. Indeed, the court was often called upon to exercise its discretion between the competing claims of creditor and occupier, yet without, it seemed, any guidance as to how to go about weighing these competing interests. In fact, in Re Citro, the court acknowledged that: [t]he balancing which one is required to do between the interests of the creditors and the interests of the wives and families—who are of course entirely innocent parties—is by no means an easy thing to do. The two interests are not in any sense commensurable. On the one hand, one has the financial interests of the Crown, some banking institutions and a few traders. On the other, one has the personal and human interests of these two 1 2

[1988] 2 All ER 287. Ibid, at 292.

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Preface

families. It is very hard to see how they can be weighed against each other, except in a way which involves some value judgment [sic] on the part of the tribunal.3

This book focuses on two central issues relating to this value judgement: why and how the interests of occupiers can be weighed in the balance of legal decision making. The issue of why the law should take any account of the interests of occupiers in their homes, when faced with a strong competing claim such as the creditor’s commercial interest, arose in the course of my doctoral viva. In some respects, I had taken it for granted that there must be some merit in recognising the importance of the occupiers’ home interest, but I was ill-equipped to articulate the argument in support of such interests. By then, my views were still largely instinctive, and I had barely scratched the surface of the vast body of literature in other disciplines that has explored the meaning and importance of home to occupiers. Indeed, as a (more or less) ‘black-letter’ land lawyer, I had at my disposal neither the terminology with which to express my instinctive position, nor the evidence with which to support it. In many respects, this book provides an answer to some of the questions I have been turning over in my mind ever since. In addition, I have attempted to make some progress, not only on the why, but also on the question how we can develop an idea of home that will serve some useful purpose in legal discourse, by considering the idea of home as it has emerged in different legal frameworks. When I first embarked on this project, one of my early concerns was whether I could locate enough material to fill a book on the idea of home in law. However, the greatest difficulty I have encountered has been finding where to stop. When one is constructing an analysis of ‘home’ as a subject of legal study, the possibilities in terms of approach are virtually limitless. Indeed, to borrow a phrase from Margaret Jane Radin, to write about this subject is ‘like trying to write a systematic treatise on life as we know and live it.’4 I owe many debts of gratitude, not least to my doctoral examiners, Professor Kevin Gray and Professor David Clarke, for a viva that left me with food for thought for years after. I also owe a long-term debt of thanks to my doctoral supervisor, Dr Alan Dowling, who did his best to teach me how to write. I am also grateful to many friends and colleagues who have read and commented on parts of the manuscript, in one form or another, including Anne Barlow and Roger Smith; Helen Fenwick was kind enough to read and comment extensively on two chapters; and Dave Cowan made some extremely helpful suggestions, which were of tremendous assistance when I attempted to clarify my thoughts on gender and home for Chapter 8. Some of the research for this book was conducted while I was visiting at Cornell Law School in the Spring Semester of 2003. I am very thankful to Professor Martha 3

[1991] Ch 142 at 150. MJ Radin, Contested Commodities (Cambridge, Mass, Harvard University Press, 1996), preface, p. xiv. 4

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Fineman and the Gender, Sexuality and Family project, whose generous funding supported this research visit. I am deeply grateful to Martha for her generosity and kindness, and for encouraging me to persist with the project; I also wish to thank the Faculty Members at Cornell, and other participants in the Gender, Sexuality and Family project, who made early and insightful suggestions on the directions that my research into Home could take. I am similarly grateful to the Centre for Socio-Legal Studies at the University of Oxford, where I spent research leave in Michaelmas Term 2004 and where I got much helpful feedback from members of the centre and others who attended and participated in a seminar I delivered there. My gratitude is also extended to the Law Department at the University of Durham for granting this leave, when I had barely walked through their door. Thanks are also due to my friends and colleagues at the Law Department, University of Durham, and, before that, in the School of Law, Queen’s University Belfast, for their practical insights, generous encouragement and all round good humour. I am especially grateful to my teaching team-mates at Durham, on Land Law and Trusts, who have been accommodating and encouraging colleagues. In addition, Neil Cobb asked many insightful and pertinent questions about the overall thesis of the book, never let me get away with fudging on the answers, and provided support and laughter, while Roger Masterman answered several stupid questions about the Human Rights Act and tolerated frequent intrusions and interruptions when he undoubtedly had better things to do. Aaron Baker, David Campbell, Helen Fenwick, Rosa Greaves and Clare McGlynn discussed various issues relating to the book with me, and were also kind and supportive colleagues, for which I am grateful. I am similarly grateful to Hart Publishing for making the life of an author as painless as a publisher possibly could. Richard Hart has been a pleasure to work with from beginning to end. I would also like to record my appreciation to my parents, Bernadette and Des, and to my sisters, Judith and Claire. The more I learn of legal academics, the more I am convinced that we write about what we care about in life. Much of the impetus for writing this book was rooted in my instinctive feeling—despite, I should say, rather than because of my education in law—that home is important, and should be protected. I am grateful to my family for teaching me everything I know instinctively about the meaning and value of home. They will always reside in the experiential home that I have carried with me into adulthood. Finally, my thanks go to David O’Mahony, who read every chapter, several times, in various renditions, and who was always patient and constructive in his comments. For his tireless support, wise counsel and loving encouragement, I owe him a debt beyond thanks. Lorna Fox Durham 1 March 2006

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1 Conceptualising Home in Context

Introduction

I

T IS DIFFICULT TO overstate the importance of our homes, both in everyday life and, by extension, in law. Our homes provide the backdrop for our lives. As a result, the home is often the scene or the subject of legal disputes. Legal matters concerning ‘home’ may take various forms, and may fall within a range of areas of legal activity from family law1 to criminal law,2 from constitutional and human rights law3 to housing law.4 This book focuses on the significance of home in the context of property law disputes between creditors and occupiers—that is, when a creditor, for example, a mortgagee, seeks to repossess a property which is occupied as a home, following default in repayment by the debtor. The object of the book is to analyse the significance of the occupier’s ‘home interest’ in such cases, and to consider the way in which home is conceived in law in this context. In order to correlate the law’s approach to home interests in possession actions with the ‘real world’ consequences of legal decision making in this area, discussion of the laws and policies adopted to regulate possession actions is embedded in an interdisciplinary framework. Drawing on a wide range of empirical and theoretical work on the subject of ‘home’ in other disciplines, the 1

Eg, when the issue concerns ownership or occupation of a (former) family home. Criminal law matters involving ‘home’ range from domestic violence to the degree of force permitted to defend one’s home against an intruder; see, eg, the case of Tony Martin, who shot a burglar, leading to his death, and was convicted of murder, later reduced to manslaughter by reason of diminished responsibility: R v Martin (Anthony) [2001] EWCA Crim 2245, [2003] QB 1. The criminal law defence of self-defence is currently under scrutiny, particularly in relation to the occupiers’ rights to protect their home: see, eg, Patrick Mercer’s Criminal Law (Amendment) (Householder Protection) Bill (Bill 20 of 2004–05), which was brought before the House of Commons in Feb 2005, and which proposed to allow home owners more latitude to tackle burglars, by providing that they would not be guilty of any offence unless they used grossly disproportionate force. 3 See, eg, issues concerning the extent to which the state can lawfully impinge upon a citizen’s private dwelling; Entick v Carrington (1765) 19 St Tr 1030; Malone v Commissioner of Police for the Metropolis (No 2) [1979] Ch 344; Art 8 of the European Convention on Human Rights, as given effect to by the Human Rights Act 1998: Malone v UK (1985) 7 EHRR 14. 4 Housing authorities have a range of responsibilities including the management of rented homes and the provision of shelter for the homeless. 2

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book seeks to develop a more informed understanding of the meaning of home to occupiers, and of the impact of losing that home. The importance of the home as the site of everyday life for its occupiers, and the centrality of land law in regulating the occupier’s access to a home, were highlighted by the observation that: All of us—even the truly homeless—live somewhere, and each therefore stands in some relation to land as owner-occupier, tenant, licensee or squatter. In this way land law impinges upon a vast area of social orderings and expectations, and exerts a fundamental influence upon the lifestyles of ordinary people.5

Yet, notwithstanding the centrality of home and the impact of legal regulation on the occupier’s experience of home, the legal concept of home has received surprisingly little attention. As laypeople we know that ‘there’s no place like home’, that ‘home is where the heart is’, and we may even believe that the law recognises that ‘an Englishman’s home is his castle’.6 However, while these aphorisms are sometimes reflected in legal discourse, the extent to which the law seeks to recognise and protect the status of home—whether as a refuge or sanctity from the outside world, a place of security, privacy or safety, or even in the most basic sense as a shelter—varies, in a more or less ad hoc fashion, depending on the context in which legal issues arise and, particularly, on the weight of the competing interest(s) at stake in any given case. Thus, while ‘home’ interests may be (implicitly) recognised in some legal contexts (usually where the primary aim of legal policy is to promote the ‘home’ interest) they are also relatively easily dismissed in others. There is not, as yet, a coherent concept of home in law. Consequently, in the absence of a central organising concept, there is no framework within which to consider the extent to which the law seeks to protect the home or aspects of the home interest in different contexts, nor to achieve cross-fertilisation of legal thinking and discourse in this area. It is not altogether surprising that the concept of home is underdeveloped in law. In many respects, ‘home-type’ interests are anathema to legal reasoning. For one thing, ‘home’ is an essentially subjective phenomenon. It does not appear to be easily quantifiable, and the value of a home to its occupiers is not readily susceptible to legal proof. Nevertheless, there are compelling arguments to support further analysis of the idea of home in law. For one thing, while it may be true to say that the nature of home attachments presents obvious impediments to the development of a coherent legal concept of home, and that this explains, to a certain extent, the relative neglect of home-oriented analysis in law, the centrality of 5

K Gray and PD Symes, Real Property and Real People (London, Butterworths, 1981) 4. The expression ‘An Englishman’s home is his castle’ is a misquotation from the decision in Semayne’s Case (1604) 5 Co Rep 91a at 91b, 77 ER 194 at 195, when Coke CJ commented that ‘the house of everyone is to him as his castle and fortress’. 6

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‘home’ to human dealings and the deep significance of rights and obligations relating to home render the lack of rigorous analysis in this area difficult to defend. Another significant factor must be the relative lack of attention paid to home in law, compared to other disciplines. There has been growing interest, in recent decades, in the meaning of home as a subject for empirical investigation and theoretical exploration. A substantial amount of work has been carried out in this area in a range of social science disciplines, including social and environmental psychology, phenomenology, sociology, built environment studies, urban studies, housing studies and gender studies. Cultural, socio-economic and socio-political theorists have grappled with the concept of home, as have anthropologists, architectural and planning researchers, etymologists, historians and geographers. Numerous empirical studies have investigated the affective value of home, that is, the emotional attachment that occupiers feel towards their homes, and a significant body of theory has been developed. This work has laid firm foundations for a developing discourse on the subject of home in law and other disciplines. This book takes on the theoretical and empirical advances that have been made across these disciplines, and explores the potential for development of a concept of home in law. Taking as its paradigm the contest between secured creditors and home occupiers, the book considers how the idea that ‘home’ is different from other types of property is mediated through existing legal frameworks, and evaluates the appropriateness of current legal responses to the phenomenon of home. The object of this analysis is to highlight both the relevance of home to legal discourse and the need to adopt a more coherent approach when adjudicating on issues involving the meanings and values of home. Drawing on understandings of home in theories, laws and policies, the book seeks to establish the foundations upon which a legal concept of home could be constructed. The first five chapters of the book are concerned with issues pertaining to the value(s) of home, both in law and in other disciplines, focusing particularly on the consequences of mortgage possession actions on both occupiers and other stakeholders. This first chapter begins by demonstrating the aptness of the creditor/occupier dispute as a paradigm for analysis of the concept of home in law. The clash of ‘home’ and ‘non-home’ interests prompted by this contest is highlighted by considering the concerns of the creditor and the occupier. Of course, the backdrop to the creditor/occupier dispute is the broader policy framework within which the law has developed. Chapter 2 moves on to analyse the extent to which the idea of home has influenced the legislature and the judiciary in England, in the context of creditor actions against domestic property. It is suggested, as noted above, that there is scope for greater consideration of the meanings and values of home in law. Chapter 3 considers the policy arguments surrounding the consideration of ‘home-type’ arguments in the creditor/occupier context. As has been suggested above, when it comes to capturing the meanings and values of home, the progress that has been made in other disciplines offers a useful

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foundation on which to build a concept of home for law. Chapter 4 explores the nature of the insights offered by work in other disciplines, in relation to the meanings and values of home to occupiers. The purpose of this discussion is to unpack the various meanings and values associated with home, and so to enhance our understanding of what is at stake when the home interest is threatened or disrupted in legal proceedings. Finally, in this Part, Chapter 5 considers the meanings and values of home against the backdrop of the political, social and cultural ideologies of home ownership. This chapter considers the extent to which the idea of home as a meaningful site has been subsumed within a broader ideology of owner occupation. The paradigm of the creditor/occupier contest is particularly pertinent here again, bearing in mind the role that the mortgage provider has played— and continues to play—in the expansion (and sustainability) of home ownership. In Part II of the book, Chapters 6 to 10 move on to analyse the conceptualisation of these home meanings within legal theoretical frameworks. Starting from analysis of the existing laws and policies by which the idea of home is represented in law, these chapters consider the possibilities for developing a more coherent approach to the legal concept of home. A number of the themes which emerge from legal discourse on the subject of home can be mapped onto existing legal frameworks. Thus, Chapter 6 considers the ideas of possession, use value and exchange value and attachment to home with reference to property theory; Chapter 7 focuses on the theme of family home in conjunction with contemporary family theory. Chapter 8 maps the theme of women and their ‘special attachment’ to the home onto analysis of home in feminist legal theory and discourses concerning gender in housing studies. Chapter 9 explores the theme of children in the home, and positions the current law in the context of contemporary theories of the child. Finally, Chapter 10 evaluates the extent to which the idea of ‘respect for home’ in human rights discourses may contribute towards the development of a legal concept of home. In each of these contexts, key empirical, theoretical and conceptual ideas about home are positioned against established points of reference in law. The object is both to evaluate the extent to which the idea of home has been recognised—albeit in an ad hoc fashion—to date, and to ascertain the potential for further conceptual development within existing legal frameworks. The conceptualisation of home in law is potentially relevant to a broad range of legal contexts: a clearly articulated concept of home could be usefully applied from land law or family law disputes, where the home is the subject matter of the dispute, to tortious contexts, such as privacy, where the home is the site of the contest;7 from constitutional and human rights issues concerned with the status of 7 See, eg, AL Allen, ‘Privacy at Home: The Twofold Problem’ in NJ Hirschmann and C DiStefano (eds), Revisioning the Political: Feminist Reconstructions of Traditional Concepts in Western Political Theory (Boulder, Cd, Westview Press, 1996)The complex social and economic aspects of ‘privacy at home’ are highlighted in Allen’s suggestion that privacy at home is a commodity, which is available to be ‘purchased’ by middle income occupiers in privately-owned homes, but which is not readily available

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the home,8 to criminal justice questions addressing issues such as domestic violence.9 On a practical level disputes over and involving home are a constant feature of our legal environment. If a legal concept of home could be developed, it could be utilised to inform the decision-making process in these contexts, where the home is either the scene or the substance of legal disputes. It is necessary, however, to focus the spotlight of this inquiry more specifically. This book identifies the context of competitions over the home between creditors and occupiers as the most appropriate starting point from which to embark on the conceptualisation of home in law. This chapter begins by considering the relative interests of the creditor and the occupier, with a view to illustrating the suitability of the creditor/occupier context as a framework within which to unpack the idea of home in law.

The Idea of ‘Home’ in Law It is important to acknowledge that, notwithstanding the conceptual underdevelopment of ideas of ‘home’ in law, the proposition that ‘home’ is significant as a special type of property, over and above its status as the capital or investment asset of the house, is not totally absent from legal spheres. The idea of ‘home’ has been recognised as being relevant in a number of legal contexts. For example, the legislature and the judiciary have, at various times and in different contexts, acknowledged the significance of the fact that a house is occupied as a home when formulating policies. In the field of tax law, it is notable that the home in which occupiers are ordinarily resident is exempt from capital gains tax,10 and no income tax is payable for the benefit of occupying a house as a home.11 In the realm of family law, the Family Law Act 1996 provides an illustration of legislative policy specifically directed towards home-related issues, ranging from ownership and occupation of the matrimonial or family home to the practical difficulties that arise when home is the scene of domestic violence. Another context in which the to economically disadvantaged households. See, further, discussions of gender and the meaning of home in Ch 8, and the treatment of child occupiers in Ch 9. 8 The meaning and effect of the right to ‘respect for home’ in Art 8 of the European Convention on Human Rights has attracted considerable attention: see further Ch 10. 9 See, eg, E Stanko, ‘Fear of Crime and the Myth of the Safe Home: A Feminist Critique of Criminology’ in K Yllo and M Bograd (eds), Feminist Perspectives on Wife Abuse (Newbury, Col, Sage, 1988); E Saraga, ‘Dangerous Places: The Family as a Site of Crime’ in J Muncie and E McLaughlin (eds), The Problem of Crime (London, Sage, 1996); L Moran, ‘The Poetics of Safety: Lesbians, Gay Men and Home’ in A Crawford (ed), Crime, Insecurity, Safety in the New Governance (Cullompton, Willans Publishing, 2001). 10 Taxation of Chargeable Gains Act 1992, s222. 11 Income and Corporation Taxes Act 1988, Sched A.

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idea that the occupied home is a special type of property gives rise to additional legal protection is compulsory purchase. When a property that is occupied as a home is subjected to compulsory purchase to make way for public development, the authority acquiring the property is required to make a ‘home loss’ payment— in addition to compensating the owner for the market value of the property. The ‘home loss’ payment is made ‘to make some compensation to a man for the loss of his home, as opposed to the loss of any interest he might have in the particular dwelling which he formerly occupied’.12 It is particularly pertinent to note that home loss payments are not intended to compensate displaced occupiers for any financial hardship that may result from their eviction, but are specifically intended to reflect the intangible effects—the emotional upset, discomfort and inconvenience—of being displaced from one’s home.13 In this context, the qualities of home—its meaning and value to occupiers—are clearly recognised and given weight independently of any claim relating to the capital value of the house. There is also no doubt that, in the past, home sentiments have influenced practical developments in land law. The strict settlement was developed by conveyancers as a means by which a landowner could ensure that after his death and for generations to come land could be kept within the family. This provided a means of protecting the family’s wealth as well as ensuring that the ‘ancestral home’ remained available for use and occupation by future generations. A strict settlement was basically a chain of life interests: each generation obtained an interest in the property for life. When the current owner—the life tenant—died, that owner’s estate in the land automatically came to an end, and the next life tenant (usually the next generation in the family) stepped into his shoes and took possession of the land. The creation of a life interest is one of the clearest examples of a grant of property as a home rather than as an asset. The whole purpose of this type of interest is to enable the grantee to occupy the property for their lifetime, but to inhibit their ability to trade with the land. The strict settlement gave landowners the ability to pass on the use of their property without conveying the rights associated with exchange—that is, the ability to sell, to lease or to mortgage the property. It is interesting to note, however, that this type of arrangement was ultimately contrary to broader policy considerations in the field of land law, which prioritised trade in land. Consequently, this means of tying up land for generations was over-

12 R v Corby District Council, ex p McLean [1975] 1 WLR 735 at 736, per Lord Widgery CJ. ‘Home loss’ payments are currently provided for under s29 of the Land Compensation Act 1973, which provided that ‘home loss’ payments were to be made to occupiers when a person was displaced from a dwelling, under specified circumstances (eg, compulsory acquisition), by a local authority, housing association or landlord. The payment is currently fixed at 10% of the market value of the property, up to a maximum of £31,000. The minimum amount payable in such circumstances is £3,100: Home Loss Payments (England) Regulations 2003. 13 See the government’s White Paper, Development and Compensation—Putting People First (Cmnd 5124), (London, HMSO, 1972); Khan v Islington London Borough Council [2001] RVR 62.

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ridden by Parliament in the Settled Land Acts 1882–90, revised and consolidated in England and Wales in the Settled Land Act 1925. The Settled Land Acts facilitated the sale of property by a tenant for life, even though the life owner had only a limited interest in the land by reference to his or her lifetime. The Acts empowered the tenant for life to transfer the land to a purchaser outright. In the event of such a sale, the interests of subsequent owners—the succeeding generations— were ‘overreached’—that is, their claims were automatically converted from an interest in the land itself, for example the home, to an interest in the capital sum obtained on sale. This is particularly interesting in relation to the exploration of the idea of home in law in this book. For one thing, the Settled Land Acts sought to protect the purchaser of land by ensuring that he or she obtained good title to the land. Meanwhile the interests of succeeding generations in the land were converted into a money claim, with the inference that property in land was equivalent to property in a capital sum—that is, that the land itself was not a special piece of property.14 In fact, this policy went beyond the context of strict settlements and has had direct consequences in the context of creditor/occupier disputes concerning the occupied home. The idea that land is not a unique item of property but is readily exchangeable for any other kind of property was central to the policy of the 1925 property legislation, which sought to promote the alienability of land by treating it like a mere piece of capital. During the twentieth century, the strict settlement was almost wholly displaced by the trust for sale, which valued land ‘as an investment rather than as a home, to be bought and sold as market conditions demand, with the beneficiaries being interested in the proceeds of sale rather than the property for its own sake’.15 The trust for sale was also automatically imposed on any co-owned land,16 for example, a family home, so that whenever both partners had an ownership interest in the land, the law automatically imposed a trust for sale, 14 There was one exception to this general pro-alienation policy which related to ‘big houses’. S 10 of the Settled Land Act 1890 provided that where the estate included a ‘principal mansion house’, that is a house—which was not a farmhouse—set on an estate of more than 25 acres, the house could not be sold without the consent of ‘trustees of the settlement’, at least two persons appointed to oversee the administration of the settlement. 15 569 HL Deb (5th Series) col 1722 (1 Mar 1996) per Lord Mackey. Although Lord Mackey suggested that the Trusts of Land and Appointment of Trustees Act 1996 was intended to reintroduce the idea that ‘most co-ownership of property is for the purpose of providing a home rather than for an investment’, this shift in emphasis did not immediately reverse the ideological tide of the trust for sale: see further Ch 6. 16 ‘One of the consequences of the 1925 property legislation is that the legal estate in any property which is beneficially owned jointly or in common is necessarily held on trust for sale’: In re Citro [1991] Ch 142 at 150G. Although not specifically included in the statutory provisions, the court in Bull v Bull [1955] 1 QB 234 held that land vested in the name of a single owner, where another had a beneficial interest behind a trust, was also subject to a trust for sale. It was anticipated that the effect of the trust for sale would be to ensure that ‘whoever owns the land . . . when he comes to sell, the law will put him in the position that he is to be the absolute owner and . . . the buyer will have nothing to do with what lies behind’: 39 HL Deb (5th Series) col 265–6 (3 March 1920), Viscount Haldane.

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with the assumption that the property was held as an investment rather than for use and occupation as a home. It is perhaps one of the paradoxes of twentieth century land law that, whilst, on the one hand, the government was promoting the expansion of owner occupation with political rhetoric asserting that home ownership would enhance the meanings and the experience of ‘home’ for the occupier,17 at the same time developments in land law policy after 1925 were dominated by the rhetoric of land as investment rather than home, and the assimilation of land with other types of capital.18 The influence of home-oriented ideas on disputes between secured creditors and home occupiers in England and Wales is considered in Chapter 2. One noteworthy feature of the provisions governing these contests in English law is the absence of any significant systemic framework for the recognition of home-type interests. Chapter 2 will chronicle the emergence, and submergence, of home-type arguments in the creditor/occupier context. However, in contrast to other common law jurisdictions, the recognition of home-type interests in English law has not been organised around a central policy, but developed in a relatively ad hoc fashion. In other jurisdictions, including several Canadian provinces19 and most states in the USA,20 the influence of home values on legal developments was reflected in the enactment of ‘homestead-type’ legislative provisions. Homestead provisions are generally concerned with the protection, to a greater or lesser extent, of the home interests of occupiers against actions by creditors against the property,21 thus recognising an occupier’s specific interest in the home as a unique type of property. This type of policy is also echoed in the Irish Family Home Protection Act 1976, and, in Scotland, in the Matrimonial Homes (Family Protection) Act 1981, both of which protect the occupancy rights of non-owning spouses in the family home against third party creditors. While there is some evidence, in the law that regulates creditor actions against the occupied home in England and Wales, of the desire to pursue home-oriented policies, the principles and provisions that have been developed and adopted do not result in a comparable recognition of the significance of the ‘home’ interest. The legislative provisions and judicial principles that determine the ability of a creditor to bring a successful action for the possession or sale of an occupied 17

See Ch 5. See Ch 6. 19 Legislation confers rights on spouses to prevent unilateral dispositions of the family home without the consent of a non-transacting spouse in Ontario, British Columbia, Alberta, Manitoba, New Brunswick, Prince Edward Island, Nova Scotia, Quebec and Newfoundland. 20 46 out of 50 states offer some form of homestead exemption to protect equity in the home from the general reach of creditors. The amount of the exemption ranges from $500 in Iowa, to $200,000 in Minnesota, with 5 States offering total exemption. For further discussion of the operation of the homestead provisions in the USA see Ch 7. 21 The issues surrounding homestead protections in other jurisdictions and their significance in relation to law and policy affecting home in English law are considered in more detail in Ch 7. 18

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home when a debtor defaults on a loan which has been secured against the home are scattered across different areas of law, ranging from the regulation of coowned land to mortgages, from bankruptcy law to family law. The form that these proceedings will take depends on several factors: whether the debtor is a single individual or in a ‘family unit’; whether the action for sale of the home arises in the context of bankruptcy proceedings; whether the disputed property is solely or coowned; and whether the property is occupied as a dwelling house or as a matrimonial home. While the idea of home is often recognised as relevant in these contexts, the manner in which home interests are mediated highlights the need for a more coherent approach. The significance of the ‘home’ interest in the various principles and provisions that come into play in conflicts, over the home, between creditors and occupiers is unpacked further in Chapter 2. However, before analysing the ways in which the law has regulated disputes concerning home, it is useful to consider the issues at stake in this legal context.

The Creditor/Occupier Context The specific context of contests concerning possession and sale of the home between creditors and occupiers is particularly apt as a platform on which to analyse theories, laws and policies regarding home interests, for several reasons. One relevant factor is the particular clash of interests concerned in such cases. It is important to bear in mind that when policy makers are specifically motivated to elevate the status of the home, or to protect a particular home-type interest, this can readily be achieved without posing any major practical or theoretical difficulties, and without necessarily relying on a ‘concept of home’. The examples set out above, ranging from tax law to compulsory purchase, demonstrate the capacity for legal policy makers to recognise and value home-type interests when to do so furthers—or at least does not frustrate—policy aims in that area. The challenge, from a conceptual point of view, emerges when legal decision makers are required to balance the interests of occupiers in their homes against other interests. This tension is particularly evident when the competing interest carries significant weight in terms of policy goals as, for example, is the case when dealing with commercial claims. The commercial interest in property as capital, or as an investment asset, comes into direct opposition with the home interests of occupiers in a number of circumstances. These include, for example, the case where a landlord seeks to retake possession of property against the wishes of a residential tenant. Housing law has intervened in this area to regulate the circumstances in which a landlord can evict a residential tenant, usually by requiring that the landlord demonstrate ‘grounds

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for possession’—for example, that the tenant has defaulted in payment of rent.22 Another frequently occurring instance of this clash of interests is the context of disputes between secured creditors and the occupiers of mortgaged properties in the event of the debtor defaulting on repayment. As the discussion in Chapter 2 will demonstrate, the fact that the property is the occupier’s home has often been highlighted in this context, and may sometimes enable the occupier to delay the forced sale of his home. Ultimately, however, when balancing the occupier’s claim against that of a creditor, the occupier’s home interest is not regarded as sufficiently strong to outweigh the creditor’s commercial claim to be paid, usually by realising the capital value of the property.23 The overwhelming priority accorded to the interests of creditors in this context is usually justified by reference to the importance of enforcing their contractual rights, and thus ensuring that supplies of credit finance remain readily available to fund the owner occupied sector. These issues are outlined below, and considered in greater detail in Chapter 3, where it is suggested that the arguments typically advanced to support the prioritisation of the interests of creditors as a matter of economic necessity fail to take account of the full range of potential costs—both economic and non-economic—that are at stake in creditor/occupier contests. If this assertion is accepted, it opens up the possibility of analysing the competing interests of creditor and occupier without a presumption in favour of the creditor, and so justifies further analysis of the nature of the occupier’s home claim. However, in some respects the reasoning that must be adopted is circuitous. In order to justify further scrutiny of the home interest, it must first be accepted that the general presumption that ‘creditors must win’ is flawed. Yet, to challenge that presumption it is necessary to accept, prima facie at least, that there is some merit in the competing interest—the occupier’s home claim. Little attention has been paid, to date, to the home interests of the occupier since the outcome, vis-à-vis creditors at least, is regarded as a foregone conclusion. And so the cycle continues: it is presumed that creditors must win, and thus there is no reason or incentive for investigating the subtleties of the opposing claim. The absence of a legal concept of home, through which the interests of occupiers could be valued, creates both practical and analytical difficulties. From a practical perspective, it is difficult to make a persuasive argument in favour of the occupier without a central organising framework within which to locate individual claims. The legal principles and provisions that regulate creditor/occupier disputes are set out in Chapter 2. One highly significant aspect of this area of law is the frequency with which the courts are given discretion to determine whether, or on what terms, 22 It is significant to bear in mind, however, that, with the increasing use of short-term tenancies since the 1980s, it has become considerably easier for landlords to evict tenants at the end of an ‘introductory’ period, without providing grounds for possession. 23 See, eg, the landmark decisions in Re Citro [1991] Ch 142; Barclay’s Bank v Hendricks [1996] 1 FLR 258; Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 FLR 809.

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the creditor’s request for possession or sale of the occupier’s home should be granted. Yet, when balancing the interests of creditors in the capital represented by a property against an occupier’s claim to retain the land for use and occupation as a home, policy makers have had very little to go on regarding the elements that comprise the occupiers’ claims—for example, their financial interest in the property, the issue of shelter, nor to the less tangible aspects of the home interest such as their psychological, social and emotional attachments to the property. It is thus not surprising that adjudicators struggle to weigh these claims in the balance against competing interests. As Nourse LJ acknowledged in Re Citro, when discussing whether the court should order the sale of two family homes in order to repay the debts of a bankrupt debtor: The balancing which one is required to do between the interests of the creditors and the interests of the wives and families—who are of course entirely innocent parties—is by no means an easy thing to do. The two interests are not in any sense commensurable. On the one hand, one has the financial interests of the Crown, some banking institutions and a few traders. On the other, one has the personal and human interests of these two families. It is very hard to see how they can be weighed against each other, except in a way which involves some value judgment on the part of the tribunal.24

This statement encapsulates the clash of claims which arises when commercial interests come into conflict with home interests, and which provides an ideal backdrop against which to consider the legal concept of home. While the financial interests of the creditor are readily quantifiable in money terms, the ‘personal and human interests’ of the occupiers in retaining their homes cannot easily be measured in tangible terms. This difficult balancing exercise is frustrated further by the analytical obstacles created by the absence of solid conceptual grounds on which to attach weight to the interests of occupiers. The suitability of the creditor/occupier dispute as a paradigm through which to analyse the idea of home in law is only enhanced by the contemporary centrality of this conflict for citizens, for creditors and for government. The growth of owner-occupation in the twentieth century and the reliance on readily available credit that this engendered have highlighted the tensions between the interests of creditors and those of occupiers. The contemporary relevance of the creditor/ occupier context is also heightened by indications that, in recent decades ‘homeownership [has become] a far riskier undertaking than was hitherto the case’.25 Ford et al have argued that the rise in mortgage arrears and repossessions in the United Kingdom, initially attributed to the specific economic conditions of recession in the early 1990s, can actually be linked to ‘a set of more enduring 24

[1991] Ch 142 at 150, quoting from Hoffman J’s High Court judgment in this case. J Ford, R Burrows and S Nettleton, Homeownership in a Risk Society: A Social Analysis of Mortgage Arrears and Possessions (Bristol, The Policy Press, 2001), preface, p vi. 25

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socio-economic transformations which have raised the “normal” level of risk associated with home ownership compared to that which pertained in earlier periods’.26 The ‘pathology’ of unsustainable home ownership has been attributed to an ‘epidemiology’ linked to patterns of relationship breakdown, current employment status, social class differences and responsibility for high percentage mortgages—all factors that impact particularly strongly on low income households—and an ‘aetiology’ linked to systemic issues such as the expansion of home ownership, demographic transformations, economic transformations and the restructuring of safety-net provisions.27 Since, in such a climate of ‘unsustainable home ownership’, the issues raised by conflicts between creditors and occupiers will continue to require the attention of the courts, of law reform and government policy agencies and of Parliament, this adds weight to the argument in support of a more explicit articulation of the respective interests of creditors and occupiers in domestic property, in order to enable their respective claims to the property—as a capital asset for security or as a home—to be properly balanced.

The Concerns of the Creditor It is a truism that, in disputes between creditors and occupiers, the creditor almost invariably wins. Legislative and judicial policy makers have routinely favoured the interests of creditors over those of occupiers, thus demonstrating the greater weight attributed to the concerns of creditors over those of occupiers.28 It is not difficult to understand why this has been the case. For one thing, the creditor has a legitimate expectation, when he lends money against the security of real property, that the debt will be satisfied or the security honoured. Furthermore, there are a series of policy arguments to bolster the creditor’s case, for example, the potentially adverse consequences of diminishing the legal protection of creditors’ interests on the availability of credit secured against domestic property, either for acquisition of the property itself or as business capital. By contrast, the occupier’s interest in the property which a creditor is seeking to realise as a home is not only inconvenient— operating as it could to subjugate the claims of creditors, whose economic clout weighs heavily on the balancing scales—but also difficult to ascertain or represent, relative to the creditor’s interest. While the creditor’s concerns, which essentially revolve around their economic claim on the property as capital, are relatively straightforward, the occupier’s interest in retaining the home for use and occupa26 J Ford, R Burrows and S Nettleton, Homeownership in a Risk Society: A Social Analysis of Mortgage Arrears and Possessions (Bristol, The Policy Press, 2001), 44. 27 Ibid. For further discussion of these issues, see Ch 5. 28 The relevant principles and provisions are considered in more detail in Ch 2.

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tion is much more complex, and, with its many dimensions—financial, practical, emotional, psychological, social and so on—more difficult to quantify.29 If, accepting the arguments set out in Chapter 3, the presumption that the creditor must prevail is set aside and the claims of creditors are to be genuinely and objectively balanced against the interests of occupiers, policy makers must have a clear conception of the nature of each of the interests being measured against each other. The concerns of the creditor are obviously an important factor to be weighed in any formulation of policy in this area. Furthermore, the creditor’s interest in the occupier’s home is relatively easy to ascertain. When creditors take security,30 they acquire an economic claim on the relevant property, often the debtor’s home. The arguments, albeit straightforward, for enforcing this economic claim have been well rehearsed. The object of taking security is to ensure that, should the debtor default on repayment of the capital, creditors will be able to look to a range of remedies, such as possession and sale of the debtor’s property, in order to ensure that their capital outlay is effectively recouped.31 Of course, the risk that a debtor will default on repayments is an inherent element of the credit process,32 and it has been suggested that creditors are adequately compensated for the risk of default through their profits from interest payments.33 Nevertheless, creditors are unlikely to lend capital unless the law enforces remedies protecting their interests in the event of default by the debtor.34 Thus, in the interests of ensuring adequate supplies of credit finance, the law seeks to ensure that creditors are able to enforce their proprietary rights against the secured property in the event of default. The proprietary remedies that flow from security can function on a number of levels when it comes to ensuring that capital is repaid: they act as an inducement on the debtor to perform his obligations;35 as a sanction against non-payment;36 29 Nevertheless, as Ch 3 will demonstrate, there are strong arguments in support of revisiting the case on behalf of the occupier, bearing in mind the full range of issues at stake in creditor actions for possession and/or sale. 30 Security can be acquired either ab initio or through an application for a charging order under the Charging Orders Act 1979, for ex post facto securitisation. 31 In this respect, the proprietary remedies may operate as an inducement to the debtor to pay, as a sanction against non-payment, or as a remedy of last resort through possession and sale. 32 ‘In the ordinary consequence of human experience the creation of credit may in the event be misplaced, resulting in a debt which is not recoverable in full’: Report of the Committee on Bankruptcy and Insolvency (Cmnd 8558) (London, HMSO, 1982), para 5. 33 ‘Nowadays . . . credit is accepted by the general public as a normal everyday thing . . . with the creditors absorbing whatever risks of non-payment they can foresee in their rates of interest’: G Borrie, The Credit Society—its Benefits and Burdens (Eleanor Rathbone Memorial Lecture, Liverpool, Liverpool University Press, 1986) 6. 34 As Karl Llewellyn wrote, ‘as . . . credit, and particularly the industrial aspects of an economy gain ground, it becomes hard to escape the positive case for utility of legal enforcement of promises’ in ‘What Price Contract? An Essay in Perspective’ (1930) 40 Yale Law Journal 704 at 714. 35 Ibid, at 714. 36 ‘[T]he effectiveness of execution as a mode of enforcement rests in the threat to sell’; Report of the Committee on the Enforcement of Judgment Debts (Cmnd 3909) (London, HMSO, 1969), para 635.

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and, finally, as a remedy of last resort for the creditor in the event of default by allowing the creditor to sell the property and recoup capital losses. Thus: ‘[t]he law provides techniques for taking “hostages” against defective performance and then, in the event of breach of contract, the “hostage” can be executed. The “hostages” are called security . . .’.37 It is a characteristic feature of proprietary security that: ‘[t]hese property rights can be asserted unilaterally, without the co-operation of the party in breach of contract, in order to punish or compensate for default’.38 Although creditors are unlikely to pursue these remedies so long as the debtor does not default, the existence of adequate remedies for the enforcement of security is considered necessary in order to ensure that those who lend capital are willing to fund the acquisition of property. It is generally accepted that any legal development which places hurdles in the path of the creditors’ ability to realise security could have an adverse effect on the availability of credit finance or impact negatively on the costs of credit for consumers. Thus, since the viability of the substantial proportion of housing stock in owner occupation depends upon the availability of affordable credit, it is assumed that the financial concerns of creditors are an important factor to be weighted in any formulation of policy in this area.

Securing Credit Supplies: Acquisition and Non-acquisition Finance The importance of ensuring the availability of adequate supplies of affordable credit is often advanced as an argument in support of creditors’ rights to enforce their security against owner-occupied property. In fact, it is particularly interesting to note that, while this line of reasoning is clearly an argument in support of the creditor, which may result in the forced sale of the occupier’s home, the occupier is assuaged with the reassurance that the court, in acceding to the creditor’s request for possession or sale, is merely being ‘cruel to be kind’. Both judicial and legislative rhetoric has been advanced to suggest that, notwithstanding the persuasiveness of the occupier’s home interest, any diminution in the protection afforded to creditors: may in the end prove detrimental to the public interest, because money will not be lent to men who have houses in case they should thereafter turn out to have a deserted wife, or should thereafter desert their wives, and so deprive their creditors of their security.39

Similarly, in parliamentary debates preceding the introduction of the Matrimonial Homes Act 1967, Lord Cohen indicated that any policy initiative adopted to protect the non-owning spouse with regard to her occupation of the family home 37 38 39

H Collins, The Law of Contract (4th edn, London, LexisNexis Butterworth, 2003), 18. Ibid. Barclays Bank Ltd v Bird [1954] 2 WLR 319 at 322, per Harman J.

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ought not to ‘make it too difficult for a husband, when he is looking for a matrimonial home, to borrow money’.40 When evaluating the arguments surrounding the availability of credit, it is important to note the distinction between acquisition finance and nonacquisition finance. Of the two examples set out above, the first is indicative of concerns about the availability of non-acquisition finance or further advances: ‘money will not be lent to men who have houses’—ie when seeking to borrow money against the security of their existing property. The other example is concerned with acquisition finance: ‘a husband when he is looking for a matrimonial home’. The protection of credit supplies in each case raises different issues. When the object of ensuring a readily available supply of credit is linked to access to home ownership, the issue at stake is the availability of acquisition credit to fund the purchase of houses by owner occupiers. By contrast, with non-acquisition finance or further advances, the objective is to enable an existing home owner to use their property as security, usually for business loans, improvements to the property or to secure consumer debt. The relative desirability of facilitating acquisition and non-acquisition credit is considered further in Chapter 3. In the case of the Matrimonial Homes Act example above, the policy adopted was designed to ensure that creditors would remain willing to make further advances against the security of the debtor’s home.41 Interestingly, in this context the likelihood that ‘[w]e are dealing with the sort of people whose only asset is the matrimonial home’42 was regarded as an argument in support of allowing creditors to realise this ‘only asset’ in order to repay the capital sum owned. A similar policy can be discerned from a series of decisions handed down by the Judicial Committee of the House of Lords, which also appears to believe that the home should be available and attractive to creditors as security for both acquisition and non-acquisition credit. For example, in Abbey National Building Society v Cann,43 the House of Lords had to consider the degree of protection to be accorded to acquisition and non-acquisition creditors when determining the priority of their claim relative to other claimants with an equitable interest in the property—for example, a debtor’s partner. The relevant provisions turned upon the date on which the other claimant would have to establish ‘actual occupation’ in order to ensure priority vis-à-vis the creditor.44 By holding that the relevant date by which an occupier was required to establish ‘actual occupation’ in order to ‘override’ a credit transaction was the date on which the purchase was completed (rather than the date on which the charge was registered), the court ensured that 40

275 HL Deb (5th Series) col 46 (14 June 1966), Lord Cohen. ‘It may be their only capital asset on which they can raise money; and that is quite common, particularly among young married people’: 275 HL Deb (5th Series) col 1208 (7 July 1966), Lord Derwent. 42 275 HL Deb (5th Series) col 1208 (7 July 1966), Lord Derwent. 43 [1991] 1 AC 56. 44 Land Registration Act 1925, s70(1)(g). 41

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in cases where the charge was simultaneous with the purchase—that is, where acquisition finance is secured against the property—the occupier would have no opportunity to establish ‘actual occupation’ between the completion of the purchase and the securitisation of the creditor’s claim. Thus, the House of Lords ensured that acquisition mortgagees would be automatically protected against the claims of occupiers with equitable interests (in this case, Mrs Cann). This outcome was justified by reference to the dependence of one transaction—the purchase of the home—on the other—the provision of acquisition finance. Lord Oliver noted that: [t]he acquisition of the legal estate is entirely dependent upon the provision of funds which will have been provided before the conveyance can take effect and which are provided only against an agreement that the estate will be charged to secure them.45

The broader policy issues surrounding acquisition finance will be considered further in Chapter 3. However, it is worth bearing in mind that there may also be an arguable case that not only is the creditor’s claim strong, but the occupier’s home interest is relatively weaker against an acquisition creditor, since not only would the occupier have been unable to occupy the property as a home in the first place without the initial advance from the creditor, but at least at the time the loan was made, the occupier would not yet have been established in the property. Thus, many of the meanings associated with living in a property as a home—for example, psychological attachment to the specific property—would not yet have developed. While these arguments appear to suggest that the interests of acquisition creditors should carry greater weight than those of creditors who provide nonacquisition finance against the security of an occupied home, it is interesting to note that the idea of a ‘public interest’ in ensuring the availability of credit has typically been raised in contexts concerning non-acquisition finance, such as remortgaging or secured overdraft facilities. For example, in Barclay’s Bank plc v O’Brien,46 a case concerned with whether or not a third party creditor would be bound by a misrepresentation by a debtor who had exerted influence over his coowning spouse in order to obtain her consent to a loan secured against their joint home, Lord Browne-Wilkinson stated that: it is important to keep a sense of balance in approaching these cases. It is easy to allow sympathy for the wife who is threatened with the loss of her home at the suit of a rich bank to obscure an important public interest viz, the need to ensure that the wealth currently tied up in the matrimonial home does not become economically sterile.47 45 46 47

Above n 43 at 92, per Lord Oliver. [1994] 1 AC 180. Ibid, at 188, emphasis added.

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Rather than focusing on the availability of acquisition credit to fund owner occupation, this case was concerned with ensuring the attractiveness of the family home as security for further, non-acquisition debts. In fact, the House of Lords was particularly concerned to ensure that the matrimonial home would remain attractive as security for business debts. In O’Brien, Lord Oliver (once again) reasoned that: If the rights secured to wives by the law render vulnerable loans granted on the security of matrimonial homes, institutions will be unwilling to accept such security, thereby reducing the flow of loan capital to business enterprises. It is therefore essential that a law designed to protect the vulnerable does not render the matrimonial home unacceptable as security to financial institutions.48

The issues surrounding the availability of the home as security for business loans are more controversial than those pertaining to acquisition finance. The range of issues at stake are considered in more detail in Chapter 3; however, even at a glance it is not difficult to appreciate the significance of the connections between the rise of home ownership in Britain, combined with diminishing stocks of alternative accommodation,49 and the need to ensure that creditors are willing to finance house purchases through acquisition credit. On the other hand, the proposition that the home should be widely utilised as security for business, and other nonacquisition, debts has not been universally supported. There has been much debate surrounding the desirability of encouraging the use of the home—particularly a family home—as security against business debts. While judicial policy appears to support the use of the owner-occupied home as security for non-acquisition debts, some commentators have argued that the risk involved in such a venture is too great, and that the interest of the family in preserving its home outweighs the arguments in support of facilitating credit transactions. Barlow, for example, has argued that, ‘[w]hile restricting the availability of the family home as an easy means of securing business credit and reducing its attractiveness to lenders . . . are consequences . . . which commercial vested interests may oppose’,50 the role of the property as a family home necessitates a more circumspect approach. Although she acknowledged the sway of the commercial claim, Barlow suggested that the use of the family home as security for non-acquisition credit should not be encouraged. She concluded that: forcing creditors to inform and consult a client’s partner, consider business plans more thoroughly and ultimately find other suitable means of guaranteeing loans are outcomes worth pursuing in the interests of family life.51 48

Ibid. See further Ch 5. 50 A Barlow, ‘Rights in the Family Home—time for a Conceptual Revolution’ in A Hudson (ed), New Perspectives on Property Law, Human Rights and the Home (London, Cavendish, 2004), 75. 51 Ibid. 49

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In contrast, Richardson52 adopted a much more cautious approach with regard to the potential consequences of inhibiting the power of occupiers to use their homes as an asset on which to secure non-acquisition capital. Another interesting factor to bear in mind, however, is that Richardson’s position was largely motivated by her concern to avoid a paternalist approach towards the interests of people—often women—who agree to allow debtors—often their partners—to secure credit against a jointly owned property. Richardson’s reasoning did not necessarily support the use of the home as security per se; rather she wanted to ensure that women were not barred from making decisions to use their property in that way, should they so wish, by being treated as ‘vulnerable’ for the purposes of undue influence in contractual arrangements. Although this issue is undoubtedly significant, and would have consequences for the availability of loan capital to fund business enterprises, the central issue at stake was the capacity of women to enter binding contracts rather than the suitability of the home as a standard method of securing business debts and other non-acquisition loans.53

The Practicalities of House Purchases Another argument typically advanced in support of the law’s prioritisation of the creditor’s claim is the potential impact of any legal development which places obstacles in the path of creditors on conveyancing practice and, as a consequence, on the costs of house purchases for owner occupiers. There has been some difference of opinion on this subject. In some cases it has been argued that the knockon effect that policies seeking to protect occupiers may have on the practicalities of house purchasers should not be relevant to the formulation of policy in this area. For example, in Williams & Glyn’s Bank v Boland,54 a landmark case in which the bank’s claim to possession of the debtor’s house on default was blocked by the debtor’s wife’s interest in the property—which the creditor had not made inquiries into—the House of Lords reasoned that: a practice of more careful inquiry as to the fact of occupation, and if necessary, as to the rights of occupiers can not, in my view of the matter, be considered as unacceptable except at the price of overlooking the widespread development of shared interests of ownership.55

In the same decision, Lord Scarman argued that the courts ‘must not flinch when assailed by arguments to the effect that the protection of her interest will create dif52 M Richardson, ‘Protecting Women who Provide Security for a Husband’s, Partner’s, or Child’s Debts: The Value and Limits of an Economic Perspective’ (1996) 16 Legal Studies 368 at 378. 53 This issue is considered further in Ch 3. 54 [1981] AC 487. 55 Ibid, at 508–9, per Lord Wilberforce.

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ficulties in banking or conveyancing practice’.56 In fact, Lord Scarman suggested that: The difficulties are, I believe, exaggerated: but bankers, and solicitors, exist to provide the service which the public needs. They can—as they have successfully done in the past— adjust their practice if it be socially required.57

Against this, however, the ‘cruel to be kind’ argument has been raised once again, by linking adverse effects for the creditor with disadvantage for consumers: that is, that, by prioritising the concerns of the creditor, the court is actually safeguarding the interests of borrowers. Lord Templeman epitomised this line of reasoning in a House of Lords debate, following the decision in Boland, when he argued that ‘[n]o one has great sympathy for lenders or banks . . . [but] the point is that at the end of the day it is the borrower who pays, unless there is some speedy and efficient method of conveyancing’.58 Any incursion into the protection of the creditor’s ability to realise the security would, it is presumed, not only inhibit dealings in property, but would also ‘add to the expenses and complications of mortgages on houses and other dealings’.59 Nevertheless, it is interesting to note, as a postscript, that within five years the Law Commission had acknowledged that ‘conveyancers have learnt to live with it’,60 and in fact welcomed the practice of wider inquiry and consultation which had followed the decision in Boland.

Evaluating the Creditors’ Concerns It is interesting to note that the arguments advanced in support of the pro-creditor stance within legal discourse are not typically supported by reference to empirical data regarding the relationships between credit availability, interest rates and creditor protection.61 Nevertheless, only a few, occasional, voices of dissent have challenged their authenticity. In 1966, Lord Denning suggested that ‘the fears about a young couple not being able to raise money are not supported in the least. It is mere speculation’;62 yet this question mark was left hanging in the air, as policy discussion proceeded on the assumption that creditors must be adequately protected, not only for their own sakes, but in the broader interests of credit availability and consumers in general. The question was raised again by Simon Gardner, when he questioned the ‘values to which we have become accustomed 56 57 58 59 60 61 62

Ibid, at 510, per Lord Scarman. Ibid. 437 HL Deb (5th Series) col 650 (15 December 1982) Lord Templeman. 275 HL Deb (5th Series) col 32 (14 June 1966), Lord Derwent. Third Report on Land Registration, Law Com No 158 (1987), para 2.63. These issues are considered further in Ch 3. 275 HL Deb (5th Series) col 646 (28 June 1966), Lord Denning.

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from this post-modernist House of Lords’, specifically their Lordships’ assumptions regarding the weight that must be attached to creditors’ interests. Gardner noted that the position adopted by the House of Lords in a range of cases had succeeded in ‘swinging disputes over mortgaged family property in favour of the lending institutions’.63 Gardner concluded that: ‘[t]heir Lordships presumably know why the change of policy is to the good. Perhaps it is aimed at undermining the Chancellor’s economic strategy by reducing banks’ costs and thus interest rates. Or then again, perhaps not. It would be interesting to learn’.64 One of the aims of this book is to consider afresh the interests at stake in the creditor/occupier context by setting aside the presumptions that have tended to dominate legal decision making in this area. For example, when analysing the extent to which legal policy should be directed by the interests of the creditor, concerns regarding the availability of credit and the need to facilitate credit transactions, it is perhaps worth bearing in mind that, in the early years of the twenty-first century, mortgage providers in the UK appear to be even more enthusiastic when it comes to lending money for house purchases than ever before. Susan Smith has recently suggested that ‘[m]ortgage lenders, whose concern was once with product rationing, have been vigorously marketing their loans in an intensely competitive environment’.65 Perhaps the difficulties that have been anticipated in respect of the availability of credit for house purchases are not as acute as they have, in the past, been presumed to be. In fact, Smith suggested that, when seeking to improve the current mortgage market, the spotlight should be shifted from the protection of creditors towards a more consumer-oriented approach. That is, that: there may be scope to develop more direct measures to mitigate the risks to individuals; supporting households might be as big a boost to lending as protecting lenders from risky individuals. There is a case too that . . . more might realistically be asked of ‘the market’ without jeopardising the economy.66

Smith recognised, of course, that ‘[t]he possibility that “the market” for homes might be different in any fundamental way—that the bottom line for markets may 63 S Gardner, ‘A Woman’s Work . . .’ (1991) 54 Modern Law Review 126 at 128. Gardner went on to add that ‘[t]en years ago, Lord Scarman had remarked, in Williams & Glyn’s Bank Ltd v Boland: “The courts may not . . . put aside, as irrelevant, the undoubted fact that if the two wives succeed the protection of the beneficial interest which English law now recognises that a married woman has in the matrimonial home will be strengthened”. Lord Oliver now replies, in Abbey National Building Society v Cann: “This appeal raises yet again what has become a familiar hazard for banks and building societies . . .”’ ibid. 64 Ibid. 65 S Smith, Banking on Housing: Speculating on the Role and Relevance of Housing Wealth in Britain (Paper prepared for the Joseph Rowntree Foundation Inquiry into Home Ownership 2010 and Beyond, 2005) 4. 66 Ibid, 30.

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be defined ethically and socially as well as financially, for example—is . . . rarely entertained’.67 When she called for greater consideration of the issues surrounding home acquisition mortgages, from a more socially-oriented perspective, Smith acknowledged that ‘while a certain inertia on these points might be expected among politicians and policy makers, it is increasingly hard to justify in the research community’.68 When it comes to balancing the claims of a creditor against the interests of an occupier, the concerns of the creditor are readily comprehensible and need little by way of exposition. When creditors bring actions to realise their security, the creditor’s claim already weighs heavily in the balance. Even aside from the economic arguments frequently advanced in support of the creditor’s claim, the creditor clearly has a legitimate claim to the enforcement of proprietary security. Rather, the gap in the legal reasoning process pertains to the factors that must be weighed against the creditor’s claim, on the side of the occupier. When a judge is asked, by a creditor, to order possession and sale of property for the purpose of realising the capital secured against it, the court’s task, as Nourse LJ acknowledged in Re Citro,69 is to balance the creditor’s claims against the defendant occupier’s interest in retaining their home. Nevertheless, this balancing exercise is carried out without any clearly articulated concept of the nature, scope or dimensions of the occupier’s interest in the home. The object of this book is therefore to consider how such interests might be represented within legal frameworks. The process of identifying the meanings and values which might inform a legal concept of home, and so be ‘weighed in the balance’ on the occupier’s side when decisions are made involving conflicts between home interests and commercial interests, will be explored in Chapter 4. First, however, the next section will introduce the idea of the occupier’s ‘home’ interest by outlining in brief some of the issues relevant to the occupier’s perspective, and the arguments in support of a more comprehensive analysis of the occupier’s home interest.

The Concerns of the Occupier While the creditor’s concerns are relatively straightforward, the home interests of occupiers are much more complex and difficult to quantify. Chapter 4 will analyse the meanings of home to occupiers by considering five broadly drawn clusters of value-types: home as a financial investment, which reflects the importance of the home as a financial asset for the owner(s); home as a physical structure, which offers 67 68 69

Ibid, 31. Ibid, 31. See above, n 24 and associated text.

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material shelter, a roof over one’s head; home as a territory, which offers security and control, a locus in space, permanence, continuity and privacy; home as a centre for self-identity, which offers a reflection of one’s ideas and values, and acts as an indicator of personal status; and finally, home as a social and cultural unit, which acts as a locus for relationships with family and friends, and as a centre for activities. As Chapter 4 will demonstrate, the idea of ‘home’ as a meaningful concept is well established in other disciplines. By drawing upon understandings of the meaning of ‘home’ as they have developed in other disciplines, legal scholars can begin to appreciate that an occupier’s desire to retain the property for use and occupation as a home is not merely sentimental but may also encompass multidimensional economic and non-economic interests, including financial, practical, emotional, psychological, social and cultural matters. These meanings can operate to intensify the occupier’s attachment to their home, and to exacerbate the experience of losing the home through actions at the hands of a creditor. However, attempts to argue ‘home’ interests in law, particularly when positioned against financial interests, are beset by difficulties. Although interdisciplinary research has established the authenticity of home meanings, the relationship between an occupier and his or her home—inherently intangible and difficult to define—is not readily comprehensible to lawyers. For one thing, as home scholars in other disciplines have recognised, an occupier’s interest in his or her home is: a relative concept, not an absolute one that can be defined in a dictionary or by a linguist. Given that it transcends quantitative, measurable dimensions and includes qualitative subjective ones, it is a complex, ambiguous concept that generates confusion.70

It is often difficult to verbalise ideas about home, since they are highly personal, and this adds to the analytical obstacles.71 Perhaps even more significantly, particularly in the legal domain, the idea of a personal attachment to one’s home can be portrayed as sentimental and emotional, and as a consequence can become trivialised, particularly when measured against the objective and quantifiable claims of creditors to the capital value of the property. These characteristics provide a ready argument against attempts to develop a coherent legal concept of home. Nevertheless, even setting aside our instinctive appreciation of the importance of home, the proposition that home is a meaningful site and the authenticity of the attachment of occupiers to their homes have been firmly established in other 70 RJ Lawrence, ‘Deciphering Home: An Integrative Historical Perspective’ in DN Benjamin (ed), The Home: Words, Interpretations, Meanings, Environments (Aldershot, Ashgate, 1995) 58. 71 G Hayward, ‘Home as an Environmental and Psychological Concept’ (1975) 20 Landscape. Dovey also described the difficulties associated with the concept of home: ‘home is not an empirical variable whose meaning we might define in advance of careful measurement and explanation. As a consequence, understanding in this area is plagued by a lack of verifiability that many will find frustrating’: K Dovey, ‘Home and Homelessness’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985), 34.

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disciplines. In light of this scholarship and the centrality of home to legal discourse, the idea that the subject of ‘home’ is too difficult for law to comprehend is indefensible.

The Value(s) of Home One aspect of the occupier’s home interest that has effectively taken hold on our popular consciousness is the contemporary owner-occupier’s financial stake in the property that is occupied as a home. The ‘asset value’ of owned housing has tremendous financial significance—as Smith recently suggested, ‘the wealth of many owner-occupiers is accumulating faster in their homes than through their incomes’.72 Green and Lim have argued that: Homes moved inexorably into the marketplace in late 20th century England in a process of commodification which placed an emphasis upon ‘exchange value benefits (investment value and capital gains)’ such that housing is no longer ‘regarded as an engine for social improvement’, but a ‘consumer good’ like any other.73

Furthermore, not only is the owner-occupier’s home regarded as a repository of wealth, but the desire to release capital through use of the property as security is strong, as wealth tied up in the home is currently regarded as ‘more “spendable” now than it will be ever again’.74 The traditional idea of home ownership as a repository of financial value focused on retaining the asset wealth represented by the property—that is, that: the asset value of housing . . . accumulates over the life course, provides a cushion (in the form of low housing costs) for old age, and flows on to the next generation through inheritance.75

However, more recently, a new expectation has emerged—borne of political discourse—that ‘housing wealth [should be used] to meet a range of household expenditures, in particular to meet the costs of care in older age, and to supplement pensions’.76 Smith concluded that:

72

Smith, above n 65, 4. K Green and H Lim, ‘Weaving Along the Borders: Public and Private, Women and Banks’ in S Scott-Hunt and H Lim (eds), Feminist Perspectives on Equity and Trusts (London, Cavendish, 2001) 94. Green and Lim cite R Madigan and M Munro, ‘Ideal Homes: Gender and Domestic Architecture’ in T Puttnam and C Newton (eds), Household Choices (London, Future Publications, 1990), 29. 74 Smith, above n 65, 2. See also discussion above, at nn 39–53, and associated text. 75 Ibid, 11. 76 Ibid. 73

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Valuing Home: Theories, Laws and Policies the scene is set for more, rather than less, use to be made of the opportunity to use housing equity across the lifecourse. It may not, for long, remain a resource for old age, much less a component of inheritance. Rather it may be viewed as a store of wealth which can be made available to spend on other things.77

While the idea of home as a financial asset remains central to its value, this shift in the general perspective, from the owned home as a long-term repository of asset value to the presumption that it represents a fund of encashable wealth from which capital can be drawn, has implications for the distinction between acquisition and non-acquisition credit. The idea that owner-occupiers routinely perceive their property as an asset to be used for securing further loans is consistent with a rise in demand for the securitisation of non-acquisition credit against the home. Nevertheless, significant as the financial aspects of home may be, there is clearly ‘more to it’ from the occupier’s perspective. Interdisciplinary research has greatly enhanced our understanding of the values which home represents to its occupiers;78 the nature of the relationship between the occupier and the home;79 and the effect of involuntary loss of home on the wellbeing of occupiers.80 Yet still, the apparently ‘unscientific’ nature of home has inhibited the development of the concept in law. The difficulties associated with the idea of home in law can be linked, in part, to the very nature of legal reasoning. Since legal analysis tends to favour the rational, the objective and the tangible,81 when the concerns of the occupier in the context of mortgage possession actions are considered by a court: Reason responds to intangibility by reducing terms such as home to precise and bounded definitions. Rationally considered, a home becomes reduced to a house; the meaning and experience of home as a relationship becomes confused with the object through which it is currently manifest.82

These difficulties have also inhibited academic analysis of home: when one housing lawyer attempted to ascertain the value provided to an occupier by their home, above and beyond the obvious values of capital and shelter, he ultimately concluded that:

77

Smith, above, 12. See eg, C Despres, ‘The Meaning of Home: Literature Review and Directions for Future Research and Theoretical Development’ (1991) 8 Journal of Architectural and Planning Research 96; SG Smith, ‘The Essential Qualities of a Home’ (1994) 14 Journal of Environmental Psychology 31. 79 Altman and Werner, above n 71; Benjamin, above n 70. 80 M Fried, ‘Grieving for a Lost Home’ in J Duhl (ed), The Urban Condition—People and Policy in the Metropolis (New York, Basic Books, 1963); JD Porteous, ‘Domicide: The Destruction of Home’ in Benjamin, above n 70. 81 See D Sugarman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in W Twining (ed), Legal Theory and the Common Law (Oxford, Blackwell, 1986). 82 K Dovey, ‘Home and Homelessness’ in Altman and Werner, above n 71, 52. 78

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In the long pursuit of this chimera, the hunter always circles back to his starting point and finds no more, yet no less than a dwelling, located in space, within and beyond which individual human beings grouped in households engage in a complex set of activities.83

More recently, in London Borough of Harrow v Qazi,84 the House of Lords dismissed the suggestion that ‘home’ could be distinguished, conceptually, from the basic physical structure of a house on the grounds that such a concept could amount to no more than ‘something ethereal, floating in the air, unconnected to bricks and mortar and land’.85 The proposition that home could be valued in law, other than as a physical structure or a capital asset, was rejected using language evoking images of a vaporous, insubstantial (non)entity. The evidence of home scholarship in other disciplines has demonstrated that, while the phenomenon of ‘home’ may be intangible in a ‘bricks and mortar’ sense ‘it is a profoundly symbolic term and any attempt to translate it as “house” oversimplifies’.86 There is no doubt that home is a difficult concept to pin down. It presents challenges of definition and measurement and, as an ultimately experiential phenomenon, is difficult to prove. Nevertheless, the fact that home is not an easy subject for legal analysis does not justify ignoring the values which it represents. As one author has indicated in an analogous context,87 the phenomenon of home is ‘too prevalent and too significant to be deemed inappropriate and then forgotten’.88 Furthermore, it would be erroneous to suggest that there is no basis on which to build a scientifically informed idea of home in law. As Chapter 4 will demonstrate, empirical research and theoretical analysis in other disciplines have established the authenticity of home meanings, and now provide a conceptual springboard from which to launch a more comprehensive investigation into the interests of occupiers in their homes. Furthermore, as Chapter 3 will show, once the presumption that creditors must always prevail is set aside, the argument for conducting such analysis becomes compelling. However, before these issues are considered, Chapter 2 will explore the ways in which ‘home-oriented’ arguments have been dealt with, within the legal system, in creditor/occupier contests to date.

Conclusions The challenge of conceptualising home for law raises many difficult and complex issues, not least when the forum within which the occupier’s home interest is 83 84 85 86 87 88

S Merrett, Owner-Occupation in Britain (London, Routledge, 1992), 65. [2003] UKHL 43. Ibid, para 145, per Lord Scott. K Dovey, ‘HOME: An ordering principle in SPACE’ (1978) 22 Landscape 27 at 28. When examining the extent of agreement amongst scholars concerning the terminology of home. DN Benjamin, ‘Afterword’ in Benjamin, above n 70, 294.

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analysed is the balance struck between the commercial claims of creditors and the home interests of occupiers. While this book seeks to establish the arguments in support of a more coherent concept of home in law, it is important to emphasise that the basic legitimacy of the commercial claims of creditors is not questioned. Although it is tempting to characterise the competing interests as a battle between David and Goliath, or, indeed, between the ‘little woman and the big bad bank’,89 it is important to bear in mind that: all organisations established to lend money for house purchase are in essence financial institutions operating in the market place with responsibilities to their shareholders or investors to secure their investment and minimise losses.90

The argument of this book does not seek to undermine the importance of this interest, but rather to highlight that, while there is little difficulty—either conceptually or in policy terms—with the recognition of such interests in the legal domain, the home interest presents major difficulties, not least because little effort has been made to date to conceptualise this interest within the legal framework. Consequently, there are two important matters to bear in mind when proceeding with the analysis of the creditor/occupier context set out in this book. First, it is important to recognise that, when considering the question of striking a different balance between the competing claims of creditors and occupiers, there can be no question of the creditors losing their proprietary rights in the property. In fact, to suggest that they would lose their proprietary interests would not only raise issues concerning a breach of Article 1 of the First Protocol to the European Convention of Human Rights, as given effect to in English law by the Human Rights Act 1998,91 but would undoubtedly have a drastically detrimental effect on the mortgage market, in terms of either the availability or cost of credit.92 Furthermore, as the analysis of current legal approaches in Chapters 2 and 3 will indicate, such a suggestion would require a complete reversal of current policy. Realistically, greater recognition of the occupier’s home interest is not going to result in disregarding the creditor’s interest but, at most, in striking a different balance between the claims, perhaps by requiring that the creditor is, in certain circumstances, required to suffer a delay in the enforcement of his legal rights over the property. The analysis set out in this book considers both conceptual and practical issues pertaining to the development of the legal concept of home. In relation to the 89 The phrase is borrowed from S Cretney, ‘The Little Woman and the Big Bad Bank’ (1992) 109 Law Quarterly Review 534. 90 C Hunter and J Nixon, ‘Better a Public Tenant than a Private Borrower Be’ in D Cowan (ed), Housing: Participation and Exclusion (Aldershot, Ashgate, 1998) 92. 91 See further Ch 10. 92 See further Ch 3.

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creditor/occupier dispute, one practical question might be whether, when striking a balance between creditors’ rights to security and the occupier’s interest in living in the property as a home, the creditor should be entitled to enforce its proprietary security against the home ‘on demand’ or whether the occupier’s home interest should be taken into account to justify a delay in the enforcement of the creditor’s security interest. Thus, the creditor’s interest would not be eliminated, but the creditor could be required to wait for his rights, either while giving the home occupier more time to organise their financial affairs, to make adequate arrangements regarding another property, or to ensure that the occupiers are not evicted from their home until some other specific date, such as the date at which any children living in the property reach the age of majority or are ready to leave full-time education. It is interesting to bear in mind that the idea of a delay in the enforcement of the creditors’ rights was the basis for section 36 of the Administration of Justice Act 1970, which provides that the court has a discretion to delay the enforcement of possession orders for a limited period of time, where the disputed property is a dwelling-house and ‘it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage’.93 This provides a rare example of a legal context in which (what are in substance) home considerations are taken into account. It is important, however, to bear in mind that the conditions for the exercise of this discretion are strict. The court will not refuse to make an order for immediate possession at the request of the creditor unless the debtor can show that they have the financial capability to make good on arrears within a ‘reasonable time’ whilst continuing to meet instalments as they fall due.94 One of the interesting issues to arise in the application of section 36 has been what amounts to a ‘reasonable time’ to keep the creditors waiting for payment. In Cheltenham & Gloucester Building Society v Norgan95 the Court of Appeal held that, when assessing a ‘reasonable period’ for the purposes of section 36, the ‘logic and spirit of the legislation’ required that the court take as its starting point the whole remaining term of the mortgage.96 Evans LJ added that ‘[a]lthough it may not often be reasonable to expect the lender to wait longer than the original term, the question of principle raised by this appeal is whether he can reasonably be required to wait until then’.97 The argument that creditors could be required to wait for repayment of the arrears, for a period up to the original mortgage term was justified by reference to the belief that, in accordance with the Council of Mortgage Lenders policy statement, ‘[l]enders seek to take possession only as a last 93 94 95 96 97

Administration of Justice Act 1970, s 36(1). See eg, Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR 343. Ibid. Ibid, at 270, per Evans LJ. Ibid, at 270–1.

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resort. They are in the business of helping people buy homes, not to take their homes away from them’.98 Furthermore, as one commentator’s response indicated, ‘possession can be delayed so long as the court is satisfied that the lender will receive substantially what it bargained for, albeit at a later date’.99 The question of requiring the lender to suffer a delay in the repayment schedule has also been raised in the context of properties that are occupied by children.100 In Edwards v Lloyd’s TSB Bank plc,101 Parks J refused to grant an order for immediate sale under sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) on the grounds that it ‘would be unacceptably severe in its consequences upon Mrs Edwards and her children’.102 Instead, the court held that sale of the property should be postponed for a period of at least five years, when the younger child would have reached the age of majority, and when ‘it seems possible that . . . it will no longer be in practice incumbent on Mrs Edwards to provide a home at her expense for her son and daughter’.103 It is interesting to note that the factors that influenced the court’s reasoning included the difficulty that Mrs Edwards would be likely to face in attempting to find another, less expensive, property with the equity she would retain after the creditor was paid,104 and the fact that the debt owed to the bank did not exceed the value of the interest over which the bank had an equitable charge, so that ‘now and for some time to come the security will be sufficient to cover the increasing amount of the debt’.105 Weighing all of these factors in the balance, Park J concluded that an immediate sale would be ‘unacceptably severe in its consequences upon Mrs Edwards and her children’.106 Yet, the prospect that—in the interests of the occupiers retaining their home— the creditor might reasonably be required to wait for a period of time before arrears would be repaid or, if not, until the lender was permitted to capitalise the value of the property has not been considered in any general policy framework. Nor has any systematic analysis sought to identify the principles that could potentially justify such an approach, nor the basis on which certain cases—for example, 98

See eg, Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR, at 271. J Morgan, ‘Mortgages and the Flexible Workforce’ in P Jackson and D Wilde, Contemporary Property Law (Dartmouth, Ashgate, 1999) 232. 100 See further Ch 9. 101 [2004] EWHC 1745. 102 Ibid, [33]. 103 Ibid, [33(iii)]. 104 ‘[T]he house is a two-bedroom house in which Mrs Edwards already has to share a bedroom with her daughter. The house is obviously at the lower end of the range of prices for houses in the area where she lives. If there was a sale and the husband’s debt to the bank was taken out of half of the net proceeds before the balance was available to Mrs Edwards, I very much doubt that she would be able to find another house which she could afford to buy and which would be adequate to accommodate her and her children’: ibid, [31]. 105 Ibid, [32]. 106 Edwards, above n 101, [33]. 99

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cases involving child occupiers, could be distinguished. This book seeks to provide such an analysis. The remaining chapters in this Part—Chapters 2 to 5—consider the meaning and values of home. The purpose of this analysis is to consider the arguments in support of a more coherent approach towards the recognition of the home interests of occupiers: that is, why should home interests be weighed in the balance when considering whether to grant a creditor’s application for possession and/or sale of property? Part II of the book then proceeds to consider how the home interests of occupiers are mediated through various legal discourses. Part II builds on the meanings and values of home, in law and in other disciplines, to develop a more coherent concept of home for law.

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2 The Meaning of Home in Legal Analysis: The Creditor/Occupier Context

Introduction

I

N HIS AFTERWORD TO the collection The Home: Words, Interpretations, Meanings, Environments,1 David Benjamin considered five aspects of meaning associated with home: the word, the descriptive use of the word, the word in psychiatric research, the empirically derived cultural phenomenon and the juridical meaning of home. In relation to the juridical meaning of home, Benjamin claimed that ‘the home is still a legally binding definition to this day . . . [and] [m]embers of the elite in Western society take [home] boundaries very seriously’.2 This presumption—that the meaning of home is recognised in law—is not uncommon amongst home scholars in non-law disciplines.3 Yet, the idea that the meaning of home currently is—or can be—recognised in law must be approached with caution. While the meaning of home has attracted considerable critical attention in other disciplines in recent decades, in legal discourse the tendency has been to reduce home to a tangible entity; thus home has, in fact, been represented in law as ‘identical to a house’, ‘easily measurable in numbers of money value’ and ‘exchang[eable] like a pair of shoes’. Cross-disciplinary scholarship on the meaning and values of home to occupiers—as a social, psychological, cultural and emotional phenomenon—has not penetrated the legal domain, where the proposition that home can encapsulate meanings beyond the physical structure of the house or the capital value it represents continues to present conceptual difficulties. 1 D Benjamin (ed), The Home: Words, Interpretations, Meanings, Environments (Aldershot, Ashgate, 1995). 2 Ibid, 296. 3 Cultural geographer Professor David Sibley has claimed that ‘an exclusive right to domestic space is a fairly common claim, one that may be recognised in law’: D Sibley, Geographies of Exclusion: Society and Difference in the West (London, Routledge, 1995) 90.

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The lack of attention directed by lawyers at the meaning of home to occupiers is undoubtedly surprising to home scholars in other disciplines. On a practical level, disputes concerning ‘home’ are persistent, whether they arise in the context of disputes between secured creditors and occupiers, between landlords and tenants, or between cohabiting partners. In some contexts, the state is called upon to intervene in the home environment under the ambit of the criminal law—for example, when responding to domestic violence—while, in other circumstances, the issue for the home occupier is privacy at home and freedom from both state intrusion and other threats to privacy and quiet enjoyment. Focusing on the context of creditors and occupiers, the English legislature and judiciary have, at various stages, been required to address specific instances of conflict concerning actions brought by creditors for possession and sale of an occupied home. However, these disputes have typically been addressed without any particular consideration of the meaning and values of the home. The interests of creditors and occupiers are most likely to come into conflict when a debtor defaults on a loan which is secured against a property that is occupied as a home. If the debtor defaults on the loan, the creditor will usually seek to take possession and/or to sell the property in order to recoup the capital outlay. When a property is repossessed with a view to realising its capital value, both the debtor(s) and any other occupiers who live in the property as their home will potentially be affected. While the implications of widespread credit on the relationship between creditor and debtor have been extensively rehearsed,4 less attention has been focused on the effects of default on other occupiers, or on the weight which ought to be attached to the interests of occupiers in competitions with those of creditors. Yet, while the creditor has no direct right of action against the nondebtor occupier, the exercise of remedies against the property itself has obvious implications on those in occupation. Furthermore, as noted in Chapter 1, the legislative provisions and judicial principles that determine the ability of a creditor to bring a successful action for the possession or sale of an occupied home are scattered across different areas of law, ranging from the regulation of co-owned land to mortgages, from bankruptcy law to family law. The form that these proceedings will take depends on several factors: whether the debtor is a single individual or part of a ‘family unit’; whether the action for sale of the home arises in the context of bankruptcy proceedings; whether the debt is secured by way of a mortgage or some other form of proprietary security; whether the disputed property is solely or co-owned; and whether 4 See eg, I Ramsey (ed), Debtors and Creditors: A Socio-legal Perspective (Abingdon, Professional Books, 1986); G Howells (ed), Aspects of Credit and Debt (London, Sweet and Maxwell, 1993); J Ford, The Indebted Society: Credit and Default in the 1980s (London, Routledge, 1988); JH Elliott, Credit, the Life of Commerce: Being a Defence of the British Merchant against the Unjust and Demoralising Tendency of the Recent Alterations in the Laws of Debtor and Creditor; with an Outline of Remedial Measures (London, 1845).

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the property is occupied as a dwelling house, as a matrimonial home, or as a ‘family home’. The specific action brought by the creditor will be determined by these factors. Furthermore, the principles by which the outcome of a case will be decided vary from one form of action to another. In some contexts, home-type arguments appear to have been taken into account—for example, the status of the occupier as someone who is in situ in the property (and, arguably, is discoverable by the creditor) or the special protection of properties that are designated ‘family homes’.5 Thus, although the English legislature and judiciary have, at various stages and in the context of different legislative frameworks and judicial principles, been required to address specific instances of the conflict between creditors and non-debtor occupiers, these disputes have generally been viewed within their specific contexts and without, generally, giving any explicit consideration to the overall balance struck between the claims of creditors and the interests of occupiers. Yet, despite the absence of a single coherent policy approach for creditor/ occupier conflicts, particularly in relation to the basis of any protection afforded to occupiers vis-à-vis creditors, one overwhelmingly consistent trend can be identified. Regardless of the basis on which occupiers’ interests are recognised, the interests of creditors have routinely been elevated over those of occupiers. In fact, even when it has appeared from time to time that the ‘home’ interest has been recognised as a relevant factor in a contest between creditor and occupier, this has been of little practical value. The decision in Alliance and Leicester Building Society v Slayford 6 highlighted the fact that even though the occupier’s interests may prevail over those of the creditor in one discrete context, for example where an occupier who has joint ownership of the property is able successfully to establish the priority of their interest over that of the creditor, or where a spouse has registered a right of occupation, a number of avenues remain open to the creditor. So long as the debt is well secured against the debtor’s interest in the property, a creditor may continue to proceed against the debtor’s ‘share’ of the property. Ultimately, a creditor may instigate proceedings for bankruptcy to ensure satisfaction of the debt and, as indicated below, in the context of bankruptcy the court has determined to order sale unless the circumstances are truly exceptional. Two matters are worthy of note: first, any evaluation of the balance struck between creditors’ claims and those of non-debtor occupiers must adopt a holistic approach; and, secondly, the outlook for the occupier is not good. One consequence of the fact that little attention has been paid to achieving a more explicit and holistic policy approach to conflicts between creditors and occupiers is that the overall consequences of the current ad hoc regime on each party’s interests have, to a certain extent, been obscured. The complexity of the law in this area, and the way in which occupiers seeking to retain possession of their home 5 6

See Ch 7. [2001] All ER (Comm) 1.

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may clear one hurdle, only to fall at the next, has distracted attention from the fact that, while the law appears to recognise and value home-type interests in some contexts, the creditor has a range of alternative routes by which to achieve his goals. Ultimately, when the range of actions open to the creditor is viewed in the round, it is apparent that the occupier’s home-type interests are marginalised by the weight attached to the interests of the creditor. While the practical consequences of the current law and policy for the dispossessed occupier are important, the analytical implications are also significant. In fact, the overwhelmingly pro-creditor stance adopted by English law appears to have obviated the need to analyse the nature and dimensions of the occupier’s home claim. Thus, creditor/occupier disputes have been disposed of without any explicit consideration of the interests of home occupiers. Meanwhile, academic interest in the occupier’s home interest is thwarted by the apparent pointlessness of arguments seeking to subvert the priority currently accorded to creditors. Yet again, this creates a cycle whereby home interests are overlooked by legal academics because they appear to carry little weight in practice. The lack of weight attached to ‘home-type’ interests in practice discourages the legal academic—particularly doctrinal or ‘black-letter’ oriented legal academics—from expending time and attention on exploring arguments that appear to ‘swim against the tide’. Yet, as Susan Smith has suggested a similar context,7 ‘while a certain inertia on these points might be expected among politicians and policy makers, it is increasingly hard to justify in the research community’.8 Furthermore, without the input of socio-legal academic research—in the form of unpacking the meanings and values of home derived from empirical and theoretical study in other disciplines, subjecting these values to critical analysis and exploring the potential for the development of a concept of home in law that is grounded in the reality of occupiers’ home experiences—there can be little basis on which to assert home-type values or to counter the presumption that the idea of ‘home’ is a mere chimera—that it is too vague, too subjective, too indefinable, that it is mere emotion or sentimentality—and therefore cannot carry any significant weight in legal analysis. The idea that the commercial claims of creditors might be ‘trumped’ by an occupier’s home claim is, in light of current sensibilities, undeniably controversial. However, without an adequate understanding of the interests at stake, it is difficult to accept that a legitimate ‘balance’ is struck between each party’s interest in the property. This is particularly so in light of the prevalence of judicial discretion in the area of creditor/occupier conflicts. In many of the cases considered below and in subsequent chapters, the court exercises a discretionary power: whether to 7 S Smith, Banking on Housing: Speculating on the Role and Relevance of Housing Wealth in Britain (Paper prepared for the Joseph Rowntree Foundation Inquiry into Home Ownership 2010 and Beyond, 2005). Smith’s comments were made in support of re-evaluating the credit market for home ownership from an ethical and social, rather than merely financial, perspective. 8 Ibid, 4; see further Ch 1.

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order the sale of a property at the request of a secured creditor; whether to delay possession proceedings so as to allow the occupier some time to make good on default; whether to grant a charging order for an unsecured creditor, thus opening up the possibility of further actions against the property; or whether to allow the debtor’s trustee in bankruptcy to realise the asset represented by the bankrupt’s family home. When the court is called upon to exercise a discretionary power that involves weighing the interests of the creditor against those of the occupier, it is, as Nourse LJ acknowledged in Re Citro, ‘very hard to see how they can be weighed against each other, except in a way which involves some value judgment on the part of the tribunal’.9 The court is required explicitly to balance one interest against the other. In these types of proceedings, it is not difficult to see the importance of understanding the interests at stake on each side, so that the court can authentically weigh the interests of the respective parties, one against the other. In other proceedings involving creditor/occupier disputes, for example when determining issues of priority between the creditor and a non-debtor occupier, the court does not appear to have such a clearly identified discretion. Yet, the principles and provisions that regulate these contests are not value-neutral, and the influence of legislative and judicial policy on their development and application is indicative of the implicit balance struck between these claims. For example, in the principles governing priority contests, or when considering the conditions upon which matrimonial home rights will bind third parties, policy makers must weigh the commercial interests of the creditor against the home interests of the occupier. In many of these cases, the ‘home’ interest is flagged up for consideration in policy discourse. Thus, the following sections analyse the way in which the home interest has been recognised and rejected in the legal domain. It will become apparent from this analysis that, while the idea of home—especially family home— has often been articulated as a relevant factor when legislative and judicial policy makers have considered whether a creditor should be allowed to proceed to capitalise the asset represented by the property, home interests have been consistently outweighed by the commercial claims of creditors.

Home-type Values in the Legal Framework The instinctive impression that a home is meaningful to occupiers in a real and personal sense is not, as noted in Chapter 1, wholly absent from the legal sphere. In fact, the idea of attaching weight to ‘home-type’ values has been accepted even in housing contexts, where the opposing interest is usually the commercial claim of either a landlord or a creditor. One classic example of the recognition of 9

[1991] Ch 142 at 150.

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home-type interests in law was the idea of ‘security of tenure’ which formed the basis of the Rent Acts. From the turn of the twentieth century until the 1980s the Rent Acts, which conferred security of tenure on the basis of residential occupation, were premised on law’s recognition of the special values represented by property occupied as a home. The enactment of the residential tenancy regime provided statute-based protection for tenants—and their families—in occupation of residential properties. The residential tenancy regime explicitly recognised that security of tenure in the occupancy of the property was a valuable right, particularly considering that in some cases ‘possession of such a flat is one of the most significant rights of property that any of them ever see in their lives’.10 The Rent Acts were clearly motivated by the tension between the commercial interests of a landlord and the home interests of the tenant and, specifically, at ensuring that the tenant’s home interest was protected by law—that is, that ‘no tenant shall be evicted . . . unless there are some special reasons which justify the landlord in taking such proceedings’.11 The courts interpreted the policy of the Acts as ‘to afford protection to those who actually live in houses which fall within the scope of the Acts’.12 In fact, as Lord Denning remarked, ‘[t]he guiding light through the darkness of the Rent Acts is to remember that they confer personal security on a tenant in respect of his home’.13 Although the provisions of the Rent Acts were amended several times from the first Act in 191514 until the Rent Act 1977,15 the same basic approach governed residential tenancies throughout these decades. It was only with the election of the Conservative government in 1979 that the tide turned. The Housing Act 1980 introduced the ‘protected shorthold tenancy’, the first in a series of residential tenancy regimes which did not prioritise security of tenure and the ‘home-type’ interests of occupiers,16 but sought to revive the private rented sector and to encourage more individuals to invest in housing-to-let. A typical illustration of this policy approach can be found in the Housing Act 1988. The legislative policy of the 1988 Act clearly favoured the interests of land10

Mafo v Adams [1970] 1 QB 548, per Widgery LJ. 76 HC Deb (5th Series) col 1517 (8 Dec 1915), Mr Barnes. This policy was not without opposition—one member argued (unsuccessfully) in support of the commercial interests of the landlord that ‘the rights of the owner are completely ignored. You have extended this Bill to the whole country and you have given the tenant certain rights in regard to the increases in rent. But now . . . after having put the whole country on that basis, to protect the tenant against eviction except upon grounds satisfactory to the Court, I submit that that is something which is wholly unreasonable and uncalled for’: ibid, Mr Hohler. 12 Skinner v Geary [1931] 2 KB 546 at 550, per Talbot J. 13 Feyereisel v Turnidge [1952] 2 QB 29 at 37, per Denning LJ. 14 Increase in Rent and Mortgage Interest (War Restrictions) Act 1915. 15 One notable development was contained in the Rent Act 1965, which provided for the first time that security of tenure could exist independently of rent control, leading Honoré to observe that ‘[s]ecurity of tenure, once an adjunct of rent control, has become the tail that wags the dog’: A Honoré, The Quest for Security: Employees, Tenants, Wives, Hamlyn Lecture (London, Stevens & Sons, 1982) 59. 16 The landlord can normally take possession when the contractual tenancy ends. 11

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lords over those of occupiers, whether tenants or non-tenants. The object of the Act, as outlined in Housing: the Government’s Proposals,17 was to ‘put new life into the independent rented sector’,18 and in pursuit of this end the Parliamentary debate which preceded the Act revealed a strong policy in favour of landlords. This policy necessarily involved reducing the statutory tenant’s security of tenure, while the commercial interest of the landlord in recovering the property in the event of default on the rent took precedence over the occupier’s interest in retaining the use of the property as a home. Against the background of this policy, the commercial arguments that were advanced in support of the protection of the interests of landlords were in a similar vein to the argument in support of the mortgage creditor. For example, in the debates preceding the Housing Act 1988, Lord Trafford argued that: We are talking about what should happen if we wish to revive the private sector. If noble Lords opposite do not wish to revive the private sector and take a totally contrary view in the matter, they can put as many difficulties in the way as they like. We have a straightforward situation in which we either wish to encourage or do not wish to encourage. One of the ways of discouraging it is to put up hurdles and trip-wires in the way.19

It was suggested that the broader economic consequences that recognising the home interests of occupiers would have on the availability of housing—in this case, the willingness of private investors to enter the rental market—justified the priority afforded to the commercial claims of landlords. The history of the Rent Acts provides an interesting illustration of the tension between home interests and commercial claims in relation to rented housing. From the early years of the twentieth century until the 1980s, the Rent Acts, which conferred security of tenure on the basis of residential occupation, were premised on the law’s recognition of the special values represented by property occupied as a home. The idea that home was meaningful to occupiers was implicitly accepted—in fact, it formed the premise for the residential tenancy regime. It was only with the shift in policy towards the commercial interests of landlords that these interests became marginalised. This clearly demonstrates that the barrier to the recognition of home-type interests in law is not the ‘unknowable’, indefinable, subjective, emotional nature of the home interest, but the way in which policy goals have come to favour the commercial claim. The analogous framework of the Rent Acts is clearly relevant to the conceptualisation of home, and its impact on creditor/occupier disputes, since the proposition that there is nothing inherently 17

Department of the Environment (Cm 214) (London, HMSO, 1987). Ibid, para 1.15. The report suggested that, ‘[a]s a result of statutory restrictions, there is now very little private investment in providing new rented housing, and when landlords obtain vacant possession of dwellings at the end of tenancies they often prefer to sell outright into owner-occupation rather than to re-let’: para 3.1. 19 499 HL Deb (5th Series) col 1546 (21 July 1988), Lord Trafford. 18

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unworkable about the idea of home in law, but rather that the marginalisation of home-type interests has been rooted in a pro-creditor, pro-commercial interests policy, reinforces the argument for subjecting these policies, the way in which they are applied, and their practical consequences to greater scrutiny. The following sections will consider some examples of the way in which policies towards creditors and occupiers have influenced the discourse of home in the legal context. The way in which home-type values have been alternately recognised and rejected in the context of creditor/occupier disputes is a theme which will form the backdrop for much of the discussion throughout the book. As noted above, the form that a creditor/occupier dispute may take varies depending on the interests of each party and the form that proceedings take. For one thing, secured creditors fall into the following broad categories: first, that of a mortgagee or chargee who has provided acquisition finance, contemporaneously to the purchase of the property; secondly, a mortgagee who has provided non-acquisition capital—for example, a business loan or a personal advance, secured against the home; thirdly, a creditor in possession of a charging order affecting interests in land—that is, a creditor who did not take security ab initio, but has subsequently applied to the court to have the debt secured against real property;20 or, finally, a trustee in bankruptcy who, after a declaration of bankruptcy, has a duty to realise and distribute the bankrupt’s assets amongst secured and unsecured creditors. The distinctions that can be drawn—in relation to both legal policy and economic analysis— between acquisition and non-acquisition finance, the creditor who takes security ab initio and the holder of a charging order (which gives ex post facto security), and the special weight given to claims by a trustee in bankruptcy have been considered in Chapter 1, and will be a recurring theme throughout the book. When evaluating how the interests of occupiers should be balanced against the claims of creditors, the status of the creditor, in theory at least, has some bearing on the weight attached to their claim. In practice, however, the claims of creditors falling within all four categories outlined above have typically outweighed any ‘home’ interests advanced by occupiers. The form of action brought by a creditor against the debtor’s home will also depend on factors such as whether the disputed property is solely or co-owned; whether the debtor is a single individual or part of a ‘family unit’; and whether the property is occupied as a dwelling house or as a matrimonial home. The law concerning family home is considered in more detail in Chapter 7. The remainder of this chapter will focus instead on the relevance of home-type interests under property law. The property law provisions are brought into play when either debtors themselves, or co-owning occupiers, seek to defend possession of the property or to avoid sale on the grounds of their ownership interest. Although the fact that the

20

Under the Charging Order Act 1979.

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property is occupied as a home has frequently been flagged up in creditor/occupier contexts, and some lip service has been paid to the proposition that home interests are recognised in such disputes, the apparent recognition of the significance of home has not, by and large, been reflected in substantive legal protections.

Sole Ownership and Creditors’ Remedies The form that creditor actions against a property take will vary depending on whether the property is owned by one person or jointly owned. Where properties are owned by single individuals, who occupy the property as a home, and secured creditors are seeking to realise the capital value of the property, they may either conduct an out-of-court sale or seek a judicial order for sale of the property. One defining characteristic of solely owned (although not necessarily solely occupied21) property is that, in relation to sale, the court may not even be called upon to weigh the interests of the creditor in selling against the interest of the occupier in retaining the property, as the creditor may have an automatic out-of court right to sell the occupier’s home. A mortgagee will have an automatic power to conduct an out-of court sale where the mortgage was made by deed, and the criteria set out in sections 101–103 of the Law of Property Act 1925 (LPA) have been satisfied. Section 101 provides that the power of sale arises once ‘the mortgage money has become due’, that is, after the legal date of redemption, as specified in the mortgage deed. The power of sale becomes exercisable whenever one of three conditions is satisfied: (i)

notice requiring payment of the mortgage money has been served on the mortgagor or one of two or more mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service; or (ii) some interest under the mortgage is in arrears and unpaid for two months after becoming due; or (iii) there has been a breach of some provision contained in the mortgage deed or in this Act, or in an enactment replaced by this Act, and on the part of the mortgagor or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon.22

21 See especially the significance of solely owned properties occupied by single custodial parents, Ch 9 below. 22 Law of Property Act 1925, s 103.

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The regulations are clear: so long as the requirements set out in sections 101–103 are satisfied, the mortgagee is entitled to sell the property and does not need to seek the approval of the court. The mortgagee is automatically empowered, in these cases, to convey good title to the purchaser of the land, thus effectively converting a security interest in the debtor’s home into capital. Where these criteria are not satisfied, the creditor may still seek an order for sale from the court. When a judicial order for the sale of solely owned property is sought, the creditor must make an application under section 91(2) of the Law of Property Act 1925, which provides that: In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that—(a) any other person dissents; or (b) the mortgagee or any person so interested does not appear in the action; and without allowing any time for redemption or for payment of any mortgaged money, may direct a sale of the mortgaged property, on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the court to meet the expenses of sale and to secure performance of the terms . . .

Dixon summarised section 91(2) as ‘a [judicial] power to authorise sale “in any action” on “such terms as the court thinks fit”’.23 A few noteworthy aspects of the section 91(2) power can be highlighted at this point. First, the court’s power to order the sale of the property is unfettered. This obviously suggests that the court is entitled to consider both home considerations and commercial issues—as well as any other relevant matters—when determining whether to order sale. Considering the authorities to date, there is some support for the proposition that the court will look beyond merely financial matters to take account of ‘social considerations’, although there has been no reported case to date in which home arguments have been successfully advanced to prevent the sale of property under section 91(2). In Polonksi v Lloyd’s Bank Mortgages Ltd,24 the court ordered sale notwithstanding the mortgagee’s objections that the sale of the property would not suffice to discharge the debt, because the mortgagor had social reasons for wanting to move to a different area. Nevertheless, this proposition was based on authorities that involved requests by occupiers to proceed with sale against the wishes of the mortgagee. The fact that a property is occupied by someone as their home has not emerged as an argument against sale. Home considerations have not prevented the sale of the property when the creditor wishes to realise his security interest. 23 M Dixon, ‘Combating the Mortgagee’s Right to Possession: New Hope for the Mortgagor in Chains?’ (1998) 18 Legal Studies 279 at 292. 24 (1997) 31 Housing Law Reports 721; see also Palk v Mortgage Services Funding plc [1993] Ch 330.

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There is, however, one remaining avenue open to the single occupier, which does appear to attach some weight to the fact that the disputed property is occupied as a home. In addition to securing the sale of the property, the creditor must also be able to take possession, since the property will be significantly more marketable with vacant possession.25 Legal mortgagees of unregistered land are entitled to possession on the creation of the mortgage ‘as soon as the ink is dry on the mortgage contract’;26 although the automatic right to possession is usually excluded by the mortgage deed for as long as payments are being made.27 In any event, unless the occupier volunteers to give up the property, it will usually be necessary for the creditor to make an application for possession through the court.28 The decision in Ropaigealach v Barclay’s Bank plc29 indicated that if the mortgagee manages to re-take possession without a court order, the court has no basis on which to intervene on behalf of the occupier. However, in most cases, it will be necessary to seek a court order for the possession of an occupied home, and in these cases the court has a limited discretion to intervene on behalf of the occupier who wishes to stay in their home. For one thing, the court has an inherent equitable jurisdiction to adjourn possession proceedings for a short time—probably no longer than 28 days—to allow the mortgagor to find the money to pay arrears. Of more significance, however, is the statutory power conferred by section 36 of the Administration of Justice Act 1970. Where an individual wishes to remain in occupation of property which a secured creditor is attempting to capitalise, the usual method would be by defending possession proceedings under section 36 of the Administration of Justice Act 1970. Section 36 confers discretion on the court to delay repossession for a limited period of time, so long as the disputed property is a dwelling-house and ‘it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage’.30 Since this provision extends only to dwelling-houses, it provides a relatively rare example of a legal context in which (what are in substance) home considerations form the basis of a statutory provision designed to protect occupiers against actions by creditors seeking to realise the capital value of their homes.

25 In some circumstances, as a consequence of negative equity following slumps in the property market, mortgagees have sought possession in order to lease the property; however, Palk v Mortgage Services Funding [1993] Ch 330 suggests that where sale is preferable for the mortgagor, sale will be ordered instead. 26 A legal mortgagee is entitled to possession of the property by virtue of their estate in the land (or in the case of a legal charge, by s87(2) LPA 1925), whether or not the debtor is in default. 27 Birmingham Citizens BS v Caunt [1962] Ch 883. 28 Both the Criminal Law Act 1977 and the Protection of Eviction Act 1977 impose criminal sanctions against the forcible eviction of residential occupiers. 29 [2000] 1 QB 263 (CA). 30 Administration of Justice Act 1970, s 36(1).

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Nevertheless, when evaluating the balance struck between creditors and occupiers, it is important to bear in mind that the conditions for the exercise of this discretion are strict, and wholly focused on the debtor’s financial ability to make good arrears within a ‘reasonable time’, whilst continuing to meet instalments as they fall due. The decision of the Court of Appeal in Cheltenham & Gloucester Building Society v Norgan31 emphasised the rigorous approach to be adopted by the court when considering whether the debtor is ‘likely to be able within a reasonable period to pay any sums due’. This case was primarily concerned with the length of time which could properly be regarded as constituting a ‘reasonable period’, and so justify the exercise of the courts’ discretion to delay possession proceedings. Prior to Norgan, a period of two to four years had generally been regarded as a ‘reasonable period’ for the likely repayment of ‘any sums due’,32 that is, the amount in arrears.33 In Norgan, however, the Court of Appeal held that when assessing a ‘reasonable period’ for the purposes of section 36 the ‘logic and spirit of the legislation’ required that the court take as its starting point the whole remaining term of the mortgage.34 The adoption of a longer period prima facie benefited the borrower (and any other occupiers), since arrears could be spread over a longer period, and consequently become more manageable. In fact, the Norgan approach was presented by the Court of Appeal as favouring the borrower. Evans LJ claimed that ‘[w]hen the borrower is likely to be able to make regular payments, of whatever amount, then in general it can be said that the longer the period then the more “reasonable” it will be for him’.35 Evans LJ even alluded to the Council of Mortgage Lenders’ policy statement to support his assertion that ‘[l]enders seek to take possession only as a last resort. They are in business to help people buy homes, not to take their homes away from them’.36 However, the broad principle set out in Norgan—that the court could take as its starting point the full remaining term of the mortgage when ascertaining a ‘reasonable period’ for the repayment of arrears—was tempered by the comments of Waite LJ regarding the general approach to be taken when dealing with a section 36 application. First, Waite LJ indicated that the ‘Norgan approach’ would: be liable to demand a more detailed analysis of present figures and future projections than it may have been customary for the courts to undertake until now. There is likely

31

[1996] 1 WLR 343. The Supreme Court Practice 1995, vol 1 (London, Sweet and Maxwell, 1995), para 88/5/9. 33 Administration of Justice Act 1973, s 8. 34 Norgan, above n 31, at 267, per Waite LJ. 35 Ibid, 270, per Evans LJ. On the other hand, Evans LJ also noted that, ‘[a] lthough it may not often be reasonable to expect the lender to wait longer than the original term, the question of principle raised by this appeal is whether he can reasonably be required to wait until then’: ibid, 270–1. 36 Ibid, 271. 32

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to be a greater need to require of mortgagors that they should furnish the court with a detailed ‘budget’.37

Relative to the pre-Norgan approach, the applicant after Norgan was under much more pressure to establish financial credibility in order to persuade the court to adjourn the possession proceedings. Furthermore, the Court of Appeal indicated that following the judicial policy departure in Norgan it was much less likely that the court would tolerate repeated applications from debtors who defaulted a second time, once an initial postponement was made.38 While the home interest is undoubtedly present in section 36, it is clear that in exercising its discretion the court remains heavily influenced by the commercial interests of the creditor. The decision in Bristol & West Building Society v Ellis39 re-emphasised the importance of the defendant’s financial credibility in justifying the judicial exercise of the section 36 discretion to delay possession of domestic property. The Court of Appeal held that, where it was unlikely within the foreseeable future that the applicant would have the income to make a meaningful contribution to the reduction of arrears, any postponement of possession would have to be for a relatively short period. Auld LJ held that the Norgan approach, which took as its starting point the full term of the mortgage, was: not available to a mortgagor who cannot discharge the arrears by periodic payments and whose only prospect of repaying the entire mortgage loan and accrued and accruing interest is from the sale of the property.40

Although the decision in Norgan appeared to indicate a more occupier-friendly judicial policy in the exercise of the section 36 discretion, the approach taken by the Court of Appeal has re-emphasised a fundamental requirement of the discretion: that the defendant must satisfy the court of his ability to pay. In conclusion, while section 36 appears to value the ‘home’ interests of mortgagors, the creditor’s financial claim to the property continues to weigh heavily in the scale. For one thing, section 36 can provide no more than interim relief where temporary financial straits have led to the accrual of arrears; the defendant occupier must demonstrate financial credibility to ensure such interim relief; and the 37

Ibid, 267, per Waite LJ. ‘[I]f his or her hopes of repayment prove to be ill-founded and the new instalments initially ordered as a condition of suspension are not maintained but themselves fall into arrear, the mortgagee can be heard with justice to say that the mortgagor has had his chance and that the section 36 powers . . . should not be employed repeatedly to compel a lending institution which has already suffered interruption of the regular flow of interest to which it was entitled under the express terms of the mortgage, to accept assurances of future payment from a borrower in whom it has lost confidence’: Ibid, at 68, per Waite LJ. 39 (1996) 73 P&CR 158 (CA). 40 Ibid, 161. 38

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courts have become progressively less likely to tolerate repeated applications for relief. The home interest is undoubtedly acknowledged, yet the commercial claims of creditors clearly continue to dominate in this context.

Property Held on Joint Legal Title A different set of principles and provisions will govern creditor actions when more than one person has an ownership interest in the property. Such interests may be acquired either expressly or impliedly. Although statistics on the proportion of matrimonial homes which are expressly held by partners as joint legal or equitable owners are unavailable, it is generally accepted that the proportion of partners opting to become express joint legal owners of the matrimonial home has significantly increased in recent decades, particularly since the landmark and highprofile case of Williams & Glyn’s Bank Ltd v Boland,41 which prompted Lord Scarman to suggest (extra-judicially) that: we should encourage young married people to go round the corner to the solicitor, or, if we could establish one, the legal clinic, to talk about the legal problems of marriage just as they go to the medical clinic to discuss the medical problems associated with what is euphemistically called family planning.42

When the legal title to the property is owned jointly, any debt secured against it will usually be secured jointly; that is, the creditor will require either that both parties are joint debtors, or that the non-debtor consent to the transaction. However, one exception to this general principle arises in relation to charging orders, which are secured against the property ex post facto. Charging orders provide a means by which an unsecured debt, for example an overdraft or line of credit, can be secured against a property by court order. In cases where one individual debtor is subjected to a charging order, the security can take effect only against the debtor’s share of any jointly owned property. Thus, the charging order attaches to only the debtor’s beneficial interest in the property, rather than the land itself.43 Yet, even though the charging order can be imposed only against the debtor’s share, and thus does not, in theory, affect the non-debtor’s interest in the property, once a creditor obtains a charging order, the chargee acquires all of the rights and remedies available to secured creditors, including the right to apply 41

[1981] AC 487. 437 HL Deb (5th Series) col 652 (15 December 1982), Lord Scarman. 43 The court’s jurisdiction to grant a charging order over a share of jointly owned land was granted by the Charging Orders Act 1979, s 2(1)(a)(ii). 42

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to the court for an order for sale. Thus, a charging order against one joint owner’s share renders the other, non-debtor co-owner vulnerable to a forced sale. What is particularly interesting, from a policy perspective, is the contrast between the consequences of allowing a charging order to be imposed on jointly owned land as anticipated by the Law Commission,44 and as they actually transpired. When the Law Commission proposed, prior to the enactment of the Charging Orders Act, that the court’s discretionary jurisdiction to grant charging orders should be extended to include orders against one debtor’s share of coowned land, this recommendation was based on the belief that the extension of the court’s jurisdiction to charge the co-ownership interest of a debtor would have a limited effect on the debtor’s co-owner.45 Specifically, the Law Commission believed that when a charging order was obtained against such an interest, the court would be unlikely to order the sale of such a property at the request of the creditor. Furthermore, when the Charging Orders Bill was considered in the House of Lords, some doubts were raised regarding the desirability of ‘provisions for charging orders on a man’s home’;46 while in the House of Commons, the Solicitor General was asked whether the Government had ‘anything in mind for removing anything from the list, such as a person’s home’.47 However, the implications of allowing charging orders against jointly owned domestic property were not addressed in any substantive sense.48 The full implications of allowing an unsecured creditor to obtain a charge on land which is jointly owned by the debtor and another were highlighted by the decision in Barclays’ Bank Plc v Hendricks.49 Hendricks involved an application for sale by a judgment creditor who had been granted a charging order absolute. Although the Law Commission had anticipated that an order for sale would not be granted where the property affected was jointly owned and the debt was secured against one co-owner’s share only, the court ordered the sale of the property. In fact, it even went so far as to establish, as a matter of policy, that in similar cases the interests of the creditor should prevail over those of a co-owning occupier unless the circumstances were exceptional. Thus, while in most cases of joint legal ownership both 44

Charging Orders, Law Com No 74 (London, HMSO, 1976). The Law Commission considered it to be ‘firmly established’ that ‘the court will not exercise its discretion under section 30 at the behest of a beneficiary if the effect of the order would be to defeat the purpose for which the trust was established’, and that, ‘[a] matrimonial home owned by the spouses jointly is the clearest, as well as the commonest, example of property which is held for a special purpose (namely, that of providing a joint home) notwithstanding that it is technically held on trust for sale’: ibid, para 72. 46 401 HL Deb (5th Series) col 16 (2 July 1979), Lord Hale. 47 972 HC Deb (5th Series) col 773 (26 October 1979), Mr Graham Page. 48 The Lord Chancellor dismissed these apprehensions with the assurance that the new provision provided enhanced flexibility for the court in exercising its powers, including the capacity to vary or discharge orders should the court consider that to be appropriate at a later stage: see Charging Orders Act, s 3(5). 49 [1996] 1 FLR 258. 45

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joint owners will also be joint debtors, or at least will have consented to the security,50 in cases of judicially imposed security this may not be the case. This is significant where a distinction is drawn between the debtors themselves and those who have consented to the use of their home as security against a debt, and non-debtors, who are rendered vulnerable to loss of their home solely as a result of the actions of others. If the justification for ordering sale is rooted in the debtor’s contractual obligations towards the creditor,51 then the policy adopted in relation to charging orders over jointly owned property must surely be questionable.

Equitable Interests and ‘Trusts of the Family Home’ It is not always easy for the creditor, when taking security against a debtor’s home, to be confident that this security is good against all interests in the property. This is largely because many ownership interests in domestic property do not appear on the legal title, but are held behind a trust. An equitable interest in the home may be acquired expressly—by declaration of trust—but in many cases the interest arises informally. Informally arising interests in the home may not be readily apparent to a creditor, and, if a creditor does not discover the interest and obtain consent from the relevant interest holder, difficult issues are raised both in relation to the priority to be accorded to the respective interests and the decision to grant a creditor’s request for sale. Despite the very significant increase in incidences of joint legal title in cases involving home sharers, many people, particularly cohabiting couples, still do not make formal arrangements concerning the ownership of their homes. There may be many reasons why people do not formalise their proprietary interests in their shared home, ranging from reluctance to ‘upset the apple cart’ of the relationship by raising the issue to the possibility that the parties never ‘turned their minds’ to the question of ownership; from misconceptions concerning their legal rights in the absence of express arrangements, to the belief held by the claimant in a recent case when offered legal advice, that ‘I feel I know [my partner] well enough not to need written legal protection in this matter’.52 Nevertheless, even where there is no express agreement to share ownership, it is possible that one partner may have an ownership interest under an implied resulting trust, on the basis of financial contributions to the purchase price of the

50 However, this consent may not always be valid, as indicated by the great many cases on undue influence and misrepresentation concerning consents to security against domestic property. 51 See further Ch 3. 52 Oxley v Hiscock [2004] EWCA Civ 546 at [9].

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property;53 under an implied constructive trust, which is based on either the common intention of the parties that beneficial ownership shall be shared (by agreement, arrangement or understanding) along with detriment suffered by the non-owning partner, or direct financial contributions to the purchase price of the property;54 or by proprietary estoppel, where the requirements of representation, reliance and detriment must be present. When an interest arises under one of these informal trusts, various issues arise concerning the balance struck between the interests of the creditor and those of the debtor’s co-owner.

Establishing Priority: Creditors and Occupiers The avenues available to an occupier who is seeking to defend an action brought by a creditor for possession and/or sale of the home vary depending on the nature of the occupier’s interest. For example, if an occupier other than the debtor has an ownership interest in the property, one avenue by which to resist the creditor’s application for possession and/or sale of property would be to establish that the occupier’s equitable interest takes priority over the creditor’s charge against the property. This approach was successful in Williams & Glyn’s Bank Ltd v Boland.55 Since the bank was not aware of Mrs Boland’s equitable interest in the property under an implied trust, it did not seek her consent to the security. When Mr Boland defaulted on the loan, the bank brought an action for possession of the property. However, the court was not willing to order possession, because Mrs Boland’s equitable interest took priority over the bank’s claim. When the creditor’s claim is binding only on the debtor’s share of the property, it is not usually possible to take possession of the property against the wishes of the non-bound partner, and attempts to do so have been described as ‘setting off on a fool’s errand’.56 As the Court of Appeal confirmed in Albany Home Loans v Massey,57 a mortgagee whose security extended to only a portion of the ownership of property was not entitled to an order for possession against the party whose interest was not 53 When a partner acquires an interest under a resulting trust, the portion of the equitable estate acquired will be proportionate to the amount of the financial contributions. 54 See McFarlane v McFarlane [1972] NI 59; Lloyd’s Bank plc v Rosset [1991] 1 AC 107. Although the decision in Le Foe v Le Foe [2001] 2 FLR 970 suggested that the courts may be moving towards a more flexible approach regarding contributions—at least indirect financial contributions—to the acquisition of an interest in the matrimonial home under a constructive trust, this approach has not yet been endorsed by the Court of Appeal. 55 [1981] AC 487. 56 ‘In cases where, for any reason, a mortgage extends only to an undivided share in land it seems that a mortgagee who seeks physical possession will be setting off on a fool’s errand’: H Wallace, ‘Mortgagees and Possession’ (1986) 37 Northern Ireland Legal Quarterly 336 at 352. 57 [1997] 2 All ER 609.

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affected, and an order for shared possession between the creditor and the nondebtor occupier would be futile.58 On the other hand, if the creditor’s interest takes priority over those of the nondebtor occupier, the creditor will be in a much stronger position to enforce his rights—including the right to possession—against the property. When it comes to determining priority between creditors and equitable interests, the law appears to value the fact of occupation—that is, that the claimant is living in the property as a dwelling house. Although different rules apply to registered and unregistered land, the approach adopted in both cases reflects the significance attached to occupation in this context.59 In the case of unregistered land, third parties can establish priority over earlier equitable interests if they can establish that they are a bona fide purchaser for value of the legal estate without notice (actual or constructive) of the equitable interest. A creditor will be regarded as having notice of an equitable interest when: (i) It is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him;60

that is, where a creditor had actual notice (subjective knowledge) or constructive notice (failure to carry out reasonable inspections and inquiries). A creditor would also lose priority based on imputed notice (actual or constructive notice of an agent). Looking first to actual notice, it is clear that where a third party has actual notice of equitable interests, priority can readily be ensured by joining the equitable owner in the transaction, or obtaining written consent from the equitable owner that the third party claim will take priority. A more difficult issue concerns the avoidance of constructive notice. A third party may be fixed with constructive notice, and thus lose priority to an equitable owner, even though the third party did not actually know that an equitable interest existed, and therefore did not take the step of joining the equitable owner or obtaining his or her consent.

Constructive Notice The courts have traditionally been wary of constructive notice, since it treats a third party purchaser or creditor as having knowledge which he did not in fact 58 Although the creditor could, in the alternative, have made an application for possession and sale of the property under the court’s statutory jurisdiction based on s 30 of the Law of Property Act 1925 (now replaced by s 14 of the Trusts of Land and Appointment of Trustees Act 1996), Mrs Boland’s interest—whether in the property itself or in the proceeds of sale—took ‘in priority’ over the bank’s claim. 59 For further discussion of the significance attached to occupation in property theory see Ch 6. 60 Law of Property Act 1925, s199(1)(ii)(a).

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have.61 A third party is not, however, affected by notice of any interest which he or she could not have discovered by carrying out ‘reasonable inspections and inquiries’. Consequently, the doctrine of notice places an onus on the creditor to protect his title by making the necessary inspections and inquiries prior to accepting the property as security. The standard of ‘reasonable inspections and inquiries’ may depend on the individual case; however it is generally sufficient if the third party has satisfied the standard conveyancing practices appropriate for such a case. The limited guidance which has emerged from the courts concerning what is ‘reasonable’ has evolved on a case-by-case basis. It has been established, for example, that, ‘if a person purchases an estate which he knows to be in occupation of another than the vendor, he is bound by all the equities which the party in such occupation may have had in the land,’62 since the fact of occupation constitutes notice to third parties that the occupier may claim an interest in the land.63 Furthermore, while the scope of the doctrine of notice in unregistered land has been strictly curtailed by the system of land charges registration, interests that are acquired under implied trusts are unregistrable under the Land Charges Act 1972, and so continue to be regulated by the doctrine of notice.64 Third parties are therefore required to make inquiries of persons in occupation of land, to avoid being fixed with constructive notice of occupiers’ interests. A creditors who could have discovered the existence of an occupier, and the fact that the occupier would claim an interest in the property, by conducting reasonable inspections and inquiries is bound by such an interest. In the context of interests in the home, constructive notice often turns on the fact that there was some evidence of occupation which rendered the equitable interest discoverable.65 The basic principle of land registration is that the information lodged at the land registry, and available to a creditor who is considering taking security against the property, ‘mirrors’ all details of the title, and so provides all the necessary information concerning interests in the property. In addition, the system of title registration rests on the central principle that the creditor should not be bound by any interests which do not appear on the face of the register. There is, however, a category of interests which ‘override’ the register and may bind third parties, notwithstanding the fact that they are not registered. In the context of creditor/occupier contests, the relevant item is paragraph 2 of Schedule 3 to the Land Registration Act 2002—formerly section 70(1)(g) of the Land Registration Act 1925—which confers overriding status on: 61 ‘The doctrine is a dangerous one. It’s contrary to the truth. It is wholly founded on the doctrine that a man does not know the facts, and yet it is said that constructively he does know them’: Allen v Seckham (1879) 11 ChD 790, per Lord Esher. 62 Jones v Smith (1841) 1 Hare 43 at 60. 63 Barnhard v Greenshields (1853) 9 Moo PC 18. 64 See Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783 at 792. 65 See, eg, Caunce v Caunce [1969] 1 WLR 286; Kingsnorth Trust Ltd v Tizard, above n 64.

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Valuing Home: Theories, Laws and Policies interest[s] belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for . . . (c) an interest— (i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and (ii) of which the person to whom the disposition is made does not have actual knowledge at that time.

Again, as in unregistered land, the protection of the non-debtor co-owner is founded upon occupation. As Lord Wilberforce noted in Williams & Glyn’s Bank Ltd v Boland,66 ‘the purpose used in each system is the same, namely to safeguard the rights of persons in occupation’.67 Both the doctrine of constructive notice and the conferral of overriding status on the interests of persons in actual occupation appear to provide special protections for the interests of occupiers, and could be regarded as evidence that hometype values are recognised in the creditor/occupier context. Yet, the specific reference to occupier’s interests in section 70(1)(g) was somewhat at odds with the overall goals of title registration. The object of the system of title registration was to protect purchasers by ensuring that the information on the register reflected, so far as possible, the position on the ground. The priority accorded to overriding interests created a crack in the mirror principle, therefore going against the overall approach of the system, while the protection of occupiers over and above creditors was anomalous since the object of title registration was to prioritise commercial interests. As one commentator has noted, title registration was regarded as a ‘private law boon to those owners of land who see their land as an item of commerce: no more’.68 Furthermore, the bureaucratic approach adopted towards registered land69—was rooted in the premise that ‘land was just property, that it was not special’.70 In fact, the emergence of the protection for occupiers in section 70(1)(g) was, at the outset, not regarded as particularly significant. Although the goal of title registration was to create a system whereby land could be transferred swiftly and securely, it was thought that creditors and other purchasers did not need to be ‘exonerat[ed] . . . from the easy and obvious task of looking at the outward and 66

[1981] AC 487. Ibid, 504. 68 S Anderson, Lawyers and the Making of English Land Law: 1832–1940 (Oxford, Clarendon Press, 1992) 114. This feature of title registration was discussed in several articles in the Solicitors Journal dating from the period in which the Land Transfer Act 1875 was enacted: see (1870–1) 15 Sol Jo 159; (1873–4) 18 Sol Jo 448, cf (1873–4) 18 Sol Jo 597. 69 This bureaucratic approach continues to dominate, as evidenced by the Land Registration Act 2002: see generally, K Gray and S Gray, ‘The Rhetoric of Realty’ in J Getzler, Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (London, LexisNexis, 2001). 70 Anderson, above n 68, at 131. 67

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visible state of the property, and making inquires of persons in outward and visible occupation of it’.71 This was not, at the time, perceived as an onerous burden: the Chief Land Registrar anticipated that the provision would come into play only in ‘a small number of cases’.72 Indeed, for over half a century he was correct: there were no reported cases of litigation concerning section 70(1)(g) before the 1950s, and the scant case law that emerged after that date was typically concerned with tenants rather than with occupiers with ownership interests in the home.73 It was not until the decision in Williams and Glyn’s Bank Ltd v Boland74 that the significance of section 70(1)(g) as a protection for the home interests of occupiers became clear.

Williams and Glyn’s Bank Ltd v Boland: Home Interests Prevail In Boland, the bank brought an action for possession of the Boland family home after Mr Boland defaulted on repayments on a debt secured against the property, which was registered in his name. However, the court accepted that Mrs Boland had established an equitable interest in the property under an implied trust, and that her equitable interest was ‘overriding’ in accordance with section 70(1)(g) of the Land Registration Act 1925. Since the bank had not obtained consent to the charge from Mrs Boland, her prior equitable claim took priority over the charge. The bank’s application for possession was therefore refused. This came as something of a surprise. Prior to the decision in Boland, it was thought that a wife who was living in the property with her husband would not be able to establish ‘actual occupation’ for the purposes of section 70(1)(g), because her occupation was regarded as a ‘mere shadow’ of her husband’s occupation.75 The decision in Boland indicated that, when taking security against domestic property, creditors were required to investigate the possible equitable interests of spouses in occupation, to the same extent as the interests of all other persons ‘with an interest . . . in actual occupation’. Both the Court of Appeal and the House of Lords were conscious of the policy implications of the decision on the protection of home-type interests against commercial claims. In the Court of Appeal, Lord Denning MR reasoned that:

71

Report of the Land Transfer Commission (1870) HCDebs. xviii (595) para 64. Brickdale, Parliamentary Papers (1909) vol XXVII: 729 (Cmd 4509), para 1421. 73 See Mornington Permanent Building Society v Kenway [1953] Ch 382; Grace Rhymer Investments v Waite [1958] Ch 314. It is arguable that a non-debtor occupier was also easier to spot in 1925 than he or she would be now. This is particularly the case where spouses are concerned: in 1925 there was less divorce, only the better off owned their own homes, and the middle class wife could usually be found at home during the day. 74 [1979] Ch 312 (CA); [1981] AC 487 (HL). 75 Bird v Syme-Thomson [1979] 1 WLR 440. 72

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Valuing Home: Theories, Laws and Policies If a bank is to do its duty, in the society in which we live, it should recognise the integrity of the matrimonial home. It should not destroy it by disregarding the wife’s interest in it—simply to ensure that it is paid the husband’s debt in full.76

In fact, the court’s awareness of the impact of this decision on the balance struck between the commercial claims of creditors and the home interests of occupiers was clearly acknowledged by Lord Denning when he asserted that ‘we should not give monied might priority over social justice . . . [the bank was] not entitled to throw these families out into the street—simply to get the last pennies of the husband’s debt’.77 Similarly, in the House of Lords, Lord Scarman welcomed the outcome in Boland on grounds of social justice. His Lordship reasoned that: it is our duty . . . to give the provision, if we properly can, a meaning which will work for, rather than against, rights conferred by Parliament, or recognised by judicial decision, as being necessary for the achievement of social justice. The courts may not, therefore, put aside, as irrelevant, the undoubted fact that, if the two wives succeed, the protection of the beneficial interest which English law now recognises that a married woman has in the matrimonial home will be strengthened . . .78

Lord Scarman proceeded to assert that the protection conferred on occupiers by section 70(1)(g) should not be diminished by concerns about the effects on creditors: ‘[n]or must the courts flinch when assailed by arguments to the effect that the protection of her interest will create difficulties in banking or conveyancing practice’.79 Nevertheless, the Boland decision did give rise to major concerns amongst conveyancers, who had previously believed that it was not necessary to make inquiries from wives who shared occupation of the home with their husbands. Yet, the House of Lords appeared to show little sympathy regarding the consequences for creditors. For example, Lord Wilberforce acknowledged that the decision signalled the need for a ‘departure from an easygoing practice of dispensing with inquiries as to occupation beyond that of the vendor, and substitution of a more careful inquiry extending to spouses and other members of the family, or even of persons outside it’,80 but went on to add that ‘a practice of more careful inquiry as to the fact of occupation, and if necessary as to the rights of occupiers can not, in my view of the matter, be considered as unacceptable except at the price of overlooking the widespread development of shared interests of ownership’.81 Lord Scarman also suggested that: ‘[t]he difficulties are, I believe, exaggerated: but 76 77 78 79 80 81

[1979] Ch 312 at 332–3, per Lord Denning MR. Ibid, 333. Boland, above n 74, at 510, per Lord Scarman. Ibid. Ibid, 508, per Lord Wilberforce. Ibid, 508–9, per Lord Wilberforce.

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bankers, and solicitors, exist to provide the service which the public needs. They can—as they have successfully done in the past—adjust their practice, if it be socially required’.82

Post-Boland Backlash: Acquisition Mortgages The decision in Boland prompted a considerable backlash. However, despite considerable discussion in the Law Commission,83 the legislature,84 and the academy,85 the ‘Boland problem’, from the creditor’s perspective, has substantially subsided in the decades since the decision. This can be attributed, in part, to the practical reality that, despite initial concerns regarding the standard of inquiry after Boland, within a few years the requirement that all occupiers be ascertained and inquiry made of them had come to be regarded as acceptable. In order to avoid losing priority to the equitable interests of occupiers, it is now standard conveyancing practice for creditors to make inquiries from all adult occupiers, to ask that they disclose any interests claimed in the land, and to seek their consent or join them as parties to the transaction. In fact, in 1987 the Law Commission concluded that ‘conveyancers have learnt to live with it’,86 and even welcomed the practice of wider inquiry and consultation which followed the decision in Boland. Any substantive legislative interference with section 70(1)(g) was clearly off the agenda. Nevertheless, in the years that followed, the apparently pro-home position adopted by the House of Lords in Boland was considerably diluted by a series of judicial developments. In what Gray and Gray described as ‘a relentless retreat from the high point of judicial activism evident in that decision’,87 the pendulum has swung back towards the creditor, and away from the occupier, resulting in the ‘submergence of Boland’s more humane perspective on property priorities under the overwhelmingly commercialist ethos engendered during the late 1980s and 1990s’.88 For one thing, the decision in Abbey National Building Society v Cann89 82

Ibid, 510, per Lord Scarman. Law Commission, The Implications of Williams & Glyn’s Bank Ltd v Boland, Law Com No 115 (London, HMSO, 1982); Law Commission, Third Report on Land Registration, Law Com No 158 (London, HMSO, 1987). 84 Land Registration and Law of Property Bill 1985; Land Registration Act 1986. 85 See, eg, M Beaumont, ‘Mortgage Fraud, Equitable Priorities and Overriding Interests’ (1989) 53 Conveyancing 158; S Bright, ‘Lenders and Overriding Interests’ (1988) 138 New Law Journal 685; R Deech, ‘Williams & Glyn’s and Family Law’ (1980) 130 New Law Journal 896; M Freeman, ‘Wives, Conveyancers and Justice’ (1980) 43 Modern Law Review 692; J Russell, ‘Williams & Glyn’s Bank v Boland & Brown: The Practical Implications’ (1981) 32 Northern Ireland Legal Quarterly 3; P Sparkes, ‘The Discoverability of Occupiers of Registered Land’ [1989] 53 Conveyancer and Property Lawyer 342. 86 Law Com No 158, above n 83, para 2.63. 87 K Gray and S Gray, Elements of Land Law (4th edn, London, Butterworths, 2005), para 12.210. 88 Ibid. 89 [1991] AC 56. 83

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effectively resolved any potential danger that acquisition creditors could lose priority to non-debtor occupiers. By holding that the debtor’s acquisition of title and the creation of the charge were ‘indissolubly bound together’,90 the House of Lords ensured that no other equitable interests could be created before the creditor’s security took effect, thus ensuring the creditor’s priority. The protection of acquisition creditors—and the removal of the home protection for occupiers in this context—was justified on the ground that: [t]he acquisition of the legal estate is entirely dependent upon the provision of funds which will have been provided before the conveyance can take effect and which are provided only against an agreement that the estate will be charged to secure them.91

In cases involving acquisition finance, not only would the occupier have been unable to acquire the property (and so take up occupation) without the loan, but at the time of the transaction, the property was not yet occupied as a home. Since home meanings and attachments are developed over time,92 the weight of the occupier’s home interest as against the creditor who provided acquisition finance may therefore be relatively less compared to the home interests of more ‘established’ occupiers.

Post-Boland Backlash: The ‘Two trustees’ Rule Another context in which the commercial claims of creditors have countermanded the effects of Boland has been the application of the ‘two trustees’ rule by the House of Lords in City of London Building Society v Flegg.93 This principle protects creditors by providing that, so long as the capital advanced was paid to two legal owners, the creditor’s security ‘overreaches’ any equitable interests under trusts subsisting in the property. The process of overreaching detaches the occupier’s equitable ownership interest from the property and converts that interest from an interest in the property itself—ie, the home—to a claim against the capital money in the hands of the trustees.94 The doctrine of overreaching is based on one of the central pillars of the 1925 property legislation:95 that land, including a person’s home, was to be treated in the same way as other forms of property. One of the principal goals of the 1925 legislation was to make land as easily and securely 90

[1991] AC 56, 92. Ibid. 92 See below, Ch 4. 93 [1986] Ch 605 (CA); [1988] AC 54 (HL). 94 In the case of mortgage transactions, any equitable interests that have been overreached take effect against the mortgagor’s equity of redemption. 95 ‘The 1925 legislation’ refers collectively to the major overhaul of the property system that took palce in 1925; Law of Property Act 1925, Land Registration Act 1925, Settled Land Act 1925, Trustee Act 1925, Land Charges Act 1925 and Administration of Estates Act 1925. 91

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transferable as possible. Land was deliberately designated as merely another form of capital, as a commercial asset, as readily exchangeable as any other asset. Thus, the 1925 legislation repudiated the idea that land had any special meaning just because it was occupied as a home. Rather, it was presumed that the primary object of any joint holding of property—for example between spouses or partners—was investment and sale rather than use and occupation.96 The Parliamentary debates preceding the Law of Property Act 1925 attested to the Government’s policy of assimilating land with other forms of property, so that land would carry no special meaning. This policy did give rise to some opposition from members of the legislature, who argued that, ‘[y]ou cannot compare the transfer of stocks and shares with the transfer of property’,97 and that: ‘[y]ou may want one special piece of land . . . no one wants one special stock certificate . . . There is no magic in one stock certificate’.98 Nevertheless, and notwithstanding the argument that was made, that ‘land is a special property. A man may want one particular piece of land, and it may be that no money can compensate him for the loss of it’,99 these considerations were outweighed by the Government’s desire to facilitate land transactions by designating land as mere capital. This principle, as applied in City of London Building Society v Flegg,100 provided a further mechanism by which the court was able to eradicate the pro-home ethos of the decision in Boland. Although the Court of Appeal in Flegg had been reluctant to draw a sharp distinction between cases involving one legal title owner (one trustee)—such as Boland itself, and cases of joint legal title (with two or more trustees)101 the House of Lords applied the principle of overreaching on the basis that the capital money had been paid to two trustees. The plaintiffs’ equitable interest was overreached, and thus it was transferred from the property itself—the Fleggs’ home—to the capital money. This decision illustrated another significant gap in the protection afforded to occupiers under section 70(1)(g): it was now apparent that creditors would be protected, regardless of whether they carried out the ‘practice of more careful inquiry’ envisaged by Lord Wilberforce in Boland,102 so long as the capital money was paid to two trustees. 96 This was achieved, in part, by imposing a trust for sale on all co-owned land; as the Law Commission for England and Wales would later observe, ‘[t]he defining feature of the trust for sale . . . is that the trustees are under a duty to sell the trust land. Implicit in this is the notion that this land should be held primarily as an investment asset rather than as a “use” asset’: Transfer of Land: Trusts of Land Law Com No 181 (London, HMSO, 1989), para 3.1; see further below, Ch 4. 97 154 HC Deb (5th Series) col 145 (15 May 1922). 98 Ibid, col 124. 99 Ibid. 100 Above n 93. 101 ‘In my judgment, therefore, the reasoning in Boland covers entirely the position of the Fleggs in the present case. As no inquiry was made of the Fleggs before the plaintiffs took their mortgage on the property, the Fleggs have an overriding interest in the property which binds the plaintiffs’: Flegg [1986] 1 Ch 605 at 617 (CA), per Dillon LJ. 102 Above n 66 at 508, per Lord Wilberforce.

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Yet, while the decision on acquisition mortgages in Cann was relatively uncontroversial, it is interesting to note that the ‘two trustees rule’ has continued to attract critical attention and policy debate. In the late 1980s, the Law Commission published a working paper and a report criticising the operation of the ‘two trustees’ rule against occupiers, and recommending that the interests of beneficiaries in occupation of their homes should not be overreached unless the occupying beneficiaries consented to the transaction.103 The Commission’s recommendations were based on the argument that: the exclusively financial protection given by the 1925 legislation is no longer appropriate for occupiers of their own homes; [since] their real concern is often with the enjoyment of the property itself which will be lost after overreaching . . .104

When balancing the occupier’s home interest against the commercial claims of third party creditors, the Law Commission reasoned that ‘[t]he objective must be to confer greater rights on those whom fairness dictates should have them’.105 The Commission concluded that, in this context, it was the occupier’s home which, as a matter of fairness, demanded greater protection. Consequently, it was proposed that the protection conferred on occupying beneficiaries should be enhanced by requiring that creditors identify and obtain consent from all occupying beneficiaries prior to the transaction before the overreaching provisions would apply. Thus, the occupier’s interest could not be shifted from the home onto the proceeds of sale without their express consent. This obviously recognised the specific home values associated with the occupier’s interest, and contradicted the policy of the 1925 legislation, which had treated the home as mere capital. Although these recommendations were not adopted in legislation, the Law Commission’s recommendations were endorsed by the Court of Appeal in State Bank of India v Sood.106 Whilst Gibson LJ acknowledged that the court was bound by the decision in Flegg, he expressed the view that, in ‘two trustee’ cases: beneficiaries in occupation are insufficiently protected . . . Hence the recommendation for reform in the Law Commission’s report . . . that a conveyance should not overreach the interest of a sui juris beneficiary in occupation unless he gives his consent.107

However, in the subsequent Court of Appeal decision in Birmingham Midshires Mortgage Services Ltd v Sabherwal,108 Walker LJ took the opposite view. In this 103 Law Commission, Trusts of Land: Overreaching (Working Paper No 106) (London, HMSO, 1988); and Law Commission, Transfer of Land—Overreaching Beneficiaries in Occupation, Law Com No 188 (London, HMSO, 1989). 104 Ibid, para 3.5. 105 Ibid, para 3.8. 106 [1997] Ch 276. 107 Ibid, at 290. 108 (1999) 80 P&CR 256.

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case, since the mortgage capital had been paid to two trustees, Mrs Sabherwal’s equitable interest in the family home was overreached and automatically transferred to the capital sum received by her husband. Walker LJ justified this outcome on the basis that, although she had lost her home, the money Mrs Sabherwal was entitled to as her share of the capital would enable her to purchase another home: An equitable interest as a tenant in common can [. . .] [sensibly shift from the land affected by it to the proceeds of sale] even if accompanied by the promise of a home for life, since the proceeds of sale can be used to acquire another home.109

This raises some important issues. For one thing, from the occupier’s perspective, the conversion of her claim against the house into a claim against the capital places her in a less secure position as a beneficiary. Capital can be either dissipated or concealed from the beneficiary at the hands of defaulting trustees, although the requirement of two trustees is intended to protect the beneficiary to some extent against this danger. Another more significant issue relates to the loss of the home itself. The idea that the occupier might have some specific attachment to the particular home in which she had been living for 12 years was not considered by the court in Birmingham Midshires Mortgage Services Ltd v Sabherwal. In fact, as noted above, the court presumed that Mrs Sabherwal’s claim was satisfied by shifting her interest onto the proceeds of sale. The discussion in Chapter 4 considers the range of meanings and values of home to occupiers, including the value of the home as a financial asset. Empirical research in other disciplines has established that, while the value of the home as a financial asset is one element of home meanings for occupiers, home has many other significant attributes. In fact, psychological research has indicated that the most important aspects of home for occupiers are not the capital value of the property, or even the physical structure for shelter.110 Rather, they are the psychological, social and emotional attachments that develop through living in a property as a home over a period of time, and these cannot simply be replicated in another property.111 The doctrine of overreaching clearly undermines the idea that home holds any value other than its capital value. The Law Commission’s proposals for reform of the ‘two trustees rule’, to allow greater recognition of the home interest of occupiers, did not lead to legislative reform. However, a fresh challenge to the application of overreaching principles in this context appeared to emerge with the case of National Westminster Bank plc v Malhan,112 which considered the effect of the overreaching provisions on home occupiers under the Human Rights Act 1998. In Malhan, the court considered the 109 110 111 112

Ibid, [28]. G Hayward, ‘Home as an Environmental and Psychological Concept’ (1975) 20 Landscape 2. See Ch 4. [2004] EWHC 847.

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argument that, since the overreaching provision set out in section 2(1) of the Law of Property Act 1925 applies when two or more trustees act together but not when one trustee acts alone, it amounted to a discriminatory interference with the occupier’s right to respect for home under Article 8 and/or the right to peaceful enjoyment of possessions under Article 1 of the First Protocol to the European Convention on Human Rights. In this case, the court concluded that the argument based on the Human Rights Act 1998 must fail since the Act was not in force when the overreaching occurred—that is, when the relevant charge was created in 1994, and it was not retrospective. However, it is notable that, notwithstanding the assertion of similar ‘pro-home’ arguments by the Law Commission and the Court of Appeal in State Bank of India v Sood,113 Sir Andrew Morritt VC added that he believed there was ‘much force’ in the bank’s arguments against the occupier’s purported human rights claim.114 Although this challenge may yet be raised again in a future case in which, according to the facts, the Human Rights Act 1998 is binding on the court, it remains to be seen whether the court will be open to this line of reasoning.115

Post-Boland Backlash: Estoppel The protection afforded to equitable owners in occupation of property has also been eroded by the application of the doctrine of estoppel in circumstances where the co-owning occupier was aware of the mortgage transaction, yet failed to bring his or her interest to the mortgagee’s attention. The occupier’s knowledge of the transaction, combined with failure to bring their interest to the attention of the creditor, may lead the court to hold that the occupier’s imputed intention was that the mortgagee’s rights were to prevail.116 For example, in Paddington Building Society v Mendelsohn,117 Browne-Wilkinson LJ held that section 70(1)(g) of the Land Registration Act 1925 protected only the enforceable rights of persons in actual occupation. Thus, in circumstances where the co-owning occupier was deemed, by non-disclosure of his or her interest, to have conceded priority to the purchaser, his or her rights would no longer be regarded as enforceable. Consequently the occupier’s interest could no longer form the basis of an overriding interest. A similar result was also achieved in Equity and Law Homes Loans Ltd v Prestidge,118 when the implied consent of a non-debtor co-owning occupier 113

Above n 106. Malhan, above n 112, at [53]. 115 The implications of the Human Rights Act 1998 in the area of home-type claims are considered in more detail in Ch 8. 116 The decisions in Wroth v Tyler [1974] Ch 30 and Watts v Spence [1976] Ch 115 suggest, however, that conduct such as showing the purchaser around the house is necessary for an occupier to be estopped from asserting priority against the creditor. Silence is not sufficient. 117 (1985) 50 P&CR 244. 118 [1992] 1 WLR 137. 114

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with knowledge of the original transaction was imputed to a subsequent remortgage on no less favourable terms.119

Priority between Creditors and Occupiers: Conclusions Thus, as a basic rule of thumb, although creditors are required to make inquiries of all adult occupiers,120 and either to join or obtain consents from those who claim an interest in the land in order to safeguard their priority, judicial policy since the decision in Boland has carved out considerable exceptions to the Boland principle, which have swung the balance firmly back in favour of the creditor. In addition, while the issue of priority between a non-debtor co-owner and a creditor will often be the first step in any conflict between such parties, even the creditor who is defeated at the priority stage remains entitled to exercise a number of alternative remedies. The decisions in Bank of Baroda v Dhillon121 and Alliance and Leicester plc v Slayford122 have clearly established that the loss of priority will by no means be the end of the story for the unsuccessful creditor. The creditor may still apply for sale of the property in order to realise the debtor’s share, and ultimately may trigger bankruptcy proceedings against the debtor, with a view to ensuring that all assets are realised in order to satisfy the debt. It is therefore also pertinent to consider some of the principles that have been applied to determine the outcome of applications for the sale of property that is occupied as a home.

Creditor Actions for the Sale of Co-owned Land Whether or not the creditor succeeds in establishing priority over a non-debtor co-owning occupier, once the debtor defaults on repayment the property becomes vulnerable to forced sale. If the creditor is successful in establishing priority over all legal and equitable interests in the property—that is, if any person with a legal or equitable interest in the property is joined in the transaction, gives a valid consent to the transaction, or is defeated by the post-Boland policies (the mortgage is an acquisition mortgage, the capital money was paid to two trustees, or the 119 Mustill LJ held that ‘[t]he new mortgage was made against the background of a consent from the appellant to the creation of an encumbrance so that the transaction could proceed. This imputed consent must, in common sense, apply to the creation of a new encumbrance in replacement of the old, whether the appellant knew about it or not, provided that it did not change her position for the worse’: ibid. 120 It is not necessary to make inquiries from a child occupier: see Hypo-Mortgage Services Ltd v Robinson [1997] 2 FLR 71; see further Ch 9. 121 [1998] 1 FLR 524 (CA). 122 [2001] All ER (Comm) 1.

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co-owning occupier is estopped from asserting priority over the creditor), the creditor can proceed to bring an action for possession and sale of the whole property. A legal mortgagee of unregistered land acquires an automatic and immediate123 right to possession based on their estate in the land, and although an equitable mortgagee does not acquire such rights automatically, they can readily obtain possession of the property.124 These rights are replicated in cases involving registered land.125 The only real defence available to the occupier is section 36 of the Administration of Justice Act 1970, discussed above, which empowers the court in certain circumstances to delay the repossession of the property. However, the court’s discretion can be exercised only in accordance with strict guidelines which focus on the debtor’s financial standing and the likelihood that any sums due will be repaid within a reasonable period of time. The mortgagee may also be able to procure an out-of-court sale under sections 101–103 of the Law of Property Act 1925 or a judicial sale under section 91 of the Law of Property Act 1925.126 Alternatively, when a third party does not succeed in establishing priority over all legal and equitable interests in the property—where, for example, the consent of a partner is void for misrepresentation or undue influence where the creditor has failed to obtain consent from an equitable co-owner whose interest binding is the creditor’s proprietary security interest will take effect against the debtor’s share only. When it comes to asserting proprietary rights against the property, the creditor can act only against the debtor’s share, and not that of the co-owner who is not bound by the transaction. As noted above, it is therefore not usually possible to obtain possession of the property on the basis of the mortgagee’s automatic right to possession. Rather, the creditor who seeks to take action against the debtor’s share must proceed through the statutory frameworks governing co-owned land. These frameworks, which will be considered further in subsequent chapters, are introduced below.

123 ‘[A]s soon as the ink is dry on the mortgage’: Four Maids Ltd v Dudley Marshall (Properties) Ltd [1957] 1 Ch 317 at 320, per Harman J. 124 Although an equitable mortgagee is not automatically entitled to possession unless there is an express provision to that effect in the mortgage deed, the consent of the mortgagor is given, a receiver is appointed or a court order is made granting a right to possession, ‘[n]evertheless, since an equitable mortgage is a contract which operates as a security and is enforceable under the equitable jurisdiction of the court, an equitable mortgagee is entitled to call for either a legal mortgage . . . or alternatively . . . specific performance of the contract so as to enable him to seek appropriate remedies, including an order for possession’: P Brimelow and N Clayton, Mortgage Possession Actions (Harlow, Longman, 1994) 5. 125 Although a chargee of registered land does not obtain a right to possession based on a legal estate in the land, s 51 of the Land Registration Act 2002 provides that the registered chargee has all the powers of a legal mortgage (subject to contrary indication on the register). 126 These provisions were discussed in detail above, in relation to actions against property held by a sole owner.

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The Policy of 1925 and the Presumption of Sale When considering the balance struck between the co-owning occupier’s interest in living in the property as a home and the creditor’s commercial claim against the property as capital, it is important to recognise that, in the context of applications for sale of co-owned land, the legal outlook has been dominated by the policy of the 1925 legislation. The object of the 1925 legislation was the assimilation of property in land with other forms of property, so that land would carry no special meaning. The doctrine of overreaching—by which an equitable interest in the land could be automatically shifted onto the capital money, without the consent of the equitable owner, so long as the capital money was paid to two trustees—was one means by which the legislation sought to facilitate conveyancing. The earlier discussion has demonstrated the effects of the doctrine of overreaching on the attitude of English law to home-type interests. Since a creditor can ensure, so long as the purchase money is paid to two trustees, that any equitable interests in the land are ‘overreached’ by the transaction and shifted onto the capital money instead, the equitable owner can find that their interest in the home has been substituted by an interest in a capital sum, without knowledge or consent. Between home interests and commercial interests, it was clear that commercial claims were overwhelmingly preferred. This general approach has also been significant in cases where the occupier’s ownership interests in the home does survive the credit transaction, and takes priority over the creditor’s security interest in the property. The creditor—whose security extends only against the debtor’s share of the property—steps into the shoes of the debtor and effectively becomes a co-owner of the property with the non-debtor co-owner. When the creditor—as will often be the case once the debtor defaults— seeks to realise the capital value of the property in order to recover the debt, the creditor must apply to the court for sale of the land. For most of the twentieth century, applications for the sale of co-owned land were governed by the statutory framework set out in the Law of Property Act 1925. The provisions concerning coowned land in the 1925 legislation were very much in keeping with the overall policy goals of the reforms. Prior to 1925, particular problems had existed in relation to co-owned land, particularly equitable co-ownership, for example under an implied trust, since these interests did not appear on the face of the title to the property, and so were more difficult for purchasers to discover. The drafters of the 1925 legislation sought to facilitate the transfer of co-owned land by two principal means: first, all interests in co-owned land would be held behind a trust, with the trustees—identifiable from the legal title—empowered to execute transactions affecting the land; thus purchasers could be confident that, by dealing with the trustees, they would obtain good title. Secondly, the trust imposed on co-owned land by the legislation would be imbued with a presumption in favour of sale.

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The Law of Property Act 1925 imposed the legal machinery of a trust for sale on all co-owned real property.127 One of the features of this trust was the implicit duty placed on the legal owners, the trustees for sale, to sell the property.128 This had major implications on the meanings and values associated with co-owned land. By declaring that co-owned land was to be held on a trust for sale, the 1925 Act valued co-owned land in terms of its capital value on exchange, and excluded meanings associated with the personal use and occupation of land.129 As the Law Commission has noted: The defining feature of the trust for sale . . . is that the trustees are under a duty to sell the trust land. Implicit in this is the notion that this land should be held primarily as an investment asset rather than as a ‘use’ asset.130

In fact, the equitable co-owner’s interest—placed, by the legislation, behind a trust for sale, was not even recognised as an ‘interest in land’, but regarded from the outset of the co-ownership as an interest in the proceeds of sale. In Irani Finance Ltd v Singh,131 the court recognised that, while, ‘in a non-technical use of language, the beneficiary may be said to have a real interest in the land’,132 in legal terms: the beneficial interest of a person whose interest arises under a trust for sale . . . is not one which is appropriately described as being ‘an interest in the land’ . . . [thus] he has no estate or interest in the land itself.133

A co-owning occupier may have believed that they owned their home, but the mere fact of joint ownership transformed this interest in land into a claim against the cash sum raised on sale, an outcome described by Lord Wilberforce in Williams & Glyn’s Bank Ltd v Boland 134 as ‘just a little unreal’.135 Furthermore, the impact of the trust for sale was not merely ideological, but highly significant in relation to the outcome of creditor/occupier disputes. When the trustee(s) of co-owned land were unwilling to order sale, ‘any person interested’ could apply to the court under section 30 of the Law of Property Act for a 127 The Law of Property Act 1925, s35 stated that ‘land held upon the “statutory trusts” shall be held upon the trusts and subject to the provisions following, namely, upon trust to sell the same and to stand possessed of the net proceeds of sale’. 128 The duty to sell was complemented with a power to postpone sale: s 25 of the Law of Property Act 1925. 129 A similar policy can be seen in the provisions relating to settlements: Settled Land Act 1925. 130 Law Commission, Transfer of Land: Trusts of Land, Law Com No 181 (London, HMSO, 1989), para 3.1. 131 [1970] 2 WLR 117 (Ch D); [1971] Ch 59 (CA). 132 Irani Finance Ltd v Singh [1971] Ch 59 at 69, per Buckley J. 133 Ibid. 134 Above n 66. 135 Ibid, at 507.

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judicial order forcing the sale of the property, and such an order could be made at the discretion of the court. Thus, when a creditor sought to force the sale of the property against the wishes of the trustee(s)—generally the debtor—and any other person with an equitable interest, section 30 of the Law of Property Act enabled the creditor to realise the capital value of jointly owned assets by allowing him to apply to the court for an order for sale. On receiving such an application, the court had an unfettered discretionary power to order sale. In practice, this meant that the court was required to balance the creditor’s interest in realising the debtor’s assets against the non-debtor co-owner’s interest in retaining the property for occupation as a home—as Lord Greene stated in In re Buchanan-Wollaston’s Conveyance,136 the task before the court was to decide ‘whether or not the person applying for execution of the trust for sale is a person whose voice should be allowed to prevail’.137 However, the court did not embark on the process of balancing these interests from a neutral position. Although the power to order sale was discretionary, the legislative policy in support of alienability and the presumption that land—including the home—was merely another form of capital strongly influenced the courts’ willingness to order sale at the request of creditors. The outcome of applications for sale was clearly influenced by the fact that ‘the provisions of the LPA 1925 . . . imposed upon the trustees the obligation of selling under the trust for sale’.138 In fact, the general policy of the 1925 legislation, which was to facilitate the sale of real property, had a significant influence on the exercise of the court’s discretion under section 30. Consequently, in the vast majority of reported cases, the court exercised its discretion to order the sale of the property, thus favouring the creditor’s interest in the property as a capital asset over the coowning occupier’s interest in retaining the land for occupation and use as a home. Yet, although the courts generally followed a policy of ordering sale, the home interests of occupiers were acknowledged from time to time. For example, in Stevens v Hutchinson,139 consideration for Mrs Hutchinson’s home interest led the court to conclude that, regardless of the fact that the debtor was a ‘ne’er-do-well and a waster’,140 the creditor’s application for sale should not be granted. The court laid significant emphasis on the fact that the property was occupied as a matrimonial home, and claimed that, in these circumstances, it did not consider it ‘right or proper to order a sale of the property in order that the judgment creditor may be satisfied’.141 In fact, the court concluded that the creditor was adequately protected by his charge, since the sale would ‘no doubt one day . . . take place’,142 136 137 138 139 140 141 142

[1939] Ch 738. Ibid, 747. Ibid, 746. [1953] Ch 299. Ibid, 307, per Upjohn J. Ibid. Ibid.

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and the creditor’s claim would be satisfied when this occurred. On the other hand, the idea of turning an innocent wife out of the home was thought to be ‘unjust’. In this case, the creditor’s security was derived from a charging order, and prior to the Charging Orders Act 1979 such a chargee did not have locus standi under section 30. Consequently, the court’s comments concerning whether or not to order sale were obiter dicta. Furthermore, when faced with cases in which the court did have jurisdiction to order sale at the request of the creditor, the attitude adopted was much less sympathetic to the occupier’s perspective, but emphasised instead the obligation to sell inherent in the trust for sale. Thus, in exercising its discretion under section 30, the court’s starting point was not whether the occupier should be allowed to remain in possession of the home, but whether it was inequitable not to allow the applicant to realise the capital value of the property.143 Since the purpose of section 30 was to enable an interested party to compel the trustees for sale to execute the trust by ordering the sale against one co-owner’s consent, the presumption of sale was justified as merely giving effect to the object of the trust: the sale of the property. The main difficulty was that the 1925 legislation presumed that the purpose of co-ownership was investment, not use and occupation as a home. However, even when the courts appeared to locate a basis for protecting the ‘home interests’ of occupiers through the ‘collateral purpose doctrine’, the commercial claims of the creditor ultimately prevailed. The collateral purpose doctrine appeared to provide the courts with a means by which to counterbalance the presumption of sale as the object of the trust, with a secondary or ‘collateral’ purpose in cases where the property was a matrimonial home. When applied in the context of section 30, this gave rise to the argument that the court: should allow the trust to continue—and there should be no sale—so long as the purpose of the trust continues—that the house should be used as a home for the two of them. But when the purpose of the trust comes to an end the house should be sold.144

Thus, the prima facie purpose of the trust for sale could be tempered by the collateral purpose of use and occupation, which represented the actual intention of the co-owners. This reasoning was adopted by the Court of Appeal in Re Evers’ Trust,145 where the court accepted that in many cases, particularly when the disputed property was a matrimonial home, the object of the trust for sale was displaced by the recognition that, in reality, the property had been purchased for use and occupation as a home. The Court of Appeal held that ‘[t]his approach to the exercise of the discretion . . . has considerable advantages in these family cases. It 143 144 145

Jones v Challenger [1960] 2 WLR 695. Stott v Radcliffe, 19 Feb 1982 (CA), Transcript: Lexis. [1980] 1 WLR 1327.

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enables the court to deal with substance, that is reality, rather than form, that is convenience of conveyancing’.146 This appeared to suggest that the courts were willing to recognise that the meaning and value of co-owned land went beyond investment and encompassed hometype values. As Lord Denning suggested in Williams v Williams:147 [Judges] nowadays have great regard to the fact that the house is bought as a home in which the family is to be brought up. It is not treated as property to be sold nor as an investment to be realised for cash.148

However, although this doctrine initially appeared to provide a possible basis for avoiding the presumption of sale resulting from the 1925 legislation, thus protecting jointly owned property which was purchased for use and occupation as a home,149 this argument was really successful in only a handful of cases involving conflicts within families, rather than creditors’ applications for sale. Furthermore, even within these confines, the courts’ acceptance of a ‘collateral purpose’ depended on its continued existence. When spouses enter litigation concerning their co-owned property, this will generally indicate that their relationship has broken down. This was the position in Jones v Challenger, where the Court of Appeal held that since the relationship between the spouses had broken down the collateral purpose of use and occupation as a matrimonial home had ceased to exist.150 The operation of the collateral purpose argument was based on the recognition of use and occupation as the purpose of the trust, which, since the spouses were now in conflict, was in the next breath held to no longer exist. Beyond inter-spousal disputes, and where the applicant for sale was a third party creditor, or more particularly a trustee in bankruptcy, the ‘collateral purpose’ argument was of little persuasive effect,151 even where relations remained good between the spouses. The court held that in order for joint occupation of the home to remain a collateral purpose of the trust, the co-owners must both retain their joint ownership interests in the property.152 This excluded from consideration cases 146

Ibid, at 1332–3. Williams v Williams [1976] Ch 278. 148 Ibid, 285. 149 See Stevens v Hutchinson [1953] Ch 299. 150 The court expressed its opinion that this was unfortunate, but claimed that it was unavoidable ‘wherever there is a joint occupation, whether it is matrimonial or otherwise, and it is brought to an end, it may involve hardship and inconvenience on the person who would have preferred it to go on’: Jones v Challenger, above, n 143, at 700, per Devlin LJ. 151 In Re Soloman, a Bankrupt [1967] Ch 573 at 581, it was clearly stated by Goff J that different considerations arose when the litigation involved a creditor, rather than being between the spouses. 152 ‘[W]hile the purpose of its enjoyment as a matrimonial home still exists . . . In order to be so enjoyed it must be occupied by the spouses jointly. As a matter of property law, the basis of their joint occupation is their joint ownership of the beneficial interest in the home. Although the vesting of one of their interests in a trustee for creditors does not in itself destroy the secondary purpose of the trust, the basis for their joint occupation has gone’: Re Citro [1991] Ch 142 at 158, per Nourse LJ. 147

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where one spouse had used his property interest as security.153 Thus, although the doctrine initially appeared to provide a basis on which to recognise ‘home-type’ interests as meaningful within the legal framework of creditor/occupier conflicts, at the very least, home claims carried insufficient weight to enable them to prevail over the commercial interests of creditors. The court continued to apply the presumption of sale—that ‘where there are debts outstanding, a sale should be ordered’.154 Considerations such as the use of the house as a family home for the spouses and their children were outweighed by the ‘grave hardship’ which creditors would suffer if the return of their investment was delayed.

Bankruptcy This approach followed the court’s long established policy in relation to section 30 applications in the context of bankruptcy. Many of the applications brought under section 30 were made by a trustee in bankruptcy, acting on behalf of the creditor(s). In bankruptcy cases, the court adopted a particularly stringent approach towards section 30 applications, developing a principle that the discretion to order sale should be exercised unless the circumstances were exceptional.155 Home interests were regarded as irrelevant, as the court held that ‘[b]ankruptcy has, in relation to the matrimonial home, its own claim to protection’.156 For example, in Re Lowrie,157 the High Court ordered that, although the order for sale would be granted, sale would be postponed for 30 months, by which time it was considered that the wife would be able to pay off her husband’s debts. The Court of Appeal overruled this decision and ordered that the house be sold at once.158 The prospect that both the bankrupt and other co-owning occupiers would be rendered homeless and unable to acquire another mortgage was not sufficiently exceptional to justify refusing an order for sale to a trustee for bankruptcy,159 or even delaying the execution of the order. In fact, In re Holliday was the only reported case of a bankruptcy application under section 30 in which the court held that the sale of the home should be deferred for a short period of time, on the understanding that Mrs Holliday had some prospect of buying her bankrupt husband’s share of the 153

Ibid. Re Lowrie [1981] 3 All ER 353 at 355–6, per Walton J. 155 The trustee in bankruptcy’s statutory duty to realise the debtor’s assets in favour of his creditors led to the judicial conclusion that his application for sale should generally be acceded to: In re McCarthy, A Bankrupt [1975] 1 WLR 807 at 808. 156 Re Bailey [1977] 1 WLR 278 at 279, per Megarry V-C. See also Re Soloman [1967] Ch 573; Re Turner [1974] 1 WLR 1556; Re McCarthy, above n 155; Re Lowrie, above n 154; Re Densham [1975] 1 WLR 1519. 157 Above n 154. 158 See also Re Citro, above n 152, where the court held that even where postponement was allowed, it was not to exceed 6 months. 159 Re Lowrie, above n 154. 154

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asset.160 The prevailing approach was that, ‘where there are debts outstanding, a sale should be ordered’,161 and that, ‘one must be just before one is generous’.162 The 1925 property reforms provided the courts with the ideology, the language, the tools and the justification to adopt a presumption in favour of sale, to value land as a capital asset only, and to disregard the non-financial interests of occupiers in their homes. This ethos was so strongly embedded in legal discourse that, even when section 336 of the Insolvency Act was enacted with a view to attaching greater weight to use and occupation of property as a family home in the context of bankruptcy proceedings, the commercial interests of creditors continued to prevail. Section 336 of the Insolvency Act 1986 required the court, when exercising its discretion to order the sale of a family home, to have regard to a range of factors, including: the interests of the bankrupt’s creditors, the conduct of the spouse or former spouse . . . the needs and financial resources of the spouse or former spouse, the needs of any children, and all the circumstances of the case other than the needs of the bankrupt.163

Yet, while this provision purported to provide the court with grounds on which to recognise the interests of the debtor’s family in retaining its home, it was tempered by section 336(5), which required the court, once a year had passed from the instigation of bankruptcy proceedings, to ‘assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt’s creditors outweigh all other considerations’. Judicial policy with regard to section 30 applications by trustees in bankruptcy after 1986 was epitomised by the decision of the Court of Appeal in Re Citro (a Bankrupt).164 Re Citro involved applications for sale by the trustees in bankruptcy of two brothers, both of whom co-owned the beneficial interest in their respective family homes with their spouses.165 The court conceded that the task of balancing the interests of creditors and co-owners, compounded by the distinctive concerns of the parties,166 was ‘by no means an easy thing’. It was clear, however, that the 160 [1981] Ch 405. The trustee’s application also received short shrift due to the court’s assessment of the action as a tactical move on behalf of the bankrupt, to avoid a property adjustment order in favour of his ex-wife. 161 Re Lowrie, above n 154, at 355–6, per Walton J. 162 Ibid, 284. 163 Insolvency Act 1986, s 336(4). 164 Above n 152. 165 Although s 336 of the Insolvency Act was not applicable in Re Citro since the bankruptcy proceedings had been initiated before the Act had been brought into force, the court reasoned on the basis of s 336, since it would apply to such cases in the future: ‘I refer to section 336 of the Insolvency Act which, although it does not apply to either of these cases, will apply to such cases in the future’: ibid, 159, per Nourse LJ. 166 ‘On the one hand, one has the financial interests of the Crown . . . banking institutions and . . . traders, on the other one has the personal and human interests of . . . families’: Re Citro, above n 152, at 150 A–B, per Hoffman J.

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judicial policy approach towards applications by trustees in bankruptcy under section 30 favoured the concerns of the creditors and the trustee in bankruptcy. Walton J’s finding that: the voice of the trustee in bankruptcy, reminding the debtor of the obligation to pay one’s debts, should prevail as compared with one’s obligations to maintain one’s wife and family167

and the memorable statement that ‘one must be just before one is generous’168 remained the touchstone of judicial discretion in dealing with applications for sale by trustees in bankruptcy under section 30 LPA. Nourse LJ concluded that, notwithstanding the factors set out in section 336(4), section 336(5) ‘was intended to apply the same test as that which has been evolved in the previous bankruptcy decisions, and it is satisfactory to find that it has’.169 The Court of Appeal consolidated the approach of the previous authorities, and stated as a general rule that a trustee in bankruptcy ought to be granted an order for sale unless the circumstances of the co-owning occupier were exceptional. Furthermore, this strict approach was soon to be extended outside the context of bankruptcy, to cases involving ordinary secured creditors. In Lloyd’s Bank Ltd v Byrne 170 and Barclay’s Bank Plc v Hendricks 171 the court extended the principle that applications for sale ought to be granted, notwithstanding opposition from a co-owning occupier, unless the circumstances were exceptional. First, in Byrne, the Court of Appeal held that ‘there is no difference in principle between the case of a trustee in bankruptcy, and that of a chargee’.172 The subsequent decision of the High Court in Hendricks 173 extended this approach to cases where the creditor’s security was obtained through a judicially imposed charging order. Although Laddie LJ described the defendant’s submission that the chargee was in no better position under section 30 than the co-owner he replaced as ‘attractive’, he considered the court bound by the Court of Appeal’s decision in Byrne. Thus, in any creditor/occupier dispute concerning co-owned land, the court’s policy was to order sale of the land at the request of the creditor, unless the circumstances were exceptional. The effects of granting the order for sale on the people who occupied the property as their home—considered further in Chapter 3, below—were dismissed as the ‘usual melancholy consequences of debt and improvidence’.

167 168 169 170 171 172 173

Re Bailey, above n 156, at 284, per Walton J. Ibid. Re Citro, above n 152, at 159, per Nourse LJ. [1993] 1 FLR 369. [1996] 1 FLR 258. Lloyd’s Bank Ltd v Byrne, above n 170, at 375. Above n 171.

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Trusts of Land and Appointment of Trustees Act 1996 It was clear that in contests between creditors and occupiers, legal policy valued the commercial claims of creditors over the home interests of occupiers. In fact, the idea that the home was meaningful beyond its capital value as an asset was inconsistent with the goals of the 1925 legislation, and had been effectively excluded from legal reasoning. However, this landscape appeared to change with the enactment of the Trusts of Land and Appointment of Trustees Act 1996, which purported to re-introduce the idea of use value in the home to the legal framework of property ownership by recognising that home owners do not, in reality, regard their property as merely an investment asset, but value it also as a home. The objects of the 1996 Act were clear. For one thing, the legislation replaced the ‘trust for sale’ imposed on co-owned land by the Law of Property Act 1925 with a ‘trust of land’. By declaring that a co-ownership interest in land is an interest in the land itself, rather than an interest in the proceeds of sale, the Trust of Land and Appointment of Trustees Act 1996 removed the ‘highly artificial’174 fiction which was inherent in the trust for sale with regard to the purpose of co-ownership. The Law Commission recognised that ‘[t]he trust for sale mechanism is not appropriate to the conditions of modern home-ownership’,175 since the purpose of buying co-owned land is usually occupation. This signified a change in position concerning the purpose of land ownership as recognised by the law. The Law Commission also accepted that ‘the property will not be held simply as an investment asset, but as a “use” asset’,176 while, in the Parliamentary debates preceding the Act, the Lord Chancellor claimed that the objective of the legislation was to reflect the reality that ‘most co-ownership of property is for the purpose of providing a home rather than an investment’.177 The Law Commission also acknowledged the possibility that an occupier can have an attachment to a specific piece of land that would not be compensated for by payment of capital, when it recognised that the occupier’s ‘realistic concern is often with the enjoyment of the land itself ’.178 The Law Commission recognised that ‘each piece is, in principle, unique’,179 and acquired additional value as ‘the place where the beneficiaries live, or want to live in the future’.180

174 Law Commission, Trusts of Land (Working Paper No 94) (London, HMSO, 1985), para 6.4. See also Law Commission, Trusts of Land: Overreaching (Working Paper No 106) (London, HMSO, 1988), para 3.2. 175 Law Commission, Transfer of Land: Trusts of Land, Law Com No 181 (London, HMSO, 1989), para 1.3. 176 Ibid, para 3.2. 177 569 HL Deb (5th Series) col 1719 (1 March 1996), per Lord Mackay. 178 Working Paper No 106, above n 174, para 3.1. 179 Law Com No 181, above n 175, para 3.10. 180 Ibid.

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This new ideology was extended to applications for the sale of co-owned land through sections 14 and 15 of the 1996 Act. Section 14 allows the creditor to apply for sale of the property, but the court’s previously unfettered discretion was moderated by section 15, which set out a list of factors to be considered by the judge in the exercise of his discretion. These included regard for the intentions of the person who created the trust, the purpose for which the trust was formed (for example, occupation as a home), and the welfare of any minor occupant, as well as the interests of any secured creditor. Section 15(3) also directed the court to consider the interests of persons of full age entitled to interests in possession—that is, adult co-owners—with a consideration of the value of their interests. Yet, although these guidelines appeared to counterbalance the pro-sale presumption of the earlier provision, the impact they would have on the outcome of disputes between creditors and occupiers was questionable from the outset, when the Law Commission suggested that they would ‘consolidate and rationalise the current approach’,181 while the Lord Chancellor, guiding the Bill through the House of Lords, described section 15 as ‘carry[ing] through the effect of the existing provision under section 30 of the 1925 Act as it has been applied and developed by the courts’.182

Judicial Policy after 1996 Indeed, following the 1996 Act, the courts have, with little exception,183 remained faithful to the ethos of the 1925 legislation, and continued to favour sale over retention of property when balancing commercial claims with home interests.184 For example, in TSB Bank plc v Marshall,185 Judge Wroath exercised his discretion to order the sale of a matrimonial home under section 14 on the ground that, ‘where there is a conflict between the chargee’s interest in a matrimonial home and the interests of an innocent spouse, the interest of the chargee will prevail except where there are exceptional circumstances’.186 The Court of Appeal adopted a similar approach in Swain v Foster,187 when a co-owner sought to prevent the sale of the property until her youngest son, who was in occupation of the property with her, finished university in five years time. There was no creditor involved, the dispute arising between a brother and sister who jointly inherited the property 181

Law Com. No. 181, above n 175, para 12.9. 569 HL Deb (5th Series) col 1719 (1 March 1996), per Lord Mackay. 183 In Edwards v Lloyd’s TSB Bank [2004] EWHC 1745, the court adopted a much more ‘homeoriented approach’ to the issue of sale where the welfare of minor occupiers was in issue; see further, Ch 9. 184 See, eg, TSB Bank plc v Marshall [1989] 39 Estates Gazette 308; Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 All ER (Comm) 920; First National Bank plc v Achampong [2003] EWCA Civ 487. 185 Ibid. 186 Ibid. 187 14 Oct 1998 (CA), Transcript: Lexis. 182

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from their father’s estate, yet the judge ordered sale at the brother’s request and against the sister’s wishes. Holman J, sitting in the Court of Appeal, refused leave to appeal on the basis that the judge had adequately considered the factors set out in section 15, and there was no realistic basis for the appeal.188 It is therefore unsurprising that in cases involving bankruptcy the balance has not swung towards the home interests of the occupier, but remained firmly weighed towards the creditor and sale. The Trusts of Land and Appointment of Trustees Act amended the Insolvency Act 1986 to extend the protection ostensibly provided by section 336 to trusts of land. However, section 335A also replicates the presumption that when an application for sale is brought more than one year after bankruptcy proceedings are instigated, the court must order sale unless the circumstances are exceptional. Despite the apparent ideological shift of the 1996 Act, the court has accepted that the circumstances are exceptional in only the most extreme of cases. In fact, to date it has generally been possible to delay the realisation of the matrimonial home in bankruptcy proceedings only where an occupier of the property is suffering from a serious illness. In Judd v Brown,189 the court held that ‘a sudden and serious attack of cancer was an exceptional event . . . and was clearly distinguishable from problems such as organising substitute housing or rearranging children’s schooling’.190 In Bank of Ireland Home Mortgages Ltd v Bell,191 the Court of Appeal set out the policy to be followed in respect of applications for sale under the Trusts of Land and Appointment of Trustees Act 1996. Gibson LJ took the policy of the court under section 30 as a starting-point, and noted that: Prior to the 1996 Act the courts under s30 of the Law of Property Act 1925 would order the sale of a matrimonial home at the request of the trustee in bankruptcy of a spouse or at the request of a creditor chargee of a spouse, considering that the creditors’ interest should prevail over that of the other spouse and the spouse’s family save in exceptional circumstances.192

The factors set out in section 15, which drew the attention of the court to matters such as the intention of the parties, the purposes of the trust and the welfare of child occupiers, were acknowledged by the court, which also recognised the opportunity that the guidelines in section 15 provided for the development of judicial policy, with Gibson LJ noting that ‘[t]he 1996 Act, by requiring the court to have regard to the particular matters specified in s15, appears to me to have given scope to some change in the court’s practice’. However, the weight attached 188 The Court of Appeal’s reluctance to interfere with the trial judge’s exercise of his discretion is also apparent in Laird v Laird [1999] 1 FLR 791. 189 [1998] 2 FLR 360. 190 See also Claughton v Charalamabous [1999] 1 FL3 191 [2001] 2 All ER (Comm) 920. 192 Ibid, [31].

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to the interests of the creditor dominated the court’s analysis. The court’s enduring pro-creditor bias was demonstrated by Gibson LJ’s comments that, notwithstanding the criteria set out in section 15: Nevertheless, a powerful consideration is and ought to be whether the creditor is receiving proper recompense for being kept out of his money, repayment of which is overdue. In the present case it is plain that by refusing sale the judge has condemned the bank to go on waiting for its money with no prospect of recovery from Mr and Mrs Bell and with the debt increasing all the time, that debt already exceeding what could be realised on a sale. That seems to me to be very unfair on the bank.193

The pro-creditor position adopted in Bank of Ireland Home Mortgages v Bell has become a point of reference for judicial policy under sections 14 and 15.194 This indicates that, while the Trusts of Land and Appointment of Trustees Act 1996 appeared to open up the possibility for greater recognition of home-type values in law, the exercise of the court’s discretion has remained largely consistent. Nevertheless, challenges to the pro-creditor policy continue to emerge. Examples include the decision in Edwards v Lloyd’s TSB Bank plc,195 in which the court ordered a delay in the sale of the disputed property for five years, until the youngest occupying child reached 18. Furthermore, the court held that the claimant was under no obligation to service the accruing interest to the bank in the interim period. This decision is considered in greater detail in Chapter 9, which explores the relevance of the presence of children in the home. Another avenue which will be considered further, in Chapter 10, is the potential for developing home arguments in the context of the Human Rights Act 1998. In Barca v Mears,196 the court considered the policy of ordering sale at the request of a trustee in bankruptcy unless the circumstances were exceptional in the light of Article 8 of the European Convention on Human Rights, which includes the right to respect for home. Although it was held that, on the facts, the Deputy Registrar’s decision to order sale had been appropriate, the judge concluded that the statutory provisions would be compatible with the Convention ‘without the possibly undue bias in favour of the creditors’ property interests embodied in the pre-1998 case law’.197 Thus, while the weight attached to the interests of creditors remains substantial, attempts to re-assert the home interests of occupiers, based on various types of argument, continue to emerge. The development of these arguments, their impact to date and their potential for future development are considered further in the thematic chapters in Part II of this book. 193 194

Ibid. See, eg, Re A: A v A [2002] EWHC 611; First National Bank plc v Achampong [2003] EWCA Civ

487. 195 196 197

[2004] EWHC 1745; see further, Ch 9. [2004] EWHC 2170. Ibid, [42].

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Conclusions Although the lesson of experience suggests that legal policy is firmly set in support of sale, it is significant to note that the idea of protecting interests in the home— although not often successful—is never far from the policy agenda. One recent example of this can be found in the Enterprise Act 2002, which introduced measures to provide some degree of protection for certain homes in the event of bankruptcy. For one thing, the 2002 Act conferred a total exemption on certain ‘low value homes’198 against applications for sale or possession. The Act also provided that if, in any case, after three years from the instigation of bankruptcy proceedings, the trustee in bankruptcy has not taken steps to repossess or sell the home of a bankrupt or a bankrupt’s spouse or former spouse, that property should cease to form part of the bankrupt’s estate.199 The object of these provisions was to provide some degree of protection for the occupier of a property in cases where the benefit to be gained by the creditor would be minimal. Although these examples, like the illustrations set out above in the introduction to this chapter, provide somewhat ad hoc evidence of the recognition of ‘home’ as a special type of property, they do testify to law’s ability to accommodate ‘home-oriented’ values in order to further particular policy aims, so long as this does not run counter to the overarching goals of the system.200 The degree to which home-type values have been recognised in law has varied depending on the nature of the competing interests at stake. Taking the example given above of ‘low value homes’, it is relatively uncontroversial to advance the occupier’s home interests as a significant factor to be taken into account when the opposing claimant—for example the creditor—has little to lose. However, when the interests at stake are more evenly balanced, the absence of a solid conceptual framework within which to recognise home-type interests has tended to skew the outcome towards the creditor. Since legal analysis has not yet drawn on crossdisciplinary research into the meanings and values of home, the idea that home bears specific and identifiable meanings beyond the physical structure or capital value of the house appears, to the legal perspective, an unverifiable and illusive proposition. This renders it more difficult for ‘home-oriented’ interests to carry weight against competing claims such as the protection of commercial interests, 198 Enterprise Act 2002, s313A. A ‘low value home’ is defined in the Insolvency Proceedings (Monetary Limits) (Amendment) Order 2004 as a property with equity worth less than £1,000 after deductions for mortgages or other charges, third party interests and the reasonable costs of sale. 199 Enterprise Act 2002, s 283(A). 200 The objects of the Enterprise Act 2002 included the promotion of enterprise by minimising the effects of failure, relaxing the effects of bankruptcy and reducing the sense of stigma associated with it: see N Levy and P French, ‘The Enterprise Act 2002: Preparing for the Next Recession’ (2003) 153 New Law Journal 7089 (1113).

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since, when posited against such claims, home interests seem to evaporate into the ether. In comparison with the creditor’s tangible, measurable, objective claim to capital, the idea of a subjective attachment to home can readily be dismissed as insubstantial, not provable, and therefore irrelevant to legal decision making. Thus, the idea of home in law has not carried much weight when balanced against easily measurable, legally definable, proprietary and contractual interests in the property. This was illustrated in Le Foe v Le Foe,201 when a qualitative distinction was drawn between the creditor’s financial claim against the property and Mrs Le Foe’s emotional claim to her home. While Ward LJ acknowledged that the disputed property ‘has been her home and her mother’s home. There is a huge emotional investment in it’,202 the court concluded that Mrs Le Foe’s emotional attachment to her home was ‘an interest I cannot protect’.203 Although the statutory provisions discussed in the previous section could justify a more ‘home-orientated’ approach, it would appear that the recognition of home-type values still presents a challenge within the legal framework. In fact, as the discussion above has indicated, although the idea of a home interest is often referred to as a relevant factor within the legal framework, relatively little effort has been given to the task of delineating this interest in legal analysis. The general lack of interest lawyers have shown when it comes to unpacking the meanings of home is undoubtedly associated with the apparent lack of scope for consideration of such issues within the legal framework. Yet, the relative neglect of the concept of home in law is particularly striking in light of the burgeoning interest in home scholarship in other disciplines in recent decades. Chapter 1 considered the case for developing a more nuanced understanding of the meaning of home to occupiers, which could usefully inform a range of legal contexts, including the creditor/occupier conflict. The previous section has demonstrated that there has, at various times, been evidence of some momentum towards greater recognition of home interests. However, despite the frequent claim that the home interests of occupiers have been balanced against the creditor’s commercial claim, it is difficult to accept that this balancing exercise can have been carried out in any meaningful way, without being informed by an adequate understanding of the nature of the occupier’s home interest. For example, while it has been recognised that the home has some particular—but undefined—meaning as ‘the place where the beneficiaries live, or want to live in the future’,204 this inference is primarily based on an instinctive understanding of the meaning and values of home. Legal analysis on the subject of home appears to have stalled at this point, without having yielded any further insight into the nature of the home attachment or the appropriate treatment of home interests in law. 201 202 203 204

[2001] EWCA Civ 1870. Ibid, para 10. Ibid, para 13. Law Com No 181, above n 175, para 3.10.

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In the introduction to this chapter, it was suggested that the overwhelmingly pro-creditor stance that has dominated legal discourse in the context of disputes between creditors with security against the home and the people who live in the property has had a knock-on effect on the framework within which these disputes are analysed. It was suggested that the automatic priority accorded to the commercial interests of creditors has obviated the need to analyse the nature and dimensions of the occupier’s home claim. Since home interests are not likely to prevail over commercial claims, there seems to be little point in exploring the nature of the home interest—in the courts, or even in academic writing. The cycle of reasoning applied to justify the continuing neglect of home-oriented analysis is self-perpetuating. Home interests are not valued because they are ‘unknown’ to law. Yet there is little incentive to develop a more coherent concept of home since home-oriented arguments appear to carry little weight in practice. Without the tools by which to identify and recognise the meaning and values of home interests, the courts have no basis on which to attach weight to occupiers’ claims; but, so long as home-type interests are routinely overlooked in the courts, theoretical analysis remains stagnant. Chapter 3 seeks to step outside this cycle by evaluating the arguments surrounding the competing claims of creditors and occupiers and the balance struck between these competing claims through a broader lens. The objective of Chapter 3 is to consider the pro-creditor perspective that has dominated legal analysis of creditor/occupier contests in its wider social and economic context.

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3 Balancing Creditors’ Claims Against ‘Home’ Interests

Introduction

T

HERE ARE A range of legal contexts in which a coherent legal concept of home could be usefully employed, including the conflict of interests between the occupiers of a property as a home and other parties with ‘nonhome’ interests in the property, for example, creditors. The discussion of legal approaches in this area in Chapter 2 has highlighted two key issues. First, the idea that an occupier has an interest in the property linked to use and occupation as a home is clearly present in legal discourse. The idea of the occupier’s home interest has often penetrated policy debates, whether in the context of Law Commission reports, Parliamentary debate or judicial reasoning. However, it is also clear that notwithstanding the persistence of home-type interests in discussion concerning creditor/occupier disputes, the creditor almost always succeeds in forcing the sale of the property once the debtor is in default. When the home interest comes up against the financial claims of creditors to the capital asset represented by the home, the difference between these types of claim is stark. While the creditor’s financial claim is objectively measurable and easily valued in money terms, the ‘home’ interest is often dismissed as a chimerical concept, not subject to legal proof, not ‘real’ in the way that the creditor’s financial claim is real, and therefore an interest that the court cannot protect.1 The systematic priority accorded to commercial claims rather than home interests is maintained by the following cycle of reasoning starting from the presumption that the interests of creditors ought to prevail on economic policy grounds, 1 Eg, in Le Foe v Le Foe [2001] EWCA Civ 1870 Ward LJ recognised that the disputed property ‘has been her home and her mother’s home. There is huge emotional investment in it’ [10] before concluding that ‘the protection of her emotional security . . . is, of course, an interest I cannot protect’: [13] The portrayal of the home interest as incomprehensible to legal reasoning is captured in Lord Scott’s description in London Borough of Harrow v Qazi [2003] UKHL 43, of the ‘home’ interest as ‘something ethereal, floating in the air, unconnected to bricks and mortar and land’: [145].

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the cycle follows: creditors ought to prevail, so there is no need to investigate the meaning and value of the home interest; the home interest is not explored in the courts, therefore creditors continue to prevail. This book starts from the premise that the importance of home, and the impact of losing their home on occupiers, demands a more explicit analysis of the other side of the equation. Drawing on research in other disciplines which has established the authenticity of home meanings, the elements that go to make up home interests, and the very real consequences, for an occupier, of losing one’s home involuntarily, it seeks to identify some of the values of home which might inform a legal concept of home, and so be ‘weighed in the balance’ on the occupier’s side when decisions involving conflicts between home interests and commercial interests are considered by the courts. If there was some framework by which the home interests of occupiers could be recognised in law, this would facilitate legal policy makers—both legislators and the judiciary—in attaching appropriate weight to the occupier’s home interest when balancing it against the creditor’s financial, ‘non-home’ interest. This chapter focuses on the initial premise from which the cycle of reasoning outlined above originates: the presumption that the occupier’s ‘home’ interest can be dismissed without any real attempt to unpack the occupiers’ claim, since economic policy dictates that the interests of secured creditors must prevail in any event. The general trend has been to accept that ‘where there are debts outstanding, a sale should be ordered’.2 As Gibson LJ stated in Bank of Ireland Home Mortgages Ltd v Bell, ‘a powerful consideration is and ought to be whether the creditor is receiving proper recompense for being kept out of his money, repayment of which is overdue’.3 This pro-creditor position can be justified on several grounds. For one thing, the debtor owes a contractual obligation to the creditor, and by facilitating the exercise of the creditor’s remedies of possession and sale, the court is merely enforcing that contract. Another frequently cited argument is the importance of protecting creditors in order to ensure that they remain willing to lend money to home owners. Since the expansion of owner occupation depends on the availability of credit, it is reasoned, the law must safeguard that flow of credit by protecting creditors in the event of default. In fact, as Lord Templeman suggested in a House of Lords debate on the subject: ‘No one has great sympathy for lenders or banks . . . [but] the point is that at the end of the day it is the borrower who pays, unless there is some speedy and efficient method of conveyancing’.4

These arguments appear to have largely been accepted, without question, in this jurisdiction. Neither policy makers nor legal academics have questioned the idea 2 3 4

Re Lowrie [1981] 3 All ER 353 at 355–6, per Walton LJ. [2001] 2 All ER (Comm) 920, [31]. 437 HL Deb (5th Series) col 650 (15 December 1982) Lord Templeman.

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that the commercial interests of creditors must be protected and prioritised over other types of claim, such as home interests. However, this discourse is largely unarticulated, but rather implicit in the policies adopted in Parliament and in the courts. The following sections will consider the economic arguments that have been advanced to support the routine prioritisation of the commercial claims of creditors over the home interests of occupiers. These arguments in support of the procreditor bias will then be evaluated against a range of theoretical perspectives drawn from schools of economic thought. Finally, this chapter will consider the broader economic consequences of repossession and loss of home, as identified by social analysis. The aim of this chapter is to demonstrate that, while the idea that creditors must generally prevail has become trite, the economic and social consequences of repossession and forced sale are not straightforward but highly complex. Rather than limiting the parameters of legal discourse with the presumption that creditors must win, there is a need for further consideration concerning the appropriateness of the balance currently struck between creditors and home occupiers.

Enforcing the Contract From the most simplistic perspective, when the court grants the proprietary remedies of possession and sale—where judicial intervention is necessary in order to achieve these—the court order can be regarded as merely enforcing the contract agreed between the debtor and the creditor when the proprietary security was granted. A contract is defined as ‘an agreement giving rise to obligations which are enforced or recognised by law’.5 The court’s role in ensuring that contracts are enforced is pivotal, since: if there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting, and that their contracts, when entered freely and voluntarily, shall be held sacred and shall be enforced by the Courts of Justice.6

In addition to the general ‘public policy’ argument, the court’s role in enforcing the terms of the contract is underpinned by both economic and moral arguments. Taking first the ‘moral’ argument, the enforcement of bargains between contracting 5

GH Treitel, The Law of Contract (11th edn, London, Sweet & Maxwell, 2003) 1. Printing and Numerical Registering Company v Sampson (1875) LR 19 Eq 462 at 465, per Sir George Jessel. 6

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parties is justified on the basis that, so long as the parties freely entered into the agreement, it creates a reasonable expectation which the law should enforce. So the argument goes that ‘[w]hen all persons interested in a particular transaction have given their consent to it and are satisfied, the law may safely step in with its sanctions to guarantee that right be done by the fulfilment of reasonable expectations’.7 The proposition that valid contracts—freely entered into—should be enforced between the parties is, at a basic level, difficult to dispute. However, it is important to bear in mind that, when balancing the interests of creditors and occupiers, the outcome will often have significant impact beyond the contracting parties themselves. Although a creditor has no direct right of action against the non-debtor occupier, the exercise of remedies against the secured property itself has obvious implications on those in occupation. While the issues surrounding the relationship between creditor and debtor have been extensively analysed,8 less attention has been focused on the consequences for non-debtor occupiers, and the weight which ought to be attached to the home interests of such occupiers in competitions with creditors. Yet, if the debtor shares the home with others—either nondebtor adults or children—they will obviously be affected by the enforcement of proprietary security against the property. While it is reasonable to argue that: The fact that all persons whose interests are affected by an arrangement have freely and with full knowledge agreed on that arrangement is, in general, cogent evidence in favour of its justice9,

the application of this reasoning in the context of possession actions presumes that ‘all persons whose interests are affected’ will have been party to the contract. While the trend in legal policy after the decision in Williams & Glyn’s Bank Ltd v Boland 10 has been to ensure, so far as possible, that all adult occupiers are joined in credit transactions affecting the shared home, a number of issues remain outstanding.

7 D Hughes Parry, The Sanctity of Contract in English Law (Hamlyn Lectures, London, Stevens & Sons Ltd, 1959) 4. As Professor Goodhart later echoed, ‘the moral basis of contract is that the promisor has by his promise created a reasonable expectation that it will be kept’: AL Goodhart, English Law and the Moral Law (Hamlyn Lectures, London, Stevens & Sons Ltd, 1952) 10. Hughes Parry went on to suggest that the moral dimension to the sanctity of contract was rooted in the ecclesiastical courts: ‘[t] here is no doubt but that the association of a breach of contract with the sin of breach of faith in the ecclesiastical courts and the readiness of the Court of Chancery to regard failure to perform one’s promises as tantamount to bad faith and dishonest dealing, combined to give to contracts a measure of religious blessedness and to breaches of contract a mark of sinful or unethical aberration’: above, 8. 8 See, eg, I Ramsey (ed), Debtors and Creditors: A Socio-legal Perspective (Abingdon, Professional, 1986); G Howells (ed), Aspects of Credit and Debt (London, Sweet & Maxwell, 1993); J Ford, The Indebted Society: Credit and Default in the 1980s (London, Routledge, 1988); JH Elliott, Credit, the Life of Commerce: being a Defence of the British Merchant against the Unjust and Demoralising Tendency of the Recent Alterations in the Laws of Debtor and Creditor; with an Outline of Remedial Measures (1845). 9 Hughes Parry, above n 7, at 4. 10 [1981] AC 487; for discussion of this decision and the consequences that followed, see Ch 2.

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For one thing, the fact that a non-debtor occupier has not consented to a credit transaction goes only to the question of whether or not the non-debtor’s share of the ownership of the property will take priority over the creditor’s proprietary interest. So, where an occupier is joined or consents to the transaction, this constitutes agreement that the creditor’s proprietary interest will take priority over their claim. Again, the arguments for enforcing this contract—so long as it was freely entered into and with full knowledge11—are valid. However, there are two major gaps in this reasoning. First, even if a creditor does not succeed in establishing priority over the non-debtor occupier’s share, this does not preclude the creditor from applying to the court for an order for sale. Furthermore, as the discussion in Chapter 2 has demonstrated, in the vast majority of cases the court will grant the order for sale notwithstanding the non-debtor’s interest. Rather than enabling the occupier to retain the home, this claim becomes a claim against the capital proceeds following the forced sale. Secondly, a distinction may be made between debts which are secured against the property ab initio, and usually with the consent of any adult occupiers, and cases in which the creditor does not demand proprietary security at the time of the transaction, but later attempts to ‘inflate’ his claim by seeking to secure the debt against the debtor’s property ex post facto, for example, through a judicially imposed charging order. Even when a creditor does not obtain proprietary security at the time of the credit transaction, the Charging Orders Act 1979 allows the creditor to obtain a charging order against the debtor’s property. The charging order confers proprietary security over the debtor’s property through court order rather than contractual agreement. This has implications, in turn, on any nondebtors who occupy the property as their home. As the discussion of the legal policies surrounding the grant of charging orders against jointly owned land in Chapter 2 has demonstrated, the court’s jurisdiction to grant a charging order secured against a debtor’s beneficial interest in co-owned land12—and thus affecting a non-debtor’s property—was conferred in the Charging Orders Act 1979. However, the discussion that preceded this Act indicated that the outcome of this extension in the court’s jurisdiction was more significant than the policy makers had expected. In fact, the Law Commission had anticipated that the existence of a charging order against the shared property would not render the non-debtor coowner vulnerable to a forced sale at the hands of a creditor.13 The Commission predicted—wrongly as it turned out—that a court would refuse to follow the grant of a charging order with an order for sale when other (non-debtor) co-owning 11 The potential difficulties associated with the validity of consents from home sharing sureties are well rehearsed; see, eg, B Fehlburg, Sexually Transmitted Debt: Surety Experience and English Law (Oxford, Clarendon Press, 1997); R Auchmuty, ‘Men Behaving Badly: An Analysis of English Undue Influence Cases’ (2002) 11 Social and Legal Studies 257. 12 Charging Order Act 1979, s 2(1)(a)(ii). 13 See generally L Fox, ‘Co-owners, not Co-owers: Legislative and Judicial Policy in Relation to Charging Orders and Co-ownership’ (1998) 29 Cambrian Law Review 9.

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occupiers would be affected.14 However, the decisions in Lloyd’s Bank plc v Byrne 15 and Barclay’s Bank plc v Hendricks,16 when the court ordered sale of the defendants’ homes, involved just such circumstances: in both cases the debtor’s wife was a co-owner and occupier of the family home, which had become subject to a charging order. Even though, in each case, the debtor’s wife was neither a debtor herself, nor had consented to the use of her home as security, the clear principle that emerged from these cases was that, ‘[w]here there was a conflict between a chargee’s interest in a matrimonial home and the interests of the innocent spouse, the interests of the chargee prevailed except in exceptional circumstances’.17 The issue of affecting parties other than the debtor(s) through the enforcement of creditors’ actions for possession and sale is complex, and often clouded by law’s attitude towards the relationship between the debtor and the non-debtor occupier. Non-debtor occupiers stand outside the contractual relationship between the creditor and the debtor. However, although it is sometimes suggested that both the creditor and the non-debtor occupier are ‘innocent victims’ of the debtor’s default, the classification of non-contracting occupiers as ‘innocent’ parties is not unproblematic. In fact, it has been suggested that occupiers—for example, the debtor’s partner—cannot properly be regarded as innocent of the debtor’s default in this context, either because there is a suspicion that the debtor and his or her occupying partner may have colluded to defeat the creditor’s claim,18 or because non-debtor occupiers are regarded as having already enjoyed the benefits of the loan, and ‘must take the good times with the bad’.19 These ideas appear implicitly to underpin the balancing exercise between creditors and non-debtor occupiers. For example, in discussion of the decision in Williams & Glyn’s Bank Ltd v Boland20—the high-water mark of pro-wives judicial policy—the shadow of collusion has been raised, with the observation that ‘the wife was not locked in mortal combat with her husband’.21 Templeman J, who heard the case at first 14

Law Commission, Charging Orders, Law Com No 74 (London, HMSO, 1976), para 71. [1993] 1 FLR 369. 16 [1996] 1 FLR 258 17 Ibid. 18 Even in relation to Williams & Glyn’s Bank Ltd v Boland [1981] AC 487, the high-water mark of pro-wives judicial policy, the shadow of collusion has been raised. Gray and Gray make this suggestion with their comment that ‘the wife was not locked in mortal combat with her husband’: KJ Gray and SF Gray, Elements of Land Law (Oxford, Oxford University Press, 4th edn, 2005), para 12.209, n 2. Templeman J, who heard the case at first instance, observed that the existing system could prove difficult to operate if a wife ‘could say or allege at any time that he or she had contributed to the purchase price’: Boland (1978) 36 P&CR 448 at 454. 19 See M Freeman, ‘Wives, Conveyancers and Justice’ (1980) 43 Modern Law Review 692, where, in relation to the Court of Appeal’s decision in Williams & Glyn’s Bank Ltd v Boland (which was affirmed by the House of Lords), Freeman noted that ‘[t]his was not a case in which a wife had been deserted by her husband who might well have been concerned to defeat her interest. On the contrary, there is nothing to suggest that the lives of Mr and Mrs Boland were other than models of domestic felicity’: at 696. 20 [1981] AC 487. 21 Gray and Gray, above n 18, [12.209], n 2. 15

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instance, observed that the system governing security transactions affecting the home could prove difficult to operate if a wife ‘could say or allege at any time that he or she had contributed to the purchase price’.22 The suggestion was that a wife who had no formal legal ownership interest might claim an interest in the property under an implied trust, ostensibly against her husband, but with the actual purpose of defeating the creditor’s action for possession and sale. However, this is unlikely to arise in many cases in practice, since creditors follow a practice of identifying, and seeking consent from, all adult occupiers unless they disclaim any interest in the property. Rather, the issue at stake for these coowning occupiers is the conversion of their interest in the home itself into a claim against the proceeds of sale, without their involvement in the transaction upon which the creditor relies for his contractual rights. When this consequence is justified by reference to the relationship between husband and wife, this raises major issues regarding the presumptions that are made about that relationship, and particularly about the autonomy of the non-debtor partner, and the degree of control that partner—often the female partner—is given over her ownership interest in the property. This argument may be countered with the proposition that the non-debtor co-owning occupier must ‘take the good times with the bad’. As Freeman suggested, in relation to the decision in Boland: Had Mr Boland’s building business prospered, no doubt Mrs Boland would have shared in the increased standard of living made possible by the successful use of capital provided by the Bank. Marriage is, after all, a partnership to which both parties contribute. Is there any justification for departing from the normal principle of partnership, under which profits are shared if things go well, but losses are shared if they go badly?23

Once again, this argument does not adequately justify the proposition that the enforcement of the debtor’s contractual relationship with the creditor is the basis for the presumption in favour of creditors that has dominated discourse in this area, even where other co-owning occupiers are affected by the outcome. The principles that govern these disputes have been developed under the ambit of property law and contract. Consequently, notwithstanding reform endeavours to the contrary,24 there are no ‘special rules’ for spouses when a creditor seeks possession and sale of the home. The idea that the general approach adopted by the 22

(1978) 36 P&CR 448 at 454. Freeman, above n 19, at 696. 24 After the decision in Boland, the Law Commission proposed that the rules governing priority should be altered by legislation providing that creditors were only required to make inquiries from spouses in occupation, but not from other occupiers: Law Commission, The Implications of William’s and Glyns’ Bank Ltd v Boland, Law Com No 115 (London, HMSO, 1982). Although these proposals were put before Parliament in the Land Registration and Law of Property Bill 1985, the Bill was withdrawn from the Parliamentary calendar due to lack of time, and when the Bill was re-introduced the following year, to deal with unregistrable leases and the abolition of the minor interests index in unregistered land, the provisions relating to inquiries were not included. 23

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courts can be justified on the ground that spouses, having entered the contract of marriage with each other, can be regarded as ‘throwing their lot in with each other’, such that a judgment creditor of one spouse should be permitted to procure the sale of the jointly owned home, does not provide an adequate justification for a principle that applies across the gamut of creditor/occupier contests. Whether the dispute concerns the priority of interests between a creditor and a co-owning non-debtor occupier or the creditor’s action for possession and sale of the jointly owned land, the same set of principles apply whether the co-owning occupiers are spouses, cohabitants or non-conjugal home sharers. For example, although, as the House of Lords recognised in Williams and Glyn’s Bank Ltd v Boland, the decision in that case had social implications for wives,25 it was not because a ‘special protection’ was extended to them, but because a discriminatory barrier that had previously prevented the law from recognising the occupation of a co-owning spouse had been removed. The Boland decision can be described in shorthand as establishing that ‘if there is actual occupation, and the occupier has rights, the purchaser takes subject to them’.26 Thus it was true to say that: the appeals [did] not . . . involve any question of matrimonial law, or of the rights of married women, or of women as such. Exactly the same issue could arise if the roles of husband and wife were reversed, or if the persons interested in the house were not married to each other.27

Similarly, in relation to the decision to order the sale of a co-owned property, the relevant principles and provisions apply to all co-owners, not merely to spouses. Consequently, any explanation of the policy adopted by the court across the range of contexts in which these actions arise that seeks to explain the court’s approach by reference to the marital relationship must be incomplete. Not only is the idea that the creditor’s contractual obligation must be enforced regardless of the consequences for other, non-debtor co-owners insufficient justification for the persistent pro-creditor approach adopted by the English courts, but it is highly undesirable from a gender perspective. This legal doctrine raises difficult issues concerning the consequences of co-owning property in English law, since it enables creditors to take priority in relation to the property itself over the interests of non-debtor co-owners, who have no contractual relationship with the creditor. The effect is that, as a direct consequence of the occupier’s relationship with the debtor, the occupier’s home interest is relegated to the status of a claim against the proceeds of the sale of the property rather than persisting as an inter25 Lord Scarman recognised ‘the undoubted fact that, if the two wives succeed, the protection of the beneficial interest which English law now recognises that a married women has in the matrimonial home will be strengthened’: [1981] AC 487 at 510. 26 Ibid at 504, per Lord Wilberforce. 27 [1981] AC 487 at 502.

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est in the shared home itself. While the presumptions outlined above are more understandable in the context of marital relationships, the argument that nonspouses (whether conjugal cohabitants or non-conjugal home sharers) should be regarded as having formed such a partnership, rendering their co-owned home vulnerable to forced sale because of actions taken by one co-owner outside the context of the joint venture of co-ownership—for example, when one co-owner’s personal debts are secured against the jointly owned property by means of a charging order—is difficult to justify. As a result, it is suggested that, notwithstanding the contractual obligation between creditor and debtor, the strength of ‘enforcing the contract’ arguments must vary from case to case. For one thing, a distinction can be drawn between acquisition and non-acquisition credit: while occupiers clearly benefit from acquisition credit, since this can be directly linked to the purchase of the home in which they live, when dealing with non-acquisition credit, it will not always be clear that non-debtor occupiers have benefited directly or even indirectly from the transaction. Furthermore, the idea that the non-debtor co-owning occupier’s interest can be dismissed with the suggestion that the occupier may be in collusion with the debtor or that they ‘must take the good times with the bad’ imposes a paradigm on all co-owners that is rooted in presumptions about marital partnership. Such presumptions, while arguably justifiable on a technical basis between spouses, are inappropriate for other contexts. The issues raised by the paradigm of collective interests in a shared home are considered in more detail in Chapter 7, where it is argued that it would be preferable, from both a gendered and a general justice perspective, to view home sharing individuals as autonomous individuals, focusing on occupation of the home per se rather than the occupier’s relationship with a debtor or membership of a ‘family unit’. A related issue to be considered in this regard is the significance of the ‘enforcement of contracts’ argument with regard to the treatment of child occupiers. The interests of child occupiers are distinguishable from those of adult non-debtor occupiers on several grounds.28 A minor cannot hold legal title to land and, in the absence of express declaration, is unlikely to acquire an equitable interest in the property.29 In addition, contracts executed by minors in relation to an interest in land are voidable on majority, at the minor’s behest.30 The marginalisation of child occupiers with regard to the creditor/occupier paradigm is highlighted by the fact that, even following the decision in Williams and Glyn’s Bank Ltd v Boland,31 28

For a detailed discussion of child occupiers and home, see Ch 9. The principles of resulting and constructive trust, rooted as they are in the requirements of financial contribution or an express agreement, arrangement or understanding that ownership of the property will be shared (Lloyd’s Bank plc v Rosset [1991], 1 AC 107), are unlikely to give rise to interests in favour of children. 30 Clayton v Ashdown (1714) 2 Eq Ca Abr 516; Whittingham v Murdy (1889) 60 LT 956; Thurstan v Notts PBBS [1902] 1 Ch 1; Orakpo v Manson Investments Ltd [1978] AC 95. 31 [1981] AC 487. 29

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when creditors became alerted to the necessity of obtaining consent from persons in actual occupation of property in order to ensure the priority of their charge, it became routine to seek consent from adult occupiers only. In fact, as the Court of Appeal confirmed in Hypo-Mortgage Services Ltd v Robinson,32 even children who have a beneficial interest in the property following a declaration of trust are not regarded as being in ‘actual occupation’ for the purposes of overriding status under section 70(1)(g) of the Land Registration Act 1925. When dealing with child occupiers, the child’s interest in the property as a home is irrelevant so far as either property law or the law of contract is concerned. Furthermore, the idea that a child occupier may have colluded with the debtor to defeat the creditor’s claim, or that the child has benefited from the advance either directly or indirectly and so must take the good times with the bad, is wholly inapt. The suggestion that allowing a secured creditor to force the sale of a home in which the creditor has a security interest (even if that interest extends only over a part share of the ownership) is merely ‘enforcing the contract’ has provided a shorthand explanation for the approach adopted in many creditor/occupier contexts. However, the argument that the interests of creditors must prevail over those of occupiers in order to satisfy the contractual obligations entered into by the parties does not provide a complete justification for disregarding the home interests of occupiers. There is obviously more to it than that. The following section considers another argument often advanced to support the pro-creditor position: the idea that commercial interests must prevail over home-type interests on the grounds of economic efficiency. When it comes to enforcing proprietary security in an economy that depends on credit, it has been suggested that creditors’ actions against secured property must be enforced, since ‘[e]conomic self-interest cannot afford the general disappointment of creditors’ expectations’.33 In the context of owner-occupied housing, one of the issues that has influenced legal policy is the potential impact of refusing sale on the willingness of creditors to lend money for home ownership.

The Availability of Credit for Home Ownership Looking beyond the issues concerning the enforcement of security contracts, the priority accorded to the concerns of the creditor in the context of actions against domestic property is also based on economic arguments linked to the availability of credit. There can be little doubt that the expansion of owner occupation, characterised by Lord Diplock in 1970 as the ‘emergence of a property-owning, particularly a real-property-mortgaged-to-a-building-society-owning democracy’,34 depended—and continues to depend—on the availability of credit.35 32 33 34 35

[1997] 2 FCR 422. Hughes Parry, above n 7, 4. Pettitt v Pettitt [1970] AC 777 at 824, per Lord Diplock. See further Ch 5.

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Thus, in light of the expansion of home ownership, the priority accorded to creditors’ rights of enforcement on default became incontrovertible.36 The caution, ‘[r]emove the legal sanction and men will give credit with more care’,37 seems to have significantly influenced the development of legal policy in creditor/occupier disputes. Before the introduction of the Matrimonial Homes Act 1967, one member of the House of Lords argued that whatever measures were enacted, they ought not to ‘make it too difficult for a husband, when he is looking for a matrimonial home, to borrow money’.38 This issue has re-emerged time and again when legislators and courts have justified their pro-creditor approaches. In fact, the arguments concerning willingness to lend are often expressed in a roundabout fashion, as protecting the occupier’s interests, rather than focusing solely on the creditor’s claim. Any incursion into the protection of the creditor’s ability to realise the security would, it was presumed, not only inhibit dealings in property, but would also: ‘. . . add to the expenses and complications of mortgages on houses and other dealings’.39 It is equally clear that the availability of funds for the acquisition of domestic property is not the only issue at stake here. In Barclay’s Bank Plc v O’Brien,40 it was clear that the House of Lords was concerned with the ability of a home owner to capitalise on their equity in the home in order to obtain funds for other activities, such as business enterprises. Lord Browne-Wilkinson stated that: it is important to keep a sense of balance in approaching these cases. It is easy to allow sympathy for the wife who is threatened with the loss of her home at the suit of a rich bank to obscure an important public interest viz, the need to ensure that the wealth currently tied up in the matrimonial home does not become economically sterile. If the rights secured to wives by the law render vulnerable loans granted on the security of matrimonial homes, institutions will be unwilling to accept such security, thereby reducing the flow of loan capital to business enterprises. It is therefore essential that a law designed to protect the vulnerable does not render the matrimonial home unacceptable as security to financial institutions.41

The willingness of creditors to lend money to home owners—either for the acquisition of the property or, subsequently, against the security of the debtor’s equity in the home—is considered in this section. One of the curious aspects of the 36 It is interesting to note, in passing, Sir Gordon Borrie’s observation that: ‘no Beveridge, no government set out a policy for Parliamentary approval that credit should be made so widely and readily available or on what conditions . . . commercial concerns made commercial decisions that fulfilled a growing public urge to borrow’: G Borrie, The Credit Society—its Benefits and Burdens (Eleanor Rathbone Memorial Lecture, Liverpool, Liverpool University Press, 1986), 3. 37 K Llewellyn, ‘What Price Contract?—An Essay in Perspective’ (1931) 40 Yale LJ 704 at 725. 38 275 HL Deb (5th Series) col 46 (14 June 1966), Lord Cohen. 39 275 HL Deb (5th Series) col 32 (14 June 1966), Lord Derwent. 40 [1994] 1 AC 180. 41 Ibid, 188.

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reasoning set out above—the idea that creditors will refuse to lend money unless their rights are strongly protected on the debtor’s default—is that, while the logic of this reasoning has rarely been questioned, it has been subjected to relatively little critical analysis. In 1931, Karl Llewellyn acknowledged, in relation to the argument that any diminution in the legal sanctions available to the creditor would have a negative effect on the availability of credit, that ‘[s]peculation is unfortunately much easier than finding out, as well as less useful . . . My own guess is that in the main writers, both legal and other, tend to over estimate heavily the effects of law’.42 Since then, empirical analysis has been carried out concerning the effect of personal bankruptcy exemptions on credit supply and demand,43 which indicated that higher exemptions have ‘a significant, positive effect on the probability that households will be turned down for credit or discouraged from borrowing’.44 Furthermore, this empirical analysis has also indicated that the effect of lowering creditor protections on credit availability is spread disproportionately across borrower income groups. While high-income households had the most to gain from high exemptions—that is, when creditor protections were lowered—low-income households experienced greatest difficulty obtaining credit in these circumstances. Thus, Gropp et al concluded that: while generous state-level bankruptcy exemptions are probably viewed by most policymakers as benefiting less-well-off borrowers, our results suggest that they increase the amount of credit held by high asset households and reduce the availability of credit to low-asset households; ie, they redistribute credit toward borrowers with high assets.45

The consequences for the borrower may take various forms, ranging from higher interest rates and higher qualification requirements for loans, to increased collateral requirements, or more vigorous screening of loan applications. Gropp et al suggested that since low-asset households pay higher interest rates in high exemption states, in contrast to high-asset households, which either have assets greater than the bankruptcy exemption level or are in a position to offer lenders greater collateral, lower income borrowers are more likely, when creditor protections are reduced, to experience difficulty with credit availability. These findings appear to support the argument that, unless the law protects creditors, it is consumers—particularly, it would appear, low income consumers—who will be adversely affected because they will find it more difficult to obtain credit. However, even though this premise appears to be supported by 42

[1994] 1 AC 725, n 47. R Gropp, JK Scholz and M White, ‘Personal Bankruptcy and Credit Supply and Demand’ (1997) 112 Quarterly Journal of Economics 217. 44 Ibid¸ 220. 45 Ibid. 43

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empirical analysis of the credit market, the application of this principle in the context of legal policy for creditor/occupier disputes indicates a presumption in favour of ensuring the widespread availability of credit, regardless of the debtor’s ability to repay. The policy of ensuring widespread availability of credit—particularly for low income households—is intrinsically linked to the political ideology of home ownership, which is analysed in more detail in Chapter 5. The policy of successive British governments throughout the twentieth century in favour of home ownership depended on the availability of credit finance to fund owneroccupation. The implications of this policy, particularly with reference to low income households, will be considered further in the next section. One issue which is noteworthy at this stage, however, is that the economic analysis that has influenced the development of legal doctrine in the field of creditor actions against domestic property has been selectively focused on the availability of credit finance to fund home ownership. This relatively narrow perspective has prioritised the availability of credit over and above other measures of economic efficiency in credit markets. The argument that creditors’ rights must be protected in order to ensure that credit finance remains widely available presumes that: the primary economic function of the credit market is to provide cheap funds, and that this function can only be accomplished when creditor rights are protected and sanctions on non-performing debtors are enforced.46

This outlook has attracted considerable criticism by several commentators, who argue that in assessing the performance of the credit market the availability of cheap credit has been inappropriately emphasised at the expense of other important factors—such as effective screening by the lender, insuring risk-averse entrepreneurs and protecting over-confident individuals and households.47 The link between legal policies in the context of creditor protections and these broader measures of economic efficiency was highlighted by Posner in his seminal text, The Economic Analysis of Law. Posner argued that these other factors—which can be summarised as effective gate-keeping by creditors—must be brought to bear when considering the law’s attitude towards creditor protections. For example, although it is generally assumed that where the law provides a high degree of creditor protection against default, this will have positive results in terms of credit availability, Posner cautioned that when lenders are aware that their interests will 46 AJ Padilla and A Requejo, The Costs and Benefits of the Strict Protection of Creditor Rights: Theory and Evidence (Washington, DC, Inter-American Development Bank, Research Network Working Paper #R-384, 2000) 5. 47 Ibid, 6. See also M Manove and AJ Padilla, ‘Banking (Conservatively) with Optimists’ (1999) 30 Rand Journal of Economics 324; M Manove, AJ Padilla and M Pagano, ‘Creditor Rights and Project Screening: A Model of Lazy Banks’ (Boston, Mass, Mimeographed document, 1999); cited in Padilla and Requejo, above n 46.

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typically be preferred in the event of default by the debtor, they will be inclined to assume unjustified risks. Higher creditor protections reduce the risks associated with lending for creditors, so encouraging riskier lending practices which have been linked to higher rates of bankruptcy.48 Yet, while lower creditor protections encourage entrepreneurship, they are also linked to higher interest rates and higher rates of default. Although Posner acknowledges that the outcome of his analysis is ambiguous,49 the complexity of economic efficiency arguments in the context of creditor protections casts some doubt on the narrow approach that has appeared to inform legal analysis. While the pro-creditor position has been justified in legal discourse by reference to the need for widely available credit to fund home ownership, the focus on lending volume, to the exclusion of other measures of market performance, such as default rates, is questionable. It may even be the case that economic efficiency in the credit market is not determined by the degree of legal protection afforded to creditors, but by other factors altogether. In fact, several studies have suggested that an effective judicial system and macroeconomic stability are more significant as determining factors for the development and optimal performance of the credit market than the degree of legal protection conferred on creditors.50 If the legal approach to creditor/occupier contests is to be informed by economic analysis, a more comprehensive view of economic efficiency is required. A broader range of economic (and non-economic) costs, linked to the creditor/occupier dispute, are considered further in later sections of this chapter. First, however, it is important to recognise another of the policy factors underpinning the pro-creditor preference of current law and policy: the goal of widening participation in the home ownership market.

‘Widening Participation’ in the Home Ownership Market To date, the influence of economic analysis in the creditor/occupier context has emerged most strongly in relation to the availability of credit—that is, the willing48 ‘Some [US] states have generous household exemptions for insolvent debtors, others chintzy ones. In the former states, the risk of entrepreneurship is reduced because the cost of failure is less, but interest rates are higher because default is more likely and the creditor’s position in the event of default is weaker. And note that higher interest rates make default all the more likely. Cutting the other way, however, is the fact that in low-exemption states lenders’ risk is less, which induces lenders to make more risky loans, ie loans likely to end in bankruptcy. It is therefore unclear whether there will be more bankruptcies in the high-exemption states or in the low-exemption states’: RA Posner, The Economic Analysis of Law (Boston, Mass, Little, Brown and Company, 1992), 440–1. 49 Similarly, Padilla and Requejo’s empirical study of the costs and benefits of strict creditor protections found no conclusive evidence on the sign and magnitude of the effect of creditor rights protection on credit market efficiency: above n 46. 50 R La Porta, F Lopez-de-Silanes, A Shleifer et al, ‘Legal Determinants of External Finance’ (1997) 52 Journal of Finance 1131–50; R La Porta, F Lopez-de-Silanes, A Shleifer et al, ‘Law and Finance’ (1998) 106 Journal of Political Economy 1113–55; M Meador, ‘The Effects of Mortgage Laws on Home Mortgage Rates’ (1982) 34 Journal of Economics and Business 143 at 147.

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ness of creditors to lend money, either for the acquisition of the owned home (acquisition finance) or against the security of such a property (non-acquisition finance). On the one hand, concerns regarding the availability of acquisition finance are clearly influenced by the government policy of expanding home ownership, discussed in Chapter 5. The issue that has dominated economic analysis in the legal context in respect of acquisition credit has been the willingness of creditors to lend capital to prospective home buyers, and so to support the Government’s policy of widening access to home ownership. If the protection afforded to occupiers in their homes vis-à-vis creditors were to be bolstered, it is thought that this could potentially have a negative effect on the availability of acquisition credit, and so undermine the viability of widespread owner occupation. On the other hand, the pro-creditor approach that has emerged in legal analysis of the creditor/occupier dispute has also been informed by a policy of promoting the ‘usability’ of the home as security for non-acquisition finance.51 When considering the impact of legal regulation on non-acquisition credit, any diminution in creditor protections could make it more difficult to secure subsequent credit against the owned home, and so potentially inhibit entrepreneurial activity. The concerns raised by each issue can be mapped onto distinct policy objectives: if the object is to support the expansion of home ownership, the key consideration must be the position of creditors supplying acquisition credit. On the other hand, if the policy concern at stake is the ‘usability’ of the home as a financial asset to support other activities, then the economic considerations at play must be evaluated in light of questions concerning the desirability of facilitating the securitisation of non-acquisition debts on the (family) home.52 The previous section has indicated that the economic issues at stake in the creditor/occupier context are more complex than the discourse of credit availability would suggest. However, even within a relatively narrow perspective that focuses on the availability of credit, the idea that it is necessarily desirable for credit to be readily available—particularly for low income households—is questionable. The empirical findings discussed above suggested that lowering creditor protections would not impact particularly on high income households so far as credit availability was concerned, but could have negative effects on lending volume to low income households. Where this is presented as an argument against attaching weight to the interests of occupiers—because ‘at the end of the day it is the consumer who pays’—it is worth considering the value of ensuring the availability of acquisition credit and non-acquisition credit for low-income households. In relation to the ‘usability’ of the home as a financial asset to support other activities, arguments asserting the importance of strict creditor protections to 51

See above, nn 40–41 and associated text. While some commentators argue that the ability to release capital from your owned home is one of the principal advantages of owner occupation, others oppose the use of the home in this way: see further Ch 1. 52

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enable home owners to use their properties as collateral security for nonacquisition debts are cast in an interesting light by evidence that the value of the home as a financial asset which can be utilised to fund other activities is limited for low income households. Smith has argued that the owner occupied home is increasingly regarded as a repository of wealth—by both the owner-occupier and the state—and that the desire to release wealth through securitisation of credit is strong, as wealth tied up in the home is currently regarded as ‘more “spendable” now than it will be ever again’.53 However, in a recent study of low income home owners, Burrows and Wilcox found that the homes of low income households are not ‘usable’ as security for non-acquisition credit, but rather that ‘[t]he housing assets of low-income home-owners are tied up in their home for the duration of their lifetime, and provide very limited opportunities for them to alleviate their poverty’.54 For low income households, the idea that equity in the home is used to fund other activities through the securitisation of non-acquisition credit was not supported by the research. If concerns about the links between lending volume and creditor protections are directed towards the use of the home as an asset against which to secure non-acquisition finance, then the evidence that lowering creditor protections has more impact on low income households should be reviewed against the research findings that suggest that low income households are unlikely to utilise their property in this way, in any event. This is not to say that some low income households may wish to use their property in this way, however, if the pro-creditor position that has influenced creditor/occupier contests to date is justified by reference to economic consequences, a more subtle analysis of the effects of legal doctrine on the economic interests of the relevant parties must be carried out. In relation to acquisition finance, the picture, once again, is complex. On the one hand, the availability of acquisition credit for low income households has particular resonance in light of the culture of home ownership and the benefits associated with buying your own home—whether in respect of the individual home owner’s well-being, the effects on stable family life or the positive impact on communities—have become socially embedded.55 However, on the other hand, it has been suggested that the key housing issue in contemporary Britain and for the foreseeable future is the sustainability—rather than the expansion—of home ownership.56 53 S Smith, Banking on Housing: Speculating on the Role and Relevance of Housing Wealth in Britain (Paper prepared for the Joseph Rowntree Foundation Inquiry into Home Ownership 2010 and Beyond, 2005) 2. 54 R Burrows and S Wilcox, Half the Poor: Home-owners with Low Incomes (London, Council of Mortgage Lenders Research Report, 2000), 77. 55 See further Ch 5. 56 D Maclennan, G Meen, K Gibb and M Stephens, Fixed Commitments, Uncertain Income: Sustainable Owner-occupation and the Economy (Housing Research 228, London, Joseph Rowntree Foundation, 1997). See also J Ford, R Burrows and S Nettleton, Home Ownership in a Risk Society: A Social Analysis of Mortgage Arrears and Possessions (Bristol, Policy Press, 2001).

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The widespread availability of cheap credit for house purchases has meant that the proportion of home owners with low incomes has increased dramatically. In fact, 32 per cent of those classed as ‘poor’ in the UK are owner occupiers subject to a mortgage.57 Furthermore, since low income households are at greatest risk of default, it has been argued that the risks associated with home ownership—especially those associated with health and family life58—must be re-evaluated in the context of poverty research.59 The range of economic and social issues associated with mortgage possession actions and low income households support the argument that the strict protection of creditors’ rights should be analysed not merely in terms of creditor availability, but in relation to overall market efficiency, including the rates of default and the costs associated with default and enforcement of security. The issues associated with the expansion of the home ownership sector are considered further in Chapter 5, while the costs of possession actions are discussed below. Although there are undoubtedly significant benefits to be reaped from home ownership, some households find owner occupation unsustainable, which leads to default, repossession and major economic, social and emotional losses. For these households, it is arguable that their interests would be better served by encouraging creditors to act as effective gate-keepers, and to follow responsible lending practices, rather than focusing exclusively on lending volume. This has repercussions for legal analysis which purports to assert that high creditor protections are, ‘at the end of the day’, in the interests of the consumer. It is also worth bearing in mind that, when creditors are highly protected against default, there is less incentive for them to negotiate, restructure and reschedule payments with defaulting debtors. So far as the economic argument is concerned, it is clear that the position is more complex than the apparently simplistic admonition that ‘money will not be lent’, or ‘at the end of the day it is the borrower that pays’. However, even if these axioms concerning the consequences of reducing the degree of creditor protection could be substantiated by empirical evidence, this would not necessarily be the end of the story. Perhaps, for those who persist in valuing the availability of credit over and above other—including other economic—considerations,60 the task of conceptualising home may remain meaningless. In fact, from this perspective, the conceptual under-development of home rather accommodates the continued preeminence of the creditor’s interests. However, the validity of adopting a pure economic efficiency approach is in itself questionable when viewed from a broader perspective. Bearing in mind that, historically, the promotion of home-ownership 57

Burrows and Wilcox, above n 54, 77. See further below. 59 See R Burrows, Poverty and Home Ownership in Contemporary Britain (Bristol, Policy Press, 2003). 60 Overlooking, eg, the economic and other costs of repossession discussed below. 58

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was not purely driven by market considerations but was also significantly influenced by socio-cultural goals,61 the suggestion that law’s response to creditor/occupier disputes should be rooted only in economic cost/benefit analysis, without taking account of other considerations, is anomalous. This is particularly pertinent in light of the current movement, in a range of disciplines, to re-evaluate market practices from more social perspectives.62 The next section will consider some of the considerations that may be taken into account when pursing such an avenue of inquiry.

Alternative Perspectives on Striking the Balance Notwithstanding the complexity of the issues surrounding the provision of credit for home ownership, the ‘efficiency model’ that appears to have influenced the current pro-creditor stance when determining disputes between creditors and occupiers appears concerned with only one aspect of the socio-economic context of conflicts involving home—that is, the availability of credit. Furthermore, as the discussion in Chapter 2 has demonstrated, there is little evidence that other factors—in relation to either economic efficiency or non-economic factors—are taken into account when the court is balancing the home interests of occupiers against the commercial claims of creditors. The previous section has suggested that the issue of credit availability is only one of the factors that should be regarded as relevant to any economic analysis of the creditor/occupier context. This section moves beyond that position, to discuss the broader notion of economic efficiency which has implicitly underwritten the pro-creditor stance adopted in legal discourse. The constraints that characterise narrowly framed economic analysis—particularly the overwhelmingly privileged status conferred on market efficiency relative to other goals—have attracted criticism from various quarters. As Quigley has argued in the housing context, even where economic efficiency can be established, ‘many find the efficient outcome unpalatable’.63 The following sections consider some of the theoretical analyses underpinning the proposition that legal discourse should look beyond a simple efficiency analysis of credit transactions, to take account of wider ‘justice’ and ‘social values’ considerations. 61

See Ch 5. Susan Smith discusses ‘the struggle to reclaim markets for social ends which is now appearing in literatures from international political economy to science and technology studies, from the sociology of finance to the world of economic geography, from political philosophy to grass roots practice’: above n 53 at 33. 63 JM Quigley, ‘Why Should the Government Play a Role in Housing? A View from North America’ (1999) 16 Housing, Theory and Society 201. 62

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‘Law and Market Economy’ The proposition that ‘there’s more to it than efficiency’ has attracted considerable attention from critical economic theorists in recent years. For example, the ‘law and market economy’ school64 argues that, while economic efficiency is one factor which can be taken into account when thinking about law, law’s concerns go beyond economic efficiency to include considerations of justice, fairness and morality; consequently, exchanges cannot be viewed purely in terms of efficiency maximisation, but must also be embedded in social and community values. Applying this reasoning to the context of creditor/occupier conflicts over the home, it could be argued that the non-economic preferences of occupiers—their practical, psychological, social, cultural and even emotional interests in their homes—are significant values that should be taken into account when determining the legal issues at stake, even though such interests are not readily translatable into monetary value. Thus, it is argued that while issues pertaining to the availability of credit and the interests of creditors are certainly relevant to the balancing of creditors’ and occupiers’ claims, there are also other considerations to be brought to bear. One inherent difficulty, however, is the very nature of these ‘other’ considerations. Since ‘home interests’ are inherently intangible, and to date have not been enumerated or analysed within a legal framework, a dual difficulty arises. For one thing, in order to justify the development of a concept of home in the context of creditor/occupier disputes, it is necessary to demonstrate that there is a ‘case to answer’ for tempering the protection of creditors’ interests with other values. However, without unpacking the meanings of home and analysing the occupiers’ various interests within alternative legal frameworks, it is difficult to represent such claims in terminology that is recognisable to economists—or indeed to lawyers. In Law and Market Economy,65 Malloy critiqued the traditional law and economics movement for ‘borrow[ing] too heavily from positive economics without acknowledging that the tools and methods of economics are directed at a different “end” than that of law’.66 Malloy particularly emphasised the fact that ‘[t]he assumptions of the economist embody certain subjective choices concerning what gets measured and valued and what is ignored or excluded’,67 with the result that the conclusions reached ‘reflect these assumptions and constraints’.68 Where 64 This branch of critical economics can be found in the work of Robin Paul Malloy: see generally RP Malloy, Law and Market Economy: Reinterpreting the Values of Law and Economics (Cambridge, Cambridge University Press, 2000); RP Malloy, Law in a Market Context: An Introduction to Market Concepts in Legal Reasoning (Cambridge, Cambridge University Press, 2004). 65 Ibid. 66 Ibid, 8. 67 Ibid, 9. 68 Ibid.

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traditional economic analysis regards money as: ‘. . . a symbolic sign or representation of all values’,69 Malloy argues that: money . . . can only represent value in some respects, not in all respects. Money cannot express or interpret all social values and, therefore, it cannot be a universal medium for perfect exchange and substitution. For example, money cannot meaningfully capture important environmental values, the value of child bearing and child rearing, nor can it capture social values such as love, affection, and respect. Yet, we know these values are important to many communities.70

The dichotomy that Malloy is seeking to demonstrate is clearly evident in the creditor/occupier context. While the creditor’s interest is easily quantifiable in money terms, the occupier’s interest in retaining the property for use and occupation as a home, although undoubtedly ‘of value’, is less readily calculable. The outcome of legal balancing exercises between the commercial claims of creditors and the home interests of occupiers is also consistent with Malloy’s theory that failure to recognise non-financial values ‘privileges the value of those things that are more easily quantifiable while conventionalising the habit of assuming the superiority of highly monetized relationships’.71 This effect can be clearly observed in the context of conflicts between the readily quantifiable commercial claims of creditors and the non-financial interests of occupiers in retaining their home for use and occupation as a home. Malloy argues that in order for economic analysis to remain useful and relevant it must be tempered with other values, including moral, social and political interests.72 Applying this line of reasoning to the context of the creditor/occupier dispute, it is readily apparent that the currently prevailing pro-creditor bias in English law cannot be justified in the absence of some attempt to unpack and to conceptualise the occupier’s home interests. Only once this process has been carried out can the court legitimately claim to balance the competing interests at stake.

69

Malloy (2000), 18. Ibid, 18–19. 71 Ibid, 19. 72 As Malloy argued in an earlier essay, ‘American society is confronted with many complex social problems. Evaluating and resolving these problems require that policymakers appeal to many interdisciplinary theories to achieve a better understanding of the problems and to move closer to a reasonable corrective response. From this perspective, economic analysis can be a useful tool in the evaluation of law and social policy. But economics, like other disciplines, has its limitations. In a complex society, rights are not always absolute; once there is a retreat from the absolute, lines have to be drawn by an imperfect process of balancing competing interests. Some of these interests are economic interests, but, unfortunately for the usefulness of economic analysis, other interests such as political and moral interests must also be considered’: RP Malloy, ‘Equating Human Rights and Property Rights— The Need for Moral Judgment in an Economic Analysis of Law and Social Policy’ (1986) 47 Ohio State Law Journal 163 at 171. 70

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Feminist Economics and the ‘Masculinity’ of Land Law The ordering of economic analysis around the discourse of efficiency, to the overwhelming exclusion of other criteria of economic (and other types of) wellbeing, has also been criticised by feminist economic theorists. Feminist economic analysis seeks to challenge the claim to neutrality and objectivity that characterises neoclassical economics. While law and economics scholars emphasise the purported neutrality of their pursuit of efficiency, feminist economic analysis seeks to re-cast traditional market economy as sexually specific and its basic unit of analysis—the ‘rational economic man’—as masculine in gender. Aspects of feminist economic analysis shed interesting light on the current treatment of the creditor/occupier conflict in English law. First, from a feminist perspective the lack of attention given to the argument on behalf of the occupier in legal disputes involving creditors can be attributed, in part, to the apparent subjectivity—and therefore ‘femininity’—of the occupier’s home interest. One of the hurdles that stand in the path of developing a legal concept of home is the idea that ‘home-type’ interests are anathema to legal reasoning. Indeed, home is an essentially subjective phenomenon. It does not appear to be easily quantifiable, and the value of the ‘home’ interest is not readily susceptible to legal proof. These characteristics have led the court to dismiss the idea of home in law as ‘something ethereal, floating in the air, unconnected to bricks and mortar and land’.73 Furthermore, home interests are not generic, but vary from one context to another. Empirical research has established that not all occupiers value their homes in the same way. Different individuals may have different levels of attachment to their properties. For instance, Wikstrom’s research indicated that, ‘[i]n some cases these bonds [to the home] seemed to be so strong, that breaking them by moving would lead to disaster. Others, however, had weaker ties to home and neighbourhood. For some young people, the flat was just a place where they slept and stored their belongings’.74 Indeed, as Hoffmann J acknowledged in Re Citro, when balancing the commercial interests of creditors against the home interests of occupiers, ‘[i]t is very hard to see how they can be weighed against each other, except in a way which involves some value judgment on the part of the tribunal’.75 These characteristics present obvious impediments when it comes to assessing the balance to be struck between creditors and occupiers, from a law and economics perspective. However, feminist critics argue that, while traditional economic analysis seeks to avoid ‘areas where strong normative interests are at 73

London Borough of Harrow v Qazi [2003] UKHL 43 at [145]. T Wikstrom, ‘The Home and Housing Modernisation’ in DN Benjamin (ed), The Home: Words, Interpretations, Meanings, and Environments (Aldershot, Ashgate, 1995) 268. 75 [1991] Ch 142 at 150; Nourse LJ quoted from Hoffmann J’s comments in the High Court decision. 74

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stake’,76 it is important to recognise that these interests are both relevant and significant, since ‘economic analyses that explicitly recognise the values they embody are more honest and objective than analyses that make claims of value-free neutrality’.77 Furthermore, feminist economic thought claims to provide the tools by which to broaden the scope of economic analysis, and take account of the full range of interests at stake in any given context, as: issues . . . that are often seen to be too value-laden by traditional economists are viewed as legitimate areas of inquiry by feminist economists who accept that economic questions involve values and value-judgments.78

Yet, even looking beyond the mere question of subjectivity per se, feminist economic thought is particularly pertinent to the legal recognition of home interests, specifically when balanced against the commercial claims of creditors. It is interesting to note that the prioritisation of the commercial claims of creditors involves the elevation of their ‘objective’, rational, measurable and easily quantifiable interests, over and above what are perceived as the more ‘subjective’, irrational, emotional and intangible interests of occupiers in their homes. This can also be constructed as the prioritisation of (what are perceived to be) ‘masculine’ traits over (what are perceived to be) ‘feminine’ values.79 The weight attached to the security interests of creditors and the lack of exposition regarding the home interests of occupiers provide an apt illustration of law’s tendency to favour the ‘rational’ interests of ‘economic man’.80 Nelson provided a vivid illustration of the contrast between the interests at stake in her description of the ‘Cartesian model of objectivity’ as ‘the abstract, general, detached, emotionless, “masculine” approach taken to represent scientific thinking . . . radically removed from, and clearly viewed as superior to, the concrete, particular, embodied, passionate, “feminine” reality of

76 SF Feiner and BB Roberts, ‘Hidden by the Invisible Hand: Neoclassical Economics Theory and the Textbook Treatment of Race and Gender’, in AL Aerni and K McGoldrick (eds), Valuing Us All: Feminist Pedagogy and Economics (Ann Arbor, Mich, University of Michigan Press, 1999), 43–4. 77 J Peterson, ‘Addressing US Poverty in Introductory Economics Courses—Insight from Feminist Economics’ in Aerni & McGoldrick (eds), ibid, 80. 78 Ibid. 79 ‘Masculine knowing characterises itself as rational, self-interested, hierarchical and, above all, abstracted from His emotional life and physical body, being concerned with the fittest ideas in a competitive market. In His book, feminine (un)knowing is inevitably His converse: intimate, nature, material, emotional’: K Green, ‘Being Here—What a Woman Can Say About Land Law’ in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London, Cavendish, 1996) 83. 80 Hewitson has described ‘rational economic man’ as androcentric on the ground that he is conceptualised as ‘a selfish, radically separate individual divested of those traits and involved in those activities traditionally associated with women. These traits and activities are consequently devalued and rendered very nearly invisible within the neoclassical framework, while roles and traits traditionally associated with men are extolled’: GJ Hewitson, Feminist Economics: Interrogating the Masculinity of Rational Economic Man (Cheltenham, Edward Elgar, 1999), 70.

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material life’.81 Nelson’s observations about the way in which ‘masculine’ and ‘feminine’ interests are ordered is clearly reflected in the conflict between the commercial claims of creditors and the home interests of occupiers. While the creditor’s claim to the abstract capital asset represented by the property can be characterised as masculine, rational, easily quantifiable, ‘knowable’, the material concerns associated with using and occupying the property as a home can be construed as a ‘feminine’ interest. The ethos of legal policy, which recognises and elevates the creditor’s claim while underrating, if not totally overlooking, the occupier’s home interest, is wholly consistent with the model set out in Nelson’s analysis.82 If neoclassical economics is primarily concerned with rational individual choices, competitive markets, market efficiency and abstract scientific reasoning, it has much in common with the central tenets of English land law. The distinction set out above—between ‘masculine’ and ‘feminine’ interests—and the ordering of abstract, rational claims over material and subjective interests are clearly reflected in the description of land law as aspiring to the status of a ‘rational science’. Although law, as a system created by human beings to regulate human conduct, cannot be an exact science, the aim of developing a system which will be closely analogous to the ‘hard sciences’ is most evident in the field of land law. English land law has been described by leading commentators as: display[ing] many of the features of a closed system of logic or an autopoietic order, prompting immediate analogies with mathematics and, more particularly, with the discipline of Euclidean geometry . . . every strategic move is dictated by an arbitrarily predetermined set of foundational principles . . . property in land ‘behaves’ in a manner just as predictable and verifiable as any other branch of rational science.83

Although this apparently strict rationality cannot be absolute, and must sometimes be mediated by other values, Gray and Gray argue that the extrinsic values brought to bear in contexts such as mortgage (or landlord’s) possession actions also favour commercial interests rather than ‘home-type’ interests.84 In relation to dealings between creditors and occupiers, they identify a rhetoric within which ‘relationships are strictly commercial, bargaining is hard-nosed, social bondings are minimal and the value attached to land is primarily, perhaps even exclusively, 81 JA Nelson, ‘The Study of Choice or the Study of Provisioning? Gender and the Definition of Economics’ in MA Ferber and JA Nelson (eds), Beyond Economic Man: Feminist Theory and Economics (Chicago, Ill, University of Chicago Press, 1993) 25. 82 Nelson goes on to say that ‘[n]ature, childhood, bodily needs, and human connectedness, cut off from ‘masculine’ concern in the Cartesian split, remain safely out of the limelight’: ibid, 26. 83 Gray and Gray, above n 21, 204–5. 84 For a discussion of the commercialism of the 1925 legislation and its role in justifying the überrational approach of English land law see A Bottomley and N Jackson, ‘Shifting Conceptual Frames: Experiences of Teaching Land Law’ (Paper delivered in WG Hart Workshop, London, 1993; held at the Institute of Advanced Legal Studies, University of London) 6. 85 KJ Gray and SF Gray, ‘The Rhetoric of Realty’ in J Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (London: Butterworths, 2003) 241.

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an “exchange value”. Altruism is in very short support; we are talking money’.85 Thus, not only does the central core of strict logic and rationality in (property) law tend to favour the objectively measurable (in money terms) interests of creditors over and above the subjective, intangible, non-financial ‘home’ interests of occupiers, but the values by which this rationality is tempered also tend towards the financial interests of commercial parties rather than the non-financial, social, psychological or emotional ‘home’ claims of occupiers. There is a clear resonance between the disciplines of neoclassical economics and English land law. This is also reflected in critical analyses—particularly feminist critique—of both disciplines. For example, when Green examined the pursuit of a ‘scientific’ approach in land law, she identified the characteristics outlined above—the association with mathematics, the preference for abstract, rational claims—as typically ‘masculine’. In fact, Green stated that: Of all academic pigeonholes, property law (and its exemplar, land law) is the epitome of a masculine knowledge. It is perceived as one of the most difficult core subjects, one of the most rigorous, that requires a love of maths, an aptitude for chess; the abstract play of interests in land is a war-game for minds.86

The parallel with neoclassical economics is emphasised in Green’s suggestion that: The rules maintain their logic and predictability for rational men; distance and a certain ruthlessness are also persuasive of land law’s masculine world view . . . All the rules are judged rationally, according to their fitness for their purpose: the test is whether they render the market more or less efficient.87

The significance of this ethos in the creditor/occupier context is evident. The prioritisation of commercial interests, such as the creditor’s interest in the secured home as capital—over and above the use value of the home to occupiers—is clearly facilitated by the apparent masculinity of land law’s self-identity. On the one hand, it is clear that values associated with ‘the market’, and so, by extension, with reason and rationality, are lauded,88 while on the other hand non-economic interests are cast as ‘non-legal’, and consequently dismissed.89 86

Green, above n 79, 93. Ibid, 101. 88 ‘Commentators have seen land law’s function as providing the “certainty” essential to the smooth running of the market: conveyancing must be facilitated so that rational men know where they stand. Reason is seen to demand that the needs of property owners, self-interested and rational individuals in the market place, override the needs of those who are different: weaker or poorer, or in a different way defined as Other’; ibid, 93–4. Green later added that ‘it is clear that land law can be represented as a typically masculine pursuit. The land lawyer’s object is to provide certainty by manipulating scientifically derived and maintained classifications of “interests in land”. This certainty, predictably, is necessary to facilitate the activities of rational, autonomous actors in the market place’: ibid, 95. 89 ‘[T]he law constructs itself precisely by excluding that which is considered non-legal . . . The “rightness” of objectivity, rationality, scientificity and independence . . . obtains its force from the exclusion of a culturally devalued “feminine” or wrong way’: M Davies, ‘Feminist Appropriations: Law, Property and Personality’ (1994) 3 Social and Legal Studies 365 at 376. 87

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When considering the role of gender in legal discourse, the ‘masculinity’ of the creditor’s commercial claim provides a perfect foil to the ‘femininity’ of the occupier’s home interest. Yet, the significance of critical feminist analysis when applied in this context goes beyond the specific outcome in possession actions. Rather, it is indicative of the more general difficulties associated with developing a concept of home in law. While commercial interests ‘fit’ readily into the framework of interests that is recognised by property law, the relationship between an occupier and his or her home, inherently intangible and difficult to define, is not readily comprehensible to lawyers. Legal analysis, particularly in the field of property law, tends to favour the rational, the objective, and the tangible:90 interests which conform to the ‘hard nosed’ masculinity of land law. The proposition that a property may be meaningful, in a social, psychological and emotional way, is totally at odds with these types of values. Furthermore, this incongruence has become increasingly marked, as land law has been ‘bureaucratised’, from the introduction of title registration in the final decades of the nineteenth century, through the 1925 legislation, and most recently in the Land Registration Act 2002. This can be contrasted with the philosophy of ‘dwelling’ is explored in Chapter 4. The concept of ‘dwelling’ as the way in which humans live in the world laid the foundations for an understanding of home as ‘an emotionally based and meaningful relationship between dwellers and their dwelling places’.91 However, the bureaucratisation of land law has caused a decisive shift in the frame of reference underpinning ownership and occupation of land. This is evident in the philosophy of the Land Registration Act 2002, which has altered the landscape of land law in several major respects. In their seminal textbook, Gray and Gray state that: There has always been an instinctive bias in favour of transactional certainty in the land market and this perceived imperative has now acquired a heightened emphasis with the enactment of the Land Registration Act 2002. By various means this legislation infuses a new quality of rationality into dealings with land . . . The 2002 Act accordingly oversees an intensified system of almost universal recordation of property rights in the Land Register, thereby sharpening up the effects of dealings between strangers and reducing potential threats to any title taken by a transferee or mortgagee.92

Before the development of title registration, possession was the root of title in land. The significance of possession in the theoretical framework of property law is

90 For further discussion, see, eg, D Sugarman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in W Twining (ed), Legal Theory and the Common Law (Oxford, Blackwell, 1986). 91 K Dovey, ‘Home and Homelessness’ in I Altman and CM Werner, Home Environments (New York, Plenum Press, 1985) 34. 92 Gray and Gray, above n 18, [2.48].

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considered further in Chapter 6. According to the common law tradition, physical possession, rather than abstract title, was the basis for presumptive ownership. The material fact of possession was the basis for the doctrine of seisin, a principle which ‘expressed the organic element in the relationship between man and land and as such provided presumptive ownership within the medieval framework of rights in land’.93 As Alice Ehr-Soon Tay wrote in 1978: it is because all proprietary and possessory rights ultimately stem from enjoyment that seisin lies at the very root of the development of the English law of property and of the Englishman’s concept of freedom—of his home as his castle. The common law, then, begins with and long maintains a bias in favour of the factual situation—the citizen’s actual behaviour and powers against the claims of privilege and authority as such . . . The role of the underlying seisin-possession concept in the common law is to recognise and protect those still important areas in which men live, work and plan as users.94

This account of the significance of possession in the common law tradition of land law highlighted the weight that was attached to the material fact of dwelling on land, of living in and using and occupying the property. The shift away from this type of system is associated with the introduction of title registration. As the system of title registration has developed, and particularly with the enactment of the Land Registration Act 2002, it has affected a shift in emphasis ‘from possession to title, from empirically defined fact to state-defined entitlement, from property as a reflection of social actuality to property as a product of state-ordered or political fact. In short, instead of the citizen telling the state who owns land, the state will henceforth tell the citizen’.95 Even prior to the enactment of the 2002 Act, Green identified the trend of bureaucratisation in land law, and suggested that it was significant in signalling ‘a distancing from the material and subjectively known (feminine) place to an intellectual and objective (masculine) space’.96 The particular implications of gendered perceptions of home values are explored in greater depth in Chapter 8, which unpacks the development of feminist legal theory with regard to the concept of home, and analyses the ambiguities of home for feminist commentators against empirical studies concerning the meaning and values of home and the experiences of mortgage possession for men and women. Green has argued that women’s interests in land have often been ‘invisible’, as ‘there are no official statistics on the ownership of land by women, or 93 KJ Gray and PD Symes, Real Property and Real People: Principles of Land Law (London, Butterworths, 1981)48–9. 94 A E-S Tay, ‘Law, the Citizen and the State’ in E Kamenka, R Brown and A E-S Tay (eds), Law and Society: The Crisis in Legal Ideas (London, E Arnold, 1978) 11. 95 Gray and Gray, above n 85, 245. 96 Green, above n 87, 95. The philosophical study of dwelling, space and place is considered in more detail in Ch 4, below.

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on the value of their shares in land, their dispossessions or evictions’.97 Although there is a dearth of quantitative data on issues concerning women and property ownership within the land law system, Chapter 8 will draw on qualitative analysis, across a range of other disciplines, of the significance of gender in the creditor/occupier context. Chapter 8 will also consider the ambiguities surrounding the idea of the home as a meaningful and significant place for women occupiers. Feminist theorists have traditionally rejected the idea of the ‘home’ as a place for women, due to the connotations that this concept has traditionally had with patriarchy, domination and the confinement of women to the private sphere. Feminist critics have described ‘home’, particularly when associated with the idea of ‘women in the home’, as a prison, a place of patriarchy and oppression,98 and in extreme cases a place of violence.99 Home is represented as the paradigmatic ‘private’ sphere, which both practically and emblematically assists the patriarchal endeavour of keeping women invisible to the law, vulnerable to abuse, and without access to public power. When conceived within this framework, Valerie Burks argued that feminists must reject home, since, ‘[f]rom its very beginnings, feminism has, in large part, sought to expose the separation of public and private life as a mere fabrication of phallo-centric power structures meant to quell woman’s political identity and “keep her at home” ’.100 The association between women and the ‘home as private sphere’ is also significant in relation to critical law and economics analysis of the creditor/occupier contest. The public–private dimension provides another layer of gender differentiation, and demonstrates once again the elevation of that which is perceived to be ‘masculine’. The commercial interests of the creditor are associated with the market—a public arena—and therefore ‘masculine’, while the home—a private space—is associated with ‘femininity’. Furthermore, as Green and Lim asserted, ‘the difference matters, because the public is economically and politically more important than the private’.101 This dichotomy is brought into sharp relief when 97

Ibid, 93. B Martin and M Mohanty, ‘Feminist Politics: What’s Home Got to do with It?’ in T de Laurentis (ed), Feminist Studies/Critical Studies (Bloomington, Ind, Indiana University Press, 1986) 191–211; T de Laurentis, ‘Eccentric Subjects: Feminist Theory and Historical Consciousness’ (1990) 16 Feminist Studies 115–50; B Honig, ‘Difference, Dilemmas, and the Politics of Home’ (1994) 61 Social Research 563–97. 99 E Stanko, ‘Fear of Crime and the Myth of the Safe Home: A Feminist Critique of Criminology’ in K Yllo and M Bograd (eds), Feminist Perspectives on Wife Abuse (London, Sage, 1988); E Saraga, ‘Dangerous Places: The Family as a Site of Crime’ in E Muncie, and H McLaughlin (eds), The Problem of Crime (London, Sage, 1996); L Moran, ‘The Poetics of Safety: Lesbians, Gay Men and Home’ in A Crawford (ed), Crime, Insecurity, Safety in the New Governance (Cullompton, Willans Publishing, 2002). 100 VC Burks, ‘Women’s Place: An Arendtian Critique of Feminism’ (1994) 14 Women and Politics 19. 101 K Green and H Lim, ‘Weaving Along the Borders: Public and Private, Women and Banks’ in S Scott-Hunt and H Lim, Feminist Perspectives on Equity and Trusts (London, Cavendish, 2001) 91. 98

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one analyses credit transactions secured against the home—particularly the family home. When home interests are defeated by creditor actions, the outcome can be characterised as ‘private actions in the family home . . . being judged by public values—rationality over altruism, competition over co-operation, individual over community, men over women’.102 Of course, the interests of occupiers encompass financial interests as well as non-economic values, but it is the ‘x’-factor103 that transforms a house into a home—the social, psychological, emotional responses that create attachments to home—that renders ‘home-oriented’ arguments vulnerable, since the proposition that home can encapsulate meanings beyond the physical structure of the house, or the capital value it represents, continues to present conceptual difficulties for lawyers. The stark conflict between creditors and occupiers is emphasised once again since, while the ‘home’ interest is perceived as ‘feminine’, equally the creditor’s action to realise the capital value of the property is regarded as a ‘masculine’ act. Rosemary Auchmuty has contrasted the perception of non-economic home values as ‘important to most women’ with ‘the masculine concern for business profits’.104 The significance, from a gender perspective, of the automatic priority afforded to creditors in actions against domestic property is patent. Yet, gender is not the only issue at stake. Rather, as Kate Green has suggested, the (effectively) automatic prioritisation of the claims of creditors over the interests of occupiers reflects the way in which the ‘needs of property owners, self-interested and rational individuals in the market place, override the needs of those who are different: weaker or poorer, or in a different way defined as Other’.105 This proposition has been borne out in the repossession context by numerous empirical studies, which have demonstrated both the salience of home for certain categories of occupier— whether because of low-income;106 age—both for children107 and the elderly;108 102

Ibid, 90. The ‘x’ factor is explored further in Ch 4, below. 104 R Auchmuty, ‘The Rhetoric of Equality and the Problem of Heterosexuality’ in L Mulcahy and S Wheeler (eds), Feminist Perspectives on Contract Law (London, Glasshouse Press, 2005) 71. 105 Green, above n 79, 93–4. 106 Low-income is an obvious issue in relation to vulnerability to repossession: see, eg, P McCarthy and B Simpson, Issues in Post-Divorce Housing (Aldershot, Avebury, 1991), while the high proportion of low-income households in the owner occupied sector emphasises the extent of the potential for default. One study suggested that for low-income home owners, the social and economic value of ownership was mitigated by the fact that ownership increases financial and psychological stress among families living on the economic margin: D Balfour and J Smith, ‘Transforming Lease-purchase Housing Programs for Low-income Families: Towards Empowerment and Engagement’ (1996) 18 Journal of Urban Affairs 173; see also L Rainwater, ‘Fear and the House-as-haven in the Lower Class’ (1966) 32 Journal of the American Institute of Planners 23–31. 107 See further, Ch 9. 108 Elderly people may be rendered particularly vulnerable as occupiers for various reasons, including health problems and financial circumstances, at a time when ‘home’ can play a critical role in maintaining their sense of personal identity and independence: see, eg, A Dupuis and DC Thorns, ‘Meanings of Home for Older Home Owners’ (1996) 11 Housing Studies 485; A Dupuis and DC Thorns, ‘Home, Home Ownership and the Search for Ontological Security’ (1998) 46 The Sociological Review 24; PC Kontos, 103

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disability;109 race;110 or marital status111—as well as their heightened vulnerability in relation to possession actions. Saegert’s research has suggested that when a person’s economic and social resources are limited, home and the neighbourhood environment play a critical role in that person’s life chances and identity.112 Yet, paradoxically, it would seem that those who stand to gain significantly from the individual economic and social/psychological (‘x factor’) advantages purportedly associated with home ownership113 are most vulnerable to repossession and forced sale at the hands of a creditor.114 Those who have the most to lose in terms of home interest are also most likely to find the ‘dream’ of home ownership turning into a nightmare. It is clear that, although legal policy in creditor/occupier disputes has been heavily influenced by the economic clout of creditors, when balancing the arguments for and against ordering possession and sale of a home, the current justifications are inadequate. The argument that, since the extension of home ownership ‘Resisting Institutionalization: Constructing Old Age and Negotiating Home’ (1998) 12 Journal of Aging Studies 167; J Mansvelt, ‘Working at Leisure—Critical Geographies of Ageing’ (1997) 29 Area 289; G Mowl, R Pain and C Talbot, ‘The Ageing Body and Homespace’ (2000) 32 Area 189. 109 The issues associated with access to, and support of, home ownership for people with disabilities have attracted considerable critical attention: see, eg, S Galbraith, ‘A Home of One’s Own’ in A Tymchuck, KC Lakin and R Luckasson (eds), The Forgotten Generation: the Status and Challenges of Adults with Mild Cognitive Limitations (Baltimore, Mld, Brookes, 2001); E Hepp and C Soper, ‘One Family’s Story of Homeownership’ (2000) 15 Journal of Vocational Rehabilitation 79; J Klein, ‘The History and Development of a National Homeownership Initiative’ (2000) 15 Journal of Vocational Rehabilitation 59; J Klein and M Black, Extending the American Dream: Home Ownership for People with Disabilities (Durham, NH, University of New Hampshire Institute on Disability, 1995); J Klein and D Nelson, ‘Homeownership for People with Disabilities: The State of the States in 1999’ (2000) 15 Journal of Vocational Rehabilitiation 67; J Klein, B Wilson and D Nelson, ‘Postcards on the Refrigerator: Changing the Power Dynamic in Housing and Assistance’ in J Nisbet and D Hagner (eds), Part of the Community: Strategies for Including Everyone (Baltimore, Mld, Brookes, 2000); J O’Brien, ‘Down Stairs that are Never your Own: Supporting People with Developmental Disabilities in their own Homes’ (1994) 32 Mental Retardation 1. In addition to the issues concerning physical disability, the Court of Appeal has recognised, in the context of tenant evictions, that ‘[t]o remove someone from their home may be a traumatic thing to do in the case of many who are not mentally impaired. It may be even more traumatic for the mentally impaired’: Manchester City Council v Romano and Samari [2004] EWCA Civ 834, per Brooke LJ. 110 The positive relationship between home, gender and race was explored by bell hooks in Yearning: Race, Gender, and Cultural Politics (Boston, Mass, South End Press, 1990); on the other hand, like gender, race has had implications on the availability and sustainability of owner occupation: see, eg, JW Frasier, FM Margai and E Tettley-Fio, Race and Place: Equity Issues in Urban America (Boulder, Colo, Westview Press, 2003); D Conley, Being Black, Living in the Red: Race, Wealth, and Social Policy in America (Berkeley, Cal, University of California Press, 1999); W Webster, Imagining Home: Gender, ‘Race’ and National Identity, 1945–64 (London, UCL Press, 1998). 111 The significance of the definition of ‘family’ in limiting the applicability of the concept of family home is discussed in Ch 7. 112 S Saegert, ‘The Role of Housing in the Experience of Dwelling’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985) 289–90; see also A Schorr, Slums and Social Insecurity (Washington, DC, US Government Printing Office, 1964). 113 See further Ch 5. 114 This raises potential equality issues, considered further in Ch 10, which analyses the treatment of home interests within human rights frameworks.

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depends on the availability of credit, creditors’ rights must prevail suggests that the issues at stake are straightforward and simplistic and that the necessary outcome is obvious. Creditors must be protected, and the home interests of occupiers must be dismissed. The discussion above has attempted to unpack some of the complex issues in play in this context, and to argue that economic efficiency, based on the costs to the creditor, is neither the only option for legal policy makers nor, necessarily, the obvious choice. The pro-creditor bias that dominates legal discourse concerning creditor/occupier contests is heavily value laden, and neither the issues at stake, nor the full range of costs, have been taken into account in reaching that position. Furthermore, even if the balancing exercise was envisaged purely in terms of an economic cost-benefit analysis, there are other economic costs to consider alongside the potential losses to the creditor in the event of default. In Home Ownership in a Risk Society,115 Ford, Burrows and Nettleton identified several socioeconomic consequences resulting from mortgage arrears and repossessions, including financial costs—from outright losses to costs resulting from the physical deterioration of property—to the social and psychological costs associated with housing debt, restricted residential mobility and relationship difficulties, as well as health related costs and administrative costs. These costs, it was argued, may be experienced by a range of actors: borrowers, lenders, insurers, central government, local government, housing market institutions, labour market institutions and health services.116 In addition, there may be potential costs to existing home owners and to creditors if home ownership were to become less popular. These considerations provide a further challenge to the presumption that appears to have taken hold in the legal domain, that an economic analysis of creditor/ occupier disputes can be swiftly executed by identifying and elevating one element of the equation—the idea that by protecting commercial interests legal policy makers can safeguard the flow of capital into housing. While this solution may satisfy the interests of individual creditors or landlords, in the long term the ultimate question ‘who pays’ is much more complex. If consequentialist economic analysis is the justification for allowing commercial interests routinely to outweigh home interests, then there is currently no indication that all the potential costs—financial and non-financial—have been taken into account.

115 116

Above n 56. Ibid, 108.

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The Impact of Losing a Home: From the Personal to The Political The context of disputes between creditors and occupiers provides a stark example of the way in which the values of home to an occupier are actually minimised, especially when weighed against the more tangible claims of creditors, despite the fact that the net result for the occupier, if the creditor’s claim to the house as security prevails, is often the loss of their home. One of the issues associated with the arguments surrounding the impact of losing a home, however, reflects an obstacle frequently encountered when dealing with ‘home-type’ issues—that is, both the apparent subjectivity of home attachments and the difficulty in subjecting the personal impact of creditors’ possession actions on occupiers to legal proof. As one home theorist has suggested in another context ‘the problem lies with the fact that we are dealing with environmental intangibles—attachment, grief, loss—which are immeasurable, difficult to articulate, and thus easy to ignore by the cost-benefit brigade’.117 In one sense, the impact of losing one’s home can only ever be quantified after the event, since: ‘[b]eing intangible, qualities of home are often only identified when they are lost’.118 Thus, as Buttimer suggested: Whether all these values are consciously articulated in legal or behavioural terms does not seem to be the crucial point. In fact, they are often not brought to consciousness until they are threatened: normally they are part of the fabric of everyday life and its taken for granted routines.119

Not only do home values become more easily identifiable when the occupier’s relationship with the home is threatened, but the argument that home interests are significant and should be protected is brought into sharp relief when creditors bring actions against the property, and the occupier faces the loss of their home. Empirical studies which have focused on the psychological impact of losing one’s home identify extreme responses, including alienation and grief amongst dispossessed occupiers.120 In Brown and Perkins’ study of disruptions in place attachment, they found that, ‘[a]fter the development of secure place attachments, the loss of normal attachments creates a stressful period of disruption followed by

117

JD Porteous, ‘Domicide: The Destruction of Home’ in Benjamin, above n 74, 153. Dovey, above n 91 at 56. 119 A Buttimer, ‘Home, Reach, and The Sense of Place’ in A Buttimer and D Seamon (eds), The Human Experience of Space and Place (London, Croom Helm, 1980) 167. 120 See RJ Lawrence, ‘Deciphering Home: An Integrative Historical Perspective’ in Benjamin, above n 74, at 61–2; and M Fried, ‘Grieving for a Lost Home’ in J Duhl (ed), The Urban Condition—People and Policy in the Metropolis (New York, Basic Books, 1963). 118

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a post-disruption phase of coping with lost attachments and creating new ones’.121 Similarly, in ‘Grieving for a Lost Home’, Marc Fried considered the crisis of losing one’s home and concluded that: ‘. . . for the majority it seems quite precise to speak of their reactions as expressions of grief’.122 Victims of home loss reported a range of responses, including: feelings of painful loss, the continued longing, the general depressive tone, frequent symptoms of psychological or social or somatic distress, the active work required in adapting to the altered situation, the sense of helplessness, the occasional expressions of both direct and displaced anger, and tendencies to idealise the lost place.123

The dramatic nature of the occupier’s response to losing his or her home is consistently evident across the literature. For example, Fried described the effect of forced relocation as: ‘a crisis with potential danger to mental health’.124 Indeed, Fried’s views regarding the detrimental health consequences of losing one’s home have been legitimated by several recent studies into the impact of loss of home on mental and physical health. The evidence that has emerged from research studies on this question, particularly in the context of mortgage possession actions, is considered further below. Although the experience of losing one’s home will vary from one occupier to another, there is sufficient evidence of the generally negative effects of home loss to indicate that ‘[g]rieving for a lost home is evidently a widespread and serious social phenomenon’.125 Fried’s 1963 research, which focused on the context of urban slum clearage, suggested that the most extreme responses to losing one’s home—either negative or positive—were likely to arise in only a minority of cases. He claimed that the experience of home loss was ‘likely to increase social and psychological “pathology” in a limited number of instances; and it is also likely to create new opportunities for some, and to increase the rate of social mobility for others’.126 In the majority of cases, however, the effects of dispossession were negative, albeit less extreme. Fried argued that, ‘[f]or the greatest number, dislocation is unlikely to have either effect but does lead to intense personal suffering despite moderately successful adaptation to the total situation of relocation’.127 Another study, which examined the effects on occupiers of losing their homes because they were to be demolished, also supported the argument that the repossessed occupier experiences a sense of loss that cannot be redressed by simply 121 BB Brown and DD Perkins, ‘Disruptions in Place Attachment’ in I Altman and SM Low, Place Attachment (New York, Plenum Press, 1992) 279. 122 Fried, above n 120, at 151. 123 Ibid. 124 Ibid, 152. 125 Ibid, 167. 126 Ibid. 127 Ibid.

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relocating that occupier, or family, in another housing environment.128 Porteous claimed that ‘domicide has negative social and psychological effects on its human victims’,129 regardless of whether the occupier’s shelter needs were met in another way. The significant factor for the occupiers was forced relocation from their homes. The research indicated that ‘[c]hange almost invariably involves loss, and bereavement-like symptoms of grief are common among those uprooted and relocated’.130 It is particularly interesting to note that Porteous related this grief to the loss of the particular property with which the occupier had a ‘home relationship’, since even where the occupiers were moved to properties that could be regarded as objectively superior, they were found to ‘pay for this in terms of considerable social and psychological disruption’.131 These studies, by Fried and Porteous, explored the consequences of involuntary dispossession on occupiers and could, therefore, be instructive when it comes to conceptualising the occupiers home interest in the creditor/occupier context. However, some factors distinguish the situations examined in these studies from the context of creditor possession actions. For one thing, in both studies, the ‘domicide’ to which the authors referred involved the destruction of whole neighbourhoods for the purposes of planning or urban development. While this obviously affected the individual occupiers of homes within those neighbourhoods—and the focus of both analyses was on the personal responses of the dispossessed occupiers—these situations differ somewhat from the loss of home through mortgage possession actions. For one thing, in the neighbourhood cases, the dispossessed occupiers may be less susceptible to feelings of guilt and shame compared to repossessed occupiers. For occupiers who lose their homes following default on a debt, there may be a greater feeling of responsibility for the predicament than for those who are dispossessed, like their neighbours, as part of a wider development strategy. In addition, while cases involving ‘domicide’ affect whole communities, occupiers who lose their homes through repossession are more likely to find the experience isolating relative to the wider community. Yet, statistical research has indicated that while the volume of creditor possession actions has stabilised since the last major recession in the early 1990s, a range of economic factors have meant that the ‘normal’ level of risk associated with mortgage debt has increased significantly.132 The economic context of home ownership in the early twentieth century is considered further in Chapter 5. While the political, social and cultural ideologies of home ownership remain deeply embedded amongst British citizens, the economic experience of home ownership has been affected by a range of systemic factors. These have included the expansion of 128 129 130 131 132

Porteous, above n 117. Ibid, 153. Ibid, 159. Ibid. Ford, Burrows and Nettleton, above n 56.

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home ownership, particularly low income home ownership, but without adequate governmental support; demographic transformations, particularly in the shape of higher rates of household dissolution and instability; economic transformations, particularly in relation to employment practices; and the re-structuring of government safety-net provisioning.133 The unsustainability of contemporary home ownership emphasises the growing incidence of occupiers losing their homes through creditor possession actions. One consequence of this has been an increase in academic interest concerning the effects of repossession on occupiers. The following section considers some of the empirical research carried out in recent years concerning the impact of possession actions on home occupiers. This research casts an interesting light on any evaluation of the ‘costs’ of creditor protections, both economic and non-economic.

Losing One’s Home Through Creditor Possession Actions While loss of home is indeed a subjective experience, the negative (or positive) effects of which will vary from case to case, there appears to be sufficient evidence of the potentially adverse effects of dislocation from one’s home to justify further consideration of the specific consequences of loss of home through creditor possession actions when evaluating the broader policy context of creditor/occupier disputes. One useful source in this regard is Ford, Burrows and Nettleton’s qualitative study of the experiences and perceptions of 30 families with children following mortgage repossession.134 This social analysis adopted a wide ranging perspective in relation to the costs of mortgage arrears and possession actions. Alongside analysis of the economic factors that have rendered home ownership unsustainable, this study classified the potential range of costs associated with mortgage arrears and possessions, to demonstrate how the impact of possession actions is embedded in society. These costs are experienced by a range of actors, including borrowers and lenders, but also extending to include insurers, central government, local government, housing market institutions, labour market institutions and health services. It is suggested that the impact on non-debtor occupiers sharing a home with the borrower could be added to this list. Ford et al classify these costs as social, social psychological, health, administrative, financial, political and organisational. For example, lenders and insurers endure the social costs of loss of trust when debtors fall into default and actions for possession are brought. Housing market institutions experience the social psychological cost of reduced confidence in the sector, while insurers and the labour market may experience health-related costs through increased risk of accident 133 134

Ford, Burrows and Nettleton, chs 2–4. Ibid, chs 6 and 7.

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claims and employee absenteeism. Parties affected by administrative costs include the lender, who must invest resources in pursuing the debt and bringing an action for default; central government, through arrangements for the payment of ISMI (income support for mortgage interest);135 local government, through increased demand for homelessness provision; and the health services, which are liable to face additional demand for services. The financial costs are particularly widespread, affecting almost all of the parties identified. The creditor, obviously, faces the prospect of real financial losses, but the borrower also faces a range of financial costs, such as administrative charges from the creditor, the burden of residual debt, increased payments and falling into poverty. Insurers face financial costs through payout on mortgage insurance; financial costs for central government include payments of ISMI and on ‘mortgage rescue’ schemes; local government bodies face the financial costs of increased homelessness provision and the provision of housing advice. The housing market is affected by reduced revenue and a fall-off in housing transactions when home ownership becomes less popular, while the health services face financial costs in respect of additional demand from repossessed occupiers whose mental health and wellbeing are affected by the loss of their homes.136 While financial costs and administrative or resource costs are readily identifiable, and tend to be persuasive both in government policy and legal decision making, it is the social, social psychological and health costs visited upon borrowers and other occupiers that are more difficult to capture. Ford et al suggested that the costs of mortgage default and possession actions for borrowers include the social costs of social exclusion, insecurity and reduced standards of living; the social psychological costs include experiencing the stigma of debt as well as reported relationship difficulties, and that these factors, along with the experience of possession itself—which, the study found, led to an increase in feelings of sadness, loss and insecurity—could have implications for mental health and wellbeing. The combination of factors linked to the social, social psychological and health consequences of losing one’s home through creditor possession actions are most readily conveyed by listing the range of impacts that emerged from this study.137 Ford et al identified consequences linked to quality of life; social status and identity; personal and family relationships; future aspirations; and health and well being. These consequences include:

135 ISMI is a state welfare benefit to pay mortgage interest. It is available, subject to restrictions, to borrowers claiming income support, jobseeker’s allowance or pension credit. Although the costs of central government expenditure on ISMI have decreased with the reduction in state-sponsored safetynets for home-buyers (see Ch 5) total state expenditure on ISMI in 1998–99 was estimated at £650 million: Burrows and Wilcox, above n 54, at 60. 136 See Ford, Burrows and Nettleton, above n 56, Table 5.1. 137 The factors listed below are set out in Ford, Burrows and Nettleton, above n 56, Figure 5.1.

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Quality of life —Homelessness —Loss of lifestyle —Poverty —Long-term debts —Insecure tenancy —Social isolation —Loss of job —Loss of friends —Unsuitable accommodation —Lack of space —Loss of personal possessions —No access to credit —Loss of pets Social status and identity —Stigma —Humiliation —Embarrassment —Loss of ‘owner’ status —Sense of failure —Letting family down —Loss of confidence —Loss of self-esteem —Sense of regret —Becoming ‘second class citizens’ Personal and family relationships —Marital breakdown —Relationship tension —Split up household —Arguments —Inability to invest trust in relationships —Parenting difficulties Future aspirations —Financial insecurity —Fear of the future —Fear cannot buy again —Lost ‘hopes and dreams’ —No independence —Poverty in old age

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Health and well-being —Poor mental health —Poor physical health —Depression —Stress

Health Implications of Loss of Home Through Mortgage Possession Actions Mortgage default and repossession are clearly matters of considerable personal stress and distress for the occupiers of the home. One aspect which has attracted considerable attention in recent literature is the mental and physical health implications of living with mortgage arrears and repossession.138 Research on the relationships between housing and health indicates that ‘the social, social psychological and health related consequences of mortgage possession are both dramatic and overwhelmingly negative’.139 Characteristics of the experience of arrears and repossession include living with debt, uncertainty and lack of control. Falling into arrears and facing the prospect of repossession is ‘a stressful life event’, and the social and social-psychological consequences of being in arrears and experiencing repossession are thought to ‘help to explain the link between problematic homeownership and poor health’.140 In their study, Ford, Burrows and Nettleton linked the experience of living with mortgage arrears to ‘stress, social isolation, social exclusion and a loss of social status and valued identity’.141 Other features of living with debt included social isolation, strain on personal relationships and a feeling of shame and stigma,142 all of which are factors associated with poor health. In addition to this, the prospect of repossession actions was recognised as causing considerable stress. The process of possession actions for the borrowers surveyed was characterised by uncertainty, insecurity and lack of control, and this exacerbated the adverse health implications of living with debt.143 The mortgage possession process itself was ‘a long process 138 See, eg, S Nettleton, ‘Losing a Home through Mortgage Repossession: a “New” Public Health Issue’ (1998) 8 Critical Public Health 47; S Nettleton and R Burrows, ‘When a Capital Investment Becomes an Emotional Loss: the Health Consequences of the Experience of Mortgage Possession in England’ (2000) 15 Housing Studies 463; E Kempson, A Bryson and K Rowlingson, Hard Times? How Poor Families make Ends Meet (London, Policy Studies Institute, 1994); S Middleton, K Ashworth and R Walker, Family Fortunes: Pressures on Parents and Children in the 1990s (London, CPAG, 1994); E Kempson, Life on a Low Income (York, Joseph Rowntree Foundation, 1996). 139 Ford, Burrows and Nettleton, above n 56, at 113. 140 Nettleton, above, n 138. 141 Ford, Burrows and Nettleton, above n 56, at 9. 142 Nettleton, above n 138, at 54; Kempson, above n 138, at 37. 143 Nettleton, above n 138, at 55.

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characterised by uncertainty’,144 and the outcome was influenced by several factors outside the occupier’s control.145 One study emphasised that ‘households were rarely able to plan, or exert any control over the nature and location of their post possession housing, and . . . they found it difficult to exert any control over the processes involved in the transition from owner occupation to renting’.146 Evidence from Christie’s study also indicated that ‘[w]orry and stress were intensified by going to court for a repossession hearing, to the extent that the health and well-being of individual household members was affected’.147 These difficulties may be heightened when the household includes children, since ‘[h]ouseholds with children were more likely to want to stay put, regardless of how they now viewed the house and all the associated financial problems’.148 The particular issues that arise in creditor/occupier disputes, when the occupiers are custodial parents, or in relation to child occupiers, are considered in more detail in Chapters 7 and 9. Analysis of the legal response to home interests in these chapters reveals that, although the discourses of family life and the interests of children are discernible in legislative and judicial policies, the extent to which their home interests have influenced the outcome of creditor actions for possession and sale has been limited. In fact, when presented with arguments that highlighted the consequences of ordering possession and sale of a family home, the court’s typical response has been that: Such circumstances, while engendering a natural sympathy in all who hear of them, cannot be described as exceptional. They are the melancholy consequences of debt and improvidence with which every civilised society has been familiar.149

It is indeed the case that the circumstances of debt, default and repossession have become increasingly familiar in recent decades. In Home Ownership in a Risk Society,150 Ford, Burrows and Nettleton discussed the systemic factors that have given rise to ‘unsustainable home ownership’, including demographic factors, broader economic shifts, for example in the nature of the labour market, the Government’s very successful promotion of home ownership across all income groups, and the re-structuring of government safety-net provisions for borrowers. Ford et al identified a link between unsustainable home ownership and government policy in housing and in welfare provision for owner occupiers which 144

Nettleton, above n 138, at 53; see also Ford, Burrows and Nettleton, above n 56, Ch 6. Nettleton cites as an example the policies and practices of lenders, the attitudes of judges and the resources available to the households themselves: Nettleton, above n 138, at 53. 146 Ibid, 55. 147 H Christie, ‘Mortgage Arrears and Gender Inequalities’ (2000) 15 Housing Studies 877 at 896. 148 Ibid, 899. In addition, the process of mortgage repossession begins with the accrual of arrears, and this itself is often associated with other stressful life events such as relationship breakdown, illness, unemployment, or even the death of a partner. 149 Re Citro (A Bankrupt) [1991] Ch 142 at 157, per Nourse LJ. 150 Above n 56. 145

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supports the proposition that, while the experiences of occupiers who lose their homes through creditor possession actions may not be exceptional, the combination of government policies that has created this situation, combined with the ‘public health’ implications associated with forced sale,151 render the loss of home through mortgage possession a political issue, rather than a merely personal experience. The political ideology of home ownership presents owner occupation, particularly amongst low income households, as an opportunity to accumulate wealth, status, and ontological security. However, studies have indicated that, while well-being—particularly for low income households—is enhanced by stable, long-term housing, regardless of ownership status, the financial and psychological stresses of unsustainable home ownership can undermine the potential benefits.152 These issues are examined in the context of the political ideology of home ownership in Chapter 5. One of the recurring themes of this book is the way in which the development of a legal concept of home in law has been inhibited by law’s tendency to focus upon the tangible entity of the house, as a physical structure and a capital asset, rather than the intangible factors that make a house into a home. Yet, research examining the experience of loss of home for occupiers has emphasised the salience of the intangible elements of the home interest. The range of meanings associated with home is analysed in Chapter 4. Following the approach adopted in empirical and theoretical analysis in other disciplines, home is analysed as house + ‘x’.153 The ‘bricks and mortar’ of the house as a physical structure are recognisable to law, as is the idea of the property as a capital asset. However, the ‘x’ factor also represents the social, psychological, emotional and cultural importance of the property for the occupiers of the home. In Chapter 4, these meanings are explored under the (relatively loose) headings of home as financial investment; home as physical structure; home as territory; home as identity; home as social and cultural unit. It is interesting to note that research examining psychological responses to ‘home’ has never shown the common assumption to be true: that the physical structure of home is its most important aspect.154 The multi-disciplinary findings discussed in 151 Nettleton’s research has shown that ‘stressful life events, and this includes the anticipation of events, are associated with both physical and mental health. Psychosocial factors have a negative impact on health when associated with a sudden and dramatic change or life event and where a high stress environment is endured over the long term. Such changes are made worse when there is a lack of control over events and circumstances. All these features—long term insecurity, lack of control, changed social status and financial stress—are intimately bound up with the social processes of mortgage possession. It therefore seems reasonable to suggest that mortgage possession and mortgage debt constitute a growing public health problem’: Nettleton, above n 138, at 56. 152 D Balfour and J Smith, ‘Transforming Lease-purchase Housing Programs for Low-income Families: Towards Empowerment and Engagement’ (1996) 18 Journal of Urban Affairs 173. The role of the political and cultural ideologies of home ownership in a legal concept of home will be considered in greater detail in Ch 5. 153 A Rapoport, ‘A Critical Look at the Concept “Home”’ in Benjamin, above n 74. 154 DG Hayward, ‘Home as an Environmental and Psychological Concept’ (1975) 20 Landscape 2.

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Chapter 4 support the proposition that it is the intangible meanings of home— which are currently dismissed as incomprehensible in legal analysis—that are most significant for the people who live in these properties. This analysis is consistent with empirical analysis into the experience of mortgage possession actions for occupiers. In fact, when investigating the relationship between loss of home through repossession actions and the impact on the occupier’s psycho-social well-being, Ford, Burrows and Nettleton argued that it is the disruption caused to the ‘x’ factor values—the social, psychological, emotional and cultural attachments that the occupier has with the property—that are most damaging. Although the ‘tangible’ dimensions of losing one’s home—including the loss of financial investment as well as the practicalities of losing one’s shelter— are, of course, significant when it comes to considering the effects of loss of home,155 the findings of this study supported the argument that: losing a home in this way means more than that to most people. The [re]possession of a property constitutes a significant loss of a home that is invested with meaning and memories. Not only that but . . . the bureaucratic procedures associated with the administrative processes of possession mean that people have to endure long periods of insecurity and uncertainty. A whole set of events is set in train that is out of their control . . . according to the psychosocial literature on the social determinants of health it is these experiences (uncertainty and lack of control) that are coming to be regarded as among the most crucial determinants of poor health in contemporary societies.156

From the occupier’s perspective: ‘losing a home through mortgage possession involves more than just losing a property’.157

Law and the Emotions Another factor that has inhibited the development of the legal concept of home has been the suspicion that the occupier’s ‘home’ interest is ‘mere emotion’, and so irrelevant to legal decision making. Indeed, to many legal scholars the idea that law has an emotional dimension: that is, that legal doctrine and decision making are, or should be, influenced by emotional considerations; may seem surprising, to say the least, antithetical or even heretical. As students of the law we are taught that law is objective, rational, impartial, that legal training teaches one to ‘put

155 ‘Of course the material aspects of losing a mortgaged home are very important . . . buying a property constitutes a capital investment and an important financial asset; something to ensure financial security in old age and something to ‘pass on’ to the children’: Ford, Burrows and Nettleton, above n 56, at 163. 156 Ibid. 157 Ibid, 163.

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emotions to one side’ and to adopt purely rational analyses.158 From this perspective, the idea that emotional responses and analyses might have a role to play in law conjures up the spectre of a subjective, irrational and partial system, which is anathema to our idea of ‘what law is’. Yet, although much legal analysis is posited on the presumption that law is and should be rooted in logic and rational choice, based on fact rather than feeling, there are strong arguments to support the relevance of emotions analysis to legal processes.159 One of the principal arguments in support of emotional analysis of law can be stated quite simply by focusing attention on law as a system by which human actors seek to regulate human behaviour. As Feldman has argued, ‘[g]iven that law is made by and for people, the relatively little attention lawyers, judges, and legal scholars have paid to human psychology is surprising’.160 To a certain extent, analyses linking the proclivities of human nature with the law have been at the core of the law and psychology movement. The growth of interest in law and psychology as a branch of legal theory is testament to an acknowledgement, within the scholarly community, of the inter-relationships between law and human behaviour. The empirical and scientific findings of psychological scholarship in relation to the meanings of home to occupiers have much to offer by way of a conceptual springboard for the development of a legal concept of home. However, as the discussion in this chapter has illustrated, the incongruities between home analysis, on the one hand, and legal discourse—particularly ‘property-speak’—on the other, have frustrated attempts to recognise the meaning of home in law. As Ward LJ declared in Le Foe v Le Foe,161 the disputed property had ‘been her home and her mother’s home. There is a huge emotional investment in it’,162 yet ‘the protection of her emotional security is, of course, an interest I cannot protect’.163 In the first place, the introduction of ‘home’ analysis—particularly with regard to emotional, psychological, social and other attachments—into the legal domain appears to run counter to the presumed rationality of the legal system: procedurally fair, treating like cases alike, and thus disinclined to attach weight to subjective or emotional factors.164 Consequently, the idea of home in 158 See generally D Sugarman, ‘Legal Theory, the Common Law Mind, and the Making of the Textbook Tradition’ in W Twining (ed), Legal Theory and the Common Law (Oxford, Blackwell, 1986). 159 For a general discussion of the relevance of emotional analysis to legal discourse see K Laster and P O’Malley, ‘Sensitive New-Age Laws: The Re-assertion of Emotionality in Law’ (1996) 24 International Journal of the Sociology of Law 21. 160 H Feldman, ‘Foreword: Law, Psychology, and the Emotions’ (2000) 74 Chicago-Kent Law Review 1423. 161 [2001] EWCA Civ 1870. 162 Ibid, [10]. 163 Ibid, [13]. 164 Laster and O’Malley argued that ‘[e]nlightenment assumptions about rationality, objective truth and formal legal equality obviously have shaped modern law. Since the eighteenth century, the processes of law have been used to . . . remove emotions and the non-rational from legal considerations and the administration of justice. Emotions can be seen as antithetical to order, justice and coherence: the object of law was to define and refine the measures which would provide an objective basis of

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law has not carried much weight, particularly when balanced against easily measurable, legally definable, proprietary and contractual interests in the property. Furthermore, land law is often regarded as the sine qua non of this legal model of rationality, with leading commentators characterising it as a ‘rational science’ in which ‘the perfection of pure reason appears most nearly attainable. English land law—more obviously than any other area of the law . . . displays many of the features of a closed system of logic’.165 The idea of home—as an experiential, intangible, if nonetheless real phenomenon—does not sit easily within this framework of objectively measurable, clearly definable interests. Yet, empirical research on the experience of losing one’s home through mortgage possession actions has established the significance of the occupier’s emotional reaction to repossession, and the tangible negative impact that this emotional trauma can have on the occupier’s physical and mental health. Research on the sociology of emotions has indicated that ‘social events and circumstances can have bodily correlates’.166 Ford et al have characterised the emotional impact of experiencing mortgage possession actions as a ‘loss of emotional capital’ for the occupier.167 The loss experienced by the occupier is not just the loss of a property, but also ‘constitutes a significant loss of a home that is invested with meaning and memories’.168 These aspects of home are considered further in Chapter 4. In analysing the potential health implications of losing a home, Ford et al argued that in addition to the negative health consequences associated with the stressfulness of arrears and repossession ‘it is also an intensely emotional life event that has somatic consequences’.169 The emotional impact of losing one’s home through mortgage possession actions has been recognised as a significant element of the experience for the occupier, alongside the social, psychological and cultural implications of repossession. Furthermore, the emotional element has been linked to the detrimental health consequences of losing one’s home. This is particularly significant in relation to the broader economic costs of high creditor protections. The financial costs of possession actions are experienced not only by the occupier, but by the health services, which face an increased demand for services, by the labour market, in respect of employee absenteeism, and by insurers who must pay out on health insurance or accident claims. The idea that the impact of the action on the assessing causation, the nature of wrongdoing and the method of assessment of harm. In both civil and criminal law, the focus increasingly came to be on (measureable or calculable) physical harm and pecuniary loss’: above n 59 at 24. 165 Gray and Gray, above n 85, at 204–5. 166 Ford, Burrows and Nettleton, above n 56, at 163; see P Freund, ‘The Expressive Body: a Common Ground for the Sociology of Emotions and Health and Illness’ (1990) 12 Sociology of Health and Illness 452; S Williams, ‘“Capitalising” on Emotions? Rethinking the Inequalities in Health Debate’ (1998) 32 Sociology 121. 167 Ford, Burrows and Nettleton, above n 56, at 163–5. 168 Ibid, 163. 169 Ibid.

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occupier’s emotional wellbeing can be simply dismissed as irrelevant highlights the very narrow outlook that currently prevails in legal analysis of the creditor/occupier context. Another highly significant aspect of this study was the finding that ‘the likelihood of ensuring negative emotional experiences that have detrimental physical effects is greater for those who are in socially disadvantaged position’.170 Another theme of this book is the promotion of home ownership, particularly amongst low income borrowers, as a source of social status and ontological security. Research in the sociology of emotions has indicated that the emotional impact of negative experiences is exacerbated for people in less powerful positions. Freund claimed that: In general, the threats to ontological security are greater for those in dependent, subordinate positions. The lack of resources to protect oneself or to legitimate oneself further contributes to status led insecurity. Less powerful people face a structurally builtin handicap in managing social and emotional information and this handicap may contribute to existential fear and anxiety.171

It is interesting to note that when correlating sociological analysis of the experiences of ‘less powerful’ people against their social analysis of mortgage possession actions, Ford et al shift the focus away from ‘those disadvantaged by social divisions such as gender, ethnicity, class and age’.172 Since the rise of ‘unsustainable’ home ownership has been attributed to a range of extrinsic factors, including demographic changes and labour market changes, the researchers suggest that ‘people are often “disadvantaged” in terms of more situationally specific contexts and are disempowered in relation to their experiences with institutions’.173 Home ownership can no longer be regarded as ‘simply the domain of the contented middle classes’.174 Rather, broader economic and demographic changes in society have rendered many home owners potentially vulnerable to the effects of losing their homes, even though they may not traditionally be regarded as ‘disempowered’. ‘Situational’ events—unemployment, relationship breakdown, death of a partner—can affect all home owners, and for those who fall into default, the consequences are debilitating, since: mortgage possession deprives people of an important source of social status; they perceive themselves and are perceived by others to have slipped down the housing ladder. They have suffered a biological disruption that demands a reassessment of their sense of

170 171 172 173 174

Ibid, 163–4. Freund, above, n 166, at 466–7; quoted in Ford, Burrows and Nettleton, above n 56, at 164. Ford, Burrows and Nettleton, above n 56, at 164. Ibid. Ibid, 165.

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self. Furthermore, they are relatively disempowered when they come to deal with lenders and local authorities.175

These findings, in conjunction with data concerning the impact of loss of home on mental and physical health and wellbeing have been advanced in support of the argument that the potential health consequences of losing one’s home through mortgage possession, combined with the systemic factors that have given rise to concerns about the sustainability of home ownership in Britain, have rendered the ‘private matter’ of default on a debt and the execution of the creditor’s security into a ‘public health issue’.176

Evaluation: the Case for Reconsidering the Pro-creditor Presumption The costs of repossession, which impact not only on dispossessed occupiers, but on the various agencies tasked to deal with the repercussions of loss of home— ranging from the practical need for shelter to social, psychological and health issues—are complex. Yet, the legal regulation of possession actions in many jurisdictions, including England and Wales, has typically allowed little room for consideration of the broader issues at stake. Rather, legal discourse in this context has been dominated by a pro-creditor presumption that has left little scope for consideration of alternative arguments or of the wider issues linked to creditor possession actions. There are, obviously, legitimate arguments to support the weight attached to the commercial interests of creditors in enforcing their proprietary security interests. However, in striking a balance between the interests of creditors and the interests of those who occupy the secured property as a home, legal analysis has subjugated the ‘home’ interests of the occupier to such an extent that they appeared to have become effectively irrelevant. Despite occasional references to the status of the property ‘as a home’, at the end of the day the creditor always wins.

175

Ford, Burrows and Nettleton, above n 56, at 164. S Nettleton, above n 138, at 49; see also S Nettleton and R Burrows, ‘Individualisation Processes and Social Policy: Insecurity, Reflexivity and Risk in the Restructuring of Contemporary Health and Housing Policies’: in J Carter (ed), Postmodernity and the Fragmentation of Welfare (London, Routledge, 1988); S Nettleton and R Burrows, ‘Mortgage Debt, Insecure Home Ownership and Health: an Exploratory Analysis’ in M Bartley, D Blane and G Davey-Smith (eds), The Sociology of Health Inequality (Oxford, Blackwell, 1998); S Nettleton and R Burrows, ‘When a Capital Investment Becomes an Emotional Loss: the Health Consequences of the Experience of Mortgage Possession in England’ (2000) 15 Housing Studies 463–79. 176

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This approach has had significant impact on the treatment of ‘home’ interests by legal academics. The dismissal of the home interest in legal practice does little to encourage academic analysis of the idea of home in law. Yet without academic analysis to support home-type arguments, the chimera of home interests continues to lurk in the shadows of policy discourse. Without a conceptual framework within which to comprehend the meanings and values of home interests for law, their claims are no match for the economic clout of the creditor. Creditors continue to prevail, and legal understandings of the home interest remain underdeveloped. This chapter has sought to establish an argument for breaking that cycle, setting aside the pro-creditor presumption, and investigating the various interests at stake in creditor/occupier disputes. For one thing, it has been suggested that the justifications for prioritising creditors’ claims are based on narrowly defined interpretations of contractual obligations, and a model of efficiency that recognises only a limited range of economic costs, that is, the financial costs to the creditor. This chapter has sought to demonstrate the complexity of the policy issues surrounding creditor/occupier contests. Not only are there salient issues underlying law’s proclivity towards financial value, over and above other values, but even within a model of economic efficiency that measured costs only in terms of financial overheads, creditor possession actions bring a range of potential costs, affecting the creditor, the occupier and many other agencies and interested parties, into play. Of course, this is not to say that, on evaluating these factors, the weight legitimately attached to the commercial interests of creditors might not still be so great as to outweigh the home-type considerations on the side of the occupier. However, at present, the task of balancing the interests of creditors in the capital represented by the property against the claims of the occupier to use of the property as a home is very much skewed against the occupier, as a result of the under-development of the occupier’s home interest in law. This book seeks to demonstrate the relevance of home interests to legal analysis. While the outcome of such analysis may not, ultimately, justify exempting the home from repossession, or even swinging the balance away from the creditors’ financial claim in all (or many?) cases, the process of legal decision making would be more legitimately grounded on a full and clear exposition of the interests at stake. As the discussion in this chapter has demonstrated, one obstacle in the path of this analysis is the perception that any argument seeking to displace the weighty status currently conferred on creditors’ interests may appear to be ‘swimming against the tide’ in terms of the prevailing values of contemporary legal discourse. However, it is worth bearing in mind that there is nothing inherently unworkable about a concept of home in law. It has been recognised that, although the idea of home has not prevailed in mortgage possession contexts in recent decades, the idea that a person’s home amounts to a special type of property has not been wholly absent from legal discourse. In fact, only a few decades ago, leading land

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law commentators anticipated the development of this idea of home in the area of possession actions when they suggested that: Changing times produce new needs, and one of the foremost claims of the present age is the demand for residential security. Recent developments have witnessed the recognition of what is virtually a modern concept of seisin—the idea that the possession of the actual occupier of land must be protected.177

This pro-occupier stance was based on the idea that: ‘[t]he things which are today of real value to the man on the street are assets like his job, his pension, and the right to undisturbed possession of his home’.178 It is interesting to note, with reference to the discussion of unsustainable home ownership above, that arguments asserting the importance of residential security in the early 1980s were linked to concerns about ontological insecurity, resulting from ‘housing shortage, economic recession and an unprecedented rate of family breakdown’, factors which made it ‘increasingly important to have a secure domestic base’.179 Gray and Symes even went so far as to suggest that ‘the enjoyment of residential protection in circumstances of adequate housing is an essential condition for a life of dignity and purpose . . . [thus] for reasons which are basically social in origin, residential protection has been conferred upon defined classes of deserving citizen’.180 It is particularly pertinent to note that these social factors were—at this time—viewed as capable of giving rise to proprietary rights, and thus potentially outweighing the commercial interests of creditors. The authors claimed that ‘[e]ntitlement to “use value” of property has become more important than entitlement to “exchange value” on the freehold market’.181 Yet, following a dramatic shift in housing laws and policies under the Thatcher Government and after, which prioritised the protection of capital interests to encourage lending to home owners and investment in the private rental sector,182 the idea of protecting the occupied home faded from the legal academic’s agenda. Nevertheless, there is reason to believe that the tide may be beginning to turn. For example, even in the decision in Re Citro,183 which established that in cases involving a bankrupt debtor the court must order sale unless the circumstances of 177

Gray and Symes, above n 93, preface, p vi. Ibid, 11. 179 Ibid, 13. 180 Ibid. 181 Ibid. ‘There is a very real sense in which the right to live in a house or flat free from the threat of arbitrary eviction, free from the unrestricted impact of normal market forces, has itself become a new form of proprietary right. It matters not that the residential occupier has no legal title to the property which he occupies. His position is secure so long as the courts are prepared to recognise that he enjoys a ‘status of irremovability’. Protected de facto possession of residential property has become an informal version of title’: ibid. 182 These policies are discussed in detail in Ch 5. 183 Above n 75. 178

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the case are exceptional, and that ‘exceptional’ circumstances must go beyond ‘the melancholy consequences of debt and improvidence with which every civilised society has become familiar’,184 there was evidence that, given the appropriate tools, the court might have preferred to adopt a less harsh approach towards the occupiers. Referring to the High Court judgment under appeal, Bingham LJ stated that in allowing the occupier’s home interest to prevail Hoffmann J had regarded the existing authorities ‘as entitling or obliging him simply to balance the interests of the creditors against those of the wife, the creditors’ prima facie entitlement to their money being simply one element in the scales—and not a particularly weighty one at that’.185 Although Bingham LJ stated that he ‘did not . . . think [this approach] reflects the principle which . . . clearly emerges from the cases’,186 he did admit that he: would willingly adopt this [more flexible] approach if I felt free to do so. It is in my view conducive to justice in the broadest sense and it reflects the preference which the law increasingly gives to personal over property interests.187

While his Lordship was inclined to adopt a more flexible approach, which would allow the occupier’s home interest to be genuinely considered in the balance, he did not consider that the precedents permitted such an approach to be taken. Nonetheless, the implication was that there was some element of judicial willingness to redress the balance in favour of the home occupier, should such a course of action be justifiable according to authority. Another indication that the home interests of occupiers may be creeping back onto the agenda in legal analysis of creditor/occupier disputes can be found in the decision in Edwards v Lloyd’s TSB Bank.188 The decision in Edwards, which is discussed in greater detail in Chapter 9, suggested some shift in judicial attitudes, specifically regarding the interests of child occupiers189 in the context of orders for sale. In Edwards, the court refused to grant an order for immediate sale under sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) on the ground that it ‘would be unacceptably severe in its consequences upon Mrs Edwards and her children’.190 The court held that sale of the property should be postponed for a period of at least five years, when the younger child

184

Ibid, 157, per Nourse LJ. Ibid, 161, per Bingham LJ. 186 Which his Lordship identified as being ‘that the order [for sale] sought by the trustee must be made unless there are, at least, compelling reasons, not found in the ordinary run of cases, for refusing it’: ibid. 187 Ibid. 188 [2004] EWHC 1745. 189 See further Ch 9. 190 Edwards, above n 188, [33]. 185

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would have reached the age of majority, and when ‘it seems possible that . . . it will no longer be in practice incumbent on Mrs Edwards to provide a home at her expense for her son and daughter’.191 This case provided a relatively rare example of an instance in which the outcome of an application for sale was not ordered according to the wishes of the creditor. To some extent, this shift in judicial policy change is attributable to the legislative context of the decision: the court’s reasoning was framed by sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996: section 14 conferred on the court a jurisdiction to order the sale of property held on a trust of land, and replaced the broad discretion to order sale under section 30 of the Law of Property Act 1925; section 15 set out various criteria to be taken into account by the court when considering whether to make an order for sale under section 14. One of the factors to be considered by the court when making orders in respect of property held on a trust of land is ‘the welfare of any minor occupiers’ (section 15(1)(c)). Nevertheless, and notwithstanding TLATA and the section 15 criteria, prior to the decision in Edwards there had been little evidence that the interests of children carried sufficient weight to persuade the court to refuse an application for sale, particularly when balanced against the interests of creditors in recouping their capital.192 This case suggested that, where there was a legitimate statutory basis for recognising the home interests of occupiers, the lower courts, at least, may be willing to give effect to that. To this end, another significant case was the decision in Barca v Mears,193 in which the court considered the implications of the obligations set out in the European Convention on Human Rights (ECHR) and given effect to by the Human Rights Act 1998, on an application for possession and sale made by a trustee in bankruptcy. Although the court decided, on the facts, that there had been no infringement of Mr Barca’s—or his son’s—right to respect for private and family life and the home under Article 8 of the ECHR, the court did open this up as an avenue by which the court’s overwhelming predisposition towards creditors might be challenged. In Barca v Mears, counsel for the occupier, Mr Barca, argued that an order for possession and sale would have a detrimental impact on both him and his minor son—who spent a substantial portion of the week living in the house and who was alleged to have special educational needs. Thus, he argued that in granting the order the Deputy Registrar had failed to take account of their right to family life, home and privacy. Although Mr Strauss QC, sitting as a Deputy Judge of the High Court, accepted that the rights set out in Article 8(1) are not

191

Edwards, above n 188, [33(iii)]. See, eg, Bank of Ireland Ltd v Bell [2001] 1 All ER (Comm) 920; First National Bank plc v Achampong [2003] EWCA Civ 487; and, in the bankruptcy context, Trustee of the Estate of Eric Bowe (A Bankrupt) v Bowe [1998] 2 FLR 439. 193 [2004] EWHC 2170. 192

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absolute, but qualified by the matters set out in Article 8(2),194 he stated that, as a matter of human rights law: [c]learly, in many or perhaps most cases, the sale of a bankrupt’s property in accordance with bankruptcy law will be justifiable on the basis that it is necessary to protect the rights of others, namely the creditors, and will not be a breach of the Convention.195

However, the court did question the automatic elevation of creditors’ claims in the context of bankruptcy. The judge questioned whether the ‘narrow approach’ adopted in bankruptcy cases, whereby it is only in ‘exceptional circumstances’ that the court will even consider the possibility of refusing sale, was consistent with the Convention. The judge emphasised the effect of automatically prioritising the interests of creditors, particularly when there are other occupiers, besides the debtor, who will be affected by an order for possession and sale against the property. The current approach: requires the court to adopt an almost universal rule, which prefers the property rights of the bankrupt’s creditors to the property and/or personal rights of third parties, members of his family, who owe the creditors nothing.196

The issue that seemed to concern the court was the tendency to refer to the occupiers’ home interest in merely cursory terms: since the interests of creditors prevailed as a matter of course, the potential human rights implications in respect of home and family were being effectively ignored. Mr Strauss reasoned that: The eviction of the family from their home, an event that naturally ensues from the operation of the presumption of sale in s335A [of the Insolvency Act 1986], could be considered to be an infringement of the right to respect of the home and family life under Article 8 if the presumption is given absolute priority without sufficient consideration being given to the Convention rights of the affected family.197

The scope of the potential afforded by the Human Rights Act 1998 to re-evaluate not only the outcome of creditor/occupier disputes, but the process by which the

194 The right, as set out in Art 8(1), can be justifiably ‘interfered with’ so long as any such interference is ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. 195 Barca v Mears, above n 193, [39]. 196 Ibid. 197 Ibid.

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relevant interests are weighed in the balance, is discussed further in Chapter 10.198 It is suggested, however, that the framework of human rights discourse has presented a new perspective on the automatic elevation of creditors’ claims, which calls into question the nature and weight attributed to the occupier’s home interests in the context of legal analysis of the creditor/occupier dispute in recent decades.

Conclusions This chapter has endeavoured to identify the arguments in support of re-evaluating current approaches to the creditor/occupier conflict, in light of a more nuanced understanding of the occupier’s home interest. Although it is recognised that the commercial interests of creditors, the availability of credit to fund home ownership and the argument for economic efficiency are undoubtedly significant, this chapter argues that the contest between the creditor and the occupier should not be ceded to the creditor without further exploration of the broader implications of loss of home through creditor possession actions. The approach proposed by Malloy is particularly instructive in this context. The fundamental basis of Malloy’s approach is recognition of the ‘incompleteness’ of economic theory: The underlying question of whether or not an individual should be entitled to an education or to shelter cannot be answered by economic analysis alone. The difficult questions of what rights or treatment befits human beings in our society are questions that must be answered by means other than economics. Economics becomes a valuable tool only after reason resolves the nature of the right to be explored.199

Malloy suggests that the first step should be to comprehend the values at stake; only once these values have been analysed—in a social, community or moral sense—should economic analysis be employed as a useful tool by which to determine how best to achieve the goals that have been identified. This is consistent with the argument that, before the respective claims of the creditor and the occupier can be weighed against each other in a meaningful way—under the exercise of the court’s discretion to order possession or sale, or when reconciling their competing interests within a human rights framework—the starting point must be to develop some sense of the meaning of home in law. Only once the nature of the 198 Although the decision in London Borough of Harrow v Qazi [2003] UKHL 43 appeared to demolish the prospect of developing the concept of home through Art 8 and the Human Rights Act 1998, subsequent decisions have cast some doubt on the validity of the strict view taken by the House of Lords: see, eg: Price v Leeds City Council [2005] EWCA Civ 289; [2006] UKHL 10 see further Ch 10. 199 Malloy, above n 72 at 173.

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interests at stake has been ‘worked out’ can the legislature or the courts legitimately regard themselves as conducting a ‘balancing exercise’ between the competing claims. To date, laws and policies governing disputes between creditors and occupiers have not had the benefit of a conceptual framework within which to recognise and take account of the non-economic values associated with use and occupation of property as a home, or the impact of loss of home through repossession on the occupiers of the property. Although it is often argued that creditors must prevail on economic grounds, this book highlights the need to weigh the occupier’s stake in retaining the home for use and occupation against those financial interests. Furthermore, while there is no ambiguity surrounding the value of the property to the creditor, if this value is to be ‘balanced’ against the value of the home to the occupier some effort must be made from a conceptual point of view to develop a clearer concept of the value of home in law. The significance of home, and the impact of losing their home for occupiers, demands a more explicit analysis of the other side of the equation—the occupier’s home interest. While there is little ambiguity in relation to the value of the property to the creditor, the chimera of ‘home’ that currently lurks in the shadows of policy reasoning is easily ignored or trivialised. If these interests are to be ‘balanced’ one against the other, it is necessary to develop a clearer concept of the value of home in law. At the very least, a more coherent legal concept of home would encourage a more explicitly reasoned approach when legislative and judicial policy decisions that potentially undermine the interests of occupiers in their homes are made. Overarching all of this, and arguably hindering the development of a legal concept of home, is the argument that the concept of home is not ‘real’. Yet, although epigrams such as ‘home is where the heart is’ and ‘there’s no place like home’ portray attachment to home as sentimental, these expressions and the responses they describe are informed by important social, psychological, cultural and emotional attachments. One of the difficulties, from a legal perspective, is the inherent intangibility of these responses towards home. Even aside from the commercial clout of the creditors, it is not altogether surprising that the rationally underpinned legal system prefers the interests of creditors in the economic value of the house to the non-economic interests of occupiers in their homes. While an occupier’s interest in the property as a home may be intangible, that is certainly not an insurmountable hurdle to the recognition of a legally significant interest. Nevertheless, as Chapter 2 has demonstrated, even when legal policies are specifically directed at recognising and protecting the ‘home’ interest of the occupier, they have been, broadly speaking, ineffective. This chapter has attempted to set out an argument for greater consideration of home interests in the mortgage possession context. However, in order to proceed with the development of a legal concept of home, it is necessary to evaluate the meanings and values of home to the occupier. At this point, the benefits to be

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gained from inter-disciplinary analysis are highlighted. Although the idea of ‘home’ is often dismissed in legal discourse as ‘something ethereal, floating in the air, unconnected to bricks and mortar and land’;200 research in other disciplines has established the authenticity of home meanings and attachments for occupiers. While the concept of home has remained relatively under-developed in law, interest in the meanings and values of home has burgeoned in other disciplines in recent years. This research emphasises that home is indeed a ‘real’ phenomenon. Furthermore, empirical and theoretical research in other disciplines could usefully contribute to the conceptualisation of home in law. The meanings and values identified by studies in other disciplines could provide a useful conceptual springboard from which to launch the search for a concept of home in law. This cross-disciplinary examination of home scholarship is the subject of Chapter 4.

200

London Borough of Harrow v Qazi [2003] UKHL 43 at [145].

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4 The Meaning of Home: A Conceptual Springboard

Introduction

T

HE SUBJECT OF ‘home’ has attracted considerable critical attention in recent years. The study of home—both empirically and theoretically—has yielded an extensive literature and several leading journals—for example, Signs: Journal of Women in Culture and Society,1 Women’s Studies International Forum,2 New Formations3 and Social Research 4—have all dedicated special issues to the subject of ‘home’. The launch of the interdisciplinary journal Home Cultures5 is testament to the sustained level of interest in the meaning and concept of home, particularly in the social sciences and the humanities. Empirical research studies and the construction of a substantial body of theory in several disciplines have established the complex psychological, social psychological and territorial, identity, emotional and cultural attachments which occupiers associate with their homes. Although home scholars acknowledged the speculative nature of their explorations in the early years,6 analysis of the meanings and values of home became increasingly sophisticated and scientific as researchers from a range of disciplines gradually developed a substantial body of empirically based, theoretically underpinned research literature. Analysis of home has drawn on various sources, and home scholars in various disciplines have drawn on the tools of their own disciplines to offer a range of perspectives from which to view the meaning and values of home. The importance of cross-disciplinary communication has also 1

The 2002 issue focused on interdisciplinary perspectives on gender and home. Volume 20, Issue 3 (1997) was dedicated to analysis of ‘Concepts of Home’. 3 New Formations is one of Britain’s most significant interdisciplinary journals of culture, politics and theory; a Special Issue in 1992 was dedicated to the subject of Home. 4 A Special Issue on Home was published in 1991. 5 The first issue of Home Cultures, a journal dedicated to the critical understanding of home as a key unit of analysis through interdisciplinary discussion and comparative approaches, was published in 2004. 6 See, eg, J Hayward, ‘Psychological Concepts of Home’ (1977) 8 Challenge 10. 2

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been emphasised.7 A substantial body of literature, based on both empirical studies and theoretical analysis, has sought to unpack and to identify the meanings and values that home represents to occupiers, and so to develop a concept of home. However, this research and the knowledge it has yielded concerning the meaning of home for occupiers, the nature of attachments to home, and the experience and impact of loss of home through mortgage arrears and repossession have not filtered through to legal discourse, and do not appear to be taken into account in the development of legislative and judicial policy concerning creditor/occupier disputes. Although the fact that a property is a person’s home is sometimes acknowledged in legal discourse, the occupier’s ‘home’ interest has typically not carried sufficient weight to counterbalance the creditor’s commercial claim against the home as a capital asset. The priority accorded to the creditor’s claim against the property is, undoubtedly, attributable to the tendency of legal policy, and particularly land law, to favour commercial claims over domestic interests. However, the pro-creditor position that has dominated in this area cannot be wholly attributed to an inherent bias in legal reasoning. In fact, from time to time, both the legislature and the courts have been inclined towards protecting the occupier’s home interest,8 but have struggled to find sufficient grounds on which to elevate such interests over the creditor’s clearly discernible commercial claim. The economic justifications for prioritising creditors’ claims on the capital asset represented by the property over and above an occupier’s home interest were discussed in Chapter 3. That chapter asserted that further exploration of home-type interests in law is currently precluded by a circuitous form of reasoning: creditors generally win, so the home interest is dismissed in legal practice; and the seeming irrelevance of the home interest in practice does not encourage legal academic interest in the subject of home. Yet, without a coherent concept of home in law— a framework of recognisable values against which specific home interests can be delineated—home interests will continue to be overlooked in legal analysis. This outcome appears to have been accepted, in legal discourse, as inevitable. For one thing, when balancing the financial interests of creditors against the home claims of occupiers, the commercial clout of the creditors weighs heavily in the balance scale. The outcome is skewed against the occupier from the outset. This is exacerbated by the very nature of the home interest itself. The occupier’s interest in retaining the property for use and occupation as a home does not fit easily within the framework of legal claims. The home interest is inherently subjective, intangible and carries connotations of emotion and sentimentality, which tend to jar against the preference, in law, for rational, tangible and objective analysis. Nevertheless, the case for attempting to ‘pin down’ the home interest in law is 7 8

I Altman and CM Werner, Home Environments (New York, Plenum Press, 1985), preface, p xx. See above, Ch 3.

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strong. The discussion in Chapter 3 above illustrated the nature and extent of the consequences of loss of home through mortgage possession actions—both on the home occupiers themselves and on others. The significance of the social, social psychological, health, administrative, financial, political and organisational costs of mortgage possession actions9 call for further evaluation of law’s response in creditor/occupier contests. In order to break out of the circuitous pattern by which home-type values are dismissed in legal practice and overlooked in academic writing, it is useful to begin by engaging with the arguments put forward by the courts when they elevate creditors’ interests over and above the ‘use value’ of the property as a home. One of the central issues considered in Chapter 3 was the basis of the pro-creditor approach in legal policy. When legal policy makers are called upon to justify the weight conferred on creditors’ claims, considerable emphasis is laid upon the importance of protecting creditors’ rights to ensure the availability of credit to fund an expanding home ownership sector. However, as the discussion in Chapter 3 demonstrated, there is much more at stake in the creditor/occupier context than the volume of available credit in the market. Even within the credit market, there are other issues to be considered, for example, rates of default and bankruptcy, effective screening by the lender, insuring risk-averse entrepreneurs and protecting over-confident individuals and households. These issues have been pushed aside in the pursuit of an expanding home ownership sector. However, social research into the effects of default and repossession has highlighted the negative social, social psychological and health consequences of unsustainable home ownership. There are also a range of significant costs to other agencies, including central and local government, the health services, the labour market, insurers and the credit market.10 These issues undermine the argument that law’s pro-creditor approach is justified by arguments of economic efficiency. The other principal obstacle to the recognition of ‘home’-type interests in the context of creditor/occupier disputes is the nature of the home interest itself, particularly when contrasted with the creditor’s claim. The creditor’s interest in the home as a capital asset is a tangible, measurable, rational, objective, financial claim against the cash value of the property. These characteristics only emphasise the difficulties associated with recognising home values in law. Home is an inherently intangible, subjective phenomenon, not easily measurable in money value and, as such, not readily comprehensible to legal analysis. The very nature of the home interest renders the occupier’s claim vulnerable to defeat, particularly in contrast to the commercial interests of creditors. However, as the discussion in Chapter 3 has demonstrated, there are valid reasons for attempting to develop a more 9 See J Ford, R Burrows and S Nettleton, Home Ownership in a Risk Society: A Social Analysis of Mortgage Arrears and Possessions (Bristol, Policy Press, 2001), Table 5.1; the range of costs affecting different interests was discussed in Ch 3, n 135–153 and associated text. 10 See above, Ch 3.

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coherent understanding of the home interest in law. When balancing the creditor’s claim to the capital represented by a property against an occupier’s interest in retaining the land for use and occupation as a home, a clearer understanding of the values represented by the home would provide a more solid conceptual framework within which to consider the interests of occupiers, and evaluate their weight against the commercial claims of creditors. The consequences of loss of home are significant and far-reaching. Yet, in the absence of a coherent legal concept of home, it is difficult to see how the pro-creditor perspective can be challenged when the court is called upon to balance the competing interests of creditors and occupiers. This chapter seeks to identify some of the meanings and values of home that may be helpful in developing legal understanding of the nature and content of the occupier’s interest. The challenge of conceptualising home in law is greatly assisted by the ‘springboard’ provided by ‘home’ scholarship in other disciplines. The meanings of home that have consistently emerged from analysis of ‘home’ in other disciplines provide a solid starting point from which to consider the way in which occupiers attach value to their homes. Only once the values associated with home—for example, family, privacy, security, control, continuity, self-expression and personal identity—have been unpacked and understood, can it be possible to weigh them in the scales when conducting a balancing exercise between home interests and other types of claim. This chapter seeks to draw on this research with a view to unpacking the meanings and values of home for occupiers. Starting from the philosophical roots of home meanings, the following sections proceed to consider the meanings of home which have evolved from interdisciplinary research. These meanings and values of home are clustered under five loose categories: home as a financial investment; home as a physical structure; home as territory; home as a means of identity and self-identity for its occupiers; and home as a social and cultural phenomenon. Finally, this chapter considers the impact of contemporary social and political agendas on the meanings and values of home.

Dwelling, Space and Sense of Place: Philosophical Foundations The importance of place, and especially the significance of the dwelling-place, is well established in philosophical thought. The role of place in man’s ability to achieve his ends was reflected in Archimedes’ call ‘[g]ive me a place to stand on, and I will move the earth’.11 Philosophical analysis of the links between man and 11 EJ Dijksterhuis, Archimedes (translated from the Dutch by C Dikshoorn, Princeton, NJ, Princeton University Press, 1987) 15.

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place and the significance of dwelling places has attracted considerable scholarly interest. For example, Heidegger’s philosophy of ‘dwelling’12 emphasised the importance of the relationships between people and the places where they live. For one thing, Heidegger claimed that relationships with dwelling places distinguished human beings from animals. While animals merely inhabit the places in which they live—that is, they use places merely for the purposes of shelter—human beings have a profound relationship with place because people dwell in their lived spaces. Heidegger explained the philosophical concept of dwelling as the means by which we find our place in the world. In Being and Time,13 Heidegger argued that people cannot ‘be’ without having some connection to a particular place: The way in which you are and I am, the manner in which we humans are on the earth, is Buan, dwelling. To be a human being means to be on the earth as a mortal. It means to dwell . . . man is insofar as he dwells.14

It is interesting to note that many of the meanings that Heidegger associated with the idea of dwelling resonate with the types of meanings that later emerged from empirical studies into the meanings of home for occupiers. Heidegger claimed that to dwell encapsulated meanings including ‘to remain, to stay in a place . . . to be at peace, to be brought to peace, to remain at peace . . . preserved from harm and danger, preserved from something, safeguarded’.15 These images of the dwelling place as a site of safety, a place of refuge and peacefulness are consonant with the idea of the home as a valued territorial setting, discussed below. Heidegger’s conception of the fundamental importance of dwelling for human existence laid the foundations for further research into the phenomenon of home as ‘an emotionally based and meaningful relationship between dwellers and their dwelling places’.16 In this respect, the philosophy of Heidegger is an appropriate starting point from which to explore the study of home meanings. It is important to acknowledge, however, that Heidegger was not concerned with the idea that dwelling in a property gave rise to an attachment to that particular dwelling-place or that specific dwelling-places should be recognised or protected. Heidegger’s concern with dwelling was as a means of being on the earth. For these purposes, the ‘real plight of dwelling’ was that human beings would ‘learn to dwell’ in the world by ‘ever search[ing] anew for the nature of dwelling’.17 Yet, 12 See M Heidegger, Bauen, Wohnen, Denken (‘Building Dwelling Thinking’) (1951) and the 1951 lecture ‘. . . dichterisch wohnet der Mensch’ [‘. . . Poetically man dwells’], translated by A Hofstadter, Poetry, Language, Thought (New York, Harper Colophon Books, 1971). 13 M Heidegger, Sein und Zeit (Being and Time) (1927) trans J Macquarrie and E Robinson, (Oxford, Blackwell Publishers Ltd, 1962). 14 Heidegger, Building, Dwelling, Thinking, above, n 12, part I. 15 Ibid. 16 K Dovey, ‘Home and Homelessness’, in Altman and Werner above n 7, 34. 17 Heidegger, Building, Dwelling, Thinking, above n 12, part II.

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others have taken the basic idea of dwelling as a mode of being in the world as a starting point from which to analyse the special significance associated with our most basic dwelling-places, our homes. Levinas, for example, described the home as a precondition for existence, since ‘Man abides in the world as having come from a private domain, from being at home with himself, to which at each moment he can retire’.18 Similarly, in The Poetics of Space, Gaston Bachelard described a fundamental need to take shelter from the world within the home. Bachelard highlighted the role of the home as a place of safety, security and warmth. He claimed that: ‘[b]efore he is “cast into the world” . . . man is laid in the cradle of his house . . . Life begins well, it begins enclosed, protected, all warm in the bosom of the house’.19 This metaphor of home as a dwelling place also has connotations of family—the references to the cradle and the bosom conjour up images of the home as a motherly body. This association between home and family has also emerged as a significant factor in empirical studies examining the meanings of home to occupiers, and is discussed further below.20 The idea that the home surrounds and protects its occupiers like a loving parent is also conveyed in the description of the home as ‘the initial shell which shelters the being’. The idea of the home as an ‘identity shell’ has been highlighted by several philosophical writers. For example, Poulet’s description of dwelling employed the metaphor of home as a garment that the occupier wraps around themselves. He wrote: Beings surround themselves with the places where they find themselves, the way one wraps oneself up in a garment that is at one and the same time a disguise and a characterisation. Without places, beings would be only abstractions.21

The suggestion that the home is both a disguise and a characterisation is interesting in relation to the connection between a person’s home and their identity. The home provides a vehicle through which occupiers can project their identities to the outside world. It is both a characterisation of the occupier within, and, as a symbol of social status, a means by which the occupier can control the version of themselves that is seen by the outside world. Without the home, the occupier is de-robed, and loses the ability to regulate the way in which he or she appears to the outside world. This image is consistent with empirical research on mortgage possession actions, discussed in Chapter 3, which identified stigma, humiliation and embarrassment amongst the consequences of losing one’s home. 18

E Levinas, Totality and Infinity (The Hague, Martinus Nijhoff, 1969) 152. G Bachelard, The Poetics of Space (Boston, Mass, Beacon Press, 1964) 7. 20 For further discussion of the relationships between home and family, see Ch 7. 21 G Poulet, Proustian Space (Baltimore, Mld, Johns Hopkins University Press, 1977) 26–7, quoted in JE Malpas, Place and Experience: A Philosophical Topography (Cambridge, Cambridge University Press, 1999) 176. 19

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The profound relationship between the home and the occupier’s self-identity was emphasised in Malpas’s philosophy of place and experience, with the assertion that ‘the very content of a subject’s mental life, and the character of a subject’s own self-identity and self-conception, [is] tied to the places in which the subject finds itself’.22 Malpas emphasised the fundamental importance of the occupier’s relationship with home to the human experience when he claimed that: I am not arguing for any simple psychological claim to the effect that we generally think of ourselves as defined by reference to the particular places in which we have lived or about which we have certain strong memories or attachments.23

Rather, Malpas sought to convey the elemental significance of home with the description of human beings as: the sort of thinking, remembering, experiencing creatures we are only in virtue of our active engagement in place; that the possibility of mental life is necessarily tied to such engagement, and so to the places in which we are so engaged; and that, when we come to give content to our concepts of ourselves and to the idea of our own self-identity, place and locality play a crucial role.24

He concluded with the observation that ‘our identities are, one can say, intricately and essentially place-bound’.25 These attachments to our homes are such that ‘the very identity of subjects, both in terms of their own self-definition and their identity as grasped by others, is inextricably bound to the particular places in which they find themselves and in which others find them’.26 The significance of home as a source of identity and self-identity was also one of the main value types to emerge from empirical studies of the home and is considered further below. The significance of home as a symbol of identity has implications for mortgage possession actions. The impact of losing one’s home was considered above, in Chapter 3, where the social, social psychological and health consequences of losing one’s home were delineated. These negative consequences are attributable, to a certain extent, to the adverse impact of losing the home on the occupier’s identity. Buttimer argued that since ‘people’s sense of both personal and cultural identity is intimately bound up with place identity, loss of home or “losing one’s

22

Malpas, above n 21, 175. Ibid, 177. 24 Ibid. 25 Ibid. 26 Ibid, 176. ‘The sense . . . in which identity is tied to place . . . is not just the sense in which a sense of identity might be tied up with a certain “emotional reminiscence”, but derives from the way in which the very character of subjectivity, in the general and the particular, and the very content of our thoughts and feelings, is necessarily dependent on the place and places within which we live and act’: ibid, 188. 23

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place” may often trigger an identity crisis’.27 Empirical studies investigating the experience of losing one’s home are also reinforced by philosophical analysis of place. In their analysis of the experience of mortgage possession actions, Ford et al argued that, although the practical consequences of losing shelter were undoubtedly significant, it was the disruption of the occupier’s home attachments—the ‘x factor’ element of home—that was most damaging for psycho-social wellbeing and health.28 Philosophical writings on the importance of the dwelling place for the occupier’s identity have suggested that the experience of losing one’s home is ‘almost literally a separation from parts of oneself’,29 and so has a detrimental impact on the occupier’s self-identity. Furthermore, displaced occupiers may also experience disruption in their ‘important inter-subjective associations’ with the place—for example, relationships with other members of a household. When a dwelling place is lost, these relationships are also undermined.30 The danger of ‘getting lost’ by losing one’s place has also been highlighted in relation to the link between ontological security and territoriality in the home. Casey provides an interesting analysis of the role of ‘built places’, such as the home, in providing the occupier with a ‘place in the world’. Casey’s analysis identified territoriality in the home as a coping mechanism by which we protect ourselves against the risk of losing our place in the world. The danger for the occupier is that ‘[n]ot only may the former place be lost but a new place in which to settle may not be found . . . [the occupier faces] the risk of having no proper or lasting place, no place to be or remain’.31 Casey reasoned that: In the face of this risk, it is not surprising that human and nonhuman animals alike have come to rely on ‘territoriality’ as a means of maintaining the stability and security of a home-place or home-region.32

These analyses emphasise the centrality of the home or dwelling place for the human experience. The home or dwelling place is identified as a site of special significance, with strong links to the human existence. Dovey captured these meanings in the following description of home as: a sacred place, a secure place, a place of certainty and stability. It is a principle by which we order our existence in space. Home is demarcated territory with both physical and 27 A Buttimer, ‘Home, Reach and the Sense of Place’ in A Buttimer and D Seamon (eds), The Human Experience of Space and Place (Basingstoke, Palgrave Macmillan, 1980), 167. 28 Ford, Burrows and Nettleton, above n 9; see Ch 3, nn 139–153 and associated text. 29 Malpas, above n 22, 184. 30 Malpas concluded that: ‘in as much as our lives would themselves seem to be inseparably and intricately bond to the places and spaces in which we find ourselves, so the fragility of those places is indicative of a corresponding fragility in our own lives and identities’: above n 22, at 190. 31 ES Casey, Getting Bank into Place—Toward a Renewed Understanding of the Place-World (Bloomington, Ind, Indiana University Press, 1993), preface, p xii. 32 Ibid.

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symbolic boundaries that ensure that dwellers can control access and behaviour within . . . To be at home means to know where you are; it means to inhabit a secure centre and to be oriented in space.33

The elements that go to make up home meanings are unpacked further in the following sections, which consider the meanings of home, both those which are generally recognised in legal discourse—home as a financial asset, home as a physical structure—and the less tangible meanings of home, broadly clustered around the themes of home as territory, home as identity, home as socio-cultural unit. It is the intangible meanings of home that, although central to philosophical discussion of the significance of home, present the greatest challenge to legal discourse. On the basis that home = house + x, it is the ‘x factor’ elements of home that are identified as being of primary significance when the home interest is threatened. Yet, the ‘x factor’ element—the meanings associated with social, psychological, emotional and cultural attachments to home—are not generally recognised or protected in the context of legal disputes such as possession actions, where the risk of losing one’s home becomes a reality. The difficulties inherent in recognising the ‘x factor’ in legal reasoning have been considered above, in Chapter Three. Aside from law’s general preference for tangible, rational, measurable interests (ie, home is reduced to house), the contemporary ethos of English land law is not readily compatible with the idea of ‘dwelling’ as a meaningful relationship with property. The idea of dwelling and attachment to place revolves around the relationship between the occupier and the property, and this subjectivity runs counter to the dominant values of contemporary English land law.34 A prominent feature of English land law in the late twentieth and early twentyfirst centuries has been the growing tendency towards bureaucratisation, as typified by the extension of the system of title registration and the Land Registration Act 2002.35 Kate Green described this process of bureaucratisation as ‘a distancing from the material and subjectively known (feminine) place to an intellectual and objective (masculine) space’.36 Theories of bureaucracy cast an interesting light on the impact of the bureaucratisation of land law on the conception of the home as a meaningful dwelling place—rather than an objective space (ie, the house). Dovey suggested that the principal characteristics of bureaucratic organisation can be identified as follows: 33 Dovey, above n 16, 36. Dovey later adds that, ‘Home is a place of security within an insecure world, a place of certainty within doubt, a familiar place in a strange world, a sacred place in a profane world. It is a place of autonomy and power in an increasingly heteronomous world where others make the rules. These oppositions can be subsumed under the rubric of order/chaos’: ibid, 46. 34 The recognition of the relationship between occupiers and their home was implicitly recognised in the Law Commission’s paper, Sharing Homes: A Discussion Paper (London, TSO, 2002). However, this paper did not make any recommendations by which to give effect to this stance. 35 See Ch 3, nn 92–96 and associated text. 36 K Green, ‘Being Here—What a Woman Can Say about Land Law’ in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London, Cavendish, 1996) 95.

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(a) organization is hierarchical with official jurisdiction over rule-bound procedures; (b) there is a focus on written rather than verbal discourse; (c) procedures are enacted by experts using specialized and technical languages of discourse; and (d) the aims of the organisation are speed, precision, unambiguity, and objectivity.37

The rise of bureaucracy in the field of land law is also significant in relation to the recognition of emotional responses and other factors pertaining to human behaviour in the creditor/occupier context. The implications of disregarding emotional responses were discussed in Chapter 3.38 Empirical research on the experience of losing one’s home through mortgage possession actions has established the impact of an occupier’s emotional response to repossession on their physical and mental health.39 Yet the effect of bureaucratisation is to eliminate consideration of these types of factors. Weber claimed that bureaucracy: develops the more perfectly the more the bureaucracy is ‘dehumanized’, the more completely it succeeds in eliminating from official business love, hatred, and all purely personal, irrational, and emotional elements which escape calculation.40

As the system of title registration as a means of regulating dealings affecting land becomes increasingly procedural, the reduction of home to house becomes increasingly embedded in land law discourse. The existing tendency, in law, to focus on the rational, tangible, measurable elements of the property is bolstered by the regulatory approach adopted by the Land Register. The impact of bureaucracy on recognition of home meanings is also reflected in Dovey’s analysis of the idea of home in the context of architecture and urban design. Dovey argued that: The more that the production, control, and maintenance of home environments is dependent upon bureaucratic organisation then the more this organisation both erodes 37

Dovey, above n 16, 55. See Ch 3, n 160–177 and associated text. 39 Furthermore, these consequences are shown to affect not only occupiers themselves, but a range of other interests, including health services, insurers and employers. In fact, the extent of these health consequences has led some commentators to characterise the impact of mortgage possession actions as a ‘new public health issue’. See S Nettleton, ‘Losing a Home through Mortgage Repossession: a ‘New’ Public Health Issue’ (1998) 8 Critical Public Health 47 at 49; S Nettleton and R Burrows, ‘Individualisation Processes and Social Policy: Insecurity, Reflexivity and Risk in the Restructuring of Contemporary Health and Housing Policies’ in J Carter (ed), Postmodernity and the Fragmentation of Welfare (London, Routledge, 1988); S Nettleton and R Burrows, ‘Mortgage Debt, Insecure Home Ownership and Health: an Exploratory Analysis’ in M Bartley, D Blane and G Davey-Smith (eds), The Sociology of Health Inequality (Oxford, Blackwell, 1998); S Nettleton and R Burrows, ‘When a Capital Investment becomes an Emotional Loss: the Health Consequences of the Experience of Mortgage Possession in England’ (2000) 15 Housing Studies 463. 40 M Weber, ‘Essay on Bureaucracy’ in FE Rourke (ed), Bureaucratic Power in National Politics (Boston/Toronto, Little, Brown & Co, 1978), 90. 38

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and paralyzes the emergence of the experience of home. Intangible qualities of identification and meaning, slow changes over time, local control, adaptability, and complex dialectic interactions cannot be dealt within a bureaucratic context.41

This analysis is significant in relation to the tendency, in land law, to equate the home with the physical structure of the house. Dovey described the experience of ‘being at home’ as ‘a mode of being whereby we are oriented within a spatial, temporal and sociocultural order that we understand’.42 Focusing on the idea of ‘spatial order’, Dovey distinguished between ‘conceptual space’ and ‘lived space’. The house can be characterised as conceptual space—it is ‘abstract, geometric, and objectively measured, a kind of context or ether within which people, places and things exist’.43 ‘Lived space’, on the other hand, refers to ‘the pre-conceptual and meaningful spatial experience of what phenomenologists call “being-in-theworld” ’.44 The notion of ‘lived space’ encompasses the experience of dwelling in a property as a home. As the nature of the system governing registered land in England shifts from a system of registration of title to a system of title by registration,45 as illustrated by the Land Registration Act 2002, the treatment of land as ‘conceptual space’ is highlighted. As Gray and Gray have noted: The new rationality inherent in matters of title is exemplified by the way in which, with the enactment of the Land Registration Act 2002, English law has finally made a decisive break away from the historic tradition that estate ownership is rooted in behavioural fact. For the first time ever, estate ownership will not be regulated . . . by effective possession and the mere lapse of time. The 2002 Act marks an historic shift in the philosophical basis of English land law from possession to title, from empirically defined fact to state-defined entitlement, from property as a reflection of social actuality to property as a product of state-ordered or political fact.46

Yet, while reforms in the field of land law have sought to erode the idea of ‘lived space’ in favour of a bureaucratic regime that recognises only ‘conceptual space’, the significance of place as ‘lived space’, and particularly of the home as a meaningful dwelling place, are attracting considerable attention in other disciplines. 41 Dovey, above n 16, 55. Dovey goes on to argue that ‘[b]ureaucratic structures and processes, like those of home, can be understood as a kind of order and identity; yet this order and identity are diametrically opposed to those of “becoming-at-home”. Whereas home is the kind of order that flows upward from the opportunities and problems of each unique place and context, bureaucratic order flows downward. . . . The complexities of the experience of home and the role of the dweller in achieving it are beyond the capabilities of bureaucratic structures to deal with’: ibid, 56. 42 Ibid, 35. 43 Dovey, above n 16, 35. 44 Ibid. 45 See generally C Harpum, ‘Registered Land—A Law unto Itself?’ in J Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (London, LexisNexis Butterworths, 2003). 46 K Gray and SF Gray, ‘The Rhetoric of Realty’ in ibid, 245.

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Dovey described the home as ‘a profoundly symbolic term’,47 and argued that ‘any attempt to translate it as “house” oversimplifies’.48 While the dominant trend in contemporary land law is the entrenchment of a reduction of home into house, developments in other disciplines in recent decades have swung in the other direction. While the idea of the home as a meaningful dwelling place—as ‘one of the key locales which shapes our sense of place and enables us to develop our sense of who we are . . . [as] centrally important . . . in the phenomenology of everyday life’49—has engaged the interest of scholars from philosophy to social geography, the content of the home interest has been the subject of considerable empirical research and theoretical analysis in a range of disciplines. The insight provided by this research has much to offer by way of substantiating the ‘home interest’ for legal analysis. While the idea that the property holds some meaning for the occupier is instinctively recognised in legal discourse, the home-type values have not carried significant weight, partly due to the seemingly nebulous nature of the interest in question. The idea that home means something more than house has been described as a ‘chimera’,50 as ‘something ethereal, floating in the air’.51 Yet much progress has been made, in other disciplines, in the task of ‘pinning down’ the meanings and values of home. The following sections consider this research, and the light that it may cast on the idea of ‘home’ in law.

Unpacking the Meanings of Home There is nothing especially new about the search for a concept of home. A substantial amount of work has been carried out in this area in recent decades52 in a number of fields, including social and environmental psychology, phenomenology, sociology, and built environment studies. Cultural, socio-economic and 47

K Dovey, ‘HOME: An ordering principle in SPACE’ (1978) 22 Landscape 27 at 27–8. Ibid. 49 HC Perkins and DC Thorns, ‘House and Home and their Interaction with Changes in New Zealand’s Urban System, Households and Family Structures’ (1999) 16 Housing, Theory and Society 124. 50 S Merritt, Owner-Occupation in Britain (London, Routledge, 1992), 65. 51 London Borough of Harrow v Qazi [2003] UKHL 43 at para 145. 52 ‘It is not surprising that research and interest in this area are burgeoning. First, people in every society usually have some type of residence. Although their form and permanence vary widely from one group to another, homes are more or less a universal. Second, in many societies, homes are one of the most important places. Homes offer physical amenities that sustain and support the residents, and they are often essential to the very survival of their occupants. Furthermore, homes are important centres for the development and manifestation of certain psychological meanings. Individuals develop identities and regulate privacy in homes; families establish, grow, bond themselves to a unit in homes and often bond themselves to the larger society through their homes. Thus homes are the repository of central and essential psychological and cultural processes’: J Altman and CM Werner, ‘Introduction’ in Altman and Werner, above n 7, p xix. 48

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socio-political theorists have grappled with the concept of home, as have anthropologists, architectural and planning researchers, etymologists and geographers. Numerous studies have investigated the affective value of home, that is, the emotional attachment that occupiers feel towards their homes, and a significant body of theory has developed from these studies. Generations of social scientists have laid the foundations for discourse on home, and these are now being built upon, as analysis of the meanings of home becomes increasingly sophisticated. For example, Jeanne Moore recently described ‘a renewed enthusiasm for examining home, which is drawing from decades of psychological and sociological exploration’.53 Although various scholars have focused on different aspects of home meanings, the overriding consensus is that ‘[u]nits of housing are commodities . . . [h]ome is a more elusive notion. Not only is it a place, but it has psychological resonance and social meaning’.54 Nevertheless, neither the enthusiasm which the subject of home has garnered in other disciplines, nor the product of this interdisciplinary discourse, appears to have been fed into the legal system,55 or to have influenced policy making at the critical level of disputes between the rights of secured creditors and the interests of occupiers in remaining in their homes. Indeed, the legal concept of home remains at the ‘pre-scientific’, ‘speculative’ stage, which social psychologists broke through in the mid-1970s. Research which has been carried out across a wide range of disciplines now stands to be built upon by socio-legal scholars, to construct a legal concept of home. The etymology of the term ‘home’ provides an interesting starting point for consideration of the significance of home as an affective environment. It has been suggested that there is no word quite as emotionally loaded as ‘home’ in the Romance languages.56 The emotional bond which has traditionally been acknowledged between occupiers and their homes was highlighted in Brink’s historical work on the etymology of the expression ‘home’.57 Brink offered some examples of the types of feelings signified by linguistic references to home. He states that the Old Irish expression for home is associated with the meaning ‘love’, while the Old English, Greek and German terms make reference to marriage and to sexual intercourse, with meanings such as ‘to take home’, ‘to bring to bed’.58 Brink concluded that: ‘the words—now and in ancient times—that are direct cognates with, or that relate to home, deal with dwelling and affection, perhaps the affection for one’s 53

J Moore, ‘Placing Home in Context’ [2000] Journal of Environmental Psychology 207 at 207. S Saegert, ‘The Role of Housing in the Experience of Dwelling’ in Altman and Werner, above n 7, at 287. 55 Altman and Werner describe cross-disciplinary contact as one of the challenges facing those interested in homes; Altman and Werner, above n 52, preface, p xx. 56 J Hollander, ‘It all Depends’ in A Mack (ed), Home: A Place in the World (New York, New York University Press, 1993). 57 S Brink, ‘Home: The Term and the Concept from a Linguistic and Settlement-Historical Viewpoint’ in D Benjamin (ed), The Home: Words, Interpretations, Meanings, and Environments (Aldershot, Ashgate, 1995). 58 Ibid, 19–20. See further, below, on the associations between family and home. 54

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dwelling place, one’s home’.59 This supports Brink’s argument that, historically, home did not simply refer to a concrete structure, but to an abstraction; that the term ‘home’ was not viewed as referring to the property itself, or at least, was ‘not limited to the exclusively physical habitation itself, but include[d] concepts of dwelling and affection’.60 One of the dangers of describing home as associated with affection or love is that this style of argument is unlikely to resonate with lawyers.61 The problem, however, is that there is a degree of sentimentality behind ideas about home: the popular usage of the term ‘home’ has been criticised as ‘vague and fuzzy (and “warm” in feeling)’.62 The discussions in Chapter 3 and in the previous section have identified the difficulties associated with ‘emotionality’ for a rationally underpinned system such as law. The bureaucratisation of land law has only intensified the incongruence between land law and emotion-oriented analysis. It is important to recognise, however, that the difficulties associated with the notion of home attachments as ‘mere emotion’ have permeated home scholarship across a range of disciplines. Yet, as Hayward acknowledged in one of the earliest discussions of the psychological significance of home, while ideas about home may be based, to some extent, on romanticised, mythologised, idealised memories, that does not diminish the way in which these associations inform the psychology of home.63 The challenge for researchers interested in unpacking the meanings of home has been to explore the nature of the occupier’s response to home, and identify the social, psychological, cultural and emotional values that underlie the occupier’s attachment to the property. Furthermore, research in the study of place attachments has suggested that, although attachment to places is often perceived as an ‘emotional’ response, it is not ‘mere emotion’ but is also significant from both cognitive and practical perspectives. Low and Altman, for example, have noted that ‘[o]ne of the hallmarks of place attachment that appears consistently in most analyses is that affect, emotion and feeling are central to the concept’.64 Nevertheless, it is important not to ‘overemphasise the affective quality of place attachments’.65 They note that: 59

Bank, above n 57, 20. DN Benjamin, ‘Afterword’ in Benjamin, above n 57, 295. 61 Although it was suggested in the Parliamentary debates preceding the enactment of s 336 of the Insolvency Act 1986 that ‘we were moving into an area where perhaps the heart should rule more than the head’: 459 HL Deb (5th Series) col 1266–7 (7 Feb 1985), Lord Lucas; judicial attitudes towards this provision were epitomised by the decision in Re Citro [1991] Ch 142, where Nourse LJ held that the interests of creditors ought to prevail over those of occupiers in the family home, because ‘one must be just before one is generous’; Re Bailey [1977] 1 WLR 278 at 284, per Walton J. 62 A Rapoport, ‘A Critical Look at the Concept “Home” ’ in Benjamin, above n 57, 29. Rapoport qualified this comment, however, with the suggestion that the very nature of this response should be analysed, since ‘there is an implicit folk theory behind it that needs to be made explicit and examined’: ibid. 63 DG Hayward, ‘Home as an Environmental and Psychological Concept’ (1975) 20 Landscape 2. 64 SM Low and I Altman, ‘Place Attachment: A Conceptual Inquiry’ in Altman and Low (eds) Place Attachment (New York, Plenum Press, 1992) 2. 65 Ibid. 60

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a number of writers state that emotional qualities [of place attachments] are often accompanied by cognition (thought, knowledge, and belief) and practice (action and behaviour). That is, place attachment involves an interplay of affect and emotions, knowledge and beliefs, and behaviours and actions in reference to a place.66

Home scholars are generally consistent in their argument that home is a complex and multi-dimensional interest, which includes financial, practical, social, psychological, cultural, politico-economic and emotional interests to its occupiers. Although the inherent subjectivity of the ‘home’ interest has acted as a barrier against substantive exploration of the meanings and values of home for legal purposes, researchers in other disciplines have forged ahead in pursuing the meaning of home, on the basis that the phenomenon of home is ‘too prevalent and too significant to be deemed inappropriate and then forgotten’.67 When approaching the conceptualisation of an intangible and subjective phenomenon such as home, it is important to recognise that ‘[a]lthough we might study the house as a discrete variable, home is not an empirical variable whose meaning we might define in advance of careful measurement and explanation’.68 Dovey suggested that the most appropriate methodological response to these characteristics is to tailor the functions of home analysis, so that it seeks ‘not to produce specific cause–effect relationships or explanations; it is rather to deepen our understanding of an intrinsically intangible phenomenon’.69 In order to develop a more comprehensive understanding of the meanings and values associated with home, it is necessary to explore the elements that go to make up the occupier’s attachment to a particular property when it is occupied ‘as a home’. A useful formula in this endeavour is the proposition that home = house + x.70 By separating the idea of home into the physical structure of the house—clearly an important element in the equation since it provides physical shelter and the locus for the experience of home—on the one hand, and the ‘x factor’ on the other. The physical structure of the house presents no conceptual difficulties to lawyers, since it is a concrete, tangible entity. The conceptual challenge in relation to home is to unravel the enigmatic ‘x factor’.71 In short, the x factor represents the 66

Low and Altman, above n 64, 2–3. Benjamin, ‘Afterword’, above n 60, 294. 68 Dovey, above n 16, 34. 69 Ibid. 70 Rapoport, above, n 62, 29. Hollander has claimed that the: ‘common—and, unlike many common expressions, vulgar—use of “home” as a euphemism of “house” is by and large the linguistic waste product of the American real estate industry’: Hollander, above n 56, 37. 71 Merritt reached a similar conclusion in relation to the ‘use-value’ of real property, a quality which he described as the ‘housing services’ of a dwelling: ‘I have searched for these services with patience and diligence, and regretfully conclude that they do not exist and therefore that all conventional analysis is based on an entity that is purely phantasmal. In the long pursuit of this chimera, the hunter always circles back to his starting point and finds no more, yet no less than a dwelling, located in space, within and beyond which individual human beings grouped in households engage in a complex set of activities’: S Merritt, Owner-Occupation in Britain (London, Routledge and Kegan Paul, 1992) 65. 67

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‘experiential aspects of home that distinguish it from house’72—the social, psychological and cultural values which a physical structure acquires through use as a home. Whilst these values are inherently subjective, and may not be held by all occupiers, a number of qualities have repeatedly and consistently emerged from empirical research into occupiers’ responses to home.73 The ways in which these values have been classified are as myriad as attempts to enumerate them, but while the form may vary, the content is generally relatively consistent. For the purposes of the discussion below, these feelings about home will be grouped into five main clusters of value-types: home as a financial investment, which reflects the value associated with tenure in the home; home as a physical structure, which relates to the material shelter provided by the home; home as a territory, which connotes security and control, a locus in space, permanence and continuity and privacy; home as a centre for self-identity which provides a reflection of one’s ideas and values, and acts as an indicator of personal status; and home as a social and cultural unit, which acts as the locus for relationships with family and friends, as a centre of activities, and an indication of social status.74

Home as a Financial Investment The idea of the home as a financial investment is probably the most readily comprehensible aspect of the home interest for legal scholarship. The value associated with the ‘home as financial investment’ is the factor that distinguishes the meaning of the owner-occupied home most clearly from the meaning of home for tenants. The political, social and cultural ideologies of home ownership, which are explored further in Chapter 5, have contributed much to the meanings and values associated with the owner-occupied home, and particularly to the idea of home as a financial investment. Some commentators have argued that home embodies greater significance when the property in question is owned by its occupiers, and that this enhancement of the home experience, in conjunction with the values 72

Dovey, above n 16, 34. In C Despres, ‘The Meaning of Home: Literature Review and Directions for Future Research and Theoretical Development’ [1991] Journal of Architectural and Planning Research 96, Despres based her categories of meaning on 6 important behavioural studies: MW Baker, E Kramer and G Gilbert, The Pier 1 Imports Study of the American Home (Study No 871025) (New York, Louis Harris and Associates, 1987); M Csikszentmihalyi and E Rochberg-Halton, The Meaning of Things: Domestic Symbols and the Self (New York, Cambridge University Press, 1981); Hayward, above n 6; RM Rakoff, ‘Ideology in Everyday Life: The Meaning of the House’ (1977) 7 Politics and Society 85; R Sebba and A Churchman, ‘The Uniqueness of Home’ (1986) 3 Architecture and Behaviour 7; and J Sixsmith, ‘The Meaning of Home: An Exploratory Study of Environmental Experience’ (1986) 6 Journal of Environmental Psychology 281. Since Despres’ article, further empirical studies have included SG Smith, ‘The Essential Qualities of a Home’ [1994] Journal of Environmental Psychology 31 and T Wikstrom, ‘The Home and Housing Modernisation’ in Benjamin, above n 57. 74 There are also significant socio-cultural connotations connected with the idea of home as a place to own. 73

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obtained through the home as a financial investment go some way to explain the overwhelming popularity of owner occupation in contemporary British society. The significance of the home as a financial investment has effectively taken hold on popular consciousness. The significance of the home as a financial asset for occupiers has several facets. For one thing, the owned home provides a significant repository of capital appreciation. Susan Smith has described the enormous financial significance of the ‘asset value’ of owned housing, on the basis that ‘the wealth of many owner-occupiers is accumulating faster in their homes than through their incomes’.75 Yet, the value to be reaped from the home as a financial investment cannot be taken for granted in the current economic climate. Although there have been long periods of time in which the financial impact of home ownership was overwhelmingly positive—Ford et al claim that ‘for much of the post-war period, and certainly until the early 1980s . . . only infrequently did households find their home ownership financially unsustainable’76—recent analysis has suggested that the economic security associated with buying your own home is not assured in the contemporary economic and housing markets. It is argued that, ‘as home ownership has “matured” into the 1990s, it has come to be a tenure more characterised by risk and so with less certain outcomes’.77 In 1993, the Citizens’ Advice Bureau suggested that ‘[t]he home ownership dream had become a nightmare for many owneroccupiers who encountered financial difficulties’.78 In 1997, Social Trends suggested that, while owner-occupation was generally promoted as a financially sound investment, ‘those who have bought since about 1990 have seen only negative effects, brought about primarily by falling house prices but also by a tax regime progressively less favourable to owner-occupiers’.79 In 1999, Perkins and Thorns wrote that: Initial research made often quite euphoric predictions about the impact that the surge in owner occupation, for example in Britain during the 1970s, was going to make to the nature of social and economic inequalities. Some writers claimed that housing would be a more significant source of wealth creation than the labour market. In the 1990s these claims now look to be exaggerated as the upward part has not been smooth. We have learnt that rates of financial return are time- and place-specific and that in general they have flowed most strongly to those who already had assets rather than leading to widespread re-distributions of wealth.80 75 S Smith, Banking on Housing: Speculating on the Role and Relevance of Housing Wealth in Britain (Paper prepared for the Joseph Rowntree Foundation Inquiry into Home Ownership 2010 and Beyond, 2005) 4. 76 Ford, Burrows and Nettleton, above n 9, 1. 77 Ibid, 1–2. 78 Citizens’ Advice Bureau, Dispossessed: CAB Evidence on Mortgage Possession and Arrears (London, Citizens’ Advice Bureau, 1993), para 2.6. 79 Central Statistical Office, Social Trends 27 (London, HMSO, 1997) 183. 80 HC Perkins and DC Thorms, ‘House and Home and their Interaction with Changes in New Zealand’s Urban System, Households and Family Structures’ (1999) 16 Housing, Theory and Society 124 at 126.

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More recently, Ford et al went on to assert that ‘the last two decades have made evident some more fundamental, cross-cutting structural shifts that now shape [the housing market] and the experience of home ownership as a different kind of venture’.81 Although many home owners continue to reap the dividends of home as financial investment, the phenomenon of ‘unsustainable home ownership’82 has cast some doubt on the value of ‘home as financial investment’. The idea of the owner-occupied home as a capital investment is clearly linked to governmental promotion of the ideologies of home ownership from the early twentieth century.83 One of the consequences of the promotion of home ownership as the dominant form of housing tenure in Britain has been the commodofication of housing. As Green and Lim have argued: Homes moved inexorably into the marketplace in late 20th century England in a process of commodification which placed an emphasis upon ‘exchange value benefits (investment value and capital gains)’ such that housing is no longer ‘regarded as an engine for social improvement’, but a ‘consumer good’ like any other.84

To some extent, the promotion of the home as a financial investment appears to vindicate the Marxist argument concerning the ‘commodification of everything’.85 Engels, for example, emphasised the importance of keeping the home outside the realm of commodity—the alienation associated with capitalist relations of production was regarded as reinforcing the need to have a ‘home as haven’, separate from work and from the commodified world of capitalism.86 Yet, ‘[t]he failure of this attempt to secure the home from the disruptive forces of capitalism [was] anticipated . . . in the Marxist contention that the commodification of everything is inevitable’.87 The ideas of the ‘use value’ and ‘exchange value’ of the owner-occupied home are considered further, from the perspective of property theory, in Chapter 6. These categories of value are of tremendous significance in relation to the creditor/occupier context, as the discussion of legal policies in Chapter 2 has demonstrated. The policies that informed English land law, in the 1925 property legislation and beyond, have elevated the ‘exchange value’ of property, including property in the owner-occupied home, over and above the ‘use 81

Ford, Burrows and Nettleton, above n 9, 3. See generally ibid. 83 See Ch 5, below. 84 K Green and H Lim, ‘Weaving Along the Borders: Public and Private, Women and Banks’ in S Scott-Hunt and H Lim (eds), Feminist Perspectives on Equity and Trusts (London, Cavendish, 2001) 94. 85 See generally K Marx, Capital (trans M Wolfson, London, Dent, 1970) i, Part I: ‘Commodities and Money’. 86 See generally F Engels, The Origin of the Family, Private Property and the State (New York, Pathfinder Press, 1972). 87 D Sibley, Geographies of Exclusion: Society and Difference in the West (London, Routledge, 1995), 94. 82

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value’ of land. The political ideology of home ownership dovetailed with the commercialist ethos of land law in the twentieth century to endorse the proposition that a significant element of the value represented by the owner-occupied home is home as financial investment. The idea of the owned home as a commodity is emphasised, not only by the idea that the home is a financial investment with a view to capital appreciation for the owner occupiers, but in the way in which wealth that is tied up in the ‘owned home’ is currently regarded as being ‘more “spendable” now than it will ever be again’.88 The issues associated with the ‘encashment’ of equity in the owneroccupied home are particularly pertinent in relation to legal analyses of the balance to be struck between the commercial claims of creditors and the home interests of occupiers. While the traditional idea of the home as a financial asset focused upon the idea that: the asset value of housing . . . accumulated over the life course, provides a cushion (in the form of low housing costs) for old age, and flows on to the next generation through inheritance89

current trends suggest that the idea of ‘encashing’ the financial value of the owned home is increasingly significant. Shifts in welfare provision have meant that housing wealth is increasingly used—and expected by the government to be used—to meet living costs across the owner occupier’s lifetime, but particularly in relation to health care and pension needs in older age.90 Smith has argued that the owned home ‘may not, for long, remain a resource for old age, much less a component of inheritance. Rather it may be viewed as a store of wealth which can be made available to spend on other things’.91 This is significant in relation to the meanings of home—as a financial investment—during the occupiers’ lifetimes, and also in relation to the idea that the capital represented by the owned home provides a repository of wealth to be passed on to one’s heirs after death. The idea of home as a financial investment to pass on to your children has been cited as a significant aspect of home meanings for owner occupiers.92 For example, Perkins and Thorns asserted that: housing serves not only to provide shelter but is also a source of potential income and wealth. In societies in which owner-occupation of houses has become well established

88

Smith, above n 75, 2. Ibid, 11. 90 Ibid. 91 Ibid, 12. 92 See, eg, KO Doyle, ‘The Symbolic Meaning of House and Home’ (1992) 6 American Behavioural Scientist 790 at 796; A Dupuis and DC Thorns, ‘Meanings of Home for Older Home Owners’ (1996) 11 Housing Studies 485. 89

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they are a source of wealth both for the present occupants and also potentially for the next generation through inheritance.93

Dupuis and Thorns’ study of the meanings of home for older home owners in New Zealand indicated that elderly home owners were particularly concerned about passing their assets on to their children to enhance their children’s security. Interestingly, while male respondents focused on the desire to pass on an investment asset to the children, for female respondents ‘it is the question of family history rather than investment value which was given prominence when they were discussing their bequeathing intentions’.94 This reflects, to some extent, studies which have differentiated home meanings, more generally, along gender lines.95 The significance of gender distinctions in the meanings of home is discussed in more detail in Chapter 8. However, notwithstanding concerns that the value of the owned home as a legacy from parent to child would ‘contribute to social inequality and class reproduction inter-generationally’,96 recent empirical evidence, in Britain at least, suggests that the significance of the home as a financial investment to pass on to one’s children is limited. In Attitudes to Inheritance in Britain, a Joseph Rowntree study published in July 2005 which explored the significance of home ownership on attitudes towards bequeathing and inheriting assets,97 it emerged that while inheritance plays an important part in many people’s lives, it had not generally become entrenched as an expectation or a duty. In fact, the authors found that the majority of older people favoured using their assets for themselves, to meet their needs in later life, rather than feeling bound to save the financial investment tied up in their homes to provide an inheritance for their children.98 Empirical analysis of this context raises some interesting issues with regard to the meaning of home as a financial asset, relative to other types of meanings (the social, psychological, cultural and personal aspects of home meanings) that the property may potentially represent. Finch and Hayes’ empirical study of inheritance analysed both the way in which testators viewed the home in the context of making their wills, and the meaning of the inherited home to beneficiaries.99 It is interesting to note that, in both contexts, the meaning of home as a financial 93

Perkins and Thorns, above n 49, 126. Dupuis and Thorns, above n 92, 498. 95 Hayward, above n 6; S Saegert and G Winkel, ‘The Home: A Critical Problem for Changing Sex Roles’ in GR Wekerle, R Peterson and D Morley, New Space for Women (Boulder, Colo, Westview Press, 1980); M Csikszentmihalyi and E Rochberg-Halton, ‘Home as Symbolic Environment’ in Csikszentmihalyi and Rochberg-Halton, above n 73. 96 Ibid. 97 K Rowlingson and S McKay, Attitudes to Inheritance in Britain (Bristol, The Policy Press, 2005). 98 This was consistent with an earlier report on the attitudes of older people towards equity release against their homes: JA Davey, Equity Release: An Option for Older Home-owners (York, Centre for Housing Policy, University of York, 1996). 99 J Finch and L Hayes, ‘Inheritance, Death and the Concept of Home’ (1994) 28 Sociology 417. 94

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investment appeared to outweigh other types of home meaning. On the one hand, testators tended to view the home as simply another financial asset making up their estate. Finch and Hayes noted that: the majority of testators who are home owners do not single out their house when they make a will . . . in most cases it seems that the home is being treated as property to be disposed of . . . it is relatively rare for testators to try to pass on their own house intact as a home.100

Similarly, from the beneficiary’s perspective, there appeared to be ‘pressures which militate against occupying an inherited home as one’s own, if the beneficiary is already occupying a home which she or he has personally created’.101 In both cases—when the property that had been the testator’s home was given, and as it was received—the home as financial investment or capital asset was particularly significant. This was not to say that these homes did not hold other meanings as well, but it emerged that the other meanings associated with home—the social, psychological, cultural and emotional meanings outlined below—were chiefly enjoyed by the person(s) who created the home, during their occupation. Even in one of the cases reported by Finch and Hayes, where the testator ‘was proud of having built up a comfortable home and, in essence, saw himself as having established a “family home” which he wished to pass on to succeeding generations’,102 the testator’s adult daughter, who had already established her own home elsewhere, did not wish to occupy the property as her home. The daughter, who inherited this property: did not view favourably the prospect of occupying her father’s home in the way that he had anticipated. As far as [the beneficiary] was concerned the house was her parents’ home, and everything about it reminded her that they were no longer there.103

Although this case provided a rare example, for this study, of a testator who did regard himself as passing on his home, not merely as a capital asset, but with all the other ‘x factor’ attributes included, the beneficiary struggled to take on board the ‘x factor’ elements, established by her parents, as her own. It is particularly interesting to note, however, that the tendency to regard the home as a financial asset in these particular circumstances is not, in fact, indicative of a more general preference for ‘home as financial investment’, but rather reemphasises the overwhelming salience of the non-financial meanings of home. Finch and Hayes’ study indicated that, for one thing, when the beneficiary who inherited a home had already established their own home elsewhere: 100 101 102 103

Ibid, 420. Ibid, 424. Ibid. Ibid, 425.

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the prospect of a married couple’s moving out of the home which they themselves had created, into a home which someone else had created, breaches fundamental symbolic meanings of the home.104

In addition to the potential disruption associated with giving up one’s own home to take on the home of another, when a beneficiary who has already established their own home elsewhere inherits a property that has been lived in as a home by another, inheriting beneficiaries were precluded from assimilating the home meanings that had already been established in the testator’s home by the strong home meanings that were associated with the property in relation to the testator, even after death. Finch and Hayes found that: other points of resistance to moving into another person’s home arise precisely from the identification of that home with the person who created it. . . . [i]t was their home, created by them, and . . . it went on symbolising them in its continued existence even after their death.105

Even for the daughter whose father perceived himself as acquiring a home for the purposes of passing it on to the next generation, the strength of association between the property and her father meant that, even after she inherited it, ‘[i]t could never become her own home’.106 Thus, Finch and Hayes suggested that: [e]ach couple in each generation, it would seem, must create their own home afresh . . . even a daughter brought up in her parents’ home cannot readily occupy it as her own in adult life, since it ceased to be ‘hers’ when she became an adult.107

While the study did support the idea that, in the context of inheritance, the home as financial asset is a significant element of meaning for both testator and beneficiary, this is attributable, to some extent, to the strength rather than the absence of the ‘x factor’ values of home. Analysis of the attitudes of testators and beneficiaries towards inheriting a home supported the proposition that ‘the home is a personal creation in both a material and symbolic sense, and almost literally cannot become someone else’s home’.108 Interestingly, the issues raised by this analysis seemed to extend, not only to cases in which a home occupier bequeathed the home to a non-occupier, or even an adult child who had lived in the property as a childhood home, but to cases in which one member of a co-occupying couple had died. Finch and Hayes’ study found that: 104 105 106 107 108

J Finch and L Hayes, ‘Inheritance, Death and the Concept of Home’ (1994) 28 Sociology 425. Ibid. Ibid. Ibid, 425–6. Ibid, 426.

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in the contemporary British context a home is so strongly identified with, and symbolises, its creator that it does die with the person who created it and cannot be occupied by someone else as their home . . . even some widows who, on the evidence of our own and other studies can be expected to have made a significant contribution to the creation of the couple’s home, show a tendency to leave this very personal creation after their partner’s death and create a new home.109

Overall, there was a ‘strong resistance to occupying someone else’s home as one’s own’.110 Rather, once the beneficiary succeeded to the property, the meaning of the home as a financial investment prevailed. In fact, this was emphasised by the tendency of beneficiaries, rather than choosing to live in the property as their own home, to ‘convert’ the property back into a house by de-personalising it, and so preparing it for sale or rent.111 In order to deal with the home as a financial asset, it was necessary to erase the physical evidence of the previous home occupier, before trading with the property as capital on the market. In this context, the importance of the home as a financial asset undermined the beneficiaries’ ability to enjoy the other, non-financial attributes of the property as a home. These findings are interesting in relation to the idea of the home as a financial asset in the context of creditor/occupier disputes. It is useful to consider the issues surrounding the idea of the home as a family home, and the idea that the home carries greater salience when the occupier has children, against the findings outlined above. For one thing, the suggestion that the adult offspring, for whom the property was a childhood home but who has since gone out of occupation, may no longer enjoy the ‘x factor’ elements of home emphasises the centrality of being in occupation when it comes to enjoying a property as a home. This is significant in distinguishing between the home interests of persons in occupation and the claims of other parties—for example, a partner with an ownership interest who is no longer in occupation. For those who no longer occupy the property as a home, even if the property was their former home, the significance of the home as a financial investment may have assumed greater significance than the ‘x factor’ values. One question that the application of these findings might raise relates to whether a property can, or should, continue to affect the status of a home after one partner has left. The suggestion that the purpose of occupying a property as a home is defeated by the departure of one partner—for example, in the case of the widow interviewed in Finch and Hayes’ study, raises difficult issues for ‘family unit analysis’ in the context of home as family home, discussed in Chapter 7, below. If the fracturing of the family unit by the departure of a cohabiting partner—either 109 Ibid, 428. It is noteworthy, however, that there may be a different rule in cases of ‘landed gentry’, where the home passes through several generations: see discussion of settlements in Ch 1, n 15 and associated text. 110 Ibid, 428. 111 Ibid, 429.

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because of death or relationship breakdown—is regarded as diminishing the home interests of the remaining occupiers in the property, this could give rise to outcomes that appear unattractive in family policy terms. For example, where one partner leaves the other with custody of children in the ‘former matrimonial home’ following either death or relationship breakdown, it would be undesirable if the home interests of the remaining adult occupier or the children in occupation were thought to be diminished by the departure of one of the persons who had created the home. These issues are explored further in Chapters 7, 8 and 9. It might be suggested that, even if some aspects of the home interest are diminished in the context of a widowed partner, who finds the home to be a painful reminder of the deceased cohabitant, distinctions could be drawn between (1) voluntary relocation, where the widow chooses how and when to leave the former home in order to minimise the impact of the disruption that follows from leaving the home (which may already have been ‘lost’ with the death of the partner); (2) cases involving death and relationship breakdown—if the home is strongly associated with the relationship between the partners, the ability of the home interest to survive the end of the relationship may turn on the way in which the relationship itself is remembered; and (3) perhaps most significantly, cases in which the occupier who stays in the property is a custodial parent of minor children. All of these factors may have a significant impact on the extent to which an occupier may become ‘detached’ from the ‘x factor’ values of the property as a home, and focus instead on the value of the home as a financial asset to be exchanged on the market. The wealth of empirical literature on the meanings and values of home to occupiers has established that, notwithstanding the significance of the home as a financial investment—particularly in a political, social and cultural environment that values home ownership to such a high degree—there are other, non-financial meanings associated with the owner-occupied home. In fact, in an interesting study, Rakoff explored the significance of the economic ideology of home for occupiers—that is, for those who created the home environment. This research suggested that—amongst middle income occupiers at least—many of the people surveyed regarded their houses as ‘a commodity or an investment opportunity, something to be bought and sold with an eye to profit as well as use’.112 However, it is important to note that, though the house was valued as an investment asset, the research also indicated—even amongst those middle income occupiers—that ‘this view was clearly of secondary importance in that the larger meaning-system of the house. A series of more elusive meanings carried greater meaning for these people’.113 These ‘more elusive meanings’ included family associations, identity issues such as personal status and success, a place of permanence and security and a refuge from the outside world. This research indicated that ‘[t]he 112 113

Rakoff, above n 73, 93. Ibid.

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house, particularly the owner-occupied house, seemed to be a powerful symbol of order, continuity, physical safety and a sense of place or physical belonging’.114 The importance of ownership in enhancing these meanings and values of home is considered further in Chapter 5. First, however, it is useful to unpack further the additional elements that go to make up home.

Home as a Physical Structure The value of the home as a physical structure is concerned with the tangible ‘bricks and mortar’ elements of home. Whilst much home scholarship has focused on the intangible attachments identified as the ‘x factor’ (if home = house + x), it is important not to overlook the significance of the more tangible aspects of home: that is, the house itself. Home as a physical structure—that is, the house—provides physical shelter for its occupiers. This aspect of the home interest is crucially important. As a physical structure, ‘[h]omes offer physical amenities that sustain and support the residents, and they are often essential to the very survival of their occupants’.115 There can be no doubt that, from a practical perspective, the practical need for physical shelter is the most immediately pressing consequence of losing one’s home. In fact, it is the loss of physical shelter, ‘houselessness’, which is politically and popularly referred to as ‘homelessness’. Prior to the upsurge of interest in home amongst environmental psychologists in the 1970s,116 scholarly literature often identified home with the physical structure of the house or residence.117 Furthermore, it is clear that the focus on ‘bricks and mortar’ remains central to legal representations of ‘home’.118 For example, in London Borough of Harrow v Qazi,119 the House of Lords declined the opportunity to envisage the idea of home as ‘something ethereal, floating in the air, unconnected to bricks and mortar and land’.120 In fact, the attractiveness of adopting a ‘bricks and mortar’ approach to the meaning of home, particularly to a rationally underpinned legal system, is obvious: The rational attitude is biased towards the tangible. Yet the phenomenon of home . . . is an intangible relationship between people and the places in which they dwell; it is not visible nor accurately measurable. Reason responds to intangibility by reducing terms such as home to precise and bounded definitions. Rationally considered, a home

114 115 116 117 118 119 120

Ibid, 94. Altman and Werner, above n 7, preface, p xix. Moore, above n 53, 209–10. Benjamin, above n 60. See generally Ch 2. [2003] UKHL 43. Ibid, [145].

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becomes reduced to a house—the meaning and experience of home as a relationship becomes confused with the object through which it is currently manifest.121

The home as physical structure is undoubtedly important, yet it cannot be regarded as fully representative of the idea of home. This can be readily established by reference to empirical research in this area. When the meaning of home to occupiers has been explored in psychological studies, it has never shown the common assumption to be true—that the physical structure of a property is its most important aspect.122 Nevertheless, the concept of homelessness as the lack of a physical structure in which to live has had a significant impact on home discourses in law and politics. As Somerville suggests, ‘[t]he minimal definition [of homelessness] in terms of rooflessness tends to dominate the political debate’123 In this study, Somerville considered the competing definitions of homelessness: ‘rooflessness’ and ‘rootlessness’. ‘Rooflessness’ refers to the lack of physical shelter experienced by a person who is ‘houseless’; while the expression ‘rootlessness’ can be applied to describe the sense of being without a ‘place in the world’. While ‘rooflessness’ refers to a person who does not have a ‘home as physical structure’, ‘rootlessness’ encompasses the state of lacking the whole range of meanings associated with home, from physical shelter to the psychological, social, cultural and emotional elements that represent the ‘x factor’. Yet, the concept of home in legal and political discourse is heavily influenced by the fact that, ‘[i]n official government perception and constructions . . . only the material meaning of homelessness is recognised’.124 The clear connection between creditor/occupier disputes and homelessness is revealed by national survey data which indicate that a significant number of households accepted as ‘homeless’ by local authorities in England give mortgage default or rent arrears as the main reason for the loss of their last home.125 Whilst these statistics chart the most extreme 121

Dovey, above n 16, 52. Hayward, above n 63. 123 P Somerville, ‘Homelessness and the Meaning of Home: Rooflessness or Rootlesness?’ (1992) 16 International Journal of Urban and Regional Research 529 at 531. 124 Ibid, 536. Somerville concluded, however, that while the semantic meaning of homelessness appears to be the converse of these meanings—lack of shelter, lack of hearth, heartlessness, lack of privacy, rootlessness, etc, as well as the sense of insecurity associated with those signifiers, ‘[i]t is not all as simple as this . . . because homelessness does not quite involve the converse of the ideal meaning of home. Home as hearth and heart, eg, has strong ideal connotations, and these connotations may be retained by homeless people even though their material underpinnings have disappeared. For the homeless, it is the reality which is different, but their ideal may be the same. This is why the minimal definition of homelessness is . . . lack of shelter or rooflessness’: ibid, 534. 125 In 1998–9, of 105,470 households accepted as homeless by local authorities, approximately 7%, that is over 7,000 households, cited mortgage default or rent arrears as the principal reason for their loss of home: Social Trends 30 (London, HMSO, 2000), Chart 10.15, at 173. In 2002–3 that number had fallen to 3%: Social Trends 33 (London, HMSO, 2003). More recent statistics are not available, as subsequent issues of Social Trends have not included ‘reasons for becoming homeless’ in the questions which have been reported. 122

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outcome,126 it is important to bear in mind that loss of home can be a traumatic experience—even when it does not lead to houselessness.127 It is important to recognise, not only that having a roof over one’s head may not connote to having a ‘home’ where other needs are not satisfied; but that equating lack of shelter with homelessless also reduces the experience of homelessness to merely lacking shelter, such that ‘[t]he emotive aspects of homelessness . . . are entirely neglected . . . An issue of deep human misery is thereby reduced to a problem which is merely technical’.128 Although home is not wholly encompassed by the physical structure of the house, it is important to recognise that the physical entity—the bricks and mortar—is a significant starting-point, since it is the physicality of the house in combination with the ‘x factor’ that supports the phenomenon of home. Although shelter is undoubtedly the most obvious aspect of home as a physical structure, it is also important to recognise that the structure of the house provides the location for the experience of home. Empirical research129 has suggested that ‘[h]ome as a physical entity embraces not only the physical structure and style of architecture, but also the human space available’.130 It is the physical structure of home, through shelter and through space, which provides the physical basis for occupiers to experience all of the attributes of home. The physical structure of the house provides the locus for family life, a place of safety, a place of privacy, continuity and a sense of permanence.131 The following sections seek to explore the meaning of home beyond the tangible physicality of the house, or the capital asset that the property represents, to elucidate some of these additional values of home.

Home as Territory The concept of home as a physical structure is closely associated with the territoriality of home.132 ‘Territoriality’ has been defined as ‘the act of laying claim to a geographic area, marking it for identification, and defending it when necessary

126 The experience of repossession leading to homelessness is clearly a ‘worst case scenario’ for occupiers following a dispute with a creditor. 127 There is more on loss of home, below. 128 Somerville, above n 123, at 530. 129 Sixsmith, above n 73. 130 Ibid, 292. Sixsmith added that: ‘warmth, telephones, everyday modern conveniences are important. One participant realised the significance of environmental services only after he had lived in a house which was extremely basic with regard to them’: ibid. 131 P Somerville, ‘The Social Construction of Home’ (1997) 14 Journal of Architectural and Planning Research 226. 132 This feature is heavily emphasised by Sebba and Churchman, above n 73, who argue that: ‘the uniqueness of the home lies in its psychological and social meaning and in the opportunity it affords the occupants to exert control over the space and the behaviour within it’: at 21.

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against others of the same kind’.133 Territorial behaviour, in both animals and humans, is linked to the instinct for survival, to safety and security, and to protecting one’s family: ‘mating, safeguarding the nest, and protecting the food supply, functions that are basic to the survival of the organism and the perpetuation of the species’.134 However, the way in which territoriality is displayed in humans ‘is far more varied, less consistent, and less predictable than it is in animals’.135 Whereas animals tend to exercise their territoriality in consistent forms and patterns, ‘[t]he variety and complexity of human behaviour makes classification difficult’.136 For humans, the exercise of territorial behaviour is characterised generally as: the relationship between an individual or group and a particular physical setting that is characterised by a feeling of possessiveness, and by attempts to control the appearance and use of space.137

Even though ‘human territorial behaviour cannot be said to be directly tied to survival as it is in animals’,138 Brower has claimed that ‘the fact that it is so widespread suggests that it must serve an elemental purpose’.139 The strength of territorial behaviour in human beings is revealing as to the importance of the meaning of the home as territory. The idea that occupiers would exhibit territorial behaviour in the home environment is evident, since the occupied home is clearly a ‘primary territory’—that is, a place ‘where one spends most of one’s time and interacts with one’s primary reference group’.140 In fact, the function of the home as territory satisfies a range of social and psychological needs: home is the sole area of control for the individual; home is the most appropriate physical framework for family and family life; home is a place of self-expression; and home provides a feeling of security.141 These responses are generally recognised as positive for the occupier, since ‘[i]n stable circumstances a deep embeddedness can be beneficial by providing a stable sense of self in connection with environment’.142 The home also provides the spatial framework of the occupier’s life and through its familiarity can foster a sense 133 SN Brower, ‘Territory in Urban Settings’ in I Altman, A Rapoport and JF Wohlwill, Environment and Culture (New York, Plenum Press, 1980), 179–80. 134 Ibid, 180. 135 Ibid. 136 Ibid. 137 Ibid. 138 Ibid, 181. 139 Ibid. 140 Ibid, 184–5. 141 Rapoport, above n 62, 30; see also Sebba and Churchman, above n 73. Brown and Perkins also noted that: ‘[p] lace attachments clearly promote and reflect stability, signifying long term bonds between people and their homes and communities’: BB Brown and DD Perkins, ‘Disruptions in Place Attachment’ in I Altman and SM Low, Place Attachments (New York, Plenum Press, 1992) 280. 142 Ibid, 282.

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of belonging,143 ‘rootedness’144 and continuity.145 Furthermore, the occupier’s response to these features of home is regarded as instinctual—since, ‘[a]s with other members of the biosphere, too, humans display marked patterns of territoriality’.146 The function of territoriality is ‘to regulate social interaction’147 since ‘[s]patial separation makes it possible to create different settings for different uses, and so to reduce opportunities for conflict’.148 Many of the values associated with territoriality are linked to the idea that, for occupiers to enjoy the benefits of home as territory, they must have a satisfactory degree of control over their home territories. The object of establishing a territorial space is to achieve privacy and control, to ‘create predictable environments with an accompanying sense of order and security’.149 For this reason, the notion of ‘home as territory’ is heightened by the ideologies of home ownership, with their expectations of enhanced control, privacy and security. The significance of home ownership in the context of the meanings and values of home is considered further in Chapter 5. It is interesting to note that Brower’s analysis of territoriality indicated that the positive benefits of ‘home as territory’ are not necessarily dependent on home ownership: rather, they pertain to the occupier’s response to the property.150 Nevertheless, ‘the cultural meanings of home are compounded by the additional cultural meanings of home ownership’.151 Culturally, home ownership is perceived as conferring greater freedom and independence, and as giving the home owner a greater degree of control. Yet, as Marcuse has argued, the extent to which home ownership in fact ‘delivers’ on these meanings depends on the legal framework that governs ‘home-type’ interests in any particular jurisdiction.152 Marcuse reasoned that the characteristics associated with home, such as control, status and privacy, are not inherently enhanced by home ownership. Rather, the factors which are cited in support of the proposition that home ownership provides a more meaningful home experience, security of tenure, control, and so on, 143 Sixsmith, above n 73; SG Smith, ‘The Essential Qualities of a Home’ [1994] Journal of Environmental Psychology 31 at 32. 144 This has been described as ‘the physical experience of feeling anchored to a place’: Smith, above n 143, 32. 145 ‘[H]aving a place to return to, where one feels a sense of belonging, also engenders feelings of continuity, stability and permanence’: ibid, 32. 146 Buttimer, above n 27, 167. 147 Brower, above n 133, 181. 148 Ibid. 149 Ibid. 150 ‘Attachment should not be equated with ownership. It is true that a sense of attachment frequently accompanies the acquisition of legal title to a place, but it does not necessarily come with it. On the other hand, lack of ownership may exclude or hamper certain forms of appropriation, but people often appropriate places they do not own’: ibid, 193. 151 J Fitchen, ‘When Toxic Chemicals Pollute Residential Environments: The Cultural Meanings of Home and Home Ownership’ (1989) 48 Human Organisation 313 at 318. 152 P Marcuse, ‘The Ideologies of Ownership and Property Rights’ in R Plunz (ed), Housing Form and Public Policy in the US, (New York, Praeger, 1980) 41.

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could be, if governments chose to do so as a matter of policy, built into the law in relation to the homes of tenants, thus ensuring that these characteristics of home could be experienced in the same way by renters. This analysis also raises questions concerning the effectiveness of the ‘owned home’ as a source of satisfaction for territoriality, in light of the creditor/occupier context. The problem of ‘unsustainable home ownership’ in contemporary Britain153 has implications for the meaning of the owner-occupied home as territory. On the one hand, territoriality is heightened when the home is placed under attack. When occupiers are faced with the forced loss of their homes through creditor possession actions, there is a tendency to become more territorial in order to counter the threats made to personal security, to self-esteem, or to self-identity. Empirical research154 has shown that: as anxiety, stress, and nervousness increased there was an increased tendency for individuals to become territorial with respect to their own beds, chairs, and spaces at the table. On the other hand, as levels of stress and anxiety decreased, territorial behaviour became less evident.155

One particular aspect of territorial defensiveness that is interesting with reference to creditor possession actions is the different types of responses occupiers may have to the threat of interference with their home territory. Brower has claimed that: As threat or the perception of threat increases, territorial behaviour tends to become more defensive . . . There are several different ways of handling increased threat. One is to defend all claims more aggressively. Another is to shrink the boundaries of one’s claims, falling back to the territories that are most defensible—much like retreating to one’s bedroom to avoid having to face unwelcome guests in the living room. Yet another strategy is to renounce, or at least not to press, one’s claims to ineffective types of occupancy . . . The last two strategies may well result in the abandonment of territorial claims.156

It is pertinent to consider this analysis of territorial claims against the range of responses that occupiers might have to creditor actions against their properties. Mortgage possession may be either voluntary—whereby the occupiers either abandon or surrender the home or where they give up possession by voluntary agreement with the lender and return the keys; or compulsory—whereby the occupiers refuse to leave and the creditor is required to obtain a court order for 153

See Ford, Burrows and Nettleton, above n 9; see also nn 76–82 and associated text. I Altman, D Taylor and L Wheeler, ‘Ecological Aspects of Group Behaviour in Social Isolation’ (1971) 1 Journal of Applied Social Psychology 76. 155 Brower, above, n 133, 182. 156 Ibid, 190–1. 154

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possession. Occupiers’ responses to the threat of possession can be mapped onto the types of responses identified above, in relation to territorial threats. Occupiers at risk of losing their homes may defend their claims more aggressively; shrink the boundaries of their claims; or renounce their claims to ineffective types of occupancy. The occupier who willingly gives up possession of the property at the request of the creditor can be regarded as having renounced their claim to ineffective occupancy. There are various systemic reasons why the lender would prefer to take possession voluntarily. If the occupier willingly gives up possession, without requiring the creditor to instigate court proceedings, this saves resources, in the form of administrative and court costs, and time. Yet, on the other hand, the borrower may face the possibility that they could be regarded as ‘intentionally homeless’ for the purposes of rehousing by the local authority.157 It would be interesting to know more about the extent to which the priority currently afforded to creditors’ claims in the context of actions against the occupied home has led to occupiers and creditors ‘bargaining in the shadow of the law’. On the other hand, occupiers may not be directed in their response to the threat of possession actions by the likely outcome of a court action, but may be motivated by other, territorial factors: for example, research has indicated that ‘[h]ouseholds with children were more likely to want to stay put, regardless of how they now viewed the house and all the associated financial problems’.158 The tendency to defend one’s territory when faced with threats is generally regarded as a positive response. Some studies have suggested that ‘defensive behaviour associated with appropriation of space will not only increase the occupant’s feeling of security, but will also discourage criminal activity’.159 Furthermore, when occupiers experience a strong sense of attachment to their home territories, this is consonant with positive self-image and social identity—thus, ‘it is those territories that reflect a sense of personal or community worth that will, in the face of a challenge, be most tenaciously defended’.160 Territoriality in the home environment is ‘associated largely with the symbolic qualities of a site, with relationships between the space and objects in it, and the experiences, aspirations, and condition of the occupants’.161 The territory of home has also been described as psychologically significant because it provides a ‘locus in space’ for its occupiers—a place to come back to.162 Dovey linked this aspect of home territory—‘acquiring a fixed point’—with the occupier’s sense of 157

Ford, Burrows and Nettleton, above n 9, 132–3. H Christie, ‘Mortgage Arrears and Gender Inequalities’ (2000) 15 Housing Studies 877 at 896. 159 Brower, above n 133, 191; see also J Jacobs, The Death and Lives of Great American Cities (New York, Random House, 1961); O Newman, Defensible Space: Crime Prevention through Urban Design (New York, Macmillan, 1972). 160 Ibid, 192. 161 Ibid, 193. 162 Hayward, above n 63, describes this as a process of ‘geographic orientation’ that changes the world from homogenised space to differentiated space. 158

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identity:163 ‘to be at home means to know where you are; it means to inhabit a secure centre and to be oriented in space’.164 Furthermore, it has been suggested that even colloquial idioms about home reflect a real and experienced response to the territorial characteristics of home. Following an empirical study on the ‘essential qualities of home’ in the early 1990s, Smith concluded that ‘[s]uch common expressions as “a man’s home is his castle” are supported by . . . research findings, which suggest that this feeling of control within the home is salient for most people and is linked to the satisfaction of basic psychological needs’.165 Smith further highlighted the beneficial psychological outcomes for the occupier who can establish security and control within the territory of home.166 This direct correlation between the territoriality of home and the psychological health of occupiers is also supported by Porteous, who adds that the territorial satisfactions provided by home—identity, security and stimulation—are not only beneficial, but necessary for psychological health.167 It is important to note, however, that not all home occupiers will experience the positive benefits associated with territoriality, such as identity, security and stimulation. For example, when the home becomes a place of danger, the positive associations of home—as a place of safety, of security, of control over oneself and one’s environment—become subverted, and the effect can be psychologically very damaging. This aspect of home has been emphasised by feminist theorists, who have highlighted the darker side of home as a common site of domestic violence and fear within families.168 The negative aspects of home—as ‘a prison and a place of terror as well as a haven or place of love’169—indicate that ‘[t]he concept of home as a sanctuary or place of secure retreat does not necessarily hold true for those in weaker positions in the domestic power relationships’170 This perspective, along with other aspects of the traditional feminist response to home, such as the

163

See further, below. Dovey, above n 16, 36. 165 Smith, above, n 73, 32. 166 ‘When individuals control space and have privacy needs met, feelings of comfort and freedom are possible. This freedom implies being able to relax and do as one wishes’: ibid. 167 JD Porteous, ‘Home: the Territorial Core’ (1976) 66 Geographical Review 383. This proposition is supported by research findings concerning the psychological effects of loss of home, discussed in Ch 3. 168 The issues raised by this discourse have been extensively discussed elsewhere: see, eg, E Stanko, ‘Fear of Crime and the Myth of the Safe Home: A Feminist Critique of Criminology’ in K Yllo and M Bograd (eds), Feminist Perspectives on Wife Abuse (London, Sage, 1988) 75; E Sarage, ‘Dangerous Places: The Family as a Site of Crime’ in J Munchie and E McLaughlin (eds), The Problem of Crime (London, Sage, 1996), 184; L Moran, ‘The Poetics of Safety: Lesbians, Gay Men and Home’ in A Crawford (ed.), Crime, Insecurity, Safety in the New Governance (Cullompton, Willans Publishing, 2001). 169 Moore, above n 53, 212. 170 Ibid. 164

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argument that the benefits of home are acquired at woman’s expense,171 has often led feminist critics to reject the values of home.172 Another ambivalent feature associated with the idea of home as a territorial ‘haven’ is the implicit suggestion that the outside world is a place to be feared. Saegert claims that ‘[a]t deeper and less consciously accessible levels, being anchored in home may always be an ambivalent feeling. When the home is considered a haven, it implies the world requires being hidden from’.173 This aspect of territoriality appears to have particular salience for women. An empirical study by Smith revealed that: [t]he positive features of the present home as described by men and women are very similar. The issue of security was addressed by a quarter of the women and none of the men, however, suggesting that for some women at least, feeling secure at home is something they would like to preserve.174

Although Smith presents the focus on security by women as a positive attribute of home, this response could alternatively be regarded as reinforcing the proposition propounded by some commentators that the desire for security in the home amongst women ‘impl[ies] the world requires being hidden from’.175 In another study, Saegert identified a tendency amongst women to ‘experience the home as a stronger anchor in their lives than do men’.176 Again, however, this prima facie positive experience has been associated with negative connotations for women, and the possibility that ‘the home as anchor’ results from women’s ‘assignment to and identification with domestic duties and . . . their great fear of crime and harassment in the world away from home’.177 Smith acknowledged that ‘[i]n looking at the personal themes, a great proportion of women expressed dissatisfaction with present levels of freedom and privacy, with themselves, or with their present roles within the home’.178 This line of reasoning also reinforces the feminist public/ 171 That is, that ‘[w] omen serve, nurture, and maintain so that the bodies and souls of men and children gain confidence and expansive subjectivity to make their mark on the world. This homely role deprives women of support for their own identity and projects’: IM Young, ‘House and Home: Feminist Variations on a Theme’ in D Olkowski (ed), Resistance, Flight, Creation: Feminist Enactments of French Philosophy (Cornell, NY, Cornell University Press, 2000) 49. 172 The negative values of home from a feminist perspective have been extensively explored: see, eg, B Martin and C Mohanty, ‘Feminist Politics: What’s Home Got to Do with It?’ in T de Laurentis (ed), Feminist Studies/Critical Studies (Bloomington, Ind, Indiana University Press, 1986) 191; T de Laurentis, ‘Eccentric Subjects: Feminist Theory and Historical Consciousness’ (1990) 16(1) Feminist Studies 115; B Honig, ‘Difference, Dilemmas, and the Politics of Home’ (1994) 61(3) Social Research 563. 173 S Saegert, ‘The Role of Housing in the Experience of Dwelling’ in Altman and Werner, above n 7, 290. 174 Smith, above n 73, 38. 175 Saegert, above n 173, 290. 176 Ibid. 177 Ibid. 178 Smith, above n 73, 39.

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private analysis which rejects the positive characteristics of home because it is regarded as a private sphere, and thus as a place of confinement for women. The significance of gender in relation to the meanings and values of home in general, and the creditor/occupier context specifically, is considered in more detail in Chapter 8. The significance of ‘home as territory’, and particularly the desire for the experience of security in the home, is heightened by the association between home and family. Evidence from a number of empirical studies has indicated that ‘a critically important function of the home is the sense of security that it is supposed to offer’,179 and that the popular perception of home as a ‘place of security and protection’ is heightened when the family home is occupied by children.180 The additional currency of the family home has been recognised to a certain extent in the context of creditor/occupier disputes. The significance of ‘family’ in the context of legal discourse surrounding ‘home’ is considered further in Chapter 7. Parliament has passed a number of measures which ostensibly protect the family home, including provisions for ‘matrimonial home rights’ under the Family Law Act 1996,181 and section 336 of the Insolvency Act 1986, which makes special provision for the family home in the event of bankruptcy. Although these provisions have not generally translated into actual protection against creditors in the event of default,182 they indicate the legislative tendency to focus on family as a trigger for protection of home. In a similar vein, judicial policy has also taken account of the fact that a property is a matrimonial home in the context of charging orders.183 Although the outcome generally remains the same—creditors almost invariably prevail, and ultimately an order for sale is often granted—where any policy initiative has been directed at the interests of occupiers in the home, it has tended to reinforce the understanding of home as ‘protected territory’ on the ground of its use and occupation by the family. Another significant factor in relation to home as territory is the idea of the home territory as a private space. Research has repeatedly established the importance of the home territory as a site of privacy and autonomy for occupiers:184 for example, Porteous described home as a ‘haven for everyone in a public world where we are valued less for ourselves than for the roles we play. In essence, the possession 179

Fitchen, above n 151, 316. Ibid. 181 This superseded the ‘rights of occupation’ created by the Matrimonial Homes Act 1967. 182 The provisions of the Family Law Act 1996 come into play against a creditor only when the non-debtor spouse has registered ‘matrimonial home rights’ as a charge prior to the credit transaction. A creditor is unlikely to come into conflict with such a charge because a simple search reveals the registration of the rights, and a creditor will then request either that the charge is removed or that the nondebtor spouse is joined in the transaction. In circumstances of bankruptcy, the impotence of s 336 was illustrated by judicial attitudes towards applications for sale in the context of bankruptcy: see Ch 2. 183 See Harman v Glencross [1986] 2 WLR 637 at 648; discussed above, Ch 2. 184 See Fitchen, above n 151, 318. 180

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of a home confers certain valuable rights of privacy and autonomy on the occupant’.185 Of all the intangible aspects of home meanings, the idea of the home as a private territory may be the most recognisable to legal discourse. The idea that: ‘an Englishman’s home is his castle’ had its origins in the 1604 decision in Semayne’s Case, when Coke CJ commented that ‘the house of everyone is to him as his castle and fortress’.186 Almost four centuries later, this maxim was described as having ‘immense importance in the history of this country, and it still has immense importance’.187 Although the idea of a right to privacy in English law has presented analytical difficulties,188 there is considerable potential for the development of the privacy aspect in the context of a legal concept of home. The right to respect for home under the European Convention on Human Rights189 is embedded in the overall context of Article 8, which states that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’. Yet, to date, various attempts to invoke the Article 8 protection in the context of disputes between creditors and home occupiers have been unsuccessful.190 Although the Court of Appeal appeared to acknowledge the potential relevance of Article 8 in this context in Albany Home Loans v Massey,191 postincorporation attempts to invoke the Article 8 reference to home against a

185

Porteous, above n 167, 386. (1604) 5 Co Rep 91a at 91b, 77 ER 194 at 195. 187 Swales v Cox [1981] QB 849 at 855A–B. 188 See, eg, G Phillipson, ‘Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66 Modern Law Review 726. 189 Art 8 is included in Sched 1 to the Human Rights Act 1998 as one of the ‘Convention Rights’ to be given effect to in UK domestic law. The right to respect for ‘private and family life, his home and his correspondence’: in Art 8(1) is qualified by Art 8(2), which provided that: ‘[t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. 190 See Karia v Franses [2001] All ER(D) 61 (ChD) (BLD 1311013709), where the applicant’s contention that the proposed sale of his home by the trustee in bankruptcy would breach his rights under Art 8 was described as ‘greatly exaggerated’. In Birmingham Midshires Mortgage Services Ltd v Sabherwal (1999) 80 P&CR 256 the Court of Appeal considered the impact of Art 8 in a case concerning priority between the interests of a secured creditor and the occupier of a home. Although the Article 8 claim was rejected on the basis that the Human Rights Act 1998 was not yet in force, Walker LJ added, ‘I do not see that it gives Mr Beaumont any assistance in this case . . . BMMS is not a public authority. The judge’s order was made in accordance with law and it was necessary for the protection of BMMS’s rights as a secured lender’: at [34]. 191 [1997] 2 All ER 609. The decision in Massey involved a married couple, joint mortgagors of the family home. Following default on the mortgage, the mortgagee applied for a possession order. However, Mrs Massey raised a successful defence of undue influence. The Court of Appeal was therefore required to consider whether the creditor’s request for possession ought to be granted notwithstanding her continuing interest in the home. Schiemann LJ referred to Art 8 of the ECHR, and stated, ‘This, as it seems to me, whilst not enacted as part of our domestic law, provides a clue to the solution to the problems posed by this case’: ibid, at 612. 186

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creditor have not yet been fruitful.192 For example, in Ebert v Venvil,193 Mrs Ebert sought to appeal orders granted to permit the sale of her home by her husband’s trustee in bankruptcy. Although Aldous LJ acknowledged that ‘[i]t is always traumatic to be evicted from the family house . . . and one cannot but have very great sympathy for her’, the applicability of Article 8 was dismissed with the statement that: Mr Ebert has been adjudicated bankrupt. The case has been finally settled. He owned half the house. The only way his creditors could get recompense was by the house being sold. In those circumstances the European Convention has no application at all. The European Convention is not a charter which allows bankrupts to avoid paying the money which the courts have held to be owing to creditors . . . It is a Convention protecting people from encroachment into their basic rights. It is not a document which allows people to avoid paying their debts.194

The significance of human rights discourse on the legal concept of home is considered in more detail in Chapter 10, which also explores more recent case law suggesting that the balance struck between the commercial interests of creditors and the home interests of occupiers may be subjected to greater scrutiny under the ambit of the Human Rights Act 1998.195 Yet, while the associations between the recognition of the right to privacy and the ‘home as territory’ can, from one perspective, be regarded as a platform on which to develop the meaning of home within human rights discourse, there has also been some evidence to suggest the opposite effect. Although the right to respect for home per se is set out in Article 8, the provision, considered collectively, has typically been viewed as being mainly concerned with privacy.196 The limiting effect of this perspective on the idea of an autonomous concept of home in law was highlighted in London Borough of Harrow v Qazi.197 Although, as this chapter seeks to demonstrate, the concept of home is a complex and multi-dimensional amalgam of meanings and values, the majority of the House of Lords focused on only one of these aspects of home meanings: the right to privacy within the home. Lord Hope reasoned that, since the other limbs of Article 8—the right to respect for private and family life and correspondence—were concerned with privacy, the reference to respect for home in Article 8 was simply another aspect of the more 192 Although HP Richman, ‘Using the Human Rights Act to Save the Family Home’ (2001) 150 New Law Journal 1102 raised arguments based on Art 8, these were speculative only, and she does not present any authority to indicate that the courts will be sympathetic to her proposed reasoning. 193 [2000] Ch 484. 194 Ibid, [16]–[18]. 195 See, eg, Barca v Mears [2004] EWHC 2170; see further Ch 10. 196 ‘As a collective noun designating the rights involved in Article 8, the “right to privacy” is often used nowadays’: P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights (3rd Edn, The Hague, Kluwer Law International, 1998), 489. 197 [2003] UKHL 43.

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general right to privacy afforded by Article 8.198 Article 8 was delineated as a provision conferring rights with respect to privacy in the home, but not with any of the other aspects associated with occupying the property as a home. As a result, the other meanings of home that are explored in this chapter, including home as a financial investment; home as physical structure; home as safety, security, locus in space, and all the other aspects of territory; home as identity, and home as a sociocultural unit, were effectively excluded from Article 8 discourse. The significance of this decision is discussed further in Chapter 10. Nevertheless, as this section has demonstrated, the significance of ‘home as territory’ is in itself a complex cluster of values for the home occupier. Although some of the attributes of the territorial satisfaction derived from home can arguably be achieved in other types of territory, home has been regarded as particularly significant because it provides ‘a special setting in which one makes commitments to those relationships’.199 The ‘special’ aspect of home as a territory is thus derived not only from the values that the home represents—family, privacy, security, control—but also from the broader meanings—sense of belonging, rootedness, personal orientation and continuity—which home is thought to foster. These meanings and values are also intrinsically linked to the next cluster of ‘home-type’ interests considered: ‘home as identity’. The phenomenon of ‘home as identity’ is also linked to the territoriality of home, and the idea that the home is (by and large) regarded as a place of safety and security. For example, the impact of disruptions in attachments to home is exacerbated by the expectation that ‘[n]ormally homes provide a secure and private place where one’s identity is protected’.200 The home territory is regarded as the key site in which the occupier should be able to feel secure, and threats to this territory have implications for the occupier’s identity and self-identity.

Home as Identity ‘Home as identity’ represents another significant cluster of meanings associated with the phenomenon of home. For one thing, the context of ‘home as identity’ provides the principal framework within which the emotional connotations of home are expressed. While the role of the home as a financial investment, as a physical structure providing shelter, and even as a valued territory can all be regarded as having a ‘strong cognitive element’, the meanings of home associated with identity are ‘primarily affective and emotional, reflecting the adage home is 198 ‘The emphasis is on a person’s home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person’s right to peaceful enjoyment of his home as a possession or as a property right’: ibid, [50]. 199 Hayward, above n 6, 12. 200 Brown and Perkins, above n 141, 285.

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where the heart is’.201 Yet, while the idea of ‘home’ as an emotional attachment may appear to undermine these meanings within legal discourse, it does not render the significance of the home as identity any less real. In fact, the significance of the home as a reflection of the occupier’s identity is not difficult to grasp from a lay perspective. For one thing, the importance of the home as a symbol of identity is reflected in the sense of pride that dwellers take in their homes. Empirical studies have shown that ‘[p]hysical settings and artefacts both reflect and shape people’s understandings of who they are as individuals and as members of groups’.202 The importance of the home as a physical setting for everyday life, combined with the significance attached to the way that the home is presented, from interior décor to landscaping, indicates the extent to which the home is felt to reflect the occupier’s identity. The idea that a person’s home is significant for their identity is rooted in the philosophical foundations of dwelling, space and sense of place discussed earlier in this chapter. Dovey has argued that ‘the phenomenon of home is more than the experience of being oriented within a familiar order; it also means to be identified with the place in which we dwell’.203 The synthesis of home and identity is forged through the experience of living/dwelling in a particular place over a period of time. Through the investment of time and energy by the occupier(s), the house that the occupiers began to dwell in becomes a home containing ‘personalisations and objects that signify relationships, past events, personal achievements, values, and pleasures that help to define individual and communal aspects of the self’.204 In fact, in addition to occupiers investing the identity of ‘the self’ in the property, Rapoport has argued that the meanings associated with one’s environment are critical and central to establishing group identity,205 and in conveying cultural meanings to children.206 It has been suggested that, as well as having symbolic significance for the individual occupier, ‘[h]ome is a projection and basis of identity, not only of an individual but also of the family’.207 This has interesting implications for the arguments surrounding ‘home as family home’ and ‘children and the home’, which are explored further in Chapters 7 and 9. In unpacking the meaning of ‘home as identity’ it is instructive to consider how a home can come to reflect and represent the occupier’s identity. This is particularly interesting, since there is a clear parallel between the idea of ‘home as 201

Dovey, above n 16, 40. Brown and Perkins, above n 141, 280. 203 Dovey, above n 16, 39–40. 204 Brown and Perkins, above n 141, 285. 205 A Rapoport, ‘Identity and Environment: a Cross-cultural Perspective’ in JS Duncan (ed) Housing and Identity: Cross-Cultural Perspectives (London, Croom-Helms, 1981). 206 A Rapoport, ‘The Environment as an Enculturing Medium’ in S Weidemann and JR Anderson (eds), Priorities for Environmental Design Research: EDRA 8 (Washington DC, EDRA, 1978). 207 J Pallasmaa, ‘Identity, Intimacy, and Domicile—Notes on the Phenomenology of Home’ in Benjamin, above n 57, 137. 202

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identity’ and the legal theory of ‘property for personhood’. When home scholars have explored the process by which a property becomes identified with the occupier, they have recognised two distinct, but related, processes. On the one hand, the property itself—the home—generates or contributes to the occupier’s social identity, while, on the other hand, the occupier invests his self-identity into the house through the process of dwelling. Dovey described this process as ‘a certain bonding or mergence of person and place such that the place takes its identity from the dweller and the dweller takes his or her identity from the place . . . an integrity, a connectedness between the dweller and the dwelling’.208 Similarly, when the home has been described as an ‘identity shell’,209 this reflected the idea that homes both ‘provide autonomy and a space to develop an identity, and they are “cultivators” and symbols of the self’.210 Thus, the relationship between home and identity is symbiotic—the home provides ‘a world in which a person can create a material environment that embodies what he or she considers significant’,211 while, in return, ‘the home becomes the most powerful sign of the self of the inhabitant who dwells within’.212 This analysis of home has strong correlations with the idea of home portrayed by property theorists in the discourse of ‘property for personhood’, which is discussed further in Chapter 6. The personhood theory, as expounded by Radin, asserted that in certain situations the relationship between a person and a particular item of property, for example the home, may be so strong that the property becomes constitutive of the occupier’s identity or ‘personhood’. Radin’s analysis drew upon the Hegelian justification for private property, which posited that ownership was accomplished by the person placing their will into the object,213 and by this process becoming manifest as a person in the world: that is, the achievement of private property was instrumental in generating the individual’s identity or ‘personhood’. Radin drew upon this symbiosis of property and personhood to argue that certain types of property, in which personhood had been invested by the individual, are ‘worthier of protection than other property’.214 For Radin, the home represented a quintessential example of ‘worthy’ property, since ‘in our social context . . . [t]here is both a positive sense that people are bound up with their homes and a normative sense that this is not [undesirable]’.215 Radin further 208

Dovey, above n 16, 40. See H Dittmar, The Social Psychology of Material Possessions (Hemel Hempstead, Harvester Wheatsheaf, 1992) 113. 210 Ibid. See also Pallasmaa, above n 207, where it is argued that, as a consequence of this process of self-identity through home, home becomes ‘a collection and concretization of personal images of protection and intimacy, which help one recognise and remember who one is’: at 135. 211 Csikszentmihalyi and Rochberg-Halton, above n 73, 123. 212 Ibid. 213 G Hegel, Philosophy of Right (original, 1821; trans T Knox, Oxford, Oxford University Press, 1967). 214 MJ Radin, Reinterpreting Property (Chicago, Ill, University of Chicago Press, 1983) 48. 215 Ibid, 54. 209

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argued that, in some circumstances, the law of the United States had implicitly recognised the ‘traditional connection between one’s home and one’s sense of autonomy and personhood’.216 Since ‘home as identity’ is not only intangible but primarily affective, it is difficult to capture its significance for the purposes of legal analysis. However, as with the other ‘x factor’ meanings, empirical studies and theoretical analysis have done much to inform our understanding of ‘home as identity’, and, by extension, the potential effects of losing home on the occupier’s identity. There are two main constituent elements to home as identity, both of which are principally associated with the symbolic significance of home for its occupiers. On the one hand, the psycho-analytical perspective addresses the importance of home in an occupier’s selfidentity: that is, ‘home as a symbol of one’s self’, and suggests a deep connection between the home and the human spirit.217 The intimacy of the connection between home and self-identity is reflected in the claim that, ‘[a]fter the body itself, the home is seen as the most powerful extension of the psyche’.218 This is highlighted, as noted above, in the idea of the home as representative of the occupier’s ‘self’. Thus: The house façade and the interior design seem often to be selected so that they reflect how a person views himself both as an individual psyche, and in relation to the outside world, and how he wishes to present his self to family and friends.219

The most extreme illustration of this perspective is perhaps Carl Jung’s claims that he dreamt of himself as a house.220 Psychoanalytical psychologists explain this fusion between ‘self’ and ‘home’ as symbolic of the home as ‘a centre, a place in which possessions and display represent identity; home and self become merged’.221 On the other hand, phenomenological philosophers have linked the associations between home and identity with the function of memory. Malpas, for example, argued that ‘memories, particularly memories that have some personal or autobiographical component, are typically keyed to particular spaces and places’,222 so that, like us, our memories are ‘housed’ in the places where we live. Yet another perspective on the role of home as an element of the occupier’s selfidentity addresses the way in which an identity in the home enables its occupiers 216

MJ Radin, Reinterpreting Property (Chicago, Ill, University of Chicago Press, 1983), 57. Dovey, above, n 16, 40. 218 Despres, above n 73, 100. 219 C Cooper, ‘The House as a Symbol of the Self’ in J Lang (ed), Designing for Human Behaviour: Architecture and the Behavioural Sciences (Stroudsburg, Penn, Dowden, Hutchinson, & Ross, 1976) 136. 220 C Jung, Memories, Dreams and Reflections (London, Collins, 1969) 253; see further C Cooper, ‘The House as Symbol’ [1974] Design and Environment 30. 221 Perkins and Thorns, above n 49, 125. 222 Malpas, above n 21, 176. 217

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to project their own self-identities into the future, since ‘[k]nowing that we have the power to remain in a place and change it permits us to act upon and build our dreams’.223 The second central element of ‘home as identity’ is based on the sociopsychological theory that home is an integral element of the occupier’s social identity. The prevalence of this tendency to identify home with one’s social identity is highlighted by the observation that: In the most basic sense, a person needs to have a home, an address, a place with which to be identified officially and legally, in order to transact most personal business, to vote, or to claim various benefits. Not having a residence carries a stigma, whether one is described in the newspaper’s police blotter as having ‘no known address’ or as being among ‘the homeless’. Moreover, the particular home one occupies is both a source and a tangible expression of the identity of its occupants, as environmental psychologists have found.224

The significance of home as a source of social identity and respectability emerged in Ford, Burrows and Nettleton’s social analysis of mortgage possession actions.225 One of the findings that emerged from this study was the impact of shifting social status for repossessed occupiers. The experience of having their homes repossessed also raised issues of stigma and shame for occupiers. For example, Ford et al reported that ‘a number of people said they had been caught short by the awful realisation that they were now “homeless” ’.226 Many participants also emphasised the significance of shift from ‘owner’ to ‘renter’, and particularly to ‘council tenant’, for their social identity. The researchers reported that ‘[a] number of people said that they felt they were now regarded as “second-class citizens” who were “dependent” on the state. A few respondents even said that they felt that they would now be classed as part of the “underclass” ’.227 Ford et al also recorded the impact of mortgage possession actions on the occupiers’ self-identities. Their research supported the argument that in the context of ‘home as identity’: the personal and the social are inextricably interwoven; that representation of identity in the home stems from both social structure and our quest for personal identification within it. The home is both a ‘statement’ and a ‘mirror’, developing both socially and individually, reflecting both collective ideology and authentic personal experience.228

223 224 225 226 227 228

Dovey, above n 16, 43. Fitchen, above n 151, 317. Ford, Burrows and Nettleton, above n 9; see further, Ch 3. Ibid, 148. Ibid, 149. Dovey, above n 16, 40.

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For example, the study reported that ‘for many, social isolation was intensified by both felt and enacted stigma’.229 The impact of self-identity was demonstrated in the way that ‘[p]eople described how the experience had impacted on how they felt about themselves and also what they felt they could and could not do. In particular, the experience had far-reaching consequences for some people’s selfconfidence and self-esteem’.230 Again, this was exacerbated by the downgrading of their social identity. Ford et al reported that for some occupiers: people whom they had considered to be friends lost contact with them after the possession. For some, the experience undermined relationships with family as well as friends, especially where people had definite ideas about the ‘deserving and undeserving poor’. One couple reported how they still felt shame and embarrassment some four and a half years after the actual possession.231

Children and young people who had been repossessed found it embarrassing to have to tell their friends, and also found the change in social identity from ‘owner’ to ‘renter’ to be difficult. Finally, this study reported that ‘[t]he vast majority of the participants in the study felt that they had lost self-confidence and self-esteem. The majority also said they had been severely depressed, many receiving medication for it’.232 The impact of losing one’s home through mortgage repossession, and, indeed, the complexity of the costs that are triggered by such events, were set out in Chapter 3. Numerous studies have recognised that the loss of one’s home, particularly the forced loss of home, is traumatic and stressful, and has been linked to ill health. It has become clear that the losses experienced by occupiers who are repossessed by creditors are not restricted to the loss of physical shelter (the house) but are exacerbated by the affective attachment between the dweller and their home. The experience of losing one’s home is a reaction to what is lost—not only physically, but psychologically, socially and emotionally. The effect of such experiences on the function of the home as a source of identity was highlighted by Brown and Perkins in their study of disruptions in place attachment.233 Their empirical analysis indicated that ‘[p]lace attachments are integral to self-definitions, including individual and communal aspects of identity; disruptions threaten selfdefinitions’.234 Research into the consequences of creditor possession actions supports the argument that losing one’s home at the hands of a creditor has serious implications for identity. In fact, it would seem that since ‘people’s sense of both 229 230 231 232 233 234

Ford, Burrows and Nettleton, above n 9, 161. Ibid, 149. Ibid, 161. Ibid, 162. Brown and Perkins, above n 141. Ibid, 280.

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personal and cultural identity is intimately bound up with place identity, loss of home or ‘losing one’s place’ may often trigger an identity crisis’.235 As the discussion in Chapters 1 and 2 illustrated, there has been evidence that ‘home-type values’ have influenced the development of English law at various junctures, but without reference to any central organising concept. Specifically, in recent years, the absence of any conceptual frame of reference has meant that home interests are relatively easily dismissed when ranked against more ‘coherent’, rationally supported claims. For example, in the context of creditor/occupier disputes, the significance of the occupier’s ‘home interest’ has not carried much weight against the commercial claim of the creditor. It has been suggested that this is particularly significant in light of the policies adopted towards home ownership in Britain. The ideologies of home ownership have promoted the idea of the owned home as a means of achieving control, ontological security and autonomy.236 Owning one’s own home is significant for social identity, since it grants membership of a respected category of people—in part because it demonstrates one’s commitment to the work ethic. The owned home, the largest single expenditure most people ever make, requires many years of earning and saving, and represents a long-term commitment to the work ethic.237 Furthermore, the status conferred by home ownership is relevant in the context of an occupier’s selfidentity. As with the other meanings and values of home, these intangible associations can be subverted when the occupier’s relationship with the home is threatened. In fact, the impact of losing one’s home on identity is clearly linked to the social and cultural significance of the home, specifically the ‘owned’ home. The social and cultural ideologies of home ownership are discussed further in Chapter 5. Before embarking on this analysis, however, it is useful to complete this ‘unravelling’ of the meanings and values of home by considering the significance of the final ‘cluster’ of home-type meanings: the home as a social and cultural unit.

Home as a Social and Cultural Unit Much of the most recent research on home has focused on the concept of home as a social and cultural unit.238 Moore has observed that while there is a general trend of ‘renewed enthusiasm for examining home, which is drawing from decades of psychological and sociological exploration’,239 a prominent feature of this research has been a focus upon ‘the need to draw together the personal and the cultural’.240 Many commentators have emphasised the significance of social and 235 236 237 238 239 240

Buttimer, above n 27, 167. See Ch 5. Fitchen, above n 151, 320. See, eg, J Moore, ‘Placing Home in Context’ [2000] Journal of Environmental Psychology 207. Ibid, 207. Ibid.

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cultural influences on housing design,241 in recognition of the fact that ‘[t]he house is an institution, not just a structure, created for a complex set of purposes’.242 Analysis of the form and organisation of houses in different cultures reflects the various meanings associated with the social function and cultural significance of homes.243 Furthermore, the significance of socio-cultural meanings in relation to the contemporary home was highlighted by the comments of the President of the Association of American Geographers on ‘The Meaning of Housing in America’, when he claimed that ‘[h]ousing decisions reflect social drives for congregation and segregation within US cities, thus making social and cultural categories of urban society visible, intelligible, and stable’.244 This chapter has considered a range of meanings and values associated with home, from the tangible meaning of home as a physical structure and the intangible, but easily quantifiable, meaning of home as a financial investment, to the ‘x factor’ meanings associated with home as territory and home as identity. When locating the significance of the home as a social and cultural unit within this framework, it is instructive to bear in mind the argument that: Very early in recorded time, the house became more than shelter for primitive man, and almost from the beginning, ‘function’ was much more than a physical or utilitarian concept . . . If provision of shelter is the passive function of the house, then its positive purpose is the creation of an environment best suited to the way of life of a people—in other words, a social unit of space.245

It is important to bear in mind, however, that although the house was regarded as a significant socio-cultural unit from the earliest times, it was not until much later that the terminology of home was applied to reflect these additional meanings. In its broadest and most traditional sense, ‘home’ as a social and cultural unit referred to the nation state or ‘homeland’.246 In fact, the close socio-cultural 241 See, eg, P Ward, A History of Domestic Space: Privacy and the Canadian Home (Vancouver, University of British Columbia Press, 1999). 242 A Rapoport, as quoted in (1979) 46 Ekistics 129. 243 For essays on ‘Home as a Cultural Interpretation Tool’ and ‘Home as Reflection of Societal Contention and Change’ see Benjamin, above n 57: on home as a cultural interpretation tool, see R Tringham, ‘Archaeological Houses, Households, Housework and the Home’; NS Price, ‘House and Home in Viking Age Iceland: Cultural Expression in Scandinavian Colonial Architecture’; J Pallasmaa, ‘Identity, Intimacy and Domicile—Notes on the Phenomenology of Home’; and on home as a reflection of society, see JD Porteous, ‘Domicide: The Destruction of Home’; S Kent, ‘Ethnoarchaeology and the Concept of Home: A Cross-Cultural Analysis’; D Stea, ‘House and Home: Identity, Dichotomy, or Dialectic?’; F Herschend, ‘The Origin of the Hall in Southern Scandinavia’; and M Bulos and W Chaker, ‘Sustaining a Sense of Home and Personal Identity’. 244 JS Adams, ‘The Meaning of Housing in America’ (1984) 74 Annals of the Association of American Geographers 515; quoted in KO Doyle, ‘The Symbolic Meaning of House and Home’ [1992] American Behavioural Scientist 790. 245 Rapoport, above n 242. 246 Ibid, 208.

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associations between home, family and place of domicile that are implicit to the modern idea of home developed relatively recently.247 It was not until the seventeenth and eighteenth centuries that home came to be associated with ‘the personal and domestic, with “family life” ’,248 rather than a person’s place or country of birth. Of course, the meaning of home as a social and cultural unit varies across different contexts. While the idea of home is ‘a notion universal to our species, not as place, house, or city, but as a principle for establishing a meaningful relationship with the environment’,249 the experience of home is socially and culturally determined. For one thing, ‘individual interpretations of place always operate in a social context’.250 Taking as an illustration the range of meanings and values discussed in this chapter, it can be argued that each element of home meaning—for example, privacy, social identity or financial investment—can be identified as socially and culturally specific, not only to different regions, but to social and cultural groups within particular locations.251 Consequently, the socio-cultural significance of home can be regarded as a backdrop to the meanings and values associated with home, which have been set out in this chapter. For example, it has been argued that: ‘[i]n different cultures home has greater or lesser impact depending on the extent of privatism and home centredness’.252 Empirical research on home also indicates that the perception of the home environment as providing protection and representing security is also influenced by cultural factors. The image of home as a place of refuge is prevalent in many societies, and this is arguably bolstered by cultural representations of home. One example, drawn from a US context, is provided by Fitchen: An image of home as a refuge from the dangers of the outside world has deep historical roots in this society, perhaps captured in the mythical pioneer image of the rough cabin on the prairie, in which the husband-father is pictured protecting his family and its new home from the dangers of wilderness life. Though the nature of the perceived dangers has changed over time, the home is still thought of as the haven, where people, especially children, are safe.253

247 R Lawrence, ‘Deciphering Home: An Integrative Historical Perspective’ in Benjamin, above n 57, 58–9. 248 Hayward, above n 63, 3. 249 K Dovey, ‘HOME: An ordering principle in SPACE’ (1978) 22 Landscape 27. 250 Perkins and Thorns, above n 49. 251 In W Webster, Imagining Home: Gender, ‘Race’ and National Identity, 1945–64 (London, UCL Press, 1998), Webster sets out different and competing accounts of ‘home’ within British society, based on the discourses of race, class, health and nation. 252 Perkins and Thorns, above n 49, 125. 253 Fitchen, above n 151, 316.

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In fact, in many jurisdictions, it is the association with family that gives the contemporary home cultural centrality.254 Fitchen’s research into attachments to home indicated that, ‘[e]ven when children are not explicitly the focus, the family unit is apparent’.255 Another study256 reflected the popularly held view that ‘it is the presence of children and the activity of family life that makes a house into a home’.257 The significance of household groups has also emerged in relation to each of the clusters of value types considered in this chapter. Perkins and Thorns claimed that ‘[h]ow homes are made is the result of a complex process of social interaction amongst and between household members’.258 In the analyses of home as identity, territory, physical structure and financial investment, family emerged as a significant factor in each cluster of values: the desire for security within the home is enhanced by the presence of family, and particularly of children; the right to privacy in the home is realised through associations with ‘family life’; home as identity has family connotations; and family is identified as a significant sociocultural facet of home. The significance of the association between ‘family’ and ‘home’ in the context of creditor/occupier disputes is considered further in Chapter 7. It is interesting to note, however, that while there is evidence of legislative and judicial policy leanings towards protecting ‘family home’, rather than ‘home per se’, there is no evidence to suggest that these policies have been based on any explicit or systematic examination of the meanings of home to occupiers. Nevertheless, it is reasonable to infer that the tendency to confer greater legal protections on family homes may be implicitly derived from socio-cultural perceptions of ‘home as family home’. In light of the focus in this book on the specific context of the creditor–occupier contests under English law, it is pertinent to consider the relevance of the home as a social and cultural unit in the context of possession actions. The social and cultural significance of the home—particularly the owned home—has a notable impact on the experience of losing one’s home through repossession. The discussion above, in relation to the links between home as self-identity and socialidentity illustrated the consequences for the occupier of losing the ‘culturally cherished institution of home’.259 Particularly in jurisdictions with high levels of home ownership—such as the United Kingdom, Australia, New Zealand, Canada, and the USA—the socio-cultural significance of home is intrinsically linked to the importance of owning one’s own home, and this exacerbates the practical, 254 ‘Although the form of the family is undergoing change, the idea of family remains fundamental. By its association with family, the home, too, would hold cultural centrality’: Fitchen, above n 151, 315. 255 Fitchen, above n 151, 316. 256 Rakoff, above n 73, 93. 257 Ibid. 258 Perkins and Thorns, above n 49, 133. 259 Ibid, 315.

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emotional and psychological impacts of losing one’s home. For example, Finch and Hayes describe the home as: the embodiment of the modern domestic ideal, a suitable place to be occupied by ‘a family’. It is a place of security, privacy and comfort. The home is conceived of as something which is actively constructed, through a process which turns the raw materials of a house plus possessions into a home. It offers significant opportunities for its occupants to express their individuality and their taste, through the way in which they organise and furnish it. It is therefore, in a meaningful sense, a personal creation, probably the most significant material thing many people ever create, and certainly the most valuable. It is a material possession and, at the same time, a symbolic expression of the unique individual(s) who created it.260

Furthermore, the rise in owner occupation and the additional meanings and expectations associated with ‘owning one’s own home’ have played a major role in embedding these meanings, both socially and culturally. Finch and Hayes go on to argue that: This concept of home has . . . come to its full flowering in the UK in the second half of the twentieth century, when housing policies and relative economic prosperity have combined to make it possible for the majority of adult couples to occupy a separate dwelling for their exclusive use, and increasingly, to own that property.261

The particular issues highlighted by the relationship between the meaning of home and political, social and cultural ideologies of home ownership are considered in more detail in Chapter 5.

Conclusions The phenomenon of home has been described as a: ‘quality without a name’,262 and as ‘a feeling which can never be completely and definitively described’.263 Dovey has suggested that ‘[t]he meaning of a word, such as home, which does not define an object, can be understood by its use in ordinary language. I cannot present an explicit meaning, except to say that all of its uses in everyday life constitute its meaning’.264 Home is a difficult concept to pin down. It presents challenges of 260

Finch and Hayes, above n 99, 417–8. Finch and Hayes, above n 99, 417-8. 262 C Alexander, The Timeless Way of Building (Oxford, OUP, 1979). 263 IL Stefanovic, ‘Phenomenological Insights to Guide the Design of Housing’ (1984) 51 Ekistics 375 at 376. 264 Dovey, above n 249. 261

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definition and measurement and, as an ultimately experiential phenomenon, it is difficult to prove. These characteristics present particular difficulties in relation to the legal concept of home. One of the difficulties with ‘home’, from a legal perspective, is the inherent intangibility of the ‘home interest’. The phenomenon of home is ‘an intangible relationship between people and the places in which they dwell; it is not visible nor accurately measurable’.265 Yet, while these qualities are intangible, extensive research in other social science disciplines has established the authenticity of home interests. ‘Home’ represents a complex and multidimensional amalgam of financial, practical, social, psychological, cultural, politico-economic and emotional interests to its occupiers. Within the legal system, however, and particularly when weighed against the concrete financial claims of creditors, these values have not been recognised by policy makers, nor translated into a coherent legal concept which could inform the task of balancing the interests of creditors against the claims of occupiers to the continued use of the property as their home. Although it is often argued that creditors must prevail on economic policy grounds, the legitimacy of this presumption was analysed in Chapter 3, and it is suggested that, notwithstanding the undoubted weight of these financial claims, the importance of home and the impact of losing their home on the dispossessed occupiers demand a more explicit analysis of the other side of the equation. There is no ambiguity surrounding the value of the property to the creditor. Surely, however, if this interest is to be ‘balanced’ against the value of the home to the occupier, some effort should be made, from a conceptual point of view, to develop a clearer concept of the value of home in law. The chimera of home that currently lurks in the shadows of policy reasoning is too easily ignored or trivialised. A more coherent concept of home should, at the very least, ensure that legislative and judicial policy decisions which undermine the home interests of occupiers are more explicitly reasoned. Questions remain as to how the legal concept of home should be constructed. This chapter has sought to unpack and analyse the meanings and values that the home represents to occupiers, as demonstrated by research in other disciplines. One issue, on which there appears to be a broad consensus, is that home cannot be equated with house. Nor is it accurate to represent the home as a physical structure or a capital asset. Rather, it must be recognised that homes are: much more than physical structures. Housing is/has become a subject of highly charged emotional content: a matter of strong feeling. It is the symbol of status, of achievement, of social acceptance. It seems to control, in large measure, the way in which the individual, the family, perceives him/itself and is perceived by others.266 265

Dovey, above n 16, 52. R Gutman and D Popenoe (eds), Neighbourhood, City and Metropolis (New York, Random House, 1970) 710. 266

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However, overarching all of this, and arguably hindering the development of a legal concept of law is the argument that the concept of home is not ‘real’. Home has been described as ‘both an imposed ideal and a potent cultural and individual ideal’.267 In fact, as Somerville wrote: there is no clear demarcation between the real and the ideal: in each of its key signifiers, home is suffused with ideal meaning (for example, expressed in terms of what home ought to be like), and each human being to some extent shapes the reality of their home in accordance with their ideal of home.268

Yet, the ‘idealism’ associated with home does not diminish the significance of the occupier’s social, psychological, cultural and emotional attachments to the property. In fact, the wealth of empirical evidence accumulated over decades of home scholarship in a range of disciplines has repeatedly established the salience of ‘home’. When it comes to valuing ‘home-type’ interests for legal purposes, the other major obstacle lies with the inherent subjectivity of the occupier’s attachment to the property as a home. As Dovey has argued: it is of the essence of home and the processes of its emergence that its forms are unique . . . It is an insider’s experience, and it is always unique. Although the basic themes remain the same, the manifestations are situation specific. It is also important to reiterate that the phenomenon of home is essentially intangible. There is no precise point at which a house becomes a home, and none of the properties . . . are necessary nor sufficient for the experience of home. Rather, like fibres in a rope, each property lends strength to the meaning of home.269

The specific dimensions of any given occupier’s ‘home interest’ will naturally vary from one case to another. Although the meanings of and values of home have been grouped together in clusters for the purposes of analysis, these categories are relatively loosely drawn.270 ‘Home’ is a fluid concept, which may embrace some or all of these meanings to a particular occupier. ‘Home’ means different things to different people. Furthermore, the meanings that home represents to occupiers may change over their life course. In seeking to conceptualise home for law, there are valuable lessons to be learnt from the experiences of home scholars in other disciplines. The intangibility and subjectivity of ‘home’ do not present an isolated challenge to lawyers, but have of 267

Moore, above n 53, 212. Somerville, above n 123, 533. 269 K Dovey, ‘Home and Homelessness’ in Altman and Werner, above n 7, 51. 270 Somerville has argued for greater integration of the phenomenological and social psychology approaches, so that each individual meaning of home, such as privacy, or identity, can be internally explicated as a physical/psychological/social construct: Somerville, above n 131. 268

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course been challenging in other disciplines. Research and analysis have proceeded on the understanding that, ‘[a]lthough we might study the house as a discrete variable, home is not an empirical variable whose meaning we might define in advance of careful measurement and explanation’.271 Other disciplines have responded to this characteristic of home analysis by tailoring their approach ‘not to produce specific cause-effect relationships or explanations; it is rather to deepen our understanding of an intrinsically intangible phenomenon’.272 Any attempt to ‘guess’ or to ‘predict’ the particular meanings of home for an individual occupier must be approached with care. Furthermore, it is often impossible to assess the nature and extent of home meanings until they are lost, since ‘the holistic nature of truly profound attachments means that they are only fully recognised when they have been disrupted’.273 It would be folly to suggest that the court should examine the specific effects of loss of home on individual occupiers and/or households when balancing their interests against the claims of the creditor. Not only would the resource implications be absurdly high, but it would not be possible to conduct a case-by-case analysis on any fair grounds. This is not to say that the insight into home meanings that is offered by empirical studies and theoretical analysis in other disciplines could not be usefully applied to the creditor/occupier context. However, a more appropriate means of reflecting the reality of home interests in the legal context would be at a policy level, rather than in individual cases. This chapter has demonstrated some of the points at which home meanings intersect with existing legal frameworks. It has been noted that the meanings and values that have emerged from empirical studies in other disciplines are potentially relevant to property theory, to analysis of the family home, to feminist analysis of home, to matters concerning child occupiers and to the potential development of the human rights framework regarding ‘home’. The scope for developing a workable legal concept of home in each of these legal discourses is considered in Chapters 6 to 10. Before we embark on these analyses, however, Chapter 5 concludes the first part of the book by examining the ideologies of home ownership, and their relevance to the conceptualisation of home in the creditor/occupier context.

271 272 273

Dovey, above n 16, p34. Ibid. Brown and Perkins, above n 141, 283.

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5 Home Ownership and the Meaning of Home

Introduction

T

HE FIRST PART of this book highlighted the contrast between the treatment of ‘home-type’ interests in law and home discourses as they have developed in other disciplines. As Chapter 4 has demonstrated, the upsurge of interest in the meanings and values of home in recent decades has prompted empirical and theoretical analysis on the subject of home across a range of disciplines. Analysis of the meanings and values of ‘home’ in other disciplines has led to a more nuanced and informed understanding of the phenomenon of home, which is rooted in the experiences of home occupiers themselves. Meanwhile, however, it is suggested that the absence of any conceptual framework to support the idea of home in law has inhibited recognition of the value of home interests in law. While the idea that the ‘home’ is a significant type of property has sometimes been acknowledged in legal discourse, particularly when the home-type interest clashes with another claim—for example, the creditor’s claim—which is more readily ascertainable, comprehensible and measurable, the home interest has typically been either trivialised or ignored, and almost always defeated. As the discussion of legal policy in Chapter 2 has demonstrated, although the idea that the ‘home interest’ is meaningful is not absent from legal discourse, at the end of the day the creditor’s interest generally prevails. This outcome is often justified by reference to pragmatic policy reasons, for example, the need to ensure that creditors remain willing to lend money to housing consumers, to fund the purchase of houses by owner occupiers. In some cases, the priority conferred on creditors’ claims over and above occupiers’ home interests is explained on the basis that the opportunity to establish a home in the disputed property would not have arisen had it not been for the creditor’s capital.1 Consequently, it is argued, since the occupier would not have had the opportunity 1

See, eg, Abbey National Building Society v Cann [1991] 1 AC 56, discussed in Chapter 2.

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to establish a ‘home’ in the property in the first place without the creditor’s capital outlay, the creditor’s claim must prevail as a matter of fairness or justice. At a broader level, the treatment of creditor/occupier disputes in law is also influenced by the housing policy objective of widespread home ownership. Since mass home ownership—which is, and has been, the principal objective of government housing policies in the United Kingdom since the early twentieth century—has depended on the availability of adequate supplies of capital from creditors, the creditors’ interests—the argument goes—must be prioritised in order to safeguard the flow of capital. The analysis that has typically been employed to support this policy position, so far as the routine and automatic prioritisation of creditors is concerned, was explored in Chapter 3. This chapter argued that, although the creditors’ interests are undoubtedly legitimate, the reasoning that has been advanced to support their automatic elevation over and above home interests was, in fact, embedded in a very limited assessment of the ‘costs’ that are generated in creditor/occupier disputes. Reasoning on this issue has been dominated by a focus on the costs to the creditor and the impact of widespread home ownership. However, little attention has been paid to the other costs at stake in creditor/occupier disputes. As the discussion in Chapter 3 indicated, the economic costs that flow from creditor possession actions affect not only the parties themselves—that is, the creditors and the occupiers—but also impact on a range of other agencies, including local and central government, health service providers, labour institutions and the housing market.2 Furthermore, looking beyond the economic costs, loss of home for the occupier is associated with stress, loss of control, loss of self-esteem and a range of other negative consequences. In fact, some recent studies have established a link between creditor possession actions and adverse physical and psychological health.3 Nevertheless, when striking the balance between creditors and occupiers, the idea that occupiers must bear the costs of unsustainable home ownership through losing their homes is rarely challenged. Finally, another potential cost to bear in mind is the prospect that the negative experience of loss of home for some—albeit a minority of—owner occupiers could prove counter-productive for the promotion of home ownership, for example, if home ownership became less attractive as a result, particularly for cautious first time buyers.4 This chapter focuses on the meanings and values of home in the context of home ownership. The chapter seeks to consider the putative benefits of home ownership when it comes to realising the benefits of home, as well as the costs that result from losing the home in a creditor possession action. These costs and benefits are evaluated against the background of government housing policies 2

See Ch 3. See Ch 3, nn 139–158 and associated text. 4 See K Scanlon and C Whitehead, International Trends in Housing Tenure and Mortgage Finance (London, Council of Mortgage Lenders, 2004). 3

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promoting home ownership. When balancing the significance of home ownership for home meanings it is significant to bear in mind the inherent instability of the owner-occupied housing market.5 Furthermore, since the turn of the twenty-first century, critical analyses of housing policies have emphasised the emergence of ‘unsustainable home ownership’. Following the boom and subsequent slumps in the UK housing market from the 1980s to the mid 1990s, housing researchers have reported an increase in the ‘normal’ level of arrears and possession actions.6 Even in light of a benign economic climate and low interest rates, there has been evidence of ‘a set of more enduring socio-economic transformations which have raised the “normal” level of risk associated with home ownership compared to that which pertained in earlier periods’.7 Despite the evidence of increased levels of risk, home ownership remains hugely popular. In 2004, 70 per cent of households in the UK either owned, or were in the process of buying, their houses.8 In fact, although the success of the home ownership agenda meant that the rate at which the owner-occupied sector was expanding began to decrease in the 1990s—as there were few renter households left to ‘convert’ to home ownership—there is still some evidence that the aspiration towards home ownership, for those households which still rent, has not yet abated. Indeed, a recent survey has reported that ‘as far as households are concerned there is still some way to go: 76% of households want to become home owners in two years time; 82% want to remain or become homeowners over the next ten years’.9 In addition to this popular appeal, the Government remains committed to encouraging the expansion of the owner-occupied sector. In Extending Home Ownership,10 the Government reiterated its policy of ‘offer[ing] people opportunity and choice—to own their home, to meet their aspirations and to build up assets’.11 It is clear, however, that the choice on offer is the choice of buying into the owner-occupied sector, and that the Government’s policy position on the implicit advantages of owning your own home remains strong. Government policies throughout the twentieth century—and particularly under Conservative governments from 1979 to 1997—have established a strong political ideology of home ownership. In the 1950s, for example, government 5 See M Ball, Housing Policy and Economic Power: The Political Economy of Owner Occupation (London, Methuen, 1983), Ch 11. 6 See, eg, J Ford, R Burrows and S Nettleton, Home Ownership in a Risk Society: A Social Analysis of Mortgage Arrears and Possessions (Bristol, Policy Press, 2001). 7 Ibid, 44. 8 Social Trends 35 (London, Office for National Statistics, 2004), Table 15, Appendix 1. 9 S Smith, Banking on Housing: Speculating on the Role and Relevance of Housing Wealth in Britain (Paper prepared for the Joseph Rowntree Foundation Inquiry into Home Ownership 2010 and Beyond, 2005) 3; statistics from S Anderson, The CML Mortgage Market Manifesto: Taking the Past into the Future (London, Council of Mortgage Lenders, 2004). 10 Office of the Deputy Prime Minister, Extending Home Ownership (Norwich, HMSO, 2005). 11 Ibid, 1. See also Sustainable Communities: Homes for All (A Five Year Plan from the Office of the Deputy Prime Minister) (Norwich, HMSO, 2005).

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housing policy papers described home ownership as: ‘[o]f all forms of saving . . . one of the best. Of all forms of ownership this is one of the most satisfying to the individual and the most beneficial to the nation’.12 Furthermore, the Government’s ideological preference for owner occupation was put into practice through policies—such as the ‘right to buy’ for council tenants from 1980 onwards—which facilitated access to owner occupation for many households that would not otherwise have been able to afford to buy homes. Successive governments adopted strategies including initiatives to facilitate the availability of credit finance, such as Building Societies legislation,13 and the provision of financial incentives for owner occupiers in the form of tax relief. Finally, the existence of state-funded safety-nets for mortgagors experiencing financial difficulties completed a package of policies designed to support the expansion of the home ownership sector.14 The political ideology of home ownership had a major impact on the sociocultural significance of owning one’s own home. Alongside the expansion of the owner-occupied sector, housing policy in the UK has also resulted in the ‘residualisation’ of public rented housing.15 For one thing, the sale of council houses has substantially reduced public housing stock: in 2003–4, only 12 per cent of households were living in local authority properties, with a further 7 per cent renting from a housing association or registered social landlord.16 The obstacles to renting are now both practical and ideological. From a practical perspective, there is a limited stock of decent quality public housing available for those who wish to rent. The idea that housing should be provided through the public sector was also undermined as ‘[t]he reduction in quantity and quality of local authority accommodation created a perception that it was no longer the responsibility of the state to provide housing but the responsibility of individual households to obtain that commodity for themselves’.17 The objective of encouraging citizens to fund their 12 Houses: the Next Step (Cmnd 8996) (London, HMSO, 1953), Preamble; see also House Purchase (Cmnd 571) (London, HMSO, 1958). 13 The statutory framework regulating building societies was reformed in the Building Societies Act 1986, which increased the range of services that building societies could offer, and which was linked to ‘a pronounced shift from mortgage rationing towards lending on demand and loans related to a high proportion of property value. Lenders competed for custom by being willing to lend more’: P Malpass and A Murie, Housing Policy and Practice (London, Macmillan, 1994) 101. 14 The decline in state-sponsored safety-nets for mortgagors in recent years is discussed further, below, at nn 202–231 and associated text. 15 See, eg, C Hunter and J Nixon, ‘The Discourse of Housing Debt: The Social Construction of Landlords, Lenders, Borrowers and Tenants’ (1999) 16 Housing, Theory and Society 165. 16 Social Trends 35 (London, Office for National Statistics, 2004), Table 15, Appendix 1. 17 L Whitehouse, ‘The Impact of Consumerism on the Home Owner’ in D Cowan, Housing: Participation and Exclusion (Aldershot, Ashgate, 1998), 129–30. Initiatives to extend home ownership have sought to diminish the state’s role in the provision of housing, in accordance with the ‘increasingly conservative orientation of so-called welfare state governments’: ED Huttman, ‘Transnational Housing Policies’ in I Altman and CM Werner, Home Environments (New York, Plenum Press, 1985) 311.

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own housing ‘as a “commodity” within the private home ownership market’,18 rather than looking to the state, was also consistent with the broader ideological agenda of British Conservative governments in the 1980s and 1990s.19 One of the consequences of these policies was a much more powerful role for creditors in the housing economy. For home buyers, this shift in housing provision from the state to the market also meant that access to credit became a substitute for government spending on housing. Creditors became ‘the “gatekeepers” of the owner occupied sector, determining who would and who would not be allowed to enter and remain within home ownership’.20 This shift has particular significance for the creditor/occupier context, and will be explored further in this chapter. While, previously, the gatekeepers for access to housing were public sector authorities, the shift towards home ownership meant that creditors took over much of the role of controlling access to housing. Where public sector housing was allocated according to need, the home ownership sector was oriented according to market principles. Meanwhile, government bias towards home ownership and the residualisation of the public rented sector meant that the decision to rent often became loaded with negative socio-cultural connotations. Home ownership was constructed, socially and culturally, as the ‘normal’ form of tenure, connoting respectability, adulthood and success,21 while renting was characterised as ‘abnormal’. For example, in a study of working class home owners living in Bristol, Gurney identified socio-cultural discourses which ‘positively associated home-ownership with a moral responsibility to look after property’, and ‘negatively associated tenants with profligacy and waste’.22 In Gurney’s qualitative studies, metaphorical aphorisms such as ‘renting’s money down the drain’ or ‘renting’s dead money’ were often used to portray tenants as an irresponsible, feckless and undeserving housing class.23 In fact, non-owners were constructed as a ‘stigmatised outgroup’.24

18

Ibid. Whitehouse, above n 17, 126. 20 Ibid, 127. 21 D Knight, ‘Nowhere Else to Go? Choice versus Constraint in the Private Rented Sector’ (Paper presented to the Housing Studies Association Spring Conference, University of York, 15–16 Apr 1998); C Gurney, ‘ “We’ve got Friends who Live in Council Houses”: Power and Resistance in Home Ownership’ in J Hearn and S Roseneil (eds), Consuming Cultures: Power and Resistance (London, Macmillan, 1999). Richards reported a similar finding in relation to home ownership in Australia: L Richards, Nobody’s Home: Dreams and Realities in a New Suburb (Melbourne, Oxford University Press, 1990). 22 C Gurney, ‘Lowering the Drawbridge: A Case Study of Analogy and Metaphor in the Social Construction of Home-Ownership’ (1999) 36 Urban Studies 1706 at 1714. 23 Ibid, 1716. 24 C Gurney, ‘Pride and Prejudice: Discourses of Normalisation in Public and Private Accounts of Home Ownership’ (1999) 14 Housing Studies 163 at 165; see also Gurney, above n 22. 19

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This chapter focuses on the significance of these developments for the conceptualisation of the owned home. In Chapter 4, the meanings of home were considered within five broad clusters of value type. The meaning of home as a financial asset is, of course, particularly salient for home owners, as the most significant financial investment most households will ever make and as a source of wealth for other activities. It is interesting to note, however, that in each of the remaining clusters of value type considered in Chapter 4—home as a physical structure; home as territory; home as identity and home as a socio-cultural unit—distinctions have also been drawn between the meanings that home represents to owners as compared to renters. Studies of home meanings have suggested that the significance of a person’s home as a ‘repository of central and essential psychological and cultural processes’25 is compounded by the additional cultural value attached to homes by owner occupiers.26 Culturally, home ownership has been perceived as conferring greater freedom and independence, and owner occupation has been linked, by some commentators, with a greater sense of control within the home territory and increased ontological security.27 The status conferred by home ownership has been linked to an occupier’s self-identity.28 Even when considering the meaning of the home as a physical structure, which may ostensibly appear to be neutral across tenures, it has been suggested that the value that the occupier puts upon the physical structure of the house is enhanced by ownership.29 Yet, the argument that home meanings are necessarily enhanced by home ownership has also attracted considerable criticism in recent years. In fact, the idea that an ‘owned home’ encapsulates more profound meanings for an occupier than a rented property has been attributed to socio-cultural portrayal of ownership as a symbol of security and status, rather than a natural response on the part of the occupier. Some commentators have criticised the extent to which political discourse has influenced the social and cultural meanings of home in popular consciousness. Indeed, the idea that home ownership provides a stepping-stone towards a more meaningful relationship with a dwelling has evolved in conjunction with the political ideology of home ownership. This was reflected in Murie’s

25 I Altman and CM Werner, ‘Introduction’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985) p xix. 26 J Fitchen, ‘When Toxic Chemicals Pollute Residential Environments: The Cultural Meanings of Home and Home Ownership’ (1989) 48 Human Organisation 313 at 318. 27 See S Smith, ‘The Essential Qualities of a Home’ (1994) 14 Journal of Environmental Psychology 31; P Saunders, A Nation of Home Owners (London, Unwin Hyman, 1990); M Bulos and W Chaker, ‘Sustaining a Sense of Home and Personal Identity’ in D Benjamin (ed), The Home: Words, Interpretations, Meanings and Environments (Aldershot, Ashgate, 1995). 28 ‘Owning one’s own home grants membership in a respected category of people in part because it demonstrates one’s commitment to the work ethic. The owned home, the largest single expenditure most people ever make, requires many years of earning and saving, and represents a long-term commitment to the work ethic’: Fitchen, above n 26, 320. 29 See, eg, Gurney, above n 22; Gurney, above n 24.

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suggestion that ‘certain attributes of the tenure were increasingly identified as if they were inherent to it and were the underlying reason for its promotion’.30 The idea that the meanings and values of ‘home’ are inherently enhanced by home ownership has also been challenged in the light of research findings in other jurisdictions, where the social and cultural significance of home ownership is not so deeply embedded, and where studies have shown that when people chose to rent domestic property they do not feel any less ‘at home’ than owner occupiers.31 In fact, Lawrence has argued that the proposition that home owners derive greater satisfaction from their homes than renters is biased by the ‘ideological framework underpinning these policies and trends, which explicitly ties the tenure status of housing to the meaning of home’.32 This chapter focuses on the relationships between the meanings of home, the political, social and cultural ideologies of home ownership, and the consequences of creditor possession actions for home occupiers. The next section outlines the growth of the political ideology of home ownership in the United Kingdom, and highlights the impact of government housing policies on the social and cultural ideologies of home and home ownership. When considering the meanings of home in a jurisdiction—such as the United Kingdom—of mass home ownership, it is important to recognise both the benefits and the costs of home ownership, by considering both those who are successful home buyers and those occupiers who are at risk of losing their homes at the hands of a creditor following default. Where distinctions have been identified in the experience of home meanings they have generally been regarded as benefiting owners over renters. Indeed, for the ‘successful’ home owner, the advantages that are attributed to ownership—freedom, continuity, security—are associated with the security of tenure which is thought to flow from owner occupation. Yet, for occupiers who are threatened with the loss of their homes through a creditor possession action, the position is inverted, as they risk losing both the property and all the meanings and values associated with its function as their home. Consequently, this chapter argues that any analysis of the meaning of home in law must take account of home ownership, including the potential costs of unsustainable home ownership and the impact of losing the owned home in a creditor possession action.

30 A Murie, ‘Secure and Contented Citizens? Home Ownership in Britain’ in A Marsh and D Mullins (eds), Housing and Public Policy: Citizenship, Choice and Control (Buckingham, Open University Press, 1998) 82. 31 A Rapoport, ‘A Critical Look at the Concept “Home”’ in Benjamin, above n 27; R Lawrence, ‘Deciphering Home: An Integrative Historical Perspective’ in Benjamin, above n 27. 32 Lawrence, Ibid, 60.

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The Political Ideology of Home Ownership The growth of owner occupation in the twentieth century and the need for credit which widespread home ownership created combined to highlight the tensions between the commercial claims of creditors and the home interests of occupiers in the context of creditor possession actions. For one thing, the twentieth century witnessed a transformation in the way in which people occupied their homes in the United Kingdom, as well as in many other jurisdictions. In 1889, the notion of ‘owner-occupation for artisans’ in the United Kingdom was described as ‘a chimera which did not justify Parliamentary interference with existing contracts’.33 Yet, a century later, owner occupation had become the most common form of tenure across all socio-economic groups.34 While owner-occupied property made up only 10 per cent of housing stock at the outset of the First World War, by 1934 this figure had grown to 32 per cent, and by 1971 to 53 per cent.35 In 2004, 70 per cent of households in the United Kingdom owned, or were in the process of buying, their own homes.36 As Smith recently wrote: [w]orking across almost any timescale, it is hard to overstate the shift in the extent and magnitude of housing wealth in Britain. In less than 100 years a nation of renters has been transformed into a society of home owners/buyers.37

One of the most striking aspects of this transformation has been the growth of low income home ownership, so that in Britain half of all households living in poverty, as well as most of the rich, are now categorised as ‘owner occupiers’.38 The growth of the owner occupied sector has also led to an exponential increase in lending volume to fund home ownership. Although those who purchase their homes are colloquially known as ‘home owners’, the majority are more appropriately described as in the process of buying their homes subject to a mortgage (that is, as ‘home buyers’) rather than outright owners. For most households, the purchase of a dwelling house is funded by loan capital, secured against a mortgage over the property. As borrowers make repayments on the mortgage loan, their equity in the property increases, until the mortgage is eventually discharged and the ‘home 33

Report of the Town Holdings Committee, Parliamentary Papers 1889 (251) xv, 39–40. See Social Trends 27 (Office for National Statistics, London, 1997) 170. 35 Statistics from Housing Policy UK, Consultative Document No 58 (London, HMSO, 1971). 36 Social Trends 35 (London, Office for National Statistics, 2004), Table 15, Appendix 1. 37 Smith, above n 9, 3. 38 See generally R Burrows and S Wilcox, Half the Poor: Home-owners with Low Incomes (London, Council of Mortgage Lenders, 2000). The growth of low income home ownership has also become a significant feature of the home ownership sector in the USA: see, eg, NP Retsinas and ES Belsky (eds), Low-income Homeownership: Examining the Unexamined Goal (Cambridge, Mass, Joint Center for Housing Studies, 2002). 34

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buyer’ becomes a ‘home owner’. Although the purchaser must continue to make periodic payments for several years after the acquisition of property, the home buyer obtains the badge of ‘owner’ once the purchase is made. Yet, on the other hand, the status associated with owner occupation is only as stable as the mortgagor’s ability to make repayments. When mortgagors default on their repayments, they risk losing their homes in creditor possession actions, and the consequences of such actions for dispossessed owner-occupiers include ‘demotion’ to renter status. Other factors to bear in mind when considering the impact of loss of home following default include the relationships between the rise of creditor possession actions and the phenomenon of ‘unsustainable’ home ownership, on the one hand, and the rate at which home ownership has expanded, on the other.39 Empirical research in the United Kingdom has indicated that: the increasing propensity to arrears that arose during the late 1980s cannot simply be seen in the context of individual failures. Several structural factors are also involved, some relating directly to government policies that precipitated the individual circumstances.40

Indeed, it is pertinent to note that a range of studies across several jurisdictions which have strongly promoted owner occupation, including home ownership for lower-income households—from the United Kingdom,41 Australia42 and the United States of America43 to Finland,44 Germany,45 Ireland46 and Sweden47— have highlighted the rise in creditor possession actions leading to the loss of the owned home. The legal framework that governs creditor possession actions in England and Wales was discussed in detail in Chapter 2, where it was noted that, although the 39

See, eg, Ford, Burrows and Nettleton, above n 6. Hunter and Nixon, above n 15, at 167. 41 Ford, Burrows and Nettleton, above n 6. 42 Berry has written that ‘[f]rom the early 1970s onwards and particularly over the past 15 years, housing provision in Australia, both as a process and as a set of outcomes, has become more uncertain, volatile and problematic’: M Berry, ‘Unravelling the “Australian Housing Solution”: the post-War Years’ [1999] Housing, Theory and Society 106 at 107; see also M Berry, T Dalton, B Engles, and K Whiting, Falling out of Home Ownership: Mortgage Arrears and Defaults in Australia (Brisbane, University of Queensland Press, 1999). 43 See, eg, R Quercia and M Stegman, ‘Residential Mortgage Default: a Review of the Literature’ (1992) 3 Journal of Housing Research 21. 44 J Doling and H Ruonavaara, ‘Home Ownership Undermined: an Analysis of the Finnish Case in the Light of the British Experience’ (1996) 11 Netherlands Journal of Housing and the Built Environment 31. 45 P Potter and S Dreverman, ‘Home Ownership, Foreclosure and Compulsory Auction in the Federal Republic of Germany’ (1990) 3 Housing Studies 94. 46 L Murphey, ‘Whose Interest Rates? Issues in the Development of Mortgage Backed Securitisation’ (1996) 11 Housing Studies 581. 47 M Bjork, ‘Investigating the Experiences of Repossession: a Swedish Example’ (1994) 9 Housing Studies 511. 40

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home interests of occupiers have occasionally been acknowledged by both the legislature and the judiciary, when it comes to balancing occupiers’ interests against the commercial claims of creditors, the creditor’s interest generally prevails. This raises some pertinent issues with regard to the government-sponsored growth of home ownership to a level which has been described as ‘unsustainable’. The influence of government policy in encouraging people to enter into owner occupation led Whitehouse to remonstrate that while: [t]he ability to remain in home ownership is . . . dependent on the financial status of the home owner; however, having encouraged people to undertake owner-occupation, the majority of which could only do so with the aid of mortgage finance, the Conservative governments [of the 1980s and 1990s] have left mortgagors to fend for themselves in times of financial difficulty.48

In government and in opposition, the Labour party has followed a similar policy approach. In fact, the erosion of state safety-nets for mortgagors has been significantly advanced under Labour governments since 1997.49 Furthermore, legal policy in relation to creditor possession actions in English law has consistently favoured creditors over occupiers throughout this period.50 The following sections consider a range of arguments that have been advanced to support the growth of home ownership. The purported benefits of home ownership have ranged from economic advantages to social and cultural rewards, for the individual home buyer, the community, and the nation as a whole. These sections seek to evaluate the benefits of successful home ownership alongside the costs for unsuccessful home buyers. The remainder of this chapter then attempts to evaluate the advantages of home ownership when it comes to enabling occupiers to realise the meanings and values of home, against governmental and legal policies that have left home buyers with neither state-sponsored welfare support, nor significant legal protection, when they encounter financial difficulties.

The Creation of the Home Ownership ‘Ideology’ Political support for the expansion of home ownership dates back to the turn of the twentieth century. Although the history of government measures to encourage home ownership have been extensively rehearsed elsewhere,51 the circumstances 48

Whitehouse, above n 17, 144. These policies are discussed further, below. 50 See generally Ch 2. 51 See, eg, A Offer, Land Ownership, Law, Ideology and Urban Development in England, (Cambridge: Cambridge University Press, 1981); C Gurney, The Meaning of Home in the Decade of Owner Occupation: Towards an Experiential Perspective (Bristol, School of Advanced Urban Studies, University of Bristol, 1990); S Merrett, Owner Occupation in Britain (London, Routledge and Kegan Paul, 1992). 49

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surrounding the creation of the home ownership ideology in the UK merit consideration in the context of conceptualising home, due to the relationship between the idea of home as a socio-cultural construct and the political ideology of home ownership. For one thing, it is interesting to note that the decision to promote home ownership as the more desirable tenure was initially rooted in pragmatism rather than ideology. In nineteenth century Britain, the vast majority of the population lived in rented housing, which was often funded through private investors or speculators.52 At this time, investors stood to make a good rate of return on the private rental market. The impetus for the strategic shift in UK housing policy— away from private rental and towards owner occupation—was initially pragmatic since it was triggered by the decline in this source of capital. By the early twentieth century, investment in housing for private rental had become a much less attractive proposition,53 with declining margins of profitability, particularly relative to other investment opportunities and legal developments which required private landlords to satisfy more stringent public health and planning regulations.54 Ball claimed that the political impetus to expand the owner-occupied sector was triggered by a combination of factors, including: acute housing shortages in the 1920s; the collapse of new housing provision from the private rental sector; the gradual growth of owner occupation prior to the First World War; the growth of building societies, which were willing to lend purchase money to individual households to fund owner occupation; an economic environment in the 1920s and 1930s which enabled speculative builders to buy both the land to build on and the labour to construct houses relatively cheaply;55 and the impact of the 1925 property legislation, which simplified conveyancing, thus reducing the time and expense incurred by the transfer of land.56 These factors had little to do with the inherent desirability of home ownership over other types of tenure. In fact, before the First World War, most people, regardless of income, rented their homes from private landlords, and the small proportion of home owning households were not necessarily more affluent. Tenure was not regarded as a reflection of socio-economic status, since:

52 These capital investors ‘built and developed housing and sold it to (or converted themselves into) landlords, who charged a rent sufficient to service the debt associated with the development and to make a reasonable return on the capital’: Murie, above n 30, 80. 53 Offer described private investment in the rental sector in the early twentieth century as ‘highly precarious . . . on a par with Mexican mines’: above n 51, 272. 54 Campaigns to improve housing quality and conditions led housing reformers to lobby against the government’s ‘failure to provide good quality affordable housing to lower income groups and the increasingly evident problem of slums and poor housing’: Murie, above n 30, 80. 55 See Ball, above n 5, 30–2. 56 It is perhaps ironic that the ‘1925 legislation’, which opened the gates for mass owner occupation, was premised on the assimilation of interests in land with other types of property—that is, in treating land as ‘mere capital’, and so denying that property held any special value by virtue of the fact that it was used and occupied as a home: see further, Ch 6.

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[f]or most households prior to the First World War the problem was one of finding a decent home within their means, regardless of its tenure. Ownership, for those who could afford it, did not necessarily offer any financial advantage over renting and little or no social stigma was attached to non-owning.57

Yet, as home ownership became increasingly widespread, ‘certain attributes of the tenure were increasingly identified as if they were inherent to it and were the underlying reason for its promotion’.58 Although the growth of owner occupation has been explained by reference to ‘the lack of widespread good quality alternative housing . . . [rather] than a “deep and natural desire” for home ownership’,59 it is interesting to note that, as other factors came to favour owner occupation, ‘it rapidly developed a social kudos’.60 Furthermore, since those who could afford home ownership moved into the sector so, conversely, non-ownership came to be synonymous with the negative social status of being unable to afford house purchase.61 As home ownership emerged as a more viable alternative to serve housing needs, the Government introduced a range of financial incentives to support the sector.62 Creditors were encouraged to advance the necessary capital to fund home ownership through a range of initiatives including the Housing Act 1923, which provided subsidies for builders and facilitated the restructuring of the credit industry, for example, through the development of building societies, to facilitate lending to individuals for the purposes of owner occupation. Building societies provided access to credit and financial services for moderate- and lower-income households, and tax subsidies, for example, tax relief on mortgage repayments, were introduced to encourage citizens to borrow against the security of domestic property and provided ‘a state subsidy for owner-occupation’.63 While these initiatives have long been associated with the rise of home ownership, it is interesting to bear in mind the suggestion that it was economic conditions rather than government intervention that played the crucial role in the origins of mass home ownership. In fact, Ball claimed that ‘the state did little to create it’ other than acting as a ‘reluctant guardian angel’.64 In fact, the principal contribution of government intervention in the inter-war years was described as ‘diffusing opposition by throwing up a smokescreen of ideological debate over 57

Ball, above n 5, 25. Murie, above n 30, 82. 59 Gurney, above n 51, 39. 60 Ball, above n 5, 25. 61 Ibid. 62 RCO Matthews, CH Feinstein and JC Odling-Smee, British Economic Growth, 1856–1973 (Stanford, Cal, Stanford University Press, 1982) 410. 63 Offer, above n 51, 156. See also A Nevitt, Housing, Taxation and Subsidies (London, Nelson, 1966) Ch 5. 64 Ball, above n 5, 40. 58

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tenures’.65 In government and opposition, both Conservatives and Labour supported the growth of home ownership throughout the latter half of the twentieth century.66 In fact, by the time Thatcher’s Government set out to ‘privatise’ housing, the ‘normalising discourse’ of home ownership had been firmly embedded, and the benefits of home ownership—what Kemeny described in 1981 as ‘the myth of home ownership’67—were established. The following sections consider some of the factors that informed the emergence of this ideological norm and its significance for the concept of the owned home in law.

Societal Advantages of Home Ownership: A Stake in the System? Although the promotion of home ownership in the United Kingdom in the twentieth century was not initially rooted in an ideological agenda, there can be little doubt that: [i]t was, nevertheless, embraced enthusiastically, especially in the political community . . . However reluctant they had been initially, the housing modernizers of the 1920s began to articulate the merits of homeownership and associate these with individual rights and enhanced citizenship.68

For example, one of the arguments advanced in support of home ownership was the idea that home owners were better citizens. In 1927, Bellman wrote that ‘the man who has something to protect and improve—a stake of some sort in the country—naturally turns his thoughts in the direction of sane, ordered, and perforce economical government’.69 In the UK, the idea that home ownership acts as: ‘a means of ideologically incorporating important sections of the working class into the dominant value system of British capitalism’70 was a prominent feature in housing discourse from the 1920s. In the inter-war years, the growth of home ownership was even embraced as a ‘bulwark against Bolshevism’.71 The contrast 65

Ball, above n 5, 41. S Blandy and D Robinson, ‘Reforming Leasehold: Discursive Events and Outcomes, 1984–2000’ (2001) 28 Journal of Law and Society 384 at 399. 67 J Kemeny, The Myth of Home Ownership: Private versus Public Choices in Housing Tenure (London, Routledge & Kegan Paul, 1981). The ‘myth’ identified by Kemeny is the idea that home ownership is an inherently superior form of housing tenure compared to renting. 68 Murie, above n 30, 82. 69 H Bellman, The Building Society Movement (London, Methuen, 1927) 54. 70 Ball, above n 5, 38. 71 Murie’s analysis of the literature surrounding home ownership in this period identified this as the ‘most quoted phrase’: Murie, above n 30, 82. 66

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between public sector housing and private ownership was stark. Ball claimed that while: ‘[s]tate housing was not likely to be a bulwark against Bolshevism as there was a danger identified by some that it would encourage the growth of demands for collective and state action. It was home ownership that offered the alternative’.72 The idea that owners would be ‘better citizens’—that is, that having a ‘stake in society’ they would be ‘more engaged and interested, more knowledgeable and more loyal to democracy’73—has been traced back to the Levellers’ movement in mid-seventeenth century England. When the Government responded to the threat of insurgence by inviting citizens to become landowners, Marcuse claimed that Cromwell had recognised that: [t]he only possible way of preserving the balance of power on the side of equal liberty and public virtue was to make the acquisition of land easy for every member of society; to make possible the division of land into small quantities so that ‘the multitude’ were possessed of land and estates. If ‘the multitude’ were possessed of property, they would not be tempted by extremists seeking more radical changes in the established order.74

Similarly, in the United States of America, there has been evidence that the popular belief that ‘[h]aving an economic stake in the system through home-ownership . . . helps create generalized support for the social status quo’75 has influenced housing policy. Kingston and Blum described home ownership as ‘a conservatising influence’; ‘championed by public officials’; ‘one that binds individuals to the system’.76 In fact, one of the most striking accounts of government rhetoric concerning the function of home ownership in binding the citizen to the state can be found in then-President Andrew Johnson’s treatise in support of the Homestead Act in 1850—historically one of the most significant triggers for the expansion of home ownership in the USA. The significance of homestead legislation for the legal concept of home is discussed in Chapter 7.77 The twin aims of the homestead legislation were to enable more people to own their own homes and to protect those homes against creditor possession actions. The occupier’s home interest was valued enough to attract protection, even against a creditor’s commercial interest. In fact, in his speech to introduce the first Homestead Act, Johnston predicted that, by facilitating the ownership of land amongst the population at large, the Act 72

Murie, above n 30, 82. LJ Lundqvist, ‘Property Owning and Democracy—Do the Twain Ever Meet?’ (1998) 13 Housing Studies 217. 74 P Marcuse, ‘The Ideologies of Ownership and Property Rights’ in R Plunz (ed), Housing Form and Public Policy in the United States (New York, Praeger, 1980) 45. 75 TC Blum and PW Kingston, ‘Homeownership and Social Attachment’ (1984) 27 Sociological Perspectives 159 at 160. 76 Ibid. 77 See Ch 7, nn 187–210 and associated text. 73

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would ‘create the strongest tie between the citizen and the government’.78 Johnston anticipated that the home owner’s stake in society, and the protection afforded to the occupier through this legislation, would be reciprocated in goodwill from the occupier, who: would with cheerfulness contribute his proportional part of the taxes to defray the expenses of the political system under which he lives. What a powerful league it would form between him and the government. What a great incentive it would be to obey every call . . . At the first summons of the clarion note of war, his plow in fact would be left standing in its half-finished furrow, the only plow horse would be converted into a war steed, his scythe and his sickle would be thrown aside, his home armor buckled on, and with a heart full of valor and patriotism, he would with alacrity rush to his country’s standards.79

Despite the vivid hyperbole of this description, it clearly communicates a manifest and widespread belief in the power of home ownership for good citizenship. A century later, in New Zealand, home ownership was described as encouraging ‘initiative, self-reliance, thrift and other good qualities which go to make up the moral strength of the nation . . . Above all, home ownership promotes responsible citizenship’.80 The drive towards widespread home ownership in the United Kingdom has also been explained by reference to the goal of ‘sustain[ing] a stabilising effect in civil society by offering a stake in a “property-owning democracy” ’.81

Protecting the Owner-occupied Home: the Political Impetus Another interesting aspect of the ‘stake in society’ argument in the United States of America was the idea of a quid pro quo between citizen and state, which is absent from the United Kingdom discourse. The homestead legislation reflected the idea that the relationship that home ownership created between the citizen and the state conferred a reciprocal responsibility on the government to protect home owners in times of economic difficulty. In fact, there is evidence to suggest that the broader consequences of possession actions were recognised by US governments, and that this was translated into legal protection for owner occupiers, in the interests of the state as a whole. For example, Roosevelt’s ‘New Deal’ administration declared that:

78 United States Congress, Congressional Globe, Appendix, 20 June, 31st Cong., 1st Sess., 1850, Pt 3, 951; cited in Marcuse, above n 74, 46. 79 Ibid. 80 New Zealand House of Representatives (NZHR), Appendices to the Journal of the House of Representatives (Wellington, Vol J6, 1950) 3. 81 Gurney, above n 22, 1708.

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The broad interest of the nation requires that special safeguards should be thrown around homeownership as a guarantee of economic and social stability, and to protect a homeowner from inequitable and forced liquidation in time of general distress is a proper concern of government.82

It is important to recognise that these initiatives to protect home owners were not solely motivated by sympathy for the occupiers. The objective of preserving political stability, which home ownership was thought to foster, was also a significant motivating factor.83 The promotion of home ownership, so the argument went, was in the interests of the nation as a whole because it encouraged ‘good citizenship’, and the protection of home owners was endorsed on similar grounds: in order to preserve the value yielded to the nation as a whole from the institution of home ownership, it was necessary to ensure that home owners were sustained and protected during adverse economic circumstances. The ‘stake in the system’ argument has come under considerable scrutiny in recent years. The proposition that having a ‘stake in the system’ through ownership encourages good citizenship is deeply embedded in the political ideology of home ownership. In fact, the idea that home owners are better citizens has been extended, beyond Johnston’s reference to the home owner’s enthusiastic response to the nation’s call-to-arms, to encompass the idea that home ownership also encourages stability in neighbourhoods and stronger communities. Home owners, so the argument goes, are more likely to participate in political activities, have higher levels of political knowledge and interest and greater civic trust and responsibility.84 Home ownership has also been linked to greater investment by occupiers in local amenities and social capital. For one thing, home owners are less mobile and therefore have greater incentive to improve their communities.85 In addition, it has been suggested that home ownership contributes to social well being by encouraging ‘socially desirable behaviour’. For example, there is evidence to suggest that the children of home owners perform better in school and are less likely to experience teenage pregnancy or to drop out of school.86 For adults, research has even suggested that home owners are less likely to engage in substance abuse.87 These outcomes would tend to support the argument that promoting and 82 EM Fisher, ‘Housing Legislation and Housing Policy in the United States’ (1932–33) 31 Michigan Law Review 320; cited in Marcuse, above n 74, 46. 83 Marcuse, above n 74, 46. 84 Lundqvist, above n 73, 220, Figure 1. 85 D DiPasquale and EL Glaser, ‘Incentives and Social Capital: Are Homeowners Better Citizens?’ (1999) 45 Journal of Urban Economics 354. 86 See, eg, DR Haurin, TL Parcel and RJ Haurin, The Impact of Home Ownership on Child Outcomes (Low-Income Home Ownership Working Paper Series, LIHO-01.14, Cambridge, Mass, Joint Centre for Housing Studies, Harvard University, 2000). 87 See WM Rohe, S Van Zandt and G McCarthy, The Social Benefits and Costs of Home Ownership: A Critical Assessment of the Research (Cambridge, Mass, Joint Centre for Housing Studies, Harvard University, 2001).

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protecting home ownership is a valuable socio-political objective as it reaps dividends for both the occupier and the wider community.

Are Home Owners Better Citizens? Although the idea that home ownership fosters a more positive relationship between the occupier and the government and a more positive role for the occupier within the community is well established in political rhetoric, there was, until relatively recently, little empirical evidence to demonstrate the effects of home ownership on citizenship.88 To date, most of the empirical studies that have attempted to measure the impact of home ownership on citizenship have been carried out in the United States of America. Based on these studies, there appears to be some evidence to support the argument that successful home ownership has a positive, although unquantified, impact on citizenship. In a critical overview of a wide range of empirical studies Rohe et al 89 reported evidence that home owners derived greater satisfaction from their homes and neighbourhoods, and were more likely to participate in voluntary and political activities. Home owners were also more likely to stay in the same property longer, thus contributing to neighbourhood stability. This, in turn, is associated with social and economic benefits including ‘stabilizing property values, encouraging maintenance and upkeep of properties and improving social conditions like high school dropout rates or crime rates’.90 It is important to note, however, that while these surveys reported associations between home ownership and various indicators of good citizenship, both the extent of any impact caused by ownership and the causal connection between ownership and good citizenship have been questioned. For example, in Kingston and Fries’ analysis, which was based on the NORC91 General Social Survey, they suggested that: 88 Although some community based studies point to the social integrating consequences of homeownership: G Sykes, ‘The Differential Distribution of Community Knowledge’ (1951) 29 Social Forces 376; R Alford and H Scoble, ‘Sources of Political Involvement’ (1968) 62 American Political Science Review 1192; P Steinberger, ‘Political Participation and Community: a Cultural/Interpersonal Approach’ (1981) 46 Rural Sociology 7; T Guterbock, Machine Politics in Transition: Party and Community in Chicago (Chicago, Ill, University of Chicago Press, 1980); C Fischer, To Dwell Among Friends: Personal Networks in Town and City (Chicago, Ill, University of Chicago Press, 1982); A Hunter, ‘The Loss of Community’ (1975) 40 American Sociological Review 537; HPM Homenuck, ‘A Study of High Rise: Effects, Preferences and Perceptions’ in W Michelson (ed), Environmental Choice, Human Behaviour and Residential Satisfaction (New York, Oxford University Press, 1973); A Speare, S Goldstein and W Frey, Residential Mobility, Migration and Metropolitan Change (Cambridge, Mass, Ballinger, 1975); Blum and Kingston claimed that: ‘these scattered findings seem to relate almost exclusively to a variety of local attachments. Whether or not homeownership has any consequences for an individual’s attachment to the larger social order has been a neglected concern’: above n 75, 160. 89 See Rohe et al, above n 87. 90 Ibid, 12. 91 National Organisation for Research at the University of Chicago.

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[h]omeownership had no impact on either party identification or presidential vote. As to political participation, the impact of ownership was modest and limited in scope . . . Ownership had little effect on the indicators of social participation. Neither business owners nor homeowners were distinctly likely to form groups to deal with local problems.92

Kingston and Fries concluded that: ‘[o]wnership appears modestly but inconsistently related to indicators of ideological orientation’.93 Although they found that that ‘homeownership is independently related, though quite modestly, to various indicators of community attachment, political involvement, and political attitudes . . . as well as racial attitudes’,94 they claimed that the impact on socio-political involvement or on conservative political tendencies was not significant.95 The ambivalence of empirical evidence on the links between home ownership and better citizenship was also apparent in a Sweden-based study, which focused on the responses of home owners when threatened with government actions to remove their tax subsidies. In fact, Lundqvist’s findings suggested that home owners were not any more ‘civil’ or ‘democratic’ than other citizens.96 Furthermore, when it comes to social capital, research findings have been tentative. Although DiPasquale and Glaser reported evidence that home ownership had a positive impact on the occupiers’ social capital, they also acknowledged the limitations of the research, since there was little evidence on the magnitude of the benefits that this increase in social capital had on society at large, and no account had been taken of the countervailing costs, for example, the risk that ‘home ownership also limits mobility, which may impose costs that far exceed any benefits from better citizenship’.97 Another important factor to bear in mind is the possibility that home ownership does not, in itself, encourage better citizenship, but that better citizens are more likely to become home owners. For example, Rohe et al reported that ‘[i]t is not clear . . . whether homeownership actually causes greater stability and participation, or whether those who are more likely to stay put are prone to buy houses’.98 92 PW Kingston and JC Fries, ‘Having a Stake in the System: The Sociopolitical Ramifications of Business and Home Ownership’ (1994) 75 Social Science Quarterly 679 at 683. The authors added that ‘[t]he only ownership coefficient that was significant for working to solve community problems was that for female homeowners. Participation in voluntary organisations was unrelated to ownership. Attendance at religious services, arguably an indicator of participation in the traditional social order, was unrelated to the ownership variables’: ibid. 93 Ibid. 94 Ibid, 680. 95 Ibid, 685. 96 Lundqvist, above n 73, 217. 97 DiPasquale and Glaser, above n 85, 384. 98 Rohe et al, above n 87, 11. Research into the relationships between home ownership and neighbourhood quality has also suggested that decreased individual mobility may in fact be detrimental for some home owners, who become ‘trapped’ in bad neighbourhoods. In these circumstances, low mobility can in fact have negative consequences, since it can ‘perpetuate the kinds of social problems

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Similar patterns emerged in respect of other aspects of societal impact, such as social involvement and socially desirable behaviours. Although home owners are thought to be more likely to participate in voluntary organisations and engage in local political activity, there is still some doubt whether these relationships are ‘causal’. Rather, the relationship between home ownership and social participation may, in fact, may be explicable on the basis that ‘certain persons may have an underlying propensity for social involvement that leads them to both participate in voluntary and political activities, and to buy a home’.99 When considering ‘desirable youth behaviours’, such as school performance, school dropout rates and teen parenthood rates, it is likewise unclear whether living in the owneroccupied sector is independently significant, or whether what differences do emerge are attributable to other factors, such as the possibility that home owners are more vigilant parents, have greater general family assets or that neighbourhood conditions are generally better for owner-occupied households. Rohe et al concluded that ‘research on the impacts of homeownership on both perceived control and socially desirable youth behaviours is simply too sparse to draw conclusions at this time’.100 Notwithstanding the ambivalence of empirical evidence on the causative impact home ownership has on matters such as political attitudes, social behaviour and neighbourhood stability, the popular belief that home ownership contributes to a more stable, conservative and Conservative-voting society has impacted on British politics in recent history. In Cowan’s account of the scandal that surrounded a decision by Westminster City Council to pursue an unlawful policy of selling off council houses to private ownership, he suggested that: [w]hat is most surprising about the various political machinations is not so much that they occurred, but that ordinary intelligent people could buy into so many myths about owner-occupation.101

The subject of the Westminster scandal, and of Cowan’s analysis, was the exploitation of the ‘right-to-buy’ provisions by the Conservative Council for political gain. In this particular case, the policy adopted was unlawful because the Council ignored its responsibility to retain a certain amount of housing stock to accommodate social tenants, opting instead to sell off the properties to owner occupiers. As Cowan observed, one of the interesting aspects of this decision was the Conservative Council’s belief that selling, rather than letting, the houses would associated with these environments’: ibid, 12. The research literature suggested that four ‘disadvantaged’ groups of home owners were particularly vulnerable to the disadvantages of low mobility in poor quality neighbourhoods: low income households, black households, female-headed households, and older home owners; ibid, 14. 99 Ibid, 17. 100 Ibid, 22. 101 D Cowan, ‘ “Rage at Westsinster”: Socio-Legal Reflections on the Power of Sale’ (2003) 12 Social and Legal Studies 177 at 183.

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secure a political end. Two specific assumptions were identified: first, the ‘inherent assumption . . . that owner-occupiers are more likely to stay put and contribute to the stability of communities’,102 and, secondly, the ‘explicit assumption that owners were more likely to vote Conservative’.103 Although, as this section has suggested, evidence linking home ownership to specific political and social behaviours is somewhat inconclusive, the relative merits of ownership compared to other tenures, and the assumption that owners were more likely to vote Conservative, were ‘tacitly presented as truth’.104 Overall, then, it appears that although the idea that ownership of property gives occupiers a ‘stake in society’ long pre-dates the modern context of mass home ownership, the argument that home owners make better (and more conservative) citizens remains salient in contemporary political discourse, even despite the absence of compelling empirical evidence to support the causative effects of ownership in relation to political and social participation, and other indicators of good citizenship. However, it is interesting to note that, from Anthony Eden’s rhetorical reference to ownership for citizenship in a ‘property-owning democracy’ in the 1940s,105 to the exponential expansion of owner occupation through the second half of the twentieth century and into the twenty-first century, perceptions of citizenship have also shifted. While early references to home ownership as a ‘stake in society’ emphasised the idea that citizens would carry an obligation of loyalty and service towards the state, this attitude has given way to a concept of citizens as the bearers of social rights.106 The idea of owner occupiers as rights-bearing individuals and, particularly, the proposition that the state has responsibilities towards citizens with reference to their interest in a property as their home, is considered further in Chapter 10. Another issue considered in Part II of this book is the possibility that, when it comes to safeguarding the interests of occupiers in their homes, some types of occupier may be regarded as more deserving of protection than others. For one thing, the growth of home ownership has been coupled with the diversification of the sector, including the rise in low income home ownership. Meanwhile, the spectre of unsustainable home ownership has cast a shadow over the benefits that home owners stand to gain from buying rather than renting. In fact, Murie has suggested that, when it comes to assessing the citizenship benefits of ownership, home owners can no longer be regarded as: 102 D Cowan, ‘ “Rage at Westsinster”: Socio-Legal Reflections on the Power of Sale’ (2003) 12 Social and Legal Studies 177 at 183. 103 Ibid. 104 Ibid, 186. 105 See, eg, ‘A Nationwide Property-Owning Democracy’ in A Eden, Freedom and Order: Selected Speehes 1939–46 (London, Faber & Faber, 1947). 106 Murie has claimed that ‘[o]ver time, perhaps as political concerns about the threats of Bolshevism and revolution receded, the idea of ownership of property as citizenship associated with the behaviour and obligations of citizens gave way to an argument about home owners as more complete citizens’: Murie, above n 30, p97.

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secure and contented citizens insulated against market forces and without risk of being deprived of their housing, their wealth, their citizenship or their status as a result of changed economic circumstances or the actions of financial institutions’.107

The remainder of this chapter considers the social and economic benefits—and costs—of home ownership for individuals and for society as a whole. The putative advantages of owning your own home for the realisation of home meanings must be evaluated in the context of increased levels of risk and repossession. When it comes to transposing these home meanings to the legal context, there has been an overwhelming tendency to focus on the protection of creditors, with a view to safeguarding the availability of credit to fund the growth of the owner-occupied sector. The countervailing costs of losing the home through default and repossession have been overlooked in the process of this reasoning. The following sections seek to evaluate the benefits of home ownership for the realisation of home meanings, taking account of the risk of loss of home in creditor possession actions. The issues at stake are considered under four broad headings: first, the next section considers the economic advantages of home ownership for society at large; the following sections proceed to consider the individual rewards of home ownership in terms of household wealth (home as financial investment) and in terms of the x factor meanings of home. The object is to assess the argument that ownership enhances home meanings, in light of the risks associated with losing the home in a creditor possession action.

Societal Advantages of Home Ownership: Macroeconomic Returns In addition to the ‘citizenship’ argument, the promotion of home ownership has also been rooted in the idea that owner occupation creates beneficial economic consequences for individual home owners (considered in the next section, below) and for the broader economic health of the nation. For one thing, home owners are not only thought to become better citizens, but they are also better consumers: owning one’s own home is associated with higher levels of consumption of goods,108 which improves the overall liquidity of the economy. The macroeconomic advantages associated with the growth of home ownership have included the: ‘[c]onventional wisdom . . . that homeownership fosters widespread economic benefits through job

107 108

19.

Ibid, 97. R Robbins, Global Problems and the Culture of Capitalism (Boston, Mass, Allyn and Bacon, 1999)

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creation and other economic stimuli’,109 which are, in turn, beneficial for national credit markets, labour markets and finance markets.110 Yet, if successful home ownership yields macroeconomic benefits, it is also important to recognise the countervailing costs for the wider economy when home buyers default on repayments and creditors bring possession actions to recover their capital loss. Possession actions have been linked to a broad range of economic costs, which impact not only on the creditor and the dispossessed owner occupier, but also on insurers, on central and local government, on the health services, the housing market and the labour market. This section considers the macroeconomic benefits and costs of mass home ownership, including the broader economic costs of unsustainable home ownership. The economic benefits and costs of home ownership are both direct and indirect. The direct benefits and costs are those experienced by the parties to the transaction—that is, the creditor and the borrower; indirect costs and benefits include the other financial and economic consequences of the house purchase transactions, described in economic terms as ‘externalities’. These ‘externalities’ have influenced housing policy to the extent that they are recognised as positive and beneficial. For example: ‘[t]he existence of significant positive externalities of increased homeownership is the justification for most market interventions that promote homeownership’.111 One of the clearest examples of market intervention in the housing market can be found in the policies pursued by Conservative governments in the United Kingdom from 1979 to 1997, exemplified in the provision of ‘right to buy’ discounts for council tenants, which significantly distorted market forces in the interests of promoting homeownership.112 In fact, as Murie later noted, ‘the policy was designed not to expose people to the risks and choices associated with the market but rather to encourage them to exit from the public sector and to access private ownership through an enormously subsidised route’.113 Indeed, the outcome for those who benefited from right to buy discounts was generally very positive, as those who exercised their ‘right to buy’ generally ‘bought the best council properties with large discounts and have rarely experienced problems associated with taking on too large an initial mortgage burden’.114 However, the outlook for home buyers, especially first time buyers, has altered dramatically in recent decades. After the high-water mark of right-to-buy in the 1980s and early 1990s, which included the transfer of the best council stock into home ownership, factors ranging from the differentiation of the 109 G McCarthy, S Van Zandt and WM Rohe, The Economic Costs and Benefits of Home Ownership: A Critical Assessment of the Research (Washington DC, Research Institute for Housing America, 2001) 32. 110 SP Hornburg, ‘Preface’ in ibid, p iii. 111 Ibid, 33. 112 Murie, above n 30, 90. 113 Ibid. 114 Ibid.

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home ownership sector to include a large proportion of low-income households,115 the decline in mortgage safety-nets, the demise of mortgage tax relief, and concerns about the unsustainability of home ownership have been presaged as the ‘end of the honeymoon with homeownership’.116 Yet, while the external benefits of home ownership have been influential in the formulation of government policy, the external costs have not. When articulating the reasons for the pro-creditor approach that has prevailed in English law, the legislature and the judiciary have emphasised the macroeconomic implications of any legal development that might adversely affect creditors and so, it is reasoned, inhibit the availability of credit finance to fund home ownership.117 The line of reasoning that has underpinned these policies has been premised on an unequivocal presumption that the continued expansion of home ownership is economically beneficial. Yet, there has been relatively little empirical research into the macroeconomic returns of home ownership on which to base this presumption, and the few studies that have been carried out are often focused on the role of the housing market in the wider economy, rather than home ownership per se. It is hardly surprising that the potential implications of legal policy on the housing market weigh heavily on the balancing scales in creditor/occupier disputes. The performance of the housing market—the ‘most important single market in the economy’118—is a major factor in the national economy. For one thing, the housing market ‘accounts for a huge portion of production activity, with backward linkages to land markets, building materials, tools, durable goods, and labour markets’.119 In addition, the housing market is closely inter-related to financial markets. Furthermore, in a jurisdiction of widespread home ownership, such as the United Kingdom or the United States of America, the economics of home ownership have a major impact on financial markets by virtue of the volume of capital at stake. McCarthy et al highlighted the fact that: Mortgage debt accounts for a large proportion of household debt and, through secondary markets and securitization, undergirds domestic and international financial markets. Housing markets are routinely looked at as an important leading indicator of overall macroeconomic activity.120

Finally, the meaning of the home as financial investment is significant for the wider economy, since: ‘[h]ousing equity also accounts for the lion’s share of household and national wealth’.121 115 116 117 118 119 120 121

See Burrows and Wilcox, above n 38. Murie, above n 30, 91. See Ch 2. McCarthy et al, above n 109, 33. Ibid. Ibid. Ibid.

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Yet, although ‘[t]he importance of the housing sector to the national economy is incontrovertible’,122 many of the economic activities associated with home ownership are linked to housing provision, rather than a particular type of tenure. The macroeconomic advantages listed with reference to homeownership include ‘job creation, the stabilization of national and regional economies, and the promotion of economic growth without harming the balance of payments’.123 However, there has been little empirical research into the question whether these benefits would also subsist at a macro level, in a market that was dominated by the rented sector. For example, McCarthy et al have claimed that: Homeownership accounts for a large share of national employment—directly through the production, maintenance, and modification of housing, and indirectly through realty, insurance, and financial industries.124

However, they also acknowledged that ‘homeownership per se might only have a marginal impact on the economy. If a large majority of the population were renters, housing the population would still require a sizeable commitment of national resources’.125 Another factor to bear in mind is the importance of recognising the ‘trade-off’ between costs and benefits. There can be no doubt that the housing market, and specifically the promotion of home ownership within the housing market, is significant to macroeconomic wellbeing; however, this does not necessarily imply that home ownership is irrefutably beneficial to macroeconomic wellbeing. The overriding argument advanced in McCarthy et al’s critical evaluation of the macroeconomic benefits and costs of home ownership was the importance of balancing the macroeconomic benefits of widespread home ownership against the countervailing costs.126 In fact, McCarthy et al recognised that the fundamental key to balancing the costs and benefits of home ownership is to recognise that, while successful home ownership may be beneficial for occupiers, when they fall into default the consequences are highly detrimental. For example, when considering research into the economic effects of home ownership on neighbourhoods, they noted that while:

122

McCarthy et al, above n 109, 35. Ibid, 33. 124 Ibid. 125 Ibid. This report went on to argue that while ‘[p]ublic attempts to increase homeownership rates are often justified by the alleged importance of housing and homeownership to the national and regional economies . . . .[t]he few studies that have attempted to establish the importance of homeownership fail to control for the fact that a decline in the owner-occupied housing market will generate a growth in rental markets’: ibid, 49. 126 Ibid. 123

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homeownership can help to stabilize a neighbourhood and start a self-fulfilling cycle of improvement and wealth creation . . . For this stabilizing pattern to emerge, the new homeowners must be successful—they must make their mortgage payments on time and have enough money to properly maintain their home. Homeownership must be sustainable. If the new homeowner fails, then nearby home prices will decline and the neighbourhood is likely to decline.127

In addition, the prospect that home ownership enhances neighbourhood stability must be weighed against the possibility that, for some home owners, this lack of mobility may have negative consequences as they become ‘trapped’ in poor neighbourhoods. Another negative consequence of the heightened geographical stability associated with home ownership is the danger that home owners are less able to relocate, to follow employment opportunities, since the transaction costs of moving house are higher for home owners.128 McCarthy et al claimed that this consequence may exacerbate the impact of economic downturns, to the detriment of individual home owners as well as regional and local economies. At the national level, the economic benefits of home ownership must be weighed against the economic costs, since: ‘[w]hile a vibrant housing sector might lead the national economy out of financial doldrums, instability in the housing sector can have devastating regional and local impacts’.129 At the household level, the potential economic costs include the risk that, since home owners are less mobile, they are less able to relocate in times of economic downturn, and thus may be inhibited from moving to follow the labour market. McCarthy et al claimed that ‘[h]ousing value losses associated with job loss can put families in the untenable position of needing to sell to move, but being unable to sell because of negative equity’.130 Increased home ownership has also been linked to a decline in the flexibility of labour markets and capital markets, rendering them less able to respond quickly or efficiently to changing scenarios in a global economy.131 Finally, the dependence of individual households on credit to fund their housing costs has also been associated with the macroeconomic costs that flow from rising default rates. The expansion of home ownership encourages higher levels of borrowing; higher levels of borrowing increase the risk of default; and, so the argument goes, ‘[h]igher default rates increase the cost of credit for homeowners and other investors and might even drive up national interest rates’.132 McCarthy et al reported that: 127 128 129 130 131 132

Hornburg, above n 10, p iv. See further below, in ‘Individual economic benefits and costs’. McCarthy et al, above n 109, 34. Ibid, 34. Ibid. Ibid, 35.

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High housing investment distorts prices and returns on other investments. Households temper their portfolio risk by holding less risky non-housing assets—essentially crowding out stock market investment. Higher household portfolio risk drives up default rates, which drive up interest rates for the economy as a whole.133

Furthermore, it is noteworthy that, in these circumstances, the risks associated with default on mortgage credit are greater for low income home buyers, since low income households tend to over-invest in housing, and will therefore bear proportionately greater financial losses in the event of default. It is important to bear in mind the caveat, repeatedly stressed in the McCarthy et al report, that due to a lack of empirical evidence it is not possible at present to quantify the efficiency losses associated with high levels of home ownership, or to measure the costs against the purported benefits of promoting owner occupation. However, their overriding argument echoes the argument advanced in Chapter 3 of this book: that legal policy, when it comes to striking a balance between the claims of creditors and the interest of occupiers, is focused too narrowly on avoiding potential financial losses to creditors, and so adversely affecting the availability of credit to fund home ownership. By the same token, the overarching argument of the research reviewed in this section was that housing policy is focused too narrowly on the need to facilitate home ownership, without adequate consideration of other issues at stake. McCarthy et al claimed that ‘[i]t is not economically efficient to promote universal homeownership simply because homeownership brings some external benefits. One must also assess the costs’.134 The following section continues this analysis by considering the costs and benefits of home ownership for individual occupiers.

Individual Rewards of Home Ownership The previous sections have focused on the implications of widespread home ownership at a societal level. Yet, while the governmental aims of promoting ‘good citizenship’ and a healthy national economy were undoubtedly significant, the argument that the individual home owner would reap economic and social dividends is also—and increasingly—significant in political rhetoric promoting home ownership. For example, in a 1995 Housing Policy Paper, the Department of the Environment declared that ‘[a] high level of home ownership, alongside a healthy rental market, is good for the country and good for the individual’.135 In fact, the 133 134 135

McCarthy et al, above n 109, 44. Ibid, 42. Department of the Environment, Our Future Homes (Cm 2901) (London, HMSO, 1995) 12.

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success of the drive to expand the owner-occupied sector can largely be attributed to the way in which home ownership has been promoted as being beneficial for the individual, as well as advantageous for the nation as a whole. The advantages that home ownership offers to individual citizens—both financially and personally—have been repeatedly emphasised in government housing policy: for example, in 1953, home ownership was described as ‘[o]f all forms of saving [being] one of the best. Of all forms of ownership this is one of the most satisfying to the individual and the most beneficial to the nation.136 It is interesting to note the way in which political discourse on the meaning of home ownership has explicitly highlighted many of the meanings associated with home, which were set out in Chapter 4. For example, in a 1971 White Paper, the Government described home ownership as: the most rewarding form of housing tenure. It satisfies a deep natural desire on the part of the householder to have independent control of the home that shelters him and his family. It gives him the greatest possible security against the loss of his home: and particularly against the price changes that may threaten his ability to keep it. If the householder buys his house on mortgage he builds up by steady saving a capital asset for himself and his dependents.137

The rhetoric employed in this description—specifically, the use of the words independent, control, shelter, security, steady saving and capital asset—conjures up many of the positive images associated with the home as a financial investment, home as shelter, and home as a valued territory in which the occupiers enjoy security, autonomy and control. These meanings have been explicitly linked with ownership—thus the statement that ‘80% of people favour home ownership over other forms of tenure’ was swiftly followed by the comment that ‘[t]hey value independence and control over their own home’.138 These references to the individual satisfaction that home owners reap from their properties, and to the associations between independence and control and the owned home, are indicative of the explicit correlation between the political ideology of home ownership and the values of home which were explored in Chapter 4. If home = house + x, it was clear that housing policy, so far as owner occupation was concerned, was not exclusively concerned with the provision of shelter, but was also linked to the ‘x factor’ meanings of home. Furthermore, the tendency to focus on these individual rewards heightened with the intensification 136 Houses: the Next Step (Cmnd 8996) (London, HMSO, 1953), Preamble. Similarly, the stated goal of the 1958 White Paper, House Purchase, was ‘to enable more people to buy their own homes’: Minister for Housing and Local Government, House Purchase (Cmnd 571), Sessional Papers (London, HMSO, 1958). 137 Department of the Environment, Fair Deal for Housing (Cmnd 6851) (London, HMSO, 1971) 4. 138 Dept of Environment, above n 135, p12.

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of the drive to promote home ownership from 1979.139 One of the central features of the ‘individual rewards’ discourse was the idea that, for occupiers, the individual rewards of home ownership are greater than those that flow from renting. Indeed, the proposition that owners enjoy a privileged position in relation to the meanings and values of home, compared to renters, has been advanced in support of the policy of promoting home ownership. This proposition, which has provoked considerable debate, is considered further in the next section.

The Meanings of Home Across Tenures In Kemeny’s seminal analysis of The Myth of Home-Ownership,140 he emphasised the central significance of the individual rewards of home ownership in government rhetoric, which was reflected in the ‘almost mystical reverence for homeownership’ presented in government ‘eulogies’.141 In fact, Kemeny argued that it was the portrayal of home ownership in these terms that embedded ‘built in prejudices and assumptions’ and created ‘misconceptions’ regarding the superiority of home ownership over other forms of tenure. The terms in which the individual rewards of home ownership were expressed clearly conveyed a view that the meanings and values of home were more readily available through ownership. Where housing policy discourse had referred to home ownership as ‘satisf[ying] a deep natural desire’ on the part of the individual owner, and the expansion of home ownership as ‘reflect[ing] the wishes of the people’, Kemeny questioned the assumption that was embedded in government rhetoric, that home ownership necessarily enhanced the experience of home—what Kemeny described as the ‘implicit—or sometimes only thinly veiled—assumption that home-ownership is inherently desirable and naturally superior to other forms of tenure and that given accessibility and adequate resources, all households would choose to own’.142 Kemeny set out to ‘de-bunk’ what he identified as: myths about home ownership which pervade housing values in English-speaking countries—the psychological and ‘natural’ desire of owning, its inherent security of tenure (and by implication the inherent insecurity of other forms of tenure), and the capital asset which is produced.143

Kemeny argued that the meanings of home were not necessarily enhanced by home ownership but, rather, that the ‘single-minded pursuit of home-ownership in 139 140 141 142 143

Murie, above n 30, 90. Kemeny, above n 67. Ibid, 11. Ibid, 4. Ibid, 11.

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English-speaking countries’144 had led to a belief that home ownership is a ‘good thing’, and ensured a better home experience. Kemeny argued that this view was not supported by objective analysis. Rather, he claimed that the vigorous promotion of home ownership had restricted real choice for individual households, had led to greater indebtedness for individual households than private renting,145 and was more expensive to manage and maintain than public renting.146 Kemeny also claimed that ‘[t]he high economic cost of homeownership is paralleled by a high social cost’.147 In fact, he argued that housing policy—and specifically the promotion of home ownership—was not in fact based on the economic and social benefits of the tenure for individual households: ‘housing policy is not based on altruism, but reflects the vested interests of pressure groups who have succeeded in imposing their demands through government’.148 On the other hand, some commentators have argued that home ownership does indeed accrue significant economic and social benefits for individual home owners. For example, Saunders, one of the most prominent academic supporters of home ownership as a source of individual rewards, championed the growth of the owner-occupied sector as a means of enhancing the home meanings experienced by occupiers. In A Nation of Home Owners,149 Saunders argued that ‘most people in Britain would prefer to own their homes rather than rent them’,150 that ‘owneroccupation is the preferred tenure of most ordinary people’, and that ‘[t]he evidence of an overwhelming aspiration to own is, of course, too compelling to deny’.151 Furthermore, Saunders argued that although ‘[t]here is a literal sense in which the desire for home ownership cannot be “natural”, for owner-occupation is a distinct cultural-legal phenomenon of recent origin’,152 the desire to own one’s own home satisfies a natural desire to possess, and enhances feelings of security, privacy, and the sense of self and self-identity.153 For Saunders, ownership very definitely enhanced the experience of home, in respect of both ‘the house’ (as financial investment and physical structure) and the ‘x factor’ meanings of home (as territory, as identity and as socio-cultural unit). This was evident in his account of the two principal advantages of owning one’s own home: One is financial—buying is seen as cheaper in the long run, or rent is seen as a waste of money, or rising house prices are seen as a means of saving for the future or accumulating 144 145 146 147 148 149 150 151 152 153

Ibid, 145. Ibid, 141. Ibid, 142., Ibid, 143. Ibid, 146. Saunders, above n 27. Ibid, 3. Ibid, 65. Ibid, 69. Ibid, 80.

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capital. The other has to do with the sense of independence and autonomy which ownership confers—the freedom from control and surveillance by a landlord and the ability to personalize the property according to one’s tastes.154

Saunders claimed that the meanings of home—both economic and social—were enhanced by home ownership. In short, he claimed that ‘owners were more likely to identify their house as home’.155 One of the central controversies raised by housing scholars throughout the 1980s and 1990s has been the extent to which home meanings are regarded as ‘tenure-specific’:156 specifically, whether the meanings and values of home are enhanced through ownership, so that owner occupiers have a superior home experience, compared to renters. This question is clearly significant when it comes to evaluating housing policies that promote home ownership and residualise the rental sector. These issues have fundamental importance for housing policy choices; however, the focus of the book is on the meanings of home in the context of creditor possession actions, and for home occupiers facing possession proceedings with a creditor, the relative merits of renting are not really the issue. The pertinent issues for owner-occupiers facing default and the prospect of losing their home at the hands of a creditor are the extent of any protection afforded through government welfare provision and the weight attached to their home interests, relative to the creditor’s commercial claim in the context of legal proceedings. Nevertheless, for critical analysis of the treatment of home interests in law, the debate surrounding home meanings across tenures is important. The recognition of home values in law and in other disciplines, and the arguments for recognising such values in the creditor/occupier context, have been the central theme of Part 1 of this book. It has been argued that one of the obstacles that has impeded the development of a legal concept of home is the fact that to recognise the validity of the occupier’s claim would potentially undermine the creditor’s chances of success. The priority afforded to the creditor’s interest has often been rooted in policy arguments concerning the promotion of home ownership. Defeating creditors’ claims, so the argument goes, would discourage creditors from lending money to fund the purchase of owner-occupied properties, and that must be avoided.157 154

Saunders, above n 27, 84. Ibid, 272, emphasis added. 156 See, eg, R Forrest, ‘The Meaning of Home Ownership’ (1983) 1 Society and Space 205; Kemeny, above n 67; Richards, above n 21; Gurney above n 51; K Dovey, ‘Model Houses and Housing Ideology in Australia’ (1992) 7 Housing Studies 177; Saunders, above n 27; A Dupuis and D Thorns, ‘Home, Home Ownership and the Search for Ontological Security’ (1998) 48 Sociological Review 24. On the question of home ownership and the meanings of home for women, see J Darke, ‘Women and the Meaning of Home’ in R Gilroy and R Woods (eds), Housing Women (London, Routledge, 1994); C Gurney, ‘“Half of Me was Satisfied”: Making Sense of Home through Episodic Ethnographies’ (1997) 20 Women’s Studies International Forum 373; see further, Ch 8. 157 See generally, Ch 2. 155

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However, as the discussion in Chapter 3 sought to demonstrate, by focusing on the availability of credit to fund home ownership, legal discourse in relation to creditor/occupier disputes has overlooked many of the other costs at stake in creditor/occupier disputes. Although the financial and other consequences of possession actions are serious and wide-reaching, impacting on not only the occupier and the creditor, but central and local government, health services, the labour market and the housing market, legal policy has been forged on the basis of promoting but not protecting home ownership. The incongruity of policies that promote the expansion of home ownership, yet do not recognise the need to protect the owner occupier’s home interest against a creditor possession action, is highlighted by housing policy debates concerning the meanings of the owned home in the United Kingdom. It is important to emphasise that across the spectrum of academic analyses on the meanings and values of the owned home—from Kemeny to Saunders—the significance of home per se is implicitly recognised. Where these analyses depart from one another is on the question whether the ‘owned home’ creates a more meaningful relationship between the occupier and the dwelling place than another home, for example, a rented property. Furthermore, some commentators, such as Gurney, have sought to take account of the costs, as well as the benefits, of home ownership, when considering home meanings across tenure. Gurney highlighted the importance of tempering the perceived benefits of home ownership against the risks of losing one’s home through possession actions. He claimed that ‘whilst owner occupation may represent a chance to carve out feelings of niche and belonging for some, for others it represents a housing situation of financial uncertainty, worry and lack of control’.158 In his assessment of the relative advantages of home ownership and renting for the achievement of positive home meanings, Gurney sought to take account of both the benefits and the costs of each tenure, rather than limiting his analysis to the positive aspects of home ownership. The case for taking account of the costs of unsuccessful home ownership for individuals at a general policy level is brought into sharp relief by evidence that, in the contemporary climate of home ownership, when debtors default on repayments—rendering their ownership ‘unsustainable’—this is often attributable to extrinsic economic factors, rather than ‘individual failure’. As Hunter and Nixon wrote: the increasing propensity to arrears that arose during the late 1980s cannot simply be seen in the context of individual failures. Several structural factors are also involved, some relating directly to government policies that precipitated the individual circumstances.159

158 159

Gurney, above n 51, 8. Hunter and Nixon, above n 15, 167.

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Ford et al 160 point to factors such as labour market restructuring, demographic changes, the expansion of the home ownership sector, and the erosion of traditional safety-nets for mortgagors, which have increased the levels of risk systemically associated with home ownership. Furthermore, a range of studies has also suggested that, putting aside these macroeconomic factors, at the micro level default is usually triggered by random ‘biological disruptions’, for example, job loss, marital disruption, health problems and negative equity.161 The consequences of these extrinsic and ‘random’ events for home owners who find themselves unable to keep up repayments on their mortgages include finding the home itself and all of the meanings associated with the home vulnerable to actions by the creditor, possibly through no ‘fault’ of their own. The previous sections considered the economic and social advantages of widespread home ownership for society at large, including the relative advantages and disadvantages for home owners who are unable to keep up repayments on their mortgages, and therefore are vulnerable to loss of home in a creditor possession action. The following sections consider the benefits and risks of home ownership in relation to the experience of home for individuals, first from an economic perspective, and then from a social/psychological perspective. Marcuse has argued that, as a result of the socio-cultural significance of home ownership in jurisdictions which have strongly promoted its benefits over other tenures, owneroccupation now ‘has a mystique, independent of any real difference it makes legally or economically’.162 The following sections consider the extent to which the ideology of home ownership is sustained by government and legal policies that emphasise the value of the individual’s home interest in owner-occupied property. The importance of home meanings in policies promoting home ownership raises another important question: if the meanings and values of home are utilised in the promotion of home ownership, what is the justification for failing to recognise these same values when it comes to protecting those home interests against the consequences of default?

160

See generally, Ford et al, above n 6. D Easterlow and SJ Smith, ‘Housing for Health: Can the Market Care?’ (2004) 36 Environment and Planning A 999; see also J Quigley and R Van Order, ‘Spatio-Temporal Measurement of House Price Appreciation in Underserved Areas’ (1995) 11 Journal of Housing Research 1; KE Case and RJ Shiller, ‘Mortgage Default Risk and Real Estate Prices: The Use of Index-Based Futures and Options in Real Estate’ (1996) 7 Journal of Housing Research 243; D Capozza, D Kazarian and T Thompson, ‘Mortgage Default in Local Markets’ (1997) 25 Real Estate Economics 631; PJ Elmer and SA Seeling, The Rising Long-Term Trend of Single Family Mortgage Foreclosure Rates (FDIC Working Paper Series 98-2) (Washington, DC, Federal Deposit Insurance Corporation, Division of Research and Statistics, 1998); see McCarthy et al, above n 109, 29. 162 Marcuse, above n 74, 4. 161

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Home Ownership and Household Wealth The meaning of home as a financial asset was discussed in Chapter 4. Of the five sets of meanings explored in that chapter, home as a financial asset is the only sphere of value from which tenants are obviously excluded. Discourses concerning the tenure specificity of home meanings have debated the extent to which the other clusters of home meanings set out in Chapter 4—home as a physical structure; home as territory; home as identity and home as a socio-cultural unit—are experienced by owners relative to tenants, and the main cleavage in analyses of the advantages and disadvantages of different forms of tenure has been concerned with the extent to which the owner-occupied home and the rented home can ‘deliver’ these meanings for the occupier. For example, in Marcuse’s radical deconstruction of home ownership, he argues that many of the purported advantages of home ownership—for example security, privacy, control—are not inherent to the tenure, but, through appropriate legal protection, could be made equally available to tenants.163 However, the meaning of home as a financial asset or investment can be distinguished from other meanings associated with home, since it can accrue only through ownership. Home ownership offers a range of individual economic benefits, from wealth accumulation to decreased housing costs over time. Buying a home subject to a mortgage creates a forced saving for buyers, while meeting their housing needs: as Kahn Freund described it, the ‘ownership of a house bought with a building society mortgage . . . has the economic function of a tenancy . . . combined with the ideological function of property’.164 McCarthy et al captured the investment value of the owner-occupied-subject-to-a-mortgage home in their comment that ‘[n]o other financial investment includes free housing as a monthly dividend’.165 In fact, it has been suggested that the investment benefits of home ownership are so significant that, even where the asset value of the property does not increase over time, the combination of housing services through use and acquisition of a capital asset ensures that owner occupation is still financially advantageous. Since the owned home provides housing services—ie use—as well as being an investment, McCarthy et al suggested that ‘[h]omeownership can make financial sense even if the owner loses money on the housing investment ’.166 Although the boom and bust of the housing market in the United Kingdom in the 1980s and early 1990s, followed by the phenomenon of negative equity and 163

Ibid. O Kahn-Freund, ‘Introduction’ in K Renner, Institutions of Private Law and their Social Functions (London, Routledge & Kegan Paul, 1949) 36. 165 McCarthy et al, above n 109, 19. 166 Ibid, 18. 164

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rising rates of possession actions led some to suggest that it was ‘time to unlearn the lessons of the mid-1980s when it was possible to make more money from house price inflation than from a job’,167 a recent study has suggested that, by the mid-2000s, once again ‘the wealth of many owner-occupiers is accumulating faster in their homes than through their incomes’.168 Another important aspect of home ownership for household wealth in the twenty-first century is its role in enabling people to access other sources of credit. Home owners have better access to borrowed capital than renters, whether the loan is secured against the property or not.169 This is because ‘owner occupation weighs significantly in credit-scoring algorithms. Thus owners/buyers have better access than renters to higher levels of unsecured credit’.170 This is interesting since unsecured credit does not, prima facie, put the home at risk. However, as the discussion of charging orders in Chapter 2 established, the Charging Orders Act 1979 greatly facilitated the ability of an unsecured creditor to obtain ex post facto security against the debtor’s property, even where that property is co-owned, never mind co-occupied, with another.171 Furthermore, following the decision in Barclays’ Bank Plc v Hendricks,172 it was clear that the court would willingly order sale at the behest of a chargee, even though the proprietary security on which the creditor relied was derived from a charging order and not voluntarily granted.173 The ability to secure higher levels of secured and unsecured credit should therefore be viewed in light of the countervailing cost: better access to higher levels of credit comes at a price— that, in the event of default, home owners risk losing both their investment asset and their homes. The individual economic advantages of home ownership have been central to the promotion of this tenure in recent decades. For example, when Michael Heseltine launched the right-to-buy policies of the Conservative government in 1980, he claimed that: There is in this country a deeply ingrained desire for home ownership. The Government believe that this spirit should be fostered. It reflects the wishes of the people, ensures the 167 J Darke, ‘Househunting’ in C Booth, J Darke and S Yeandle (eds), Changing Places—Women’s Lives in the City (London, Paul Chapman Publishing, 1996) 51. 168 Smith, above n 9, 4. 169 ‘Homeowners enjoy better housing security than renters when they live in safer, betterappointed dwellings and have a low-risk of being displaced from their dwellings because of events outside their control. Owners are more financially secure if their net worth is increased by owning. Further, their financial security is enhanced if their anticipated housing costs burden is expected to fall. [However] The benefits of housing and financial security are tempered by additional costs homeowners bear. These include higher maintenance costs as well as the costs associated with the risk of financial loss or the loss of a home’: McCarthy et al, above n 109, 5. 170 Smith, above n 9, 14. 171 See Ch 2, nn 43–48 and associated text. 172 [1996] 1 FLR 258. 173 See Ch 2, nn 49–51 and associated text.

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wide spread of wealth through society, encourages a personal desire to improve and modernise one’s home, enables people to accrue wealth for their children, and stimulates the attitudes of independence and self-reliance that are the bed-rock of a free society.174

Similarly, in the United States, ‘[p]olicymakers, non-profit leaders, and housing experts see homeownership as key to wealth accumulation for most American families’.175 Blum and Kingston highlighted the significance of the individual home owner’s economic ‘stake in the system’ when they wrote that while: [t]o be sure, homeownership for many means a long string of often burdensome mortgage payments, but it still generally represents the largest economic investment a family makes. Moreover, owning a home is regarded widely as a central component of the American dream, a reward, even a right, accruing to those who successfully follow the economic rules. The popular theory is that those so rewarded acquire both tangible evidence that the system works and economic incentive to maintain the prevailing social order.176

In this respect, home ownership as a repository of household wealth provides a modern expression of the stake in the system argument, for citizens who are incentivised by personal wealth accumulation. Blum and Kingston have also argued that while ownership gives citizens a financial stake in their communities, this economic investment also acts as the trigger for social investment in the communities, which, as the previous section has indicated, is significant for the social and economic prosperity of society at large. They claimed that: any attachments or orientations that may be attributed to home ownership per se reflect some economic calculation of costs and benefits. The force of this argument rests on a simple and often compelling supposition: Money motivates people . . . Presumably their economic stake should encourage homeowners to value social stability, both locally and nationally, and active community life.177

Home owners have—literally—invested in their communities, and, like any other investors, they have an interest in protecting and enhancing their investment. Therefore, it is argued, buyers are expected to make a stronger social investment in their communities than renters, therefore benefiting the community as a whole. Another significant feature of the owned home as a financial asset, as set out in Chapter 4, was the prospect that the owner occupier would have an asset which could be passed on to others, for example, to children, as an inheritance. On the 174 175 176 177

976 HC Deb (5th Series) col 1445 (15 January 1980), Mr Heseltine. Hornburg, above n 110, p iii. Blum and Kingston, above n 75. Ibid, 162.

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one hand, as the discussion in Chapter 4 indicated, there is a certain amount of ambivalence surrounding the extent to which the phenomenon of home—as opposed to the financial asset and physical structure of the house—is capable of inheritance. Empirical studies focusing on the experience of inheriting a family home suggested that the obvious symbolic connection between the testator and the property actually made it more difficult for the beneficiary to experience the more ‘personal’ meanings of home—as territory, as identity and as a sociocultural entity—in that particular property.178 Nevertheless, when it comes to the owned home as household wealth, the opportunity to accumulate family assets has been significant in the promotion of home ownership. In fact, in the 1970s and 1980s, the growth of home ownership in the United Kingdom was described—in ‘often quite euphoric predictions’179— as a way in which to achieve the re-distribution of wealth, and a reduction in socioeconomic inequalities. Dupuis and Thorns have suggested that: these claims now look to be exaggerated as the upward path has not been smooth. We have learnt that rates of financial return are time- and place-specific and that in general they have flowed most strongly to those who already had assets rather than leading to widespread re-distributions of wealth.180

There appears to be a general consensus that home ownership offers greater opportunities for the rich than for the poor. For example, while widespread home ownership has been described as having ‘slightly ameliorated wealth inequalities overall’,181 certain features of the ownership market, such as differential house price appreciation, have exacerbated other types of inequality.182 Most notably, for the purposes of this discussion, existing inequalities are in fact exacerbated by the particular vulnerability of low income households to the economic downsides of home ownership. 178

See above, Ch 4. HC Perkins and DC Thorns, ‘House and Home and their Interaction with Changes in New Zealand’s Urban System, Households and Family Structures’ (1999) 16 Housing, Theory and Society 124 at 126. 180 Ibid, 126. 181 Smith, above n 9, 7. 182 B Thomas and D Dorling, Know your Place. Housing Wealth and Inequality in Great Britain 1980–2003 and Beyond (London, Shelter, 2004). For further critical analysis of the links between home ownership and socio-economic inequalities, see A Murie and R Forrest, ‘Wealth, Inheritance and Housing Policy’ (1980) 8 Policy and Politics 1; M Munro, ‘Housing Wealth and Inheritance’ (1988) 17 Journal of Social Policy 417; R Forrest and A Murie, ‘Differential Accumulation: Wealth Inheritance and Housing Policy Reconsidered’ (1989) 17 Policy and Politics 25; R Forrest, A Murie and P Williams, Home Ownership: Differentiation and Fragmentation (London, Unwin Hyman, 1990); C Hamnett, M Harmer and P Williams, Safe as Houses: Housing Inheritance in Britain (London, Paul Chapman, 1991); B Badcock, ‘Snakes and Ladders? The Housing Market and Wealth Distribution in Australia’ (1994) 18 International Journal of Urban and Regional Research 609; A Dupuis and DC Thorns, ‘Housing and Wealth Accumulation: the New Zealand Case’ (1997) 15 Urban Policy and Research 189; C Hamnett, Winners and Losers (London, London University Press, 1998). 179

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The Wealth-accumulating Opportunities of Home Ownership for Low Income Households In Half the Poor: Home Owners with Low Incomes,183 Burrows and Wilcox highlighted the continuing difficulties experienced by low income home owners, particularly in light of the low level of financial support currently afforded by the Government for home–owning households living in poverty. One issue highlighted in this study was the impact of increased maintenance costs for low income home owners. The costs of maintaining and repairing the property must be met by home owners—these costs are not borne directly by renters—and this places additional burdens on low income households. Furthermore, low income home owners often live in older properties, and therefore face higher maintenance costs. Failure to meet these costs may result in house price depreciation.184 In addition to this, the decreased mobility that owning their own homes can cause for low income households, especially in an insecure labour market, has also been identified as a potential economic disadvantage for low income home owners, since ‘[o]wning a home greatly reduces the mobility of households just when they need it most to move to areas where the economy is growing and the households’ skill sets are in demand’.185 Finally, Smith has suggested that low income home owners are less likely to benefit from the financial rewards of home ownership; that they are exposed to high levels of indebtedness, but, as home owners, receive little social protection; and, since low income home owners are likely to put all their financial eggs in one basket—the home—they are dependent on a narrow investment portfolio, which compounds their financial vulnerability even further.186 In fact, when it comes to financial security, it has been argued that ‘homeownership may not always be a good investment, particularly for low-income . . . owners’.187 This view was based upon a survey of various empirical studies, across jurisdictions, demonstrating that: . . . while homeownership brings considerable economic benefits for families and the country, these benefits are not evenly distributed across income groups. Low- and moderate-income families are likely to gain less and risk more through homeownership.188

Indeed, many commentators have suggested that, following the ‘end of the honeymoon with home ownership’, home ownership, ‘[r]ather than being a symbol of 183 184 185 186 187 188

Burrows and Wilcox, above n 38. See also McCarthy et al, above n 109, p iii. Hornburg, above n 110, p iv. Smith, above n 9, 3; and 17–20. McCarthy et al, above n 109, 18. Ibid, 1.

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status and achievement . . . could now indicate an unbalanced pattern of investment, unreasonable exposure to risk and a lack of wisdom in investment behaviour’.189 Boleat has argued that when it comes to house price appreciation, ‘[h]ousing is now a risky investment. There is no longer the virtual guarantee that prices will rise in nominal terms while the mortgage debt stays fixed’.190 Indeed, the differential impact of these factors on low income households has left many low-income home owners ‘asset rich but income poor’,191 living in poor-quality properties that they cannot afford to maintain. There is also evidence to indicate that in order to be able to buy these houses, low income households are economically disadvantaged, since they ‘tend to over-invest in housing, have highly leveraged mortgages, and live in neighbourhoods that have more volatile house prices’.192 Another important factor to bear in mind is the fact that, as an investment asset—a repository of wealth on which to draw—there are issues about how wealth in the home can, and should, be used, due to its dual function as both an investment asset and a consumption asset. In their study of low income home ownership, Burrows and Wilcox noted that: while in the fullness of time those assets will be realised, for the lifetime of the owner they are primarily tied up in providing a place of residence for the owner. The owners’ continuing occupation is an inherent constraint on the extent to which the asset can be used to generate funds, and the funds made available through equity release schemes are quite modest.193

The ability of homeowners to raise capital against their housing wealth has been a prominent feature of both housing policy promoting owner occupation194 and legal policy regulating creditor-occupier disputes. The decision to prioritise the interests of creditors who lend money for house purchases over and above the home interests of the occupiers who live there has often been justified by the need to ensure that the owner-occupied home remained an attractive source of security for creditors against further (non-acquisition) advances. For example, in Barclay’s Bank Plc v O’Brien,195 it was clear that the House of Lords was concerned with the ability of a home owner to capitalise on equity in the 189

Murie, above n 30, 93. M Boleat, ‘The Politics of Home Ownership’ in P Williams (ed), Directions in Housing Policy: Towards Sustainable Housing Policies for the UK (London, Paul Chapman Publishing, 1997) 60. 191 Murie, above n 30, 95. 192 Hornburg, above n 110, p iii. 193 Burrows and Wilcox, above n 38, 36. 194 Eg, in Fair Deal for Housing (Cmnd 6851) (London, HMSO, 1971) 4, the Department of the Environment claimed that ‘[i]f the householder buys his house on mortgage he builds up by steady saving a capital asset for himself and his dependents’. 195 [1994] 1 AC 180. 190

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home, in order to obtain funds for other activities, such as business enterprises. Lord Browne-Wilkinson stated that: it is important to keep a sense of balance in approaching these cases. It is easy to allow sympathy for the wife who is threatened with the loss of her home at the suit of a rich bank to obscure an important public interest viz, the need to ensure that the wealth currently tied up in the matrimonial home does not become economically sterile. If the rights secured to wives by the law render vulnerable loans granted on the security of matrimonial homes, institutions will be unwilling to accept such security, thereby reducing the flow of loan capital to business enterprises. It is therefore essential that a law designed to protect the vulnerable does not render the matrimonial home unacceptable as security to financial institutions.196

Yet, the corollary of ‘using’ the owned home as a capital asset to raise funds is, of course, the increased risk of default that goes with increased indebtedness. It is important to bear in mind that when the owned home is used as an investment asset to raise capital, this can result in greater instability for owner occupiers, as it increases their risk of default and thus heightens the risk of losing the home in a creditor possession action. The consequences of creditor possession actions—including financial, social, psychological, health, administrative, political and organisational consequences— were discussed in Chapter 3. It is clear that the impact of loss of home is not confined to dispossessed occupiers, but generates a ripple effect against a range of actors and agencies, including borrowers and lenders, but also extending to include insurers, central government, local government, housing market institutions, labour market institutions and health services. The importance of recognising the full range of costs associated with possession actions was also endorsed by McCarthy et al in their review of the economic benefits and costs of home ownership.197 It should also be recognised that low income households are more exposed to these costs than other home buyers. A range of factors renders low income households more vulnerable to default. These include higher risk and lower, and less certain, returns on housing investment; links between housing and labour markets which increase the likelihood that local job losses will be coupled with house price declines;198 the likelihood that low income households ‘will have lower cash reserves to help them weather an interruption in income or unforeseen expenses’;199 and the increased risk that follows from better access to credit.

196

Ibid, 188. The authors noted that ‘[m]ortgage default is costly for families and numerous other stakeholders’: McCarthy et al, above n 109, 32. 198 Ibid. 199 Ibid, 31. 197

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In fact, in the light of these higher risk factors, it has been suggested that ‘affordable lending efforts might be exposing these households to higher default risk’.200 The impact of this increased exposure to the negative aspects of home ownership—from losing both the house and the x factor benefits of home, to the financial and psychological stress caused by higher levels of risk—is constitutive in undermining the social and economic value of ownership and of home for families living on the economic margin.201 Yet, housing policies, including the expansion of the ownership sector and the residualisation of the rented sector, have, it is argued, left many low income households with little choice but to buy. A recurring theme in this chapter has been the extent to which government policy has sought to promote home ownership, but has not necessarily been concerned with protecting home owners. The following section considers how low income households are positioned in relation to welfare provision in the United Kingdom both as home owners and as renters.

From the ‘Right to Buy’ to ‘Unsafe Safety Nets’: the Rise and Fall of Economic Intervention for Low Income Home Owners The relative economic advantages and disadvantages of home purchase for individuals—particularly low income households—are epitomised by considering two specific episodes in government housing policy in the United Kingdom: first, the ‘right-to-buy’ policies instigated by Thatcher’s governments after 1979; and, secondly, the decline in state-sponsored welfare support for low income home owners, specifically, through the abolition of mortgage tax relief and the erosion of state safety nets for mortgagors. On the one hand, the ‘right to buy’ policies adopted by successive British governments after 1980 illustrated the economic benefits that could potentially be reaped from entering the owner-occupied sector under the most advantageous terms. For people who bought their homes under the ‘right-tobuy’ provisions, the experience was generally very positive. These purchasers: bought the best council properties with large discounts and have rarely experienced problems associated with taking on too large an initial mortgage burden . . . Purchasers who bought in the early 1980s have seen these properties appreciate in value to a considerable extent. Where they bought in relatively high price areas, the asset value of their property provides them with an opportunity to move and a choice within the housing market that would rarely have existed for them otherwise.202 200 The authors noted that ‘[m]ortgage default is costly for families and numerous other stakeholders’: McCarthy et al, above n 109, 32. 201 D Balfour and J Smith, ‘Transforming Lease-purchase Housing Programs for Low-income Families: Towards Empowerment and Engagement’ (1996) 18 Journal of Urban Affairs 173; see also L Rainwater, ‘Fear and the House-as-haven in the Lower Class’ (1966) 32 Journal of the American Institute of Planners 23–31. 202 Murie, above n 30, 90–1.

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Those who bought their former council houses at substantial discounts203 were the clear winners, in economic terms at least, in the drive to expand the owneroccupied sector in the United Kingdom.204 The sale of council houses through the ‘right-to-buy’ legislation was tremendously significant, both for the Government and for consumers. For one thing, Smith claimed that ‘[d]uring the housing bonanza of the 1980s local authorities cashed in as the sale of council housing netted more than all the other early eighties privatisations put together’.205 In order to achieve this level of privatisation, the Government offered substantial discounts on the market value of the properties. Government intervention in the housing market through ‘right to buy’ discounts ensured that between 1980 and 1998 1.9 million properties were sold to sitting tenants.206 In addition, there was a range of other schemes to encourage households to shift from rented housing to owner occupation, for example, improvement for sale, forms of shared ownership and cash grants (such as the Cash Incentive Scheme and the Tenant Incentive Scheme).207 Yet, it is interesting to note that, in their study of home owners with low incomes, Burrows and Wilcox claimed that the households which benefited most from the ‘right to buy’ and other financial incentive schemes linked to home ownership were in fact middle income, rather than low income, households. This is supported by Murie’s claim that the tenants who actually exercised their right to buy were ‘[i]n general . . . more affluent tenants who already had bargaining power and could often have bought low priced houses elsewhere’.208 Burrows and Wilcox agreed that ‘[o]nly a minority of low income households directly entered home-ownership, with the Right to Buy and various low cost home-ownership schemes predominately utilised by middle income households’.209 For Burrows and Wilcox, the key point to recognise in relation to home owners with low incomes is the relative lack of state support that they receive as home owners, compared to renters. While successive governments have been highly interventionist in promoting and expanding the owner-occupied sector in Britain, when it comes to supporting low income households in financial difficulties an 203 The right to buy discounts accounted for up to 70% off the market value of flats, after 15 years, and up to 60% off the market value of houses after 30 years. 204 Note, however, the ‘social status’ issues associated with former council houses. Murie has suggested that ‘former local authority dwellings will very rarely cease to be associated with the local authority sector. Where dwellings are on council estates, although they are owner occupied, they will still be seen to be former council dwellings and the price differential will often remain’: Murie, above n 30, 91; see also Gurney, above n 22; C Gurney, ‘“We’ve got Friends who Live in Council Houses”: Power and Resistance in Home Ownership’ in J Hearn and S Roseneil (eds), Consuming Cultures: Power and Resistance (London, Macmillan, 1999). 205 Smith, above n 9, 23. 206 Burrows and Wilcox, above n 38, 60. 207 Ibid, 62–64. 208 Murie, above n 30, 90. 209 Burrows and Wilcox, above n 38, 65.

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opposite trajectory has seen the Government withdrawing from state-sponsored programmes that previously afforded individual economic assistance to home owners, whether through mortgage tax relief or safety-net provision.210 This has a ‘triple whammy’ effect for home owners who, in light of declining council house stock, have not benefited from right-to-buy discounts, who are exposed to greater risk as a result of the rise in ‘unsustainable home ownership’, and who receive little or no protection against that risk from state-sponsored welfare provision.211 The contrast could not be more stark: back in the ‘golden age of homeownership’, when good quality council houses were available for purchase at significant discounts and properties were appreciating in value due to rapid rises in demand, house purchase was underwritten by the state through ‘generous tax relief, financial privileges and a safety net . . . in terms of the social security system’.212 Home buyers were sheltered from many of the risks associated with private ownership under market forces and, if it all went wrong, there was still a reasonable public sector to fall back on for housing needs. In fact, the policy of the ‘right to buy’ ‘was designed not to expose people to the risks and choices associated with the market but rather to encourage them to exit from the public sector and to access private ownership through an enormously subsidized route’.213 However, now that owner occupation has largely been established in the United Kingdom as an effective ‘no-choice tenure’ (due to the lack of available, good quality, affordable public sector rental housing), it has become increasingly apparent that individual households must bear the economic risks associated with home ownership; across the board ‘[t]he alternative tenures are much less attractive, the financial privileges are less and the economic and social context leaves people much more exposed to risk’.214 The links between these housing policies, on the one hand, and the legal context of creditor/occupier disputes, on the other, have been considered in the context of legislative policy debates from time to time. For example, in one parliamentary debate, following the decision in Williams and Glyn’s Bank Ltd v Boland,215 a member of the House of Commons rejected the proposal that the legal protection afforded to occupiers vis-à-vis creditors, should be strengthened with the suggestion that ‘[i]f the Government want to do something to help owner-occupiers in this regard . . . they should withdraw their proposals to cut back mortgage relief for those who are unemployed’.216 It is arguable that there is an implicit trade-off 210

Burrows and Wilcox, above n 38, 65. Murie, above n 30, 95. 212 Ibid, 96. 213 Ibid, 90. 214 Ibid, 96. 215 The decision in Williams and Glyn’s Bank Ltd v Boland [1981] AC 487. 216 Mr Nicholas Brown, MP, HC Standing Cttees Official Report, Session 1985–6, Vol X (21 May 1986) 3. 211

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between welfare policies and legal policies, in the sense that the existence of welfare protections for occupiers might be regarded as mitigating the tendency to overlook such interests in law. As Ford, Burrows and Nettleton stated, ‘[s]ocieties have choices about whether, how, and when home ownership will be supported’.217 In one sense, the provision of safety-nets for home owners facing payment problems and legal policies that seek to value the occupier’s interest in their home perform similar functions inasmuch as they endeavour to ameliorate the risks that are inherent in market-led housing consumption. In Britain, financial assistance for home owners took two main forms: mortgage interest tax relief and the safety-net provisions which entitled mortgagors to claim assistance with their mortgage costs when their income level fell below a specified amount. Although provision for mortgage interest tax relief was established before World War II, the significance of this tax exemption grew with the growth in the sheer volume of home owning households, and as house prices began to rise significantly from the 1970s. In fact, just as the proportion of home owners seeking to claim mortgage interest tax relief was beginning to turn it into a widespread and significant welfare support, the Government began to take steps to limit its availability. The decline in mortgage interest tax relief provision began in 1974, when relief was withdrawn for mortgage debts over £25,000; further reductions were made in 1991, until this head of tax relief was finally abolished in 2000. The principal form of state safety-net provision for home owners was aimed at mortgagors who became unable to meet their repayments due to unexpected loss of income, introduced in Britain under the National Assistance Act 1948. Yet, like mortgage interest tax relief, this legislation, which entitled owner occupiers who qualified for social assistance benefits to assistance with their mortgage payments, was not specifically directed at supporting home ownership.218 Rather: [a]s part of the social assistance system, the instrument reflects the objective of preventing disposable income (in this case income after housing costs) from falling below a minimum level. It thus performs more of a safety-net income maintenance function rather than a general housing safety net or affordability function, although these are intended and implicit consequences of the scheme.219

However, the nature of state-sponsored safety-net provision for mortgage repayments in Britain has changed dramatically in the last decade. Following a substantial policy departure in 1995 which restricted Income Support for Mortgage Interest (ISMI) in various ways—including the terms of when assistance could be 217

Ford, Burrows and Nettleton, above n 6, 83. Ball, above n 5, 340. 219 C Whitehead, K Gibb and M Stephens, Evaluation of English Housing Policy 1975–2000, Theme 2: Finance and Affordability (London, HMSO, 2005), para 6.5. 218

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claimed and the total loan amount covered—the responsibility for sustaining home ownership in circumstances of economic ‘distress’ has been clearly shifted onto borrowers. The ‘privatisation’ of safety nets for mortgage borrowers means that debtors are now expected to protect themselves through private insurance policies, such as Mortgage Payment Protection Insurance (MPPI), Critical Illness Insurance (CI), Permanent Health Insurance (PHI), and Unemployment Insurance (UI), as well as drawing upon personal savings, reserves in a flexible mortgage and employee benefits. It is only when these avenues of relief are exhausted that the residual role of Income Support for Mortgage Interest (ISMI) comes into play.220 The decline in state-sponsored provision for home owning households has been characterised as part of a ‘wider context of the restructuring of welfare and the ideological preference of successive governments (both Conservative and now Labour) to limit state welfare in favour of market provision and public/private partnerships’.221 For one thing, the responsibility for protecting owner occupiers who experience financial difficulties has been shifted squarely back onto their individual shoulders. Furthermore, Ford, Burrows and Nettleton have highlighted the assumption at the heart of the private market approach that borrowers will act rationally within the market place. Thus: . . . it is assumed that mortgagors are informed about the range of risks they face and their likely incidence and the limitations of state support. Consequently, self-interest leads to the choices and decisions whereby they can avoid the consequences of the risks they face by insuring against them.222

The privatisation of mortgage debt safety nets and the assumption that borrowers will take up these private protections have had major implications for the individual economic costs and benefits of home ownership. From a practical perspective, the assumption that individual households would take the positive step of protecting themselves by taking up MPPI was one of the justifications for reducing ISMI provision. However, up-take has been lower than anticipated, and it was recently reported that ‘there remains a considerable disjuncture between the expectations of the government, lenders and insurers with respect to MPPI and the research evidence on the effectiveness of the policy’.223 In a recent report for the Office of the Deputy Prime Minister, a team of housing policy researchers explored the effectiveness of safety nets to borrowers, and identified various problematic issues in relation to the existing safety nets for home owners. For example, 220 J Ford, D Quilgars, R Burrows and D Rhodes, Homeowners Risk and Safety-Nets: Mortgage Payment Protection Insurance (MPPI) and Beyond (London, Office of the Deputy Prime Minister, 2004) 4. 221 Ford, Burrows and Nettleton, above n 6, 85. 222 Ibid, 87. 223 Ibid, 87.

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they suggested that there is little evidence to indicate that take-up of MPPI is increasing significantly, or that it is ‘well attuned to risk amongst home owners’.224 The researchers expressed concerns that, even with increased levels of awareness, private insurance provision may not provide a sufficiently ‘robust safety net’ for home owners facing payment difficulties. It is pertinent to bear in mind the relationship between government housing policies that promote home ownership, on the one hand, but do not protect home owners experiencing financial difficulties, on the other. The combined effects of these policies also have significant implications for the treatment of the home interest of occupiers in the legal domain, in the context of mortgage possession actions. One of the central themes of this book is the balance struck between the commercial interests of creditors and the home interests of occupiers when legal institutions—Parliament and the courts—are required to adjudicate on disputes, for example possession actions. A persistent refrain in legal policy discourses, as set out in Chapter 2, is the need to ensure that adequate supplies of credit finance are available to support and sustain widespread home ownership. The idea that creditors might be required to bear some losses in the event of default—for example, by suffering a delay in repayment—has been accepted only in ‘exceptional circumstances’. The context of the mortgage possession action—as a private property law dispute between two individuals, who freely entered into a contractual arrangement, governed by market principles—is often emphasised as the justification for non-intervention by law. Despite evidence that the costs of possession actions affect a wide range of actors and agencies, the legal approach has been to protect the contractual and proprietary interests of creditors, and otherwise to let the losses lie where they fall, that is, on the occupier in the first instance, and, by extension, on the other agencies that bear the costs of possession actions, from local government through re-housing to the health services which deal with the social-psychological and health consequences of repossession; from the labour institutions which suffer losses from absenteeism to housing market institutions which experience reduced revenue and a fall-off in housing transactions if home ownership becomes less popular. There are various ways in which government and/or legal policy could intervene with a view to precluding possession actions where possible, and so to mitigate these costs. The different stages at which any intervention might take place were considered in the conclusions to Chapter 1. One possibility would be to limit access to home ownership, by discouraging the households that are most vulnerable to the costs of home ownership from entering the sector. One way of achieving this would be through stricter ‘gate-keeping’ by creditors. In order to address the housing needs of those households which would fall outside these stricter criteria for the acquisition of credit, it would be necessary to ensure that alternative 224

Ford, Quilgars, Burrows and Rhodes, above n 220, 93.

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tenures—for example, investment in good quality rental housing—were available. This avenue is not likely to be pursued, for several reasons. For one thing, as Kemeny recognised (even as early as 1981): the homeownership ideology is too deeply entrenched in English-speaking societies, and home owners are too powerful a vested interest, to make realistic any far-reaching changes within the home-ownership sector.225

In light of the policy of facilitating access to home ownership, legal discourse has, to date, emphasised the importance of avoiding a situation whereby creditors limit the availability of credit in response to stronger legal protections for occupiers. Furthermore, it is also important to recognise that there are inherent practical problems with this approach. While the idea that creditors might act as more effective gate-keepers is consistent with the freedom of contract approach which is prominent in legal analysis of the creditor/occupier disputes, it is also important to recognise that creditors may not, in fact, be in a position to identify which households are actually at the greatest risk of default. Evidence has indicated that default of repayments is often triggered by random factors—for example, job loss, marital disruption, health problems and negative equity—thus making it difficult for creditors to pre-empt which households are likely to fall into default.226 As Gurney has argued, in an environment of unsustainable home ownership, the negative impact of loss of home is ‘not just the problem of “marginal borrowers” ’ or ‘households who would have been ill advised to take out a mortgage in the first place’.227 However, it is likely that any ‘gate-keeping’ function that fell to creditors could be exercised only by excluding low income households—a development which, in an owner-occupied society, would serve only further to marginalise such households. Another possible response would be to attempt to restructure the frameworks by which the competing interests of creditors and occupiers are protected in the event of default. The idea of providing a greater degree of protection for owner occupiers, by allowing their interests to prevail over the commercial claims of creditors in possession actions, is generally dismissed in legal policy making, as the prospect of imposing a greater burden on creditors is considered too high a cost to pay in exchange for recognising the interests of occupiers in retaining their homes. Thus, as the analysis in Chapter 3 indicated, the occupier’s ‘home’ interest is dismissed without any real attempt to unpack the occupiers’ claim, since the economic weight attached to the interests of secured creditors dictates that their interests must prevail in any event. It is interesting to note, however, that in their analysis of the costs and benefits of safety-net provisions for mortgagors, Ford, 225 226 227

Kemeny, above n 67, 145–6. See above n 161 and associated text. Gurney, above n 51, 9–10.

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Quilgars, Burrows and Rhodes argued that the possibility of increased costs should not be allowed to dictate government policies when it comes to protecting mortgagors experiencing financial difficulties. In fact, they argued that: [t]he problem with focussing on the cost/benefit issue too early in any discussion, along with second guessing what can be achieved, is that it can inhibit consideration of the potential range of solutions. Thus, while recognising that both costs and benefits and political will are ultimately decisive, they are put to one side for the moment in order to consider key areas where new thinking or stronger policies are needed.228

Since it seems likely that there is ‘no going back’ to a tenure-neutral housing policy, the focus of government policy has shifted towards issues such as the adequacy of safety nets for mortgagors, as well as more tenure-neutral support for housing costs. However, it is argued that in order to make progress on these issues it is necessary to put the question of additional costs to one side, and to evaluate the issues at stake freely, and without the restrictions, in terms of what can be considered, that follow from focusing on costs. These arguments are pertinent to the questions considered in this book for two reasons. First, the degree of protection afforded to owner occupiers who are experiencing financial problems is directly relevant to the creditor/occupier dispute. When considering the balance struck between the competing interests in the legal context, it is significant to bear in mind the wider context in which these claims take shape, particularly, the degree of protection afforded to mortgagors in advance of default. Furthermore, the nature and extent of such protection are also relevant to the individual economic advantages and disadvantages of home ownership, relative to renting. This is pertinent to analysis of the meaning of the owned home—and the protection available for the owned home—relative to a rented home. In Half the Poor, Burrows and Wilcox compared state-sponsored support for the housing costs of poor households living in owner-occupied and in rented properties. This study indicated that while households living in poverty are spread equally across the owner-occupied and rental sectors, with half the poor owning and half renting, the degree of financial support they receive from the state is dramatically different, depending on their tenure. This study indicated that while low income tenants received support (in the form of housing benefit) amounting to £11.2 billion in a year, support to low income home owners (in the form of ISMI and improvement grants) amounted to less than £1 billion.229 Thus, ‘while lowincome home-owners are half the poor, they get just 8% of the benefits’.230 Burrows and Wilcox concluded that: ‘[t]he adoption of wider social policy values 228 229 230

Ford, Quilgars, Burrows and Rhodes, above n 220, 94. Statistics based on Government expenditure in 1998–99. Burrows and Wilcox, above n 38, p viii.

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that favour the construction of a “stake-holder society”, or more simply encouraging and supporting “self help” would be consistent with tax and benefit policies that at the very least did not disadvantage home owners’.231 The promotion of home ownership for citizenship and the supposed economic and social benefits for home owners do not sit easily with the fact that, in the event of default, home owners are seriously disadvantaged in relation to welfare policies. Although many home buyers increase their wealth as a result of house purchase, it is important to recognise that, as the sector has become fragmented and differentiated in terms of the types of households that make up the owner-occupied sector, the putative economic benefits of home ownership for individuals are not assured across the sector. This has implications in relation to the meaning of the owned home as a financial asset for the concept of home, as well as for the political promotion of home ownership more generally. Furthermore, the policies that have informed legal responses to creditor/occupier disputes are premised on the belief that the continuing expansion of the owner-occupied sector should be encouraged through a pro-creditor policy in law. In fact, since it is presumed that the availability of credit, both for acquisition credit and further advances secured against the owned home, is ultimately in the home owner’s interests, it is even suggested that the pro-creditor policy is, ‘at the end of the day’, in the occupier’s best interests. However, evidence suggesting that the economic benefits of home ownership are offset by a range of potential costs, as well as the limited provision of state support for home owners, casts a different perspective on the individual economic costs and benefits of home ownership. While policies promoting home ownership have typically emphasised the individual economic benefits of the tenure, as the sector has expanded, particularly to include low income households, the emergent costs have not been taken up in the welfare net. In conclusion, it is suggested that the individual economic risks that home owners undertake in order to conform to government housing agendas are a significant factor to take into account in formulating legal policies to weigh their home interests against the commercial claims of creditors.

Home Ownership and the ‘X Factor’ Meanings of Home A central focus for this chapter, which has considered a range of issues pertaining to the links between the promotion of owner occupation in British housing policy and the concept of home, has been the impact of the ideology of home ownership in compounding the meanings and values associated with home. Some commentators have argued that the home interest is enhanced when the property in 231

Burrows and Wilcox, above n 38, 66.

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question is owned by its occupiers. Fitchen, for example, suggested that ‘the cultural meanings of home are compounded by the additional cultural meanings of home ownership’.232 Culturally, home ownership is perceived as conferring greater freedom and independence, and as giving the home owner a greater degree of control. Furthermore, the status conferred by home ownership may be relevant in the context of an occupier’s self-identity. This section seeks to unpack the relationship between these individual social benefits of home—the ‘x factor’ meanings of home (where home = house + x)—and the ideology of home ownership. It is difficult to disentangle the social benefits and costs of home ownership from the economic issues considered in the previous sections. The expansion of home ownership in Britain was dependent on the availability of credit finance, and this means that the home buyer’s ability to enjoy the ‘x factor’ meanings of home depend on the borrower’s financial capability. In addition, the socio-cultural significance of the home as a financial asset has a knock-on effect on the other meanings of home, as a symbol of identity and a status symbol. For example, Fitchen claimed that: Owning one’s own home grants membership in a respected category of people, in part because it demonstrates one’s commitment to the work ethic. The owned home, the largest single expenditure most people ever make, requires many years of earning and saving, and represents a long-term commitment to the work ethic.233

These aspects of home meanings were highlighted in Gurney’s analyses of sociocultural constructions of home ownership in Britain,234 which identified an association between home ownership with financial responsibility (with ‘stewardship’), while renting was characterised as ‘money down the drain’ or ‘dead money’, and renters were constructed as profligate and financially irresponsible. Thus, the financial meanings of home are closely interlinked, and generally codependent with the non-financial, x factor meanings considered in this section. On the one hand, the commodification of property in the home has highlighted the exchange value of the owned home as a financial asset.235 Yet, notwithstanding evidence that home buyers do regard their properties as ‘a commodity or an investment opportunity, something to be bought and sold with an eye to profit as well as use’,236 these meanings have been found to be ‘clearly of secondary importance in the larger meaning-system of the house [as] a series of more elusive

232

Fitchen, above n 26, 318. Ibid, 320. 234 See, eg, Gurney, above n 22; Gurney, above n 24. 235 See further Ch 6. 236 R Rakoff, ‘Ideology in Everyday Life: The Meaning of the House’ (1977) 7 Politics and Society 85 at 93. This argument has also been raised in the context of creditor/occupier disputes, as policy makers assert that occupiers must bear the bad times, since they take their share of the good times. 233

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meanings carried greater weight’.237 As Chapter 4 has shown, these ‘more elusive meanings’ have included family associations, identity indicators such as personal status and success, a place of permanence and security and a refuge from the outside world. Indeed, Rakoff’s study indicated that: ‘[t]he house, particularly the owner-occupied house, seemed to be a powerful symbol of order, continuity, physical safety, and a sense of place or physical belonging’.238 It is important to note that several studies have, in fact, placed ownership at the centre of the x factor meanings of home, as a necessary stepping stone towards the realisation of meaning in the home. Rakoff, for example, reported that: people continually returned to the premise that ownership was necessary for actualising any or all of [these meanings]. Even the renters agreed that ownership made real and possible the control, the security, the status, the family life that all of these people were seeking in and through their houses. This centrality of ownership was usually expressed in terms of freedom.239

The argument that ownership enhances the occupier’s experience of home was also supported by studies carried out by Smith240, who emphasised the importance of the continuity associated with security of tenure in the owned home, and Saunders,241 who claimed that home ownership enhances the occupier’s ‘ontological security’. These studies have argued that owning one’s home—as opposed to renting—enhances the ‘x factor’ qualities which essentially distinguish a house from a home. Thus, home ownership is regarded as significant not merely for the financial meanings of home, but for all the other meanings associated with home as well. This perspective—and particularly Saunders’ analysis—has attracted considerable criticism from other researchers who argue that, if it were possible to set aside the ideology of home ownership and allow people the freedom to chose renting rather than owner occupation in a culturally tenure-neutral environment, there is no reason why renters and owners should not be capable of experiencing ‘home’ in an equally meaningful way. Indeed, they argue that the way in which the ‘x factor’ meanings of home have come, as a matter of fact, to be entwined with the status of ownership in some jurisdictions, including the United Kingdom, can be 237

Rakoff, above n 236, 93. Ibid, 94. 239 Ibid. 240 ‘Evidence of the importance of continuity was found in references to the desirability of permanence and ownership of the home environment. Ownership was cited as a positive feature of the present home by home owners and the lack of ownership was described as a negative feature of the present home by renters. Lack of ownership was also a feature of places not regarded as homes. Hence, ownership and the security of tenure which ownership entails appear to be linked with home environments’: Smith, above n 27, at 44. 241 See, eg, Saunders, above n 27. 238

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readily explained by reference to socio-cultural and political rhetoric. For example, the belief that home owners derive greater satisfaction as occupiers in their homes is biased by the ‘ideological framework underpinning these policies and trends which explicitly ties the tenure status of housing to the meaning of home’.242 This was illustrated in the following quotation from an advertisement, dating from 1911, in which a Vancouver realty firm claimed that ‘[t]he house you live in is not a “home” if you do not own it. If you are paying rent you are living in someone else’s home, not your own home’.243 This blunt representation of ‘home’ meanings as something that is available to owners but not to renters has been reiterated, albeit in slightly more subtle terms, in political discourse promoting home ownership as a ‘natural’ tenure—as ‘satisf[ying] a deep natural desire on the part of the householder to have independent control of the home that shelters him and his family’.244 The idea that home meanings are differentially available to owners and renters is a central tenet of the ‘ideology of home ownership’. In The Myth of Home Ownership: Private versus Public Choices in Housing Tenure,245 Kemeny suggested that the way in which home ownership has been eulogised and treated with ‘mystical reverence’246 in some jurisdictions—he used the examples of Britain and Australia, where home ownership is the preferred tenure—created preconceptions about the significance of ownership for the experience of home meanings, which have artificially skewed popular conceptions of these meanings.247 This argument was also advanced by Marcuse, who focused on the tenure specificity of home meanings in the United States of America.248 Marcuse argued that although certain meanings associated with home—for example, control, status and privacy— are popularly regarded as contingent on ownership, these meanings are not inherently tenure specific. Rather, Marcuse claimed that, working from first principles, there is no reason why these x factor meanings of home could not be enjoyed in equal measure by renters and owners, if appropriate legal protections were put in place. The impact of the ideology of home ownership on individual occupiers’ attitudes to owning their own home has been examined in a range of empirical 242

Lawrence, above n 31, 60. R Harris and GJ Pratt, ‘The Meaning of Home, Homeownership and Public Policy’ in LS Bourne and DF Ley (eds), The Changing Social Geography of Canadian Cities (Montreal-Quebec, McGillQueen’s University Press, 1993) 286. 244 Department of the Environment, Fair Deal for Housing (Cmnd 6851) (London, HMSO, 1971) 4. 245 Above n 67. 246 Ibid, 272. 247 Note, however, that almost two decades after publication of this text, it was recorded that ‘attempts to empirically demonstrate or refute such an ideology have been limited in their impact’: Gurney, above n 22, 1715. 248 ‘Home ownership has a mystique, independent of any real difference it makes legally or economically. This mystique has been a major influence on housing policy in the United States’: Marcuse, above n 74, 41. 243

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studies.249 Following Richards’ study of the Australian suburb ‘Green Views’,250 it was reported that: Home ownership in Green Views is a natural step in family life and a necessary one, both obvious and inescapable. There is a widespread assumption that, like marriage, it is a goal for everyone.251

Richards identified two principal themes in the home ownership ideology: that it was ‘natural’ to own—the idea that home ownership was a necessary stepping stone towards social maturity was reflected in the fact that the participants ‘[a]ll linked ownership with transition to adult status’252—and that it was necessary for family life. Richards found that when you ‘[l]isten to people . . . there are few meanings put on owning a home that are not tangled with ideas of family life’.253 The significance of the relationships between home, home ownership and family is explored in more detail in Chapter 7 of this book. One of the issues considered in Chapter 7 is the way in which both home and family tend to be idealised. Chapter 7 also examines the implications of binding the concept of home to a vision of ‘family home’, for the creditor/occupier context.

Home Ownership and Ontological Security One of the most oft-cited—and frequently criticised—proponents of the benefits of home ownership for individual home buyers was Saunders. In a series of publications254 including his landmark book, A Nation of Home Owners,255 Saunders argued that home ownership enhances home meanings: that is, that home owners are inherently more likely to sustain positive psychological feelings of identity and to experience ‘ontologically security’ in their homes than renters. Saunders identified two principal reasons for buying one’s own home:

249 For a review of some of the literature on this subject, see J Agnew, ‘Home Ownership and Identity in Capitalist Societies’ in J Duncan (ed), Housing and Identity (London, Croom Helm, 1981). 250 Richards, above n 21. 251 Ibid, 115. 252 Ibid, 125. 253 Ibid, 119. 254 See, eg, P Saunders, ‘Beyond Housing Classes: the Sociological Significance of Private Property Rights in Means of Consumption’ (1984) 8 International Journal of Urban and Regional Research 202; P Saunders, Social Theory and the Urban Question (2nd edn, London, Hutchinson, 1986); P Saunders, ‘The Sociology of Consumption: a New Research Agenda’ in P Otnes (ed), The Sociology of Consumption: An Anthology (Atlantic Highlands, NJ, Humanities Press International, 1988); P Saunders and P Williams, ‘The Constitution of the Home: towards a Research Agenda’ (1988) 3 Housing Studies 81. 255 Above n 27.

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One is financial—buying is seen as cheaper in the long run, or rent is seen as a waste of money, or rising house prices are seen as a means of saving for the future or accumulating capital. The other has to do with the sense of independence and autonomy which ownership confers—the freedom from control and surveillance by a landlord and the ability to personalize the property according to one’s tastes.256

A key factor in Saunders’ thesis was the argument that these benefits are intrinsic to ownership—that ‘they must by definition be enjoyed by all owners—that is what it means to say they are intrinsic’.257 While Saunders did acknowledge the fact that the extent to which the benefits of home ownership can be realised by individual households may be linked to their relative socio-economic standing, he argued that these differences were outweighed by the fact that ‘[a]ll owners enjoy the same rights, since the law of property is indifferent to both the identity of the owner and the character of the object’.258 Another significant aspect of Saunders’ analysis was his claim that the financial benefits of home ownership, alongside the ‘x factor’ benefits of independence, control and autonomy that he associated with home ownership, enabled home owners to develop a stronger sense of ontological security compared to renters. Saunders linked this argument, once again, to the property rights acquired by home owners. The idea of home in property theory and law forms the subject matter of Chapter 6. It is interesting to note that Saunders emphasised the significance of the home buyer’s proprietary interest in enhancing the experience of dwelling. He argued that ‘a “home of one’s own” is above all else a property right which ensures both a physical and permanent location in the world, where the owner can feel literally and metaphorically “at home” ’.259 In one sense, Saunders’ argument that the home is an important location in people’s lives and that the dwelling-place is significant for the individual’s orientation in the world is uncontroversial. Philosophical discussion of the home as a dwelling-place was considered in Chapter 4, and the proposition that ‘the home is an important locale within which daily and weekly routines take place’,260 that the home is ‘more than bricks and mortar’, and that the home is a site of importance for individual occupiers has been clearly established in a wealth of psychological and sociological literature.261 However, Saunders’ analysis did not merely recognise the ‘x factor’ meanings of home. Rather, he argued that the realisation of home meanings was rooted in ownership rather than home per se.

256

Ibid, 84. Ibid, 98. Saunders claimed that ‘[t]his is no mere semantic quibble, for the rights of property ownership are enjoyed equally by all owners’: ibid. 258 Ibid. 259 Saunders, Social Theory and the Urban Question, above n 254, 329. 260 Gurney, above n 51, 6. 261 See Ch 4. 257

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This aspect of Saunders’ analysis has been a target of criticism for other scholars. Gurney, for example, claimed that Saunders’ account ‘argues forcibly that domestic property ownership brings more control and autonomy to people’s lives than non-ownership’,262 and that ‘[t]his has led him to suggest that home ownership provides psychological benefits to the owner which are (by definition) denied to the tenant’.263 Gurney set out two central criticisms of Saunders’ account of ontological security and home ownership. For one thing, he described Saunders’ analysis as ‘highly stylized’; and as a ‘single-minded and relentlessly positive view of home ownership’,264 which failed to recognise the differentiation of home ownership experiences at the level of the individual or household. Gurney claimed that ‘[w]hilst Saunders is quite right to argue that all owner occupiers share some common interests, (as regards mortgage tax relief for example) the claim that they share a common psychological experience contains certain flaws’.265 One of the differences highlighted by Gurney was linked to the socio-economic differentiation of the owner-occupied sector that has followed the expansion of home ownership, and the rise in arrears and possessions actions that has left many home owners feeling vulnerable rather than ontologically secure. In fact, Gurney claimed that ‘whilst owner occupation may represent a chance to carve out feelings of niche and belonging for some, for others it represents a housing situation of financial uncertainty, worry and lack of control’.266 This chapter has sought to evaluate the promotion of home ownership as a means to achieve a meaningful experience of home, in light of the weakness of government welfare and legal protections for home owners who default on mortgage repayments. The lack of support available for home owners in the context of possession actions is brought into sharp relief by research linking individual default to macro economic policies, including the growth of home ownership, changes in labour market structures, and the restructuring of government safety nets.267 In addition, to the extent that possession actions are triggered at the micro level, this has been broadly attributed to ‘random events’—for example, job loss, marital disruption, health problems and negative equity268—rather than financial mismanagement, for which the debtor might be regarded as bearing some ‘blame’. The role of government policy in creating and exacerbating the difficulties that are encountered by defaulting occupiers can therefore be viewed at three distinct stages: government housing policies have encouraged occupiers, including low income households, to enter the owner-occupied sector; government economic 262 263 264 265 266 267 268

Gurney, above n 51, 6. Ibid. Ibid. Ibid, 8. Ibid. See, eg, Ford, Burrows and Nettleton, above n 6, chs 3 and 4. See above n 161 and associated text.

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policies have been instrumental in the rise in default rates; and changes in government welfare policies have led to the withdrawal of support for occupiers who experience financial difficulties. The significance of unsustainable home ownership in relation to the ‘x factor’ meanings of home was a key point of departure between Saunders and his critics. Saunders and Harris argued that the impact of possession actions, although undoubtedly serious for the individual households involved, was relatively uncommon and so should be viewed in the context of the broader economic and psychological benefits of home ownership. They reasoned that ‘[i]f more people are to be given the opportunity to buy a home, then we have to accept an increased risk of default’.269 On the other hand, commentators such as Gurney and Richards placed much more emphasis on the detrimental effects which the rise in arrears and possession actions had on the owner-occupied sector as a whole, and on the ability of individual households to experience positive social and psychological benefits from home meanings. For one thing, Gurney highlighted the link between financial security and ontological security when he argued that: [t]he financial benefits of [home ownership] are a double edged sword. As more and more ‘marginal borrowers’ have taken on mortgages to pass property on to their children, or as financial investments, the negative effects of home ownership have become apparent. One thing is certain. Households facing mortgage arrears, or essential repairs they can not afford, seem unlikely to derive the feelings of niche and belonging from home described by Saunders.270

Thus, Gurney argued that, when considering the individual social benefits of home which are often explicitly linked with home ownership: freedom; continuity; security; autonomy; control; it is also important to bear in mind the importance of security of tenure—in the context of home ownership, avoiding possession actions—in ensuring the delivery of these meanings. The idea that the ‘security’—whether characterised as financial security, ontological security, or emotional security—associated with owner occupation is tempered by the threat of losing one’s home in a possession action has been highlighted by various commentators. Writing at the high point of mortgage possession actions in 1990, Gurney linked the meanings of home for owner occupiers with the risk of losing the home at the hands of a creditor. In fact, he suggested that even the threat of possession proceedings could undermine home meanings, since ‘[e]ven if a home of one’s own does foster feelings of ontological security, the continual worry and struggle to avoid being “behind with the mortgage” seems likely

269 P Saunders and C Harris, Home Ownership and Capital Gains (Urban and Regional Studies Working Paper 64) (Brighton, University of Sussex, 1988) 18. 270 Gurney, above n 51, 8.

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to deaden the effect of such a psychological boost’.271 A similar argument has been advanced in Canada, where Harris and Pratt noted that ‘for many Canadians the home as a place of security and personal control is intermingled with stress, related to lack of affordability and insecurity of tenure’.272 It is, of course, important to bear in mind the fact that the Saunders/Gurney debate is framed by a focus on the putative benefits of home ownership relative to other tenures. While Saunders sought to demonstrate the superiority of owning over renting, he did not dispute the possibility that renters could experience home meanings, albeit to a lesser degree. Thus, he wrote that ‘the fact that home ownership enables ontological security does not mean that non-ownership prevents it’.273 Gurney, on the other hand, asserted that ‘home is where the heart is regardless of tenure’.274 Yet, for occupiers facing loss of their home through a possession action, the prospect that, had they rented instead of buying, they would have become equally attached to their home is somewhat beside the point. Rather, when it comes to balancing the commercial claims of creditors to the capital value of the secured property against the home interests of occupiers, this book seeks to establish the proposition that legal policy should be informed by the meaning of the home to the occupier. A similar argument might easily be made by reference to the balance struck between the tenant’s interest in the property as a home and the landlord’s proprietary interest in the property as a capital and investment asset. Of course, the promotion of home ownership and the way in which home buyers have been encouraged to secure debts against their homes are important aspects of contemporary creditor/occupier disputes. However, when it comes to considering the weight to be attached to the occupier’s home interest, the object of conceptualising home is not to consider whether the owner occupier’s home is more meaningful than a tenant’s home, but what balance should be struck between the occupier’s home interest, and the commercial interests of the creditor. To this end, it is significant to bear in mind the fact that, although the arguments discussed in this section adopt different views on the significance of ownership in establishing a meaningful relationship with the home, there is a general consensus on the importance of the home per se. 271 Gurney, above n 51, 10. Gurney claimed that ‘[f]or many people who took out mortgages in the late 1980s the feelings of niche and belonging described by Saunders were far from their experience of home ownership. Instead, paying off a housing loan in a period when interest rates were constantly rising created profound personal anxieties, and uncertainty. The fact that people’s homes are at risk if repayments on a mortgage or any other loans secured on it can not be met has meant that fear and uncertainty of getting behind with the mortgage may have been one of the strongest emotions linked to home ownership . . . [suggested] links between marriage break-up, attempted suicide, child sexual abuse and the fears and uncertainty associated with mortgage arrears. Rapid increases in repossessions as a result of mortgage arrears . . . have meant that the threat of becoming homeless is one which more and more mortgagees now fear’: ibid, 8. 272 Harris and Pratt, above n 243, 297. 273 Saunders, above n 27, 303. 274 Gurney, above n 51, 45.

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As previously noted, some empirical studies have supported the argument that activities associated with home ownership—such as personal investment in home and neighbourhood—may improve social, psychological, emotional and financial health.275 The social status and personal freedoms associated with home ownership have been linked to higher levels of self-esteem and perceived control over life.276 However, there are two important limitations on these findings. First, research studies carried out to date have found it difficult to link these consequences causally to home ownership, just as it has proven difficult empirically to demonstrate the advantages of one form of tenure over another.277 Secondly, the socio-psychological benefits of home ownership are countered by the negative effects of default and possession actions. As a result: homeowners, particularly lower-income homeowners, do not have as much actual control as some have claimed. Financial instability puts lower-income households at risk of losing their homes due to mortgage foreclosure. The psychological impact of homeownership could be negative if a person is unable to pay their mortgage and is forced from his or her home.278

The proposition that home meanings are threatened when a borrower falls into default is uncontroversial, and empirical studies have demonstrated the significance of these threats for—amongst other things—physical and psychological health.279 Yet, notwithstanding the vigour with which the Government promoted home ownership, the degree of protection afforded to borrowers who fall into arrears and default has been progressively eroded. This raises pertinent issues when considering the meaning of the owned home within the legal concept of home.

Conclusions The first part of this book focused on the meanings and values of home in the context of creditor/occupier disputes. In a economic environment which appears to be increasingly characterised by unsustainable home ownership, the insecurity of tenure created by the prospect of mortgage arrears and repossession presents real problems for many occupiers, particularly in lower income households, where factors ranging from fluctuations in interest rates and house values to job insecurity, 275 276 277 278 279

Rohe et al, above n 87, 2. Ibid. See, eg, Gurney, above n 22, 1715. Ibid, 6. See Ch 3.

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illness and relationship breakdown can turn the ‘dream’ of home ownership into a nightmare. The loss of a home through creditor repossession clearly has dramatic economic implications for the occupier, yet the impact of loss of home goes beyond financial strain, or even loss of shelter. Extensive empirical research studies in several social science disciplines have proven the complex psychological, social-psychological, territorial, identity, emotional and cultural attachments which occupiers associate with property because is occupied as a home. Legal approaches to disputes involving the repossession of a home by a creditor have tended, however, to favour the financial interests of creditors over and above the non-financial values of occupiers in retaining the home for use and occupation as a home. Interdisciplinary analysis of the meaning of home, attachments to home and the experience and impact of loss of home through mortgage arrears and repossession has not, however, filtered through to influence the development of legislative and judicial policy when dealing with a conflict of interests between creditors and occupiers. The growth of home ownership in the United Kingdom has been the result of a raft of explicit policies, throughout the twentieth century and into the twenty-first century, which have sought to make home ownership more accessible, for example, through the sale of council houses, the restructuring of the financial services sector and policies providing tax benefits and welfare support for owner occupiers. In addition to the practical impact of these policies, home ownership has been promoted through a political ideology that has attached great kudos to owning one’s own home. As a result, ‘home ownership’ has been identified with each of the five main value clusters associated with home per se; furthermore, the idea that owner occupation delivers on these values has been significant for the promotion of home ownership. Ownership is clearly important for home as a financial investment; in addition, there are arguments to suggest that the owned home is also a better quality home (physical structure); the home owner’s self-identity and social identity are clearly affected by the status associated with ownership (home as identity); the idea of home as territory is reflected in the argument that home owners enjoy greater autonomy, security (including ontological security), privacy; while the idea of ownership has been hugely important for the socio-cultural construction of home. This chapter has considered government support for the creation of the home ownership ‘ideology’, rooted in the perceived societal advantages of home ownership as giving the owner a stake in the system; the macroeconomic benefits of home ownership for society-at-large; and the arguments that home ownership rewards individuals, both in terms of financial rewards (household wealth) and in enhancing the ‘x factor’ meanings of home. However, this chapter has also sought to counter-balance the perceived benefits of home ownership against the costs of losing the home, for both the parties themselves and other agencies, when debtors fall into default and run the risk of repossession actions. The loss of home through repossession carries major costs, both

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in relation to household wealth and ‘x factor’ meanings, and in terms of wider social costs, as discussed in Chapter 3. Another factor that has been brought to bear against these costs is the wider welfare context of home ownership as opposed to renting. It is important to note that the expansion of the home ownership sector was achieved through substantial government intervention in the market, for example, through the ‘right-to-buy’ discounts, during a period in which house prices were generally appreciating in value, due to rapid rises in demand, and when home buyers were in fact sheltered from many of the risks inherent in home ownership in a free market. House purchase was underwritten by the state through tax relief and through a ‘safety net’ of welfare protections, for example, in the event of unemployment. This chapter has argued that the experience of mortgage default and repossession must also be considered in the broader contexts of housing policies that have elevated home ownership as an aspirational tenure, while reducing the stock in public housing. On the one hand, widening of access to home ownership has been regarded as a way of providing lower income households with an opportunity to accumulate wealth, status and security. However, home ownership can deliver these benefits only so long as it is sustainable. One of the consequences of expanding home ownership in this way has been the growth of low income home ownership, to the extent that half of all households living in poverty in Britain are living in the owner-occupied sector. However, when it comes to welfare protection for housing, as government-sponsored financial support for home owners has been retrenched, low income tenants now receive a much greater share of public money (more than 11 times as much) in support of their housing costs than home-owner households.280 Finally, it is important to re-emphasise the argument made in Homeownership in a Risk Society,281 that problematic or unsustainable home ownership—specifically, the higher incidence of arrears and possession actions— ‘is not “pathological” or short-lived but rather has become “normal” and enduring’.282 When home ownership is unsustainable, the costs of home ownership outweigh the benefits: in fact, the impact of arrears, repossession and even the threat of repossession are so negative as to have been characterised as a ‘new public health issue’. These factors are clearly pertinent to the argument that home meanings and values are necessarily enhanced by home ownership, rather than renting. In addition, these issues add weight to the argument that the home interests of occupiers and specifically, the impact, on occupiers and others, of creditor possession actions are legitimate factors to be taken into account when striking a balance between creditors and occupiers. The second part of this book will build on this discussion by considering how the home interests of occupiers have been articulated in a 280 281 282

See Burrows and Wilcox, above n 38. Ford, Burrows and Nettleton, above n 6. Ibid, 170.

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range of legal discourses, and how the legal concept of home could be developed within existing legal frameworks. When borrowers default on repayments, the ultimate risk they face is the loss of their home in a creditor possession action. Yet, as the discussion in Chapter 2 demonstrated, and notwithstanding the issues set out above, the legal response to possession actions has been characterised by an overwhelming pro-creditor bias. In fact, research by Hunter and Nixon comparing the processes and outcomes of judicial possession actions against borrowers and tenants has shown that owner occupiers are disadvantaged yet again at the stage of the possession hearing. For example, this research revealed that ‘borrowers as compared to tenants were more than twice as likely to have outright possession orders made against them and were five times more likely to have had possession warrants enforced’.283 Although the causes of arrears for both owner occupiers and tenants were found to be remarkably similar,284 the long-term risk of being evicted was much higher for borrowers. Thus, the outcomes for occupiers experiencing problems with debt were skewed in favour of tenants. Hunter and Nixon posited three main explanations for this disparity. First, borrowers typically accrue higher levels of arrears before possession actions are brought, as a combined result of higher monthly repayments and lower levels of state assistance for borrowers. A second factor identified in this research was the difference in arrears management strategies adopted by lenders and landlords, which resulted in them asking for different types of orders. As financial institutions working in the market, ‘lenders’ approach to arrears automatically results in them viewing debt primarily as a product of forces beyond their control which are most effectively minimised by seeking immediate repossession of the property’.285 The authors found that even when creditors attempted to shift into the role of debt counsellors, they instinctively acted in the established way: Once in court lenders and landlords tend to be seeking quite different orders because of the type of organization they represent and their sphere of operation. Lenders are seeking to protect their investment, while landlords are seeking to maintain the tenant in his home and recover something off the arrears.286 283

Hunter and Nixon, above n 15, 87. Ibid, 86; these factors were identified as: (1) disruption/loss of secure employment; (2) changes in domestic arrangements leading to an increase in expenditure or a loss of income; (3) failure of the benefit safety-net; and (4) financial over-commitment. Hunter and Nixon cited a range of studies including R Davis and Y Dhooge, Living with Mortgage Arrears (London, Council of Mortgage Lenders, 1993); Department of the Environment, Taking Tenants to Court (London, HMSO, 1989); Department of the Environment, Rent Arrears in Local Authorities and Housing Associations (London, HMSO, 1994); J Ford, Problematic Home Ownership: the Management, Experience and Consequences of Arrears and Possessions in a Depressed Housing Market (Loughborough, Loughborough University, 1994); J Ford, Which Way Out? Borrowers and Long-term Mortgage Arrears (London, Shelter, 1995); J Nixon, Y Smith, B Wishart and C Hunter, Housing Cases in the County Courts (Bristol, Policy Press, 1996). 285 Hunter and Nixon, above n15, 92. 286 Ibid, 94. 284

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Finally, Hunter and Nixon identified significant differences in the court’s response to possession actions against borrowers and against tenants, which they claimed were historically rooted in the structural and legal frameworks governing owner occupiers and tenants. Part II of this book will proceed to consider the structural and legal frameworks that govern creditor/occupier disputes and, specifically, the meanings and value attached to home interests in this context. Chapters 6 to 10 consider the ways in which different legal discourses have dealt with home interests. The object is to consider how a more coherent concept of home might be developed within existing frameworks. Chapter 6 begins by considering how home interests fit within the theoretical framework of property law. One of the central themes of this chapter is the historical shift in the primary function of real property, from an emphasis on the property’s ‘use value’ to its commercial function or ‘exchange value’ as an item of capital. Hunter and Nixon highlighted the significance of this shift in their comparison of the legal frameworks governing possession actions brought against owner occupiers, on the one hand, and tenants on the other. They wrote that: For lenders their primary interest is in the commercial/exchange value of their property rights; borrowers may be concerned as to commercial property rights, but their dominant interest will be in maintaining the use value, ie a home. For tenants (save for the right to buy) the rights granted through the tenancy are primarily of a use value.287

While the occupier facing a possession action, whether in an owner-occupied property or in a rented property, is most immediately concerned with losing the use of their home, the creditor’s perspective is to regard the property as a capital exchange asset. Furthermore, the trajectory of property law in many respects has been towards greater emphasis on the exchange value of property, rather than its use value. Nevertheless, there are countervailing arguments in property theory— for example, in the ‘property for personality’ theory, which could potentially be advanced in support of the home interest. Chapter 6 considers both the property law dimensions of the existing balance struck between the commercial interests of creditors and the home interests of occupiers, and the potential scope for development of the concept of home within a property framework.

287

Ibid.

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6 The Idea of ‘Home’ in Property Theory and Law

Introduction

W

HEN IT COMES to resolving conflicts between the commercial interests of creditors and the home interests of occupiers, legal analysis has been dominated by the principles of property law. As the discussion of the legal provisions governing creditor/occupier disputes in Chapter 2 has demonstrated, the basis of the secured creditor’s claim is the proprietary rights acquired in the property by virtue of the credit agreement. When the debtor defaults on repayments, the creditor may seek to realise the capital value of a security interest against the debtor’s home by bringing an action for possession and/or sale of the property. These actions are generally governed by principles of property law. Consequently, when seeking to conceptualise home for the creditor/occupier context, the most obvious starting point, both logically and chronologically, is with the place of ‘home’—and specifically, of the occupier’s interest in the use and occupation of the property as a home—in property law. This chapter considers the influence of property theory on the legal concept of home. The chapter begins by considering the extent to which legal attitudes towards the home interest, particularly in the creditor/occupier context, have been shaped by the policies that have dominated property theory and law in the twentieth century. One of the issues considered in Chapter 3 was the way in which the preference for rationality over emotional analysis in legal discourse has tended to favour the creditor’s commercial claim to the property over the occupier’s home interest. While the creditor’s claim typifies an ‘objective’, rational, measurable and easily quantifiable interest, the occupier’s interest in the home is perceived as ‘subjective’, irrational, emotional and so unquantifiable. When it comes to balancing these interests, one against the other, property law is overwhelmingly oriented towards the rational, quantifiable financial interests of the creditor. It was suggested, in Chapter 3 that the tendency of the English courts to favour the capital claims of creditors over the home interests of occupiers is explicable, in

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part, by the apparent incongruities between home analysis as it has developed in other disciplines, on the one hand, and legal discourse—particularly ‘propertyspeak’—on the other. In the first place, the introduction of ‘home’ analysis— particularly with regard to emotional, psychological, social and other attachments—into the legal domain appears to run counter to the presumed rationality of the legal system, with its emphasis on procedural fairness, treating like cases alike, and thus disinclined to attach weight to subjective or emotional factors.1 This type of response was illustrated in Le Foe v Le Foe,2 when the court was required to balance the creditor’s financial claim against the property against Mrs Le Foe’s argument that she should be able to continue living in the property as it was her home. While Ward LJ acknowledged that the disputed property ‘has been her home and her mother’s home. There is a huge emotional investment in it’,3 the court concluded that Mrs Le Foe’s emotional attachment to her home was ‘an interest I cannot protect’.4 This preference is attributable not only to the general preference for rationality in law per se, but to the tendency of English land law to function as the archetype of this legal model of rationality. Leading commentators have characterised the discipline of land law as a ‘rational science’ in which ‘the perfection of pure reason appears most nearly attainable. English land law—more obviously than any other area of the law . . . displays many of the features of a closed system of logic’.5 The idea of home—as an experiential, intangible, if nonetheless real phenomenon— does not sit easily within this framework of objectively measurable, clearly definable interests. In this type of framework, the objective interests of the creditor, rooted as they are in well-established and clearly defined contractual and proprietary rights, are clearly prioritised above the more complex, less readily verifiable interests of occupiers in the property as a home. Although interdisciplinary research on the meanings and values of ‘home’, as set out in Chapter 4, has greatly enhanced understanding of the values which home represents to its occupiers, the nature of the relationship between the occupier and the home, and the effect of involuntary

1 Laster and O’Malley have claimed that ‘[e]nlightenment assumptions about rationality, objective truth and formal legal equality obviously have shaped modern law. Since the eighteenth century, the processes of law have been used to . . . remove emotions and the non-rational from legal considerations and the administration of justice. Emotions can be seen as antithetical to order, justice and coherence: the object of law was to define and refine the measures which would provide an objective basis of assessing causation, the nature of wrongdoing and the method of assessment of harm. In both civil and criminal law, the focus increasingly came to be on (measureable or calculable) physical harm and pecuniary loss’: K Laster and P O’Malley, ‘Sensitive New-Age Laws: The Re-assertion of Emotionality in Law’ (1996) 24 International Journal of the Sociology of Law 21 at 24. 2 [2001] EWCA Civ 1870. 3 Ibid, para 10. 4 Ibid, para 13. 5 KJ Gray and SF Gray, ‘The Rhetoric of Realty’ in J Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (London, Butterworths, 2003) 204–5.

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loss of home on the wellbeing of occupiers, the idea of attachment to home continues to appear—to lawyers at least—essentially subjective and intangible. Nevertheless, while scholarship in other disciplines has made considerable progress in unpacking the complex issues wrapped up with human responses to home, law has appeared generally resistant to the influence of this developing body of scholarship. This was recently illustrated in the decision of the House of Lords in London Borough of Harrow v Qazi,6 when the idea that home could be distinguished from the house was dismissed as ‘something ethereal, floating in the air, unconnected to bricks and mortar and land’.7 The implications of the decision in Qazi, which concerned the meaning and effect of the reference to ‘respect for home’ in Article 8 of the European Convention on Human Rights, are considered further in Chapter 10. For the purposes of the discussion in this chapter, it is noteworthy that the House of Lords dismissed the proposition that home could bear value in law, other than as a physical structure or a capital asset, with language evoking images of a vaporous, insubstantial (non-)entity. This chapter considers the meaning and value of the occupier’s home interest within the framework of property theory and law. The dichotomy between the commercial claims of creditors and the home interests of occupiers has been a recurring theme throughout the discussion of the concept of home in this book. This chapter begins by considering the way in which these opposing claims map onto two other pairs of binary concepts, as they have been developed in the context of property theory and law. The first pair of concepts draws upon the work of German sociologist Tönnies. In Gemeinschaft und Gesellschaft,8 Tönnies contrasted two competing modes of social and economic organisation: on the one hand, the small scale, family-oriented ‘community’ and, on the other, the large, market-driven association in ‘civil society’. The most significant aspect of Tönnies’ theory for the purposes of the concept of home was his contribution to theories of value in land. In community-oriented societies, Tönnies argued that property was primarily valued in terms of its use value, while in civil societies property was valued according to its exchange value. These competing values can be clearly mapped onto the interests at stake in mortgage possession actions: on the one hand, the occupier is interested in the use value of the property as a home;9 on the other, the creditor is exclusively interested in the exchange value of the property as a capital asset. The competing interests of creditors and occupiers—and specifically, the question whether law recognises the home as a unique item of property or as a capital asset like any other—are also 6

[2003] UKHL 43. Ibid, para 145. 8 F Tönnies, Community and Civil Society (trans by J Harris and M Hollis, ed J Harris, Cambridge, Cambridge University Press, 2001). 9 Although the owner occupier also has an interest in the exchange value of the property, this is not the primary interest at stake in the context of possession actions: see Ch 3. 7

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reflected in another set of binary opposites within property theory: that is, property as things and property as wealth. Finally, if the home can be recognised within property theory and law as something more than a capital asset, it is also pertinent to consider the arguments for protecting the possession of that thing through property law. This chapter is divided into three main parts. The first considers the changing functions of property in the home—and particularly in owner-occupiedmortgaged-to-a-building-society housing—from use and occupation of the property as a home, to viewing the property as a security asset and as a commercial commodity. The following sections consider the use value and exchange value of land, and the related idea of property as things and property as wealth, as they have been mediated through the operation of the trust for sale under the Law of Property Act 1925 and the trust of land created by the Trusts of Land and Appointment of Trustees Act 1996. A particularly significant aspect of this analysis is the impact of the perceived nature of property in the home on the willingness of courts to order the sale of co-owned homes at the request of creditors. It will be argued that the meanings associated with ownership of land, as illustrated through the policy of the 1925 legislation, have had a significant impact on the law in relation to creditor/occupier disputes in this jurisdiction. The second part of the chapter focuses on the significance of possession in property theory and law. This section considers the occupier’s interest in retaining possession of the property in the context of the traditional protection afforded to possession by property law. For example, Hume argued that ‘[m]en generally fix their affections more on what they are possess’d of than on what they never enjoyed . . . it would be greater cruelty to dispossess a man of anything than not to give it to him’.10 This proposition is also linked to the economic theory of the ‘endowment effect’. The endowment effect is the idea that principles of rational choice can be displaced by the fact of possession, so that the person in possession of an item of property values that property more highly than a non-possessor. Finally, this section considers the dwindling significance of possession in property theory and law, particularly as a consequence of the strengthening of title registration in the Land Registration Act 2002. The third section of this chapter considers the potential scope for the development of a legal concept of home in the context of property theory. The idea that certain types of property, such as the home, can be constitutive of a person’s selfidentity—in fact, of their ‘personhood’—is recognised in many theoretical accounts of private property, from Hegel’s Philosophy of Right 11 to Radin’s 10 D Hume, A Treatise of Human Nature: being an Attempt to Introduce the Experimental Method of Reasoning into Moral Subjects (London, Thomas and Joseph Allman, 1817), Book III, Part II, Sect. 1. 11 GWF Hegel, Elements of the Philosophy of Right (transl HB Nisbet, ed AW Wood), (Cambridge, Cambridge University Press, 1991), pp 73–102.

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Property and Personhood analysis.12 The final section draws on these analyses to consider the argument that some types of property, for example, the home, are more worthy of protection than others, because of the attachment that arises between the person and the property as a result of the possession of certain specific types of property. This discussion is linked to the meanings and values of home set out in Chapter 4, including the meanings of home as self-identity, privacy and autonomy. The chapter concludes by considering the scope for further development of the concept of home in law through the framework of property theory and law.

Valuing Property in Land One of the key questions considered in this book is the extent to which the meanings and values of home are recognised in legal contexts. The evidence of empirical studies into the meanings of home for occupiers was considered in Chapter 4. Yet, notwithstanding the authenticity of these meanings and values, there are a number of obstacles when it comes to recognising home meanings in law. The focus of this book has been on the balance struck between the occupier’s home interest and the commercial claims of creditors. This conflict of interests is particularly apt in light of the stark contrast between the interests at stake. While the creditor’s claim against the financial value of the property is objective, tangible, measurable and readily comprehensible, the occupier’s interest in the use of the property as a home is a complex amalgam of practical, financial, psychological, social, emotional and cultural interests. While law has no difficulty recognising and quantifying the creditor’s interest, the occupier’s interest is conceptually much more difficult. In many respects, the home interest is anathema to legal discourse: it is perceived as being irrational, subjective, intangible, emotional and not subject to legal proof. Yet, as research in other disciplines has demonstrated, the value of the home interest for occupiers is undeniably authentic. The difficulties associated with the development of a legal concept of home and, specifically, with the recognition of the home interest in the creditor/occupier context were considered in Chapter 3. One of the issues highlighted in that discussion was the incongruence between the nature of the occupier’s interest in the home and the types of values that are generally recognised and protected in the realm of property law. English land law, particularly following the 1925 property reforms, has been dominated by an ethos of logic and rationality. As Gray and Gray

12 See MJ Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957, and MJ Radin, Re-interpreting Property (Chicago, Ill, Chicago University Press, 1993).

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observed, in relation to dealings between ‘strangers’, for example, landlords and tenants or creditors and occupiers: relationships are strictly commercial, bargaining is hard-nosed, social bondings are minimal and the value attached to land is primarily, perhaps even exclusively, an ‘exchange value’. Altruism is in very short support; we are talking money.13

Yet, while this description is undoubtedly reflective of current norms in English land law, it follows from a very clear policy agenda, rather than being inherent to the subject. The idea that land, including a person’s home, should be valued as capital was one of the central pillars of the 1925 legislation,14 which sought to make land as easily and securely transferable as possible, as readily exchangeable as any other asset, and to deny the idea that land had any special meaning just because it was occupied as a home. The 1925 legislation clearly emphasised the exchange value of land over and above its use value. The following sections consider the concepts of use value and exchange value as a means of representing the value of property in land, and the impact of legal policies prioritising the exchange value of land on creditor/occupier disputes, and, more generally, on the development of the concept of home in law.

From ‘Use Value’ to ‘Exchange Value’: the Meaning of Property in Land There are several ways in which the value of land can be represented, from capital value to cash value, economic value to exchange value, intrinsic value, market value, mortgage value, real value or use value.15 In a practical sense, the meaning associated with the idea of value in land depends on the purpose for which the appraisal is being made; however, it is generally recognised that ‘[v]alue in use and value in exchange are the two most basic concepts of value’.16 The focus on use value and exchange value has often been reflected in political, economic and legal discourses. For example, Adam Smith described ‘value’ as having ‘two different meanings . . . [It] sometimes expresses the utility of some particular object, and sometimes the power of purchasing other goods which the possession of that object conveys. The one may be called “value in use”; the other, “value in

13

Gray and Gray, above n 5, 241. ‘The 1925 legislation’ is an expression to refer collectively to the major overhaul of the property system effected by the Law of Property Act 1925, the Land Registration Act 1925, the Settled Land Act 1925 and the Trustee Act 1925, the Land Charges Act 1925 and the Administration of Estates Act 1925. 15 See MJ Crean, Principles of Real Estate Management (New York, Litton Educational Publishing Inc, 1979), 246. 16 Ibid, 259. 14

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exchange.” ’17 The contrast between use value and exchange value is also highlighted in Marx’s critique of political economy, which distinguished between ‘use value’, based on the intrinsic characteristics of the product and its usefulness in terms of satisfying a human want or need, and ‘exchange value’, which is often expressed as a money-price. In the introduction to Das Kapital, Marx wrote that: ‘[t]he utility of a thing makes it a use-value. But this utility is not a thing of air. Being limited by the physical properties of the commodity, it has no existence apart from that commodity’.18 According to this characterisation, the use value of any given item was rooted in the material and tangible physicality of the thing itself. It is interesting to contrast this analysis with descriptions of the ‘use value’ of a house as a home as a ‘chimera’;19 or ‘something ethereal, floating in the air, unconnected to bricks and mortar and land’.20 Marx’s theory of value treated the ‘use-value’ as the material starting point for wealth. He wrote that: [t]he use values of commodities furnish the material for a special study, that of the commercial knowledge of commodities. Use-values become a reality only by use or consumption: they also constitute the substance of all wealth, whatever may be the social form of that wealth . . . they are, in addition, the material depositories of exchange value.21

By contrast, the ‘exchange value’ of commodities was described by Marx as ‘characterised precisely by its abstraction from their use values’.22 Thus, while usevalue was material, the exchange value of the commodity as an item of wealth was identified as an abstract value. The development of this distinction, between abstract claims and material life, was considered in Chapter 3 in relation to feminist economic analyses of the role of gender in attributing value to competing interests.23 In the context of the creditor/occupier dispute, the creditor’s commercial claim can be characterised as a masculine interest, abstract and disembodied. This 17 A Smith, An Inquiry into the Nature And Causes of the Wealth of Nations (ed E Cannan, 5th edn, London, Methuen and Co Ltd, 1904; first published, 1776), Book 1, ‘Of the Causes of Improvement in the Productive Powers of Labour, And of the Order according to which its Produce is Naturally Distributed among the Different Ranks of the People’, see Ch IV, ‘Of the Origin and Use of Money’; see also RD Johnston, ‘Adam Smith’s Radical Views on Property, Distributive Justice and the Market’ in J Cunningham-Wood (ed), Adam Smith: Critical Assessments (2nd Series, Vol VII), (London, Routledge, 1994). 18 K Marx, Capital: A Critique of Political Economy (trans, B Foukes, New York, Penguin, 1990; first published 1867) i, Ch 1. 19 See S Merrett, Owner-Occupation in Britain (London, Routledge & Kegan Paul, 1982), 65. 20 London Borough of Harrow v Qazi [2003] UKHL 43 at [145], per Lord Scott. 21 Marx, above n 18. 22 Ibid, 127. 23 See, eg, JA Nelson, ‘The Study of Choice or the Study of Provisioning? Gender and the Definition of Economics’ in MA Ferber and JA Nelson (eds) Beyond Economic Man: Feminist Theory and Economics (Chicago, Ill, University of Chicago Press, 1993) 25; see Ch 3, nn 82–83 and associated text.

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can be contrasted with the occupier’s home interest, which is portrayed in legal discourse as feminine and material. The prioritisation of the masculine ‘exchange value’ of property over the feminine ‘use value’ is regarded as an illustration of the preference, in law and in economics, for rational, measurable, easily quantifiable interests, such as the financial interests of secured creditors in the property as capital, rather than the complex interests of occupiers in the property as a home. The idea that land can be valued according to binary sets of values—such as ‘use value’ and ‘exchange value’—is attractive as a means of representing both the complexity of interests in land and the conflicts that arise between different ideological commitments in property theory and law. For example, one attempt to understand policy in land law characterised the tension between these types of competing claims as a contest between the ‘ecological’ or ‘environmental’ approach to value, which emphasises ‘organic human uses of the land within a complex, interactive web of life’,24—this is typified by the occupier’s use of property as a home—and an ‘economic’ perspective, by which ‘land is primarily a financial resource—a commodity bought, owned, sold and used for some form of financial return’.25 According to the ‘economic perspective’, ‘[l]and is perceived as little more than legally described, discrete pieces of negotiable property’;26—just as the capital asset represented by the home is perceived by a creditor as a negotiable asset. Furthermore, while Caldwell and Schrader-Frechette were at pains to emphasise that they sought neither to undermine the ‘economic’ approach, nor to advocate ‘crusading environmentalism’, they did observe the tendency, in law, for commercial and economic values to be exaggerated in relation to all other values in land.27 This position reflects the central argument of this book—that is, the idea that when legal decision makers are required to balance the two interests at stake in possession actions, one against the other, the commercial interests of creditors automatically prevail. Furthermore, this preference has emerged without any adequate analysis of the nature and function of the occupier’s home interest in the property. As the discussion in Chapter 3 has argued, the combined effect of the tendency to prefer the commercial claims of creditors and the under-conceptualisation of the home interests of occupiers has created a cycle whereby it is effectively presumed that creditors must prevail. In the creditor/occupier context, the weight attached to the claims of creditors has been so strong that competing interests, such as the occupier’s home interest, are marginalised, trivialised or ignored. As a result, there has been less impetus to investigate the meaning and value of the home interest; the 24 LK Caldwell and K Schrader-Frechette, Policy for Land: Law and Ethics (Lanham, Mld, Rowman & Littlefield Publishers Inc, 1993) 5. 25 Ibid, 3–4. 26 Ibid, 4. 27 They wrote that ‘[t]he existing aggregation of laws and practices pertaining to the ownership and use of land have been beneficial primarily to persons interested in exploitation or litigation’; ibid, 86.

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home interest is not conceptualised in academic analysis, or explored in the courts; and therefore creditors continue to prevail. This book seeks to break this cycle by establishing an argument for analysing the home interests of occupiers. A central element of this argument is the recognition that existing theories, laws and policies in the creditor/occupier context are not immutable, but subject to re-analysis. The remaining sections of this chapter consider the role of property theories, laws and policies in this re-analysis and in the conceptualisation of home.

Things as Things and Things as Wealth Building on the idea of valuing land according to its ‘use value’ and its ‘exchange value’, another school of property theory has classified the competing functions of property according to the idea of ‘things as things’ and ‘things as wealth’. For example, Harris wrote that: Conventional property-talk (lay and legal) displays an ambivalence which reflects the dual function of property institutions, as instruments for controlling the use of things and for the allocation of wealth. ‘Property’ may refer to the things in respect of which ownership or quasi-ownership interests subsist. Or it may refer to the monetary value of such interests. Crudely the contrast may be expressed as one between ‘property as things’ and ‘property as wealth’.28

Land can be described as an illustration, par excellence, of the type of property that is capable of embodying both of these characteristics: it has inherent use value as a ‘thing’, and exchange value as an item of ‘wealth’. Indeed, while real property— for example, a house—has an obvious use value, since it is a scarce resource which provides the substratum for all human activity, when it comes to considering the value of property in land as a ‘thing’, land is also distinctive because it is not consumed by use. As a physical entity, land is capable of lasting forever. Yet this feature is also central to the value associated with land as wealth: ‘[t]he relative permanence of land makes it acceptable as collateral for loans, and this economic advantage along with the relative stability of land values offers the most reliable benefit from ownership as presently defined’.29 Land carries an enduring value as an item of ‘wealth’. However, if land is to perform these functions, it is necessary that it can be treated as a commodity, and that rights in land can be readily exchanged in the market. The way in which these competing functions are recognised and given effect in property theory and law has not been constant, but has evolved over time as the demands that policy goals have made on property law have changed. For example, 28 29

JW Harris, Property and Justice (Oxford, Oxford University Press, 1996) 140. Caldwell and Schrader-Frechette, above n 24, 96.

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in his discussion of ‘Things as Things and Things as Wealth’, Rudden highlighted a major historic shift in the functions of property in land, which he linked to wider socio-economic changes in relation to property. Rudden noted that while: The traditional concepts of the common law of property were created for and by the ruling classes at a time when the bulk of their capital was land. Nowadays the great wealth lies in stocks, shares, bonds and the like, and is not just movable but mobile, crossing oceans at the touch of a keypad in the search for a fiscal utopia.30

The conceptual framework within which the legal rules for dealing with property have developed has reflected these changes. The idea of land as a ‘thing’, with a clearly identified ‘use value’, has been superseded with theories of land as ‘wealth’, with an emphasis on its exchange value. It is interesting to note that when Rudden suggested that some vestige of the traditional idea of land as ‘thing’ might still be found in English law he relied upon the example of home to illustrate his point. Although Rudden recognised the primacy of ‘things as wealth’ in contemporary property law and theory, he did add that it was important ‘not to make light of the need for a home, or of the difficulties encountered by English judges in the absence of any customary or legislative system of matrimonial or quasi-matrimonial property’.31 Indeed, the extent to which the competing values and functions of land are recognised in property theories and laws and the preference afforded to ‘property as wealth’ and abstract economic or exchange value in contemporary property law are central to the conceptualisation of home. In the creditor/occupier context that provides the paradigm for this book, the value or weight attached to the occupier’s home interest—a material interest in the use of the property as a home—must be balanced against the commercial interest of the creditor in the abstract economic and exchange value of the property. As the discussion in Part I has demonstrated, the creditor’s interest generally prevails, whether the analysis is located in terms of theory, law or policy. Yet, the role of property theory and law in this balancing exercise should not be regarded as immutable, but recognised as the consequence of a clear policy preference for exchange value over use value, and for the representation of property in land in the abstract, as an item of wealth, rather than as a material entity, to be used and enjoyed ‘as a thing’—that is, as a home. Although the tendency to treat property in the home as ‘wealth’ rather than as a ‘thing’ is consistent with the dominance of exchange value ideology in modern property theory and law, this can, to some extent, be regarded as a ‘default setting’. It is also important to 30 B Rudden, ‘Things as Things and Things as Wealth’, in JW Harris (ed), Property Problems: From Genes to Pensions Funds (London, Kluwer Law International, 1998) 148. 31 Ibid. The issues surrounding matrimonial and quasi-matrimonial property are considered further in Ch 7.

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emphasise the fact that Parliament can easily override the exchange value ideology by explicitly recognising the use value of a specific type of property as a thing. Indeed, Rudden suggested that, when Parliament is considering the problem of creditor/occupier disputes concerning the home, the treatment of home as ‘thing’ or as ‘wealth’ in any provision that might be adopted is rooted in policy considerations: On the one hand, Parliament might agree that a lender’s interest is merely in the thing as wealth, whereas a family member’s interest is in the thing as a dwelling house, and so be led to lay down a clear if radical rule: that the real right of the creditor of a monetary obligation (the lender) is postponed to that of the creditor of an obligation in kind (the spouse, etc). But a quite different policy might also be adopted, which held that the burden of a black sheep should fall on its kin rather than on a stranger dealing for value and in good faith; and this would lead to an equally clear if quite contrary rule.32

The policies discussed in Chapter 2, and which are prominent in the discussion of the 1925 legislation below, indicate the tendency in English law to focus on the home as wealth, and so to prioritise the commercial interests of creditors in the exchange value of the land. The following sections explore this preference by considering the historical context within which property laws and policies have developed in England, and, in particular, the importance of the policies that underpinned the 1925 property legislation on the representation of home as ‘wealth’ in English property law.

The Evolution of Property in Land: from Use Value to Exchange Value The evolution of theories, laws and policies in respect of both the values associated with land and the functions of land within a legal framework have had a tremendous impact on the way in which the legal concept of home has been (under-) developed. From the agrarian communities of peasant societies to the era of mass owner occupation, there has been a clear shift from a focus upon the use value of land as the measure of its value to a discourse that is dominated by the exchange value of the property. In The Historical Foundations of the Common Law, Milsom wrote that: From the earliest settlements until the Industrial Revolution the economic basis of society was agrarian. Land was wealth, livelihood, family provision, and the principal subject matter of the law . . . [land] was also government and the structure of society.33 32 33

Ibid, 161. SFC Milsom, Historical Foundations of the Common Law (London, Butterworths, 1981) 99.

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One of the characteristic features of this agrarian society was the fact that the peasant farmers ‘owned’ plots of land, which they lived and worked on, under the system of feudal tenure.34 Yet, a major distinguishing feature between these original owner occupiers and modern home owners is the fact that, under the feudal system, land was valued primarily in terms of its use value rather than its exchange value. This is reflected in the materiality of the connection between peasant land owners and their properties: land ownership gave rise to a strong attachment between the occupiers and the soil which supported them.35 This was reflected in the view that ‘since the beginning of time the idea of fertility had been, in the minds of agricultural people, associated with the soil. Man’s life was bound up with the soil’.36 While there are clearly some distinctions between the experiences of peasants, who relied on the agricultural use of their land to support their lives, and modern owner occupiers, there is some degree of parallel between the role of the soil in sustaining the peasant’s life through agriculture and the role of the home in sustaining the modern owner occupier, most practically as shelter, but also as territory, as identity, as socio-cultural signifier and as a financial investment.37 For the purposes of this discussion, however, one of the most significant differences rests with the values that were recognised in relation to their land. One of the central themes of Chapter 5 was the importance of recognising the risks that home buyers are exposed to if they default on mortgage repayments. Yet, the very fact that owner occupiers acquire their properties subject to a mortgage or may secure further credit advances against the property highlights the importance of exchange value in these property relationships. Home ownership in the United Kingdom (and, for example, in the United States of America, Canada, Australia, New Zealand) is routinely financed through loan capital, which is secured against the property itself.38 The property is used as an exchange asset from the moment of acquisition. In contrast, peasant land owners were unlikely to use their land as a financial asset. Indeed, MacFarlane claimed that ‘[t]he object which is least likely to come

34 MacFarlane claimed that, using its common sense meaning, England was a ‘peasant society’ between the thirteenth and eighteenth centuries: A MacFarlane, The Origins of English Individualism (Oxford, Blackwell, 1978) 9. 35 WJ Ashley, An Introduction to English Economic History and Theory (3rd edn, London, Longmans, 1901) 33–8. 36 RB McConlogue, ‘Usury’ (1928) 1 Southern California Law Review 253. 37 See generally, Chs 3 and 4. 38 Smith has contrasted this with other jurisdictions, eg Southern Europe, where high rates of owner occupation are funded by family wealth, and former Eastern bloc countries, where high rates of home ownership have resulted from the mass transfer of state assets into private ownership: S Smith, Banking on Housing: Speculating on the Role and Relevance of Housing Wealth in Britain (Paper prepared for the Joseph Rowntree Foundation Inquiry into Home Ownership 2010 and Beyond, 2005) 12–13.

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on the market is land’,39 and suggested that ‘peasants are usually very loath even to mortgage land’.40 The reluctance to mortgage or sell land was rooted in the symbolic importance of land for peasants, and the use value of the property was the central focus of land ownership. Thus, it was deemed that ‘[l]and should never be mortgaged, except to a member of the family . . . [since] mortgaged property becomes a purely economic category and loses its whole symbolic value’.41 MacFarlane added that ‘[i]f this is the case with mortgaging, the sale of land is an even greater disaster, and even less likely to occur’.42 Land was regarded as having ‘a unique value, and no sum of money can be too large to pay for it . . . [it had] a social rather than an economic value’.43 In fact, the consequence for the peasant farmers was that they were not only tied to the soil, in terms of reliance upon the land for their livelihoods but ‘the soil was also tied to them. No very great accession of wealth was possible to them, but, on the other hand, they always had the land upon which they could live’.44 The idea that each piece of land is capable of bearing a unique value is considered further below, in the context of 1925 legislation. The 1925 legislation sought to sweep away the last remnants of the feudal system of land owning and to place the law on a modern footing. One of the central tenets of the 1925 legislation was the policy of treating land as mere capital, as ‘wealth’, and therefore denying the proposition that each piece of land is unique as a ‘thing’. As the discussion below will indicate, the 1925 legislation was clearly motivated by a policy of making land more readily ‘exchangeable’ in the market. In order to achieve this goal, it was necessary to replace the peasant conception of ‘land as symbolic property’ with the modern representation of ‘land as capital’. MacFarlane described this development as an inevitable consequence of the market economy: the market in land was ‘logically incompatible’ with the traditional peasant ideal of land as symbolic property.45 Atiyah described the shift from feudal tenure to the modern system of land ownership in terms of the individual freedoms that land owners acquired to deal

39 A MacFarlane, The Origins of English Individualism (Oxford, Blackwell, 1978) 23. Although MacFarlane claimed that, contrary to earlier analyses, the English peasant was involved in the market and transacted on the land as a commodity, he recognised that, notwithstanding some evidence of transactions in land, it retained a special status until long after private property as a basic concept had been accepted: ‘[a]lthough small pieces of land may be bought and sold to even out demographic differences between households or in crises, it is very clear that an extensive and open market in land, which treats land as just another commodity, is absent in traditional peasantries’: ibid, 23. 40 Ibid. 41 WI Thomas and F Znaniecki, The Polish Peasant in Europe and America (2nd edn, New York, Dover Books, 1958) 161–2; quoted in MacFarlane, above n 40, 23. 42 MacFarlane, above n 40, 23. 43 Thomas and Znaniecki, above n 41, 161. 44 Ashley, above n 35, 40. 45 MacFarlane, above n 40, 24.

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with their land in the market. In pre-industrial societies, relationships between people were largely conducted on a customary basis, and economic freedom was ‘severely constrained by ethical ideals’.46 Dealings between individuals were governed by principles ‘designed to ensure that the relationship functioned in a way which was thought to be fair and just and in accordance with tradition’.47 One aspect of this customary tradition, as noted above, was the idea that land should not be mortgaged, and the policies that influenced property theory and law in the pre-industrial society reflected these values. However, Atiyah argued that, under the feudal system: [m]en were not, nor were they thought to be, free to do what they chose. Even their own property—as it came to be thought of in the seventeenth and eighteenth centuries—did not ‘belong’ to them. Land, the most important source of property, was not owned, but ‘held’.48

In fact, in the pre-industrial society, the use of property as a financial asset was obstructed on both sides of the transaction: while occupiers were restricted in their freedom to use their property as a financial asset, to raise capital, the activity of giving credit as a commercial enterprise was also inhibited by laws and policies. The outlook of legal policy on the commercial credit transactions was reflected in the laws of usury, which banned—and, later, strictly regulated—the lending of money as a business transaction.49 This reflected a moral opposition to the lending of money by professional financiers and the activity of making a profit through taking interest. Since cash was regarded as a medium of exchange, but not recognised as a form of capital, the concept of paying money (in interest) for the use of money (the loan) was regarded as tantamount to paying for the same thing twice. Indeed, although there were restrictions—both practically and symbolically— when it came to using land as an asset for exchange, real property was, in theory, recognised as capable of performing two functions: as the ‘thing’ itself for use, and as ‘wealth’ for exchange. Money, on the other hand ‘was still mainly used as a standard of measurement, as a means of circulation or as unused treasure, not yet as capital’.50 Money was just a ‘thing’; it was not recognised as ‘wealth’. While the functions of property in land and in money were clearly distinguished in the pre-industrial period, this was all set to change with the rise of the age of 46

PS Atiyah, The Rise and Fall of Freedom of Contract (Oxford, Clarendon Press, 1979) 61–2. Ibid, 62. 48 Ibid. 49 For a discussion of usury laws in the United Kingdom see J Bentham, ‘Defence of Usury; Shewing the Impolicy of the Present Legal Restraints on the Terms of Pecuniary Bargains’; in Letters to a Friend. To which is added A Letter to Adam Smith, Esq. LL.D. on the Discouragements opposed by the above Restraints to the Progress of Inventive Industry; and to which is also added, A Protest against Law-Taxes (London, Payne and Foss, 1818). 50 O Kahn-Freund, ‘Introduction’ in K Renner, Institutions of Private Law and their Social Functions (London, Routledge & Kegan Paul, 1949) 25. 47

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commercialism that followed in the Industrial Revolution. The rise of commercialism reflected Tönnies’ model of socio-economic progression, from a Gemeinschaft—a small-scale, family-oriented, customary, community-based society—to the Gesellschaft—a large, market-driven ‘civil society’.51 Another feature of this progression towards a commercial society was what Atiyah described as the: transition from a law of property to a law of contract relating to property . . . the now familiar process by which the significance of property rights changed from their use value to their exchange value.52

The growth of credit as a means of doing business in a commercial society also impacted on the institution of property. Where property ownership had previously been rooted in the tangible fact of possession, the role of property in the credit society was centred on the contractual obligation. Thus, while, ‘[i]n the eighteenth century, a man’s wealth was thought to consist largely of his “possessions”, of physical property, principally land; in the modern world, wealth has been said to consist largely of promises’.53 Where property ownership in the pre-industrial society revolved around physical, tangible ‘things’, the rise of credit and the commercial society revolved around the exchange value of property as ‘wealth’. In fact, Kahn-Freund claimed that the ‘thing’ itself became so insignificant that it no longer mattered what the thing was: ‘it may be a block of flats, an agricultural estate, a factory, or so many South African gold shares. The property object has become capital’.54 This has interesting implications for the conceptual framework within which ‘home’-type interests are regulated in law and, specifically, for creditor/occupier disputes. Atiyah characterised the rise of the exchange value in property theory and law as indicative of the emergence of a ‘newer individualism, stressing risk-taking, free choice, rewards to the enterprising and sharp and devil take the hindmost’.55 This portrait casts an interesting perspective on the treatment of home interests in the creditor/occupier context. Many of the justifications for the persistent procreditor approach in English law—for example, the argument that occupiers must ‘take the good times with the bad’56—can be comprehended in the context of freedom of contract within a market economy.57 Prominent issues in discussions of legal policy in respect of the balance struck between the commercial interests of 51

See Tönnies, above n 8. Atiyah, above n 46, 103. 53 Atiyah, above n 46, 102. 54 Kahn-Freund, above n 50, 28. 55 Atiyah, above n 46, 176. 56 See Ch 3, n 23 and associated text. 57 For a discussion of the impact of market economics on the creditor/occupier dispute and on the conceptualisation of home, see Ch 3, nn 43–51 and associated text; on the challenge to the market economics approach in this context, see Ch 3, nn 64–79 and associated text. 52

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creditors and the home interests of occupiers have included: concerns regarding the availability of credit to fund widespread home ownership; the need to ensure that creditors are adequately protected; and concerns about the cost of credit. These issues reflect the priorities of the Gesellschaft society, with its commitment to credit through the strict enforcement of the credit obligation. Yet, for the purposes of conceptualising home, the most significant transformation in property theories, laws and policies—from the eighteenth century to the enactment of the 1925 legislation—was the assimilation of real property with other types of property. One of the central tenets of the 1925 legislation was assimilation of real property with other types of property as an item of capital. The 1925 legislation explicitly set out to treat land as a capital asset, and as indistinguishable from other capital assets—for example, money. The idea that land might have a specific use value, as a ‘thing’, was rejected. Parliament opted instead to elevate the exchange value of the property, as ‘wealth’. This had major implications for the creditor/occupier context, and for the treatment of home interests in law. The following section considers the policy of the 1925 legislation, its impact on property theory and law, and the consequences for the legal concept of home.

The Policies of English Property Law: the 1925 Legislation When dealing with disputes between creditors and occupiers concerning the owner-occupied home, English law has, as illustrated in Chapter 3, tended to prioritise the financial interests of creditors in the capital value of the home rather than the non-financial claims of occupiers to the use value of the property as a home. One of the issues that was highlighted in Chapter 3 was the impact of the 1925 legislation on the development of this approach. The idea that land, including a person’s home, was to be treated in the same way as other forms of property, as a capital asset, was one of the central pillars of the 1925 legislation. This policy went to the heart of the reform agenda that informed the 1925 property reforms. The object of the legislation was to make land as easily and securely transferable as possible, in fact, to make land as readily exchangeable in the market as any other asset. This was achieved by treating land as capital, as a commercial asset. A necessary consequence of this position was the rejection of any special ‘symbolic’ meaning associated with land, for example, because it was occupied as a home. This section seeks to consider the impact of this approach on creditor/occupier disputes and, specifically, on the treatment of home-type interests in English property law. The machinery of the 1925 legislation and its functional impact on creditor/occupier disputes were set out in Chapter 2, above.58 The key feature of this legislation for the purposes of the analysis in this chapter is the role of the 58

See Ch 2, nn 127–172.

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statutory ‘trust for sale’, imposed on all jointly owned property under the Law of Property Act 1925,59 in achieving the legislative goal of assimilating land with other types of property, as mere capital. The statutory ‘trust for sale’ imposed a legislative presumption in respect of all co-owned land that the primary object of property ownership—for example, between spouses or partners—was investment and sale rather than use and occupation.60 One of the features of this trust was the duty that was imposed on all legal owners of the co-owned land (the ‘trustees for sale’) to sell the property immediately. Although this mandatory obligation to sell the land was accompanied by a power to postpone sale,61 in cases where the trustees chose to exercise this power to postpone sale, ‘any person interested’ could apply to the court under section 30 of the Law of Property Act 1925 (LPA) for a judicial order forcing the sale of the property, such order to be granted at the discretion of the court.62 As Chapter 3 has illustrated, section 30 of the LPA has often been utilised by creditors seeking to force the sale of a jointly owned property. Creditors holding proprietary security, even if that security was effective only against one co-owner’s share in the property, were entitled to apply to the court for an order for sale of the land in order to realise the capital value of the property and so discharge the debt. Section 30 conferred a discretionary power on the court to order sale, and the court exercised this power by balancing the creditor’s interest in realising his debtor’s assets against the interests of the parties who opposed sale. When sale was opposed, this was usually on the ground that the occupier wanted to retain the property for use and occupation as a home. However, the object of the 1925 provisions was to facilitate the alienability of real property, and this legislative policy characterised the judicial approach towards granting orders for sale under section 30 of the Act. The result was a clear tendency for the creditor’s interest, which lies in the sale of the debtor’s property, to prevail over that of the co-owning occupier who wished to retain the land for occupation and use as a home. In 1925, owner occupation accounted for a small but growing proportion of the housing sector in the United Kingdom, although, as Chapter 5 has indicated, the government had already embarked upon a home-ownership campaign which aimed to encourage citizens to buy their own homes.63 The broad outcome of these 59 Law of Property Act 1925 s 35 stated that ‘land held upon the “statutory trusts” shall be held upon the trusts and subject to the provisions following, namely, upon trust to sell the same and to stand possessed of the net proceeds of sale’. 60 As the Law Commission for England and Wales would later observe. ‘[t]he defining feature of the trust for sale . . . is that the trustees are under a duty to sell the trust land. Implicit in this is the notion that this land should be held primarily as an investment asset rather than as a “use” asset’: Law Com No 181, Transfer of Land: Trusts of Land (London, HMSO, 1989), para 3.1. 61 LPA s 25. 62 LPA, s 30. 63 These initiatives were to continue throughout the twentieth century, and included tax relief for mortgagors, facilitating the availability of credit finance for borrowers, and ‘right to buy’ schemes: see Ch 5.

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policies was that by 2004 70 per cent of households in the UK either owned, or were in the process of buying, their own homes.64 One of the objects of the governments’ strategy in promoting home ownership in the United Kingdom was to encourage a culture of ‘citizenship’, through facilitating owner occupation which would, in turn, enable owners to acquire a ‘stake in the nation’.65 It is interesting to note that government policies promoting home ownership sought to encourage occupiers to invest—economically, socially and emotionally—in their homes through owneroccupation. However, in evaluating the impact of the 1925 reforms on modern home owners, it is important to recognise the fact that the 1925 legislation was ‘neither premised upon the existence of mass owner occupation, nor aimed at providing a legal framework to govern such a pattern of ownership’, and that the drafters of the 1925 legislation were ‘not concerned to provide a conveyancing regime tailored to the needs of the modern owner-occupied sector’.66 In fact, the 1925 legislation was enacted with the intention of treating real property as capital in order to meet the needs of the commercial, industrialised society of the early twentieth century.67 As the Law of Property Bill passed through the House of Commons, it was clear that its object was to treat land as a commercial asset. The broad aim of the legislation was ‘to assimilate the law of real and personal estate and to free the purchaser from the obligation to enquire into the title of him from whom he purchases, any more than he would have to do if he were buying a parcel of stock’.68 The LPA was specifically targeted at co-owned land since, when it came to buying land, the existence of concurrent interests in the property, both legal and equitable, presented difficulties for purchasers, who could find themselves without clear title to the land as a result of prior concurrent interests. The LPA sought to protect purchasers from the hazards of co-ownership by placing all co-ownership interests behind a statutorily imposed ‘trust for sale’.69 The trust for sale protected purchasers by converting any co-ownership interest that might exist in the land into a claim against the cash sum realised on the sale of the property. This meant that: whoever owns the land . . . when he comes to sell, the law will put him in the position that he is to be the absolute owner and . . . the buyer will have nothing to do with what lies behind.70 64

social trends 35 (london, office for national statistics, 2004), table 15, appendix 1. See generally Ch 5. 66 WT Murphy and H Clark, The Family Home (London, Sweet & Maxwell, 1983) 18–19. 67 See 155 HL Deb (5th Series) col 709–710 (16 June 1922), Sir Donald McLean. 68 Lord Birkenhead in a letter to The Times, 15 Dec 1920. 69 ‘One of the consequences of the 1925 property legislation is that the legal estate in any property which is beneficially owned jointly or in common is necessarily held on trust for sale’: In re Citro [1991] Ch 142 at 150G. Although not specifically included in the statutory provisions, the court in Bull v Bull [1955] 1 QB 234 held that land vested in the name of a single owner, where another had a beneficial interest behind a trust, was subject to a trust for sale. 70 39 HL Deb (5th Series) col 265–6 (3 March 1920), Viscount Haldane. 65

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The object was to ensure that the legal owner of land would be capable of transferring good title to a purchaser. The equitable claims of co-owners took effect against the proceeds of the sale. Thus, co-owners who may have thought they had an interest in the land itself could find the property sold and their claim applied against the purchase money—that is, against a capital sum. The impact of this policy went even further, since it was not merely at the point of sale that the co-owner’s property interest was designated as an interest in capital, rather than an interest in land. The doctrine of conversion furthered the aims of the 1925 legislation by effectively denying the suggestion that an interest in land carried any special meaning in law, as compared with any other capital asset. The 1925 legislation clearly valued interests in co-owned land according to their exchange value, as an item of wealth. In fact, the debates preceding the legislation indicated that the idea that a specific piece of real property could be valued as a specific ‘thing’, according to its use value was explicitly rejected. The rejection of the use value of land was given practical effect through the doctrine of conversion.

The Doctrine of ‘Conversion’ The Parliamentary debates preceding the LPA 1925 attested to the Government’s policy of assimilating land with other forms of property, so that land would carry no special meaning but would be treated as ‘wealth’, rather than as the ‘thing’ itself; thus recognising its exchange value but not its use value. In fact, when these measures were considered in the House of Commons, there was some opposition to the policy from members, who argued that: ‘[y]ou cannot compare the transfer of stocks and shares with the transfer of property’71 and that: You may want one special piece of land . . . no one wants one special stock certificate . . . There is no magic in one stock certificate . . . [on the other hand] land is a special property. A man may want one particular piece of land, and it may be that no money can compensate him for the loss of it.72

The suggestion, in the House of Commons, that land should be recognised as a special or particular form of property reflects Rudden’s description of ‘Things as Things’. He wrote that: A thing may be treated for itself and be possessed, used, and disposed of for its own qualities, however banal they be. In this case the legal regime applicable treats the object as unique: it is this house we own and live in, this book we sell and no other.73 71 72 73

154 HC Deb (5th Series) col 145 (15 May 1922). Ibid, col 124. Rudden, above n 30, 148.

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The significance of the meanings and values associated with their homes by occupiers has been extensively explored in this book. A central element of this discussion has been the proposition that occupiers may have an interest in retaining the use and occupation of the specific property in dispute as a home. As the previous section has noted, the imposition of a statutory ‘trust for sale’ on co-owned land was rooted in the legislative policy of the 1925 legislation. By declaring that the primary purpose of co-owning real property was sale, the legislation made it clear that co-owned land was valued in terms of its capital value on exchange, rather than according to its value for use and occupation as a home. Furthermore, although co-owners most likely regard themselves, in practice, as having an interest in the land itself—particularly in light of the ideology of home ownership, as discussed in Chapter 5—the provisions of the 1925 legislation, through the trust for sale and the doctrine of conversion, have ensured that property theory and law do not recognise this interest. For one thing: The defining feature of the trust for sale . . . is that the trustees are under a duty to sell the trust land. Implicit in this is the notion that this land should be held primarily as an investment asset rather than as a ‘use’ asset.74

Furthermore, the doctrine of ‘conversion’ operated to ensure that, from the outset of the shared ownership—not merely on the point of sale—the beneficiaries’ interests were interests in the proceeds of sale only, not interests in the land. The object of the doctrine of ‘conversion’ was to ensure that land was treated as no more than a capital asset, and was valued only in terms of the cash sum it could raise on alienation. In Rudden’s terminology, the ‘thing’ itself—the land—was ‘treated merely as the clothing (in-vestment) worn by a certain amount of wealth’.75 As such, the land itself (or specifically, the home) was viewed as being ‘perfectly replaceable’, for example, through a payment of money. This was clearly illustrated in Irani Finance Ltd v Singh,76 when the court considered the nature of a beneficiary’s interest in co-owned land under the 1925 legislation. Although the court recognised that ‘in a non-technical use of language, the beneficiary may be said to have a real interest in the land’,77 it was held that in legal terms: the beneficial interest of a person whose interest arises under a trust for sale . . . is not one which is appropriately described as being ‘an interest in the land‘. . . [so that] he has no estate or interest in the land itself.78

74 75 76 77 78

Transfer of Land: Trusts of Land, Law Com No 181 (London, HMSO, 1989), para 3.1. Rudden, above n 30, 148. [1970] 2 WLR 117 (ChD); [1971] Ch 59 (CA). Irani Finance Ltd v Singh [1971] Ch 59 at 69; per Buckley J. Ibid.

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In Irani Finance v Singh, the interests of beneficiaries in co-owned land were described as interests in the proceeds of sale only, not in the land itself. Although owner occupiers with shared ownership interests in land—for example, a husband and wife with joint ownership of their home—most likely valued both the property itself (use value) and the asset it represented (exchange value); and its exchange value, the application of ‘conversion’ to all interests in co-owned land in the 1925 legislation treated such interests as ‘wealth’ only. In fact, the application of conversion in the context of co-owned land attracted considerable criticism and, in a series of cases following Irani Finance Ltd v Singh, the court showed significant signs of wavering between the conception of property interests in co-owned land as interests in the ‘thing’ and interests in ‘wealth’.79 For example, the decision in Irani Finance v Singh was criticised in Williams & Glyn’s Bank Ltd v Boland,80 when Lord Wilberforce described the proposition that an interest in co-owned land under a statutory trust for sale was an interest in the proceeds of sale only—through the operation of conversion—as being ‘just a little unreal’ in the case of a home that had been purchased for the purposes of occupation. The idea that the occupier’s interest in the property was not, in fact, a material interest in the property itself, but an abstract interest in the proceeds of sale, would presume, for example, that occupiers who were deprived of their home could be adequately compensated by a payment of money. Thus, under the 1925 legislation, the range of meanings and values of home that were considered in Chapter 4 were inherently dismissed.

The ‘Trust of Land’ and the Use of Land as a Home As the detailed analysis of property law provisions in Chapter 2 has indicated, the provisions of the LPA 1925 in relation to the ‘trust for sale’ on co-owned land and the doctrine of conversion have been replaced with a new legislative scheme involving a ‘trust of land’. The Trusts of Land and Appointment of Trustees Act 1996 (TLA) transformed the nature of co-owned interests in land. In fact, the central aim of applying a ‘trust of land’ to co-owned property (in place of the trust for 79 Irani Finance, above n 78, dealt with the question whether a beneficiary under a trust for sale of land had an interest in land, or only in the proceeds of sale, and the court decided that for the purposes of s 35 of the Administration of Justice Act 1956, the interest was only in the proceeds of sale. In National Westminster Bank Ltd v Stockman [1981] 1 WLR 67 the interest was construed as an interest in land for the purposes of the Charging Orders Act 1979, to enable an interest in a trust for sale to form the subject matter of a charge (see Ch 2, nn 44–48). As regards the registration of such an order, Perry v Phoenix Assurance [1988] 1 WLR 940 held that it did not amount to an ‘order affecting land’ under the land charges legislation, however, in Clark v Chief Land Registrar [1993] 2 WLR 141 the order was allowed as one where ‘the interest was to charge the land not the proceeds of sale’. In Elias v Mitchell [1972] Ch 652 an interest in the proceeds of sale under a statutory trust for sale was described as a ‘minor interest in land’ for the purposes of the Land Registration Act 1925. 80 [1981] AC 487 at 507.

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sale) was to re-establish the importance of the use value of the land itself in cases involving co-ownership (in place of the focus on the exchange value of the land as an item of wealth). The TLA 1996 sought to re-establish the idea of use value in the home within the legal framework for the regulation of property in co-owned land, on the basis that home owners do not, in reality, view their property as an investment asset only, and that sale is usually the last outcome intended by co-owning occupiers in relation to their home. The provisions of the TLA were based on recommendations from the Law Commission,81 which had argued that the trust for sale—particularly its focus on exchange value and on the property as wealth—was inappropriate in the context of modern home ownership.82 The Commission recognised that, in most cases, the purpose of home ownership was the use and occupation of the property as a home, rather than merely to hold the property as an asset pending the realisation of its capital value on sale.83 The trust for sale, which treated the co-owning occupier’s interest as an interest in wealth rather than an interest in land, and which had as its primary purpose the immediate sale of the land (subject only to a power to postpone sale), was therefore deemed to be ‘wholly artificial’,84 and ‘clearly inconsistent with the interests and intentions of the majority of those who acquire land as co-owners’.85 In fact, the Law Commission recognised that, in reality ‘the intention will rarely be that the land should be held pending a sale’.86 Where property was occupied by home owners, the Commission accepted that ‘the property will not be held simply as an investment asset, but as a “use” asset’.87 The Law Commission sought to reflect these views in the proposed ‘trust of land’. For example, it provided that ‘[t]he main purpose of the trust will no longer be the realisation of the capital value of the land’.88 Rather, the Commission recognised that property was likely to bear particular meaning and value for occupiers in the basis that it was ‘the place where the beneficiaries live, or want to live in the future’.89 Furthermore, the value of the property as a ‘thing’ was re-asserted. The Law Commission claimed that, when it comes to property in land, ‘each piece is in 81 Law Com No 181 above n 60 and Law Com No 188 Overreaching Beneficiaries in Occupation (London, HMSO, 1989). See also Law Commission Working Paper No 106, Trusts of Land: Overreaching para 3.2 where the appropriateness of imposing a trust for sale on co-owned domestic property was questioned. The trust for sale mechanism was criticised as being based on outdated assumptions regarding the purpose of property ownership. 82 Law Com No 181, above n 81, para 1.3; the Working Paper which preceded this report had observed that changes in property ownership rendered the imposition of a trust for sale on co-owners occupying domestic property ‘highly artificial’: Law Commission Working Paper No 94, para 6.4. 83 Law Commission Working Paper No 106, above n 81, para 3.2. 84 Ibid. 85 Ibid. 86 Ibid. 87 Law Com No 181, above n 82, para 3.2. 88 Ibid, para 3.5. 89 Ibid, para 3.10.

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principle, unique’.90 Finally, it was suggested that the proposed scheme would recognise the fact that occupiers may suffer losses as a result of losing their homes in a creditor possession action that would not be compensated by a capital payment. Indeed, the Law Commission recognised that their ‘realistic concern is often with the enjoyment of the land itself ’.91 The idea of valuing property in the home according to its use value, as a ‘thing’, rather than according to its exchange value, as wealth, was, in fact, described by Lord Browne-Wilkinson as being ‘at last . . . a little bit of common sense’92 The proposals set out by the Law Commission, which were enacted in the TLA, sought to address both the preference for sale at the heart of the trust for sale and the implications of the doctrine of conversion in relation to the nature of property in co-owned land. Under a trust of land, title to the property was ‘vested in the trustees, who are given power both to sell and to retain the land, rather than being under a duty to sell’.93 Furthermore, by removing the operation of the doctrine of conversion in relation to property held on a trust for land, the legislation overturned the proposition that a co-owner’s interest in land was limited to the proceeds of sale, rather than subsisting in the land itself.94 Indeed, by declaring that a co-ownership interest in land is an interest in the land itself, the provisions of the TLA sought to reflect the fact that ‘most joint home owners already believe themselves to have an interest in land rather than in money’95—particularly when the property in question was their home. Lord Mishcon reasoned that: the intention of most spouses when purchasing the matrimonial home in joint names is not to hold it as an investment for sale, or as an investment asset pending sale, but to use it and keep it as a home.96

While the 1925 legislation had presumed that the purpose of land ownership was ‘as an investment rather than as a home, to be bought and sold as market conditions demand, with the beneficiaries being interested in the proceeds of sale rather than the property for its own sake’,97 the 1996 Act purported to recognise that ‘most co-ownership of property is for the purpose of providing a home rather than an investment’.98 Yet, while the issues surrounding the nature of property in co-owned land are certainly interesting in relation to property law provisions and the legal concept of 90

Ibid, para 3.10. ‘[N]owadays many beneficiaries may well feel defrauded, even if the trustees do not vanish with the money, through the very fact of losing their land’: Law Commission Working Paper No 106, above n 81 para 1.5; see also para 3.1. 92 569 HL Deb (5th Series) col 1725 (1 March 1996). 93 Ibid, col 1718. 94 TLA, s 3. 95 569 HL Deb (5th Series) col 1718 (1 March 1996), per Lord Mackay. 96 Ibid, col 1722, per Lord Mishcon. 97 Ibid, col 1718, per Lord Mackay. 98 569 HL Deb (5th Series) col 1718 (1 March 1996), per Lord Mackay. 91

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home, they may be regarded to a certain extent as theoretical abstractions. When it comes to a creditor/occupier dispute, the key point for occupiers seeking to defend possession proceedings is not the nature of their interest in property theory and law, but whether the court is likely to order the possession and sale of their homes. On the one hand, it was noteworthy that the TLA had removed the duty to sell which characterised joint ownership trusts under the LPA, thus seemingly diminishing the prima facie advantage previously enjoyed by creditors when they requested an order for forced sale of co-owned land. The Law Commission claimed that the discretion to order sale of co-owned land under section 30 of the LPA had been unduly governed by the ‘duty to sell’ and that this had ‘confined the development of judicial doctrine to the formulation of reasons why sale should not take place’.99 Indeed, whereas the ‘preference for sale’ was implicit in section 30, the Law Commission anticipated that when the duty to sell was withdrawn the courts’ tendency to favour sale would also subside,100 thus placing the law on a ‘better footing than at present’.101 Alongside these changes to the fundamental nature of the trust, it was also interesting to note that, when it comes to the forced sale of the occupier’s home at the request of a creditor, the court’s discretion to order sale has been preserved, but the TLA has added some guidelines concerning the exercise of this judicial discretion.102 Courts considering whether or not to grant an order for the sale of the property at the request of a creditor were directed to take into consideration a number of factors, including the intention behind the purchase, the interests of any beneficiaries in occupation, and the interests of any minor occupiers, as well as the interests of any secured creditors.103 Nevertheless, as the discussion in Chapter 2 indicated, in the wake of the TLA, the outcomes for creditor/occupier disputes had not undergone a great deal of change. In fact, with the exception of one recent case,104 the courts have remained largely faithful to the ethos of the 1925 legislation, and have continued to favour sale over retention of property when balancing commercial claims with home interests.105 It was clear that the 99

569 HL Deb (5th Series) col 1718 (1 March 1996), per Lord Mackay. Law Commission Working Paper No 94, para 10.8. 101 Ibid, para 3.6. 102 See Ch 2, nn 174–197; and Ch 9 on the interests of minor occupiers. 103 Trusts of Land and Appointment of Trustees Act 1996, s 15. 104 In the decision in Edwards v Lloyd’s TSB Bank [2004] EWHC 1745 (Ch), the court adopted a much more ‘home-oriented approach’ to the issue of sale where the welfare of minor occupiers was in issue: see further Ch 9. 105 See, eg, TSB Bank plc v Marshall [1998] 39 EG 308; Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 FLR 809; First National Bank plc v Achampong [2003] EWCA Civ 487. In Bank of Ireland Home Mortgages Ltd v Bell, endorsed by the Court of Apeal in First National Bank plc v Achampong, Gibson LJ stated the policy of the courts under ss 14 and 15 of the TLA: ‘[p]rior to the 1996 Act the courts under s30 of the Law of Property Act 1925 would order the sale of a matrimonial home at the request of the trustee in bankruptcy of a spouse or at the request of a creditor chargee of a spouse, considering that the creditors’ interest should prevail over that of the other spouse and the spouse’s family save in exceptional circumstances’. Although Gibson LJ suggested that: ‘[t]he 1996 Act, by requiring the court to 100

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ethos of the earlier provisions—for example, the idea that property in co-owned land could be adequately measured in terms of its exchange value, and that, even when dealing with a person’s home, the land should be viewed primarily as a capital asset—was difficult to shift.

The Impact of Structural and Legal Frameworks on Creditor/Occupier Disputes The prominence of the discourses of exchange value and ‘land as wealth’ in the property theories and laws that govern creditor/occupier disputes has a significant impact on the way in which the occupier’s home interest is perceived in this legal context. For one thing, the impact of the commercialist ideology that informed the 1925 legislation on the court’s willingness to order the sale of a home at the request of a creditor was considered in Chapter 2,106 and discussed further above. It is also interesting to note some other consequences of the exchange value ethos on the creditor/occupier context. Hunter and Nixon’s comparative analysis of judicial attitudes towards possession actions, which compared the treatment of actions brought by creditors against borrowers to the court’s treatment of tenants who defaulted on rent payments, emphasised the significance of the use value/exchange value dichotomy. The authors found that the likelihood that defaulting borrowers would actually lose their homes was heightened by the judicial conception of home buyers as participants in an exchange transaction, while the conceptualisation of tenants as users rather than owners of land encouraged judges to show forbearance to defaulting tenants. Hunter and Nixon’s research indicated that, in cases involving default, both legal principle and judicial decision-making processes have been influenced by the idea that while, ‘[f]or lenders their primary interest is in the commercial/exchange value of their property rights . . . [s]ocial landlords have primarily been seeking, within certain constraints, to provide use value rights’.107 They claimed that, on the one hand, when dealing with disputes between creditors and occupiers ‘the have regard to the particular matters specified in s15, appears to me to have given scope to some change in the court’s practice’; he concluded that: ‘[n]evertheless, a powerful consideration is and ought to be whether the creditor is receiving proper recompense for being kept out of his money, repayment of which is overdue (see Mortgage Corporation Ltd v Lewis Silkin, 25 Feb 2000, unreported). In the present case it is plain that by refusing sale the judge has condemned the bank to go on waiting for its money with no prospect of recovery from Mr and Mrs Bell and, with the debt increasing all the time, that debt already exceeding what could be realised on a sale. That seems to me to be very unfair on the bank’: [2001] 2 All ER (Comm) 920, para 31. 106 See Ch 2, nn 127–197. 107 C Hunter and J Nixon, ‘Better a Public Tenant than a Private Borrower Be: The Possession Process and The Threat of Eviction’ in D Cowan (ed) Housing: Participation and Exclusion (Aldershot, Ashgate, 1998) 94. Note, however, their suggestion that ‘this position may now be changing, as such landlords increasingly operate in a commercial and contractual structure’: ibid.

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way in which judges exercise their discretion provides evidence of the dominance of market forces and the primary importance of the exchange value of the dwelling’.108 On the other hand, they argued that ‘judges take a very different view of the rights which have to be protected in cases against tenants from those involving borrowers’.109 The difference, they argue, can be attributed in part to the different positions the courts have adopted in relation to the ‘use value’ and ‘exchange value’ of the interests at stake in each type of action. It is important to recognise, however, that the focus of this analysis is on the (court’s perception of the) ‘use value’ and ‘exchange value’ of the property for creditors, on the one hand, and for landlords on the other. It was not concerned with the home interests of the occupiers of the property, whether borrowers or tenants. The distinction that emerged in relation to the treatment of owner occupiers and tenants in possession proceedings appeared to be based upon the interest of the party applying for the possession order—ie, the creditor or the landlord—and particularly the extent to which that interest was identified in terms of its exchange value. Thus, in mortgage cases, it was suggested that ‘the application of judicial discretion is viewed as a balancing act requiring judges to weigh up the interests of both lenders and their investors, and borrowers’.110 On the other hand, when it came to dealing with disputes between landlords and tenants, Hunter and Nixon reported that ‘local authorities (as landlords) are not viewed as having any rights which require protecting’.111 The interests on one side of the balance—that of the creditor or landlord, who is the party applying for possession—have tended to overshadow any consideration of the appropriate weight to confer on the other side of the balance, in relation to the home interests of occupiers (borrowers or tenants). Hunter and Nixon’s analysis indicated that in local authority cases ‘[m]uch greater stress was placed on the need to keep tenants in their homes and the consequences should this not happen’.112 However, the fact that tenants were less likely to lose their homes seemed to be more about the role of social landlords than the protection of the home interests of tenants. The perceived objective of the landlord–tenant relationship, particularly when dealing with social landlords, was to provide use value. On the other hand, when it came to dealing with creditor/occupier disputes, it was suggested that the court, viewing the purchase of an owner-occupied property as an ‘exchange’ transaction, tended to treat the creditors and the borrower as ‘two equal parties to the commercial transaction’.113

108 109 110 111 112 113

Ibid, 95. Ibid, 98. Ibid. Ibid. Ibid, 99. Ibid, 94.

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It is arguable that this approach reflects the fact that, amongst the range of meanings that home represents to occupiers as considered in Chapter 4, certain categories of meaning are available to borrowers and tenants alike: for example, home as a physical structure, home as territory, home as identity and home as a socio-cultural unit. Yet, the value of the home as a financial asset is available only to owner occupiers. One of the issues that were highlighted in Part I of this book was the way in which the meaning of home as a financial asset has tended to dominate legal discourse concerning the owner-occupied home. The discussion of government housing policies in Chapter 5 also highlighted the centrality of ‘home as a financial asset’ in the promotion of owner occupation: the idea that the owner occupied home provides both financial security and security of tenure has been a key aspect of policy arguments supporting the expansion of this tenure. Of course, the meaning of home as a financial asset is attractive to legal discourse, as it connotes a rational, measurable claim to the financial value of the property. However, as the discussions in Chapters 4 and 5 have indicated, the presumption that the owner-occupied home actually delivers financial security and security of tenure has been undermined by the rise in ‘unsustainable home ownership’ and actions by creditors for possession and sale of owner-occupied homes. In fact, when analysing the relative advantages of different tenures, it is interesting to note that the status of owner occupier (rather than tenant) appears to disadvantage occupiers seeking to defend possession proceedings. Furthermore, Hunter and Nixon actually reasoned that the courts’ tendencies to accede more readily to applications for possession when they were brought by creditors, compared with actions brought by landlords, were rationalised on the basis that, since owner occupiers have the opportunity to benefit from the ‘exchange value’ of the property, they are also apt to be judged by ‘exchange values’ when they default on repayments and the creditor seeks possession of the property. Although, as Hunter and Nixon recognised, the increasing tendency for courts to dispose of cases by making suspended possession orders might appear to suggest ‘a recognition by lenders and judges that the use value of borrowers’ homes should be protected’,114 they did not attribute much weight to the apparent shift in policy, which was described as ‘more a reflection of the economic reality of a depressed market and, in particular, the emergence of negative equity’.115 In fact, the authors of this study concluded that the ‘greater use of suspended possession orders in mortgage cases . . . [was] not primarily generated by the law seeking to protect the use value of the home to the borrower’.116 Rather, the focus of the legal inquiry has remained firmly fixed upon the concerns of creditors. Hunter and Nixon claimed that their research has shown that: 114 115 116

Ibid, 95. C Hunter and J Nixon, 95. Ibid, 96.

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the approach of judges that has been urged upon them by lenders and which has been internalised in the application of [section 36] discretion, is one which recognises that the role of the judge is to defend the commercial property rights of the lender . . . the predominant ideological framework within which judicial discretion is exercised is premised on the commercial value of the dwelling.117

On the one hand, the interests at stake on the other side of the balance—the home interests of the occupiers—appear to be largely marginal to the decision making process; so far as they are taken into account, the occupiers’ interests are conceived in terms of exchange rights in the commodity that is the owned home.

The ‘Commoditisation of Home’ The discussion in the first part of this chapter has identified the way in which the home, within a property law context, has been represented in terms of its exchange value. Finally, in relation to this aspect of property theory and law, it is interesting to consider the significance of the growth of home ownership through the twentieth century in relation to the commoditisation of the owner-occupied home. A common theme in home scholarship has been the distinction between ‘house’ and ‘home’.118 The discussion in Chapter 3 of law’s limitations when it comes to recognising ‘home’ interests acknowledged the tendency of legal analysis to reduce ‘home’ to the physical structure or capital value of the ‘house’.119 This view is also supported by the argument that the rise in owner-occupation throughout the twentieth century has resulted in the ‘commoditisation of home’. The ‘commoditisation’ of property can be defined as the process by which its value: is defined as an exchange value, often referred to as market value, when it is traded in a laissez-faire market . . . all commodities are fungible and commensurable—capable of being reduced to money without changing in value, and completely interchangeable with every other commodity in terms of exchange value.120

In a similar vein, Tönnies wrote that, when an item of property is treated as ‘an object of sale or as an exchange value, a thing becomes a commodity’. Tönnies defined a commodity as being ‘for its owner simply a means for acquiring other goods. This essential quality makes all goods, qua goods, equal and reduces the differences between them to a question of quantity’.121 There can be no doubt that 117

C Hunter and J Nixon, 96. See generally Ch 4. 119 See Ch 3, nn 154–155 and associated text. 120 MJ Radin, Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts and Other Things (Cambridge, Mass, Harvard University Press, 1996) 3. 121 Tönnies, above n 8, 191. 118

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the ethos of property theory and law in twentieth century Britain—and particularly the impact of the 1925 legislation, the ‘trust for sale’ and doctrine of conversion—was influential in the commoditisation of the home. Meanwhile, the decision to treat land as wealth—as a capital asset and as interchangeable with any other property—and the commoditisation of home have also had a major impact on the (under-) development of the legal concept of home. If the meanings and values of home are represented as ‘home = house + x’,122 it is clear that when the home is treated as a commodity the capital value of the house as a property asset is recognised, but the ‘x factor’ values that transform that house into a home are not. For example, in Dovey’s analysis of the commoditisation of home in contemporary housing discourses, it was noted that: In the modern world, the house is a commodity involving substantial economic commitment. It is an investment of economic resources that yields profit and power. As such, the house has become increasingly similar to other products—being bought and sold, used and discarded like a car or washing machine.123

Dovey’s description of the house as a commodity is clearly consistent with the assimilation of land with other types of property in the 1925 legislation. The trust for sale and the doctrine of conversion explicitly rejected the idea of land as a special or unique type of property, but valued the land in terms of its exchange value, as an item of wealth. By representing property in land as a capital asset, Dovey claimed that home had been reduced to house. Dovey described home as ‘involv[ing] a commitment not of money but of time and emotion. It is the place where we invest dreams, hopes, and care’.124 In fact, Dovey argued that, when the property was treated as a mere commodity, it was no longer recognized as home, since ‘[a]lthough we can buy the props and freedom that make such an investment possible and secure, the phenomenon of home itself cannot be bought or commoditized’.125 As the discussion in Chapter 5 has indicated, the promotion of home ownership was also informed by the promise that the ‘owned home’—in reality, the owner-occupied-subjectto-a-building-society-mortgage home—would enhance the occupier’s ability to realise the non-financial meanings of home. However, as the discussion of valuing property in land in this section has demonstrated, English property laws and policies have not tended to facilitate these meanings for owner occupiers. There is a clear lack of cohesion between the nature of the home interest, as it is represented 122

See Ch 4, nn 70–74. K Dovey, ‘Home and Homelessness’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985) p53. 124 Ibid, 53–54. 125 K Dovey, ‘Home and Homelessness’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985) 53–54. 123

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for the purposes of promoting home ownership and as it is reflected in property laws and policies. Dovey has argued that ‘the increasing commoditization of the house engenders a confusion between house and home because it is the image of home that is bought and sold in the marketplace’.126 Yet, once home buyers have entered the owner-occupied sector, they are regarded, in law, as property investors rather than as home owners. Thus, although there was a clear shift in legislative policy with the enactment of the TLA 1996, the policy departure signalled by this measure has struggled to gain a foothold against the supremacy of ‘exchange value’ in twentieth century property theory and law, and the commoditisation of home through the promotion of owner occupation. The value of the home—as opposed to ‘house’—has been neglected in legal discourse. The following section considers alternative strategies for the conceptualisation of home in property theory and law. While the ‘use value’ of the occupier’s interest in the home has been subjugated to the ‘exchange value’ of the creditor’s commercial interest in the property as an asset of wealth, one alternative approach would be to concentrate on the significance of the occupier’s possession of the land. Possession has traditionally attracted special protection in land law, and the following section considers whether property theory and law on the subject of possession offer any useful insight into the conceptualisation of home in law.

Possession Another possible avenue of exploration, when considering the conceptualisation of home in property theory and law, is the significance of the fact that the occupier is in possession of the land. The idea that the fact of possession may give rise to rights in property is long-established in English land law. For example, some theories of private property regard possession of property as the starting-point for ownership.127 Indeed, the maxim ‘first possession is the root of title’ reflects the proposition that the fact of possession or ‘occupancy’ provides a way of obtaining title to un-owned things.128 Furthermore, it has also been suggested that the fact that a person is in possession of property may provide grounds for protecting the possession itself, even where land was not ‘un-owned’. Pollock and Maitland

126 K Dovey, ‘Home and Homelessness’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985) 53–54. 127 See, eg, CM Rose, ‘Possession as the Origin of Property’ (1985) 52 University of Chicago Law Review 73; W Blackstone, Commentaries on the Laws of England (Oxford, Clarendon Press, 1765–9), Bk 2, Ch 8. 128 See, eg, RA Epstein, ‘Possession as the Root of Title’ (1978) 13 Georgia Law Review 1221.

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claimed that: possession confers more than a personal right to be protected against wrongdoers; it confers a qualified right to possess, a right in the nature of property which is valid against everyone who cannot show a prior and better right.129

Of course, when considering the effect of the home occupier’s possession, it is crucial to bear in mind the proprietary rights that secured creditors acquire in the land. The object of proprietary security is to ensure that, should the debtor default, the creditor’s rights in the land will amount to a ‘better right’ than the occupier’s interest in the property, and so enable the creditor to bring a successful action against the property to repay the debt. Nevertheless, the fact that an occupier is in possession of the land has often been highlighted in legal discourses concerned with the creditor/occupier dispute. This section explores the proposition that possession of land—for example, the possession enjoyed by the occupier of a home—is capable (or should be capable) of being protected within property theory and law. The section considers the tools that developed within land law—for example, the doctrine of seisin—for elevating interests in possession, and the role of such principles in the creditor/occupier context. This section also considers the arguments advanced in support of possession in the property law context, and links the idea of protecting possession to the economic phenomenon, the ‘endowment effect’. Finally, this section considers the role of arguments based on possession within the policy framework of contemporary English land law. In 1981, Gray and Symes wrote that ‘judicial temper has turned remarkably in favour of providing protection for the interests of those in actual occupation of land’.130 Indeed, following the decision in Williams & Glyn’s Bank Ltd v Boland,131 it did appear that ‘home interests’ had prevailed over the commercial claims of creditors, on the basis of the actual occupation of the person in possession,132 and in the interests of ‘social justice’.133 Following the decision in Boland, Gray and Symes considered the idea of possession as a basis for the protection of occupiers. After highlighting the wider context of the 1925 legislation—particularly its emphasis on ‘exchange value’ and property as ‘wealth’—they claimed that, although the protection for possession was ‘present in the enactments of 1925’, it had ‘tended to be somewhat overshadowed by the heavy emphasis placed by the 1925 legislation upon alienability

129 F Pollock and RS Wright, An Essay on Possession in the Common Law (Oxford, Clarendon Press, 1888) 93. 130 KJ Gray and PD Symes, Real Property and Real People (London, Butterworth, 1981) 265. 131 [1979] Ch 312 (CA); [1981] AC 487 (HL). 132 See Ch 2, n 74–82. 133 Boland (CA), above nn 132, 333.

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of title and the “solid tug of money” ’.134 Yet, Gray and Symes also argued that, notwithstanding these policy preferences in property law, there were arguments to justify a stronger focus on possession—for example, they claimed that ‘money is not a particularly valuable asset in days of inflation. For many people it is often much more important to have the security of bricks and mortar around them’135—and that there was some evidence that these arguments were infiltrating property law. They claimed that: In the years following World War II . . . the courts have slowly begun to elevate the ‘use value’ of property over its ‘exchange’ or ‘capital’ value, thereby recognising that entitlement to the unhindered enjoyment of residential property is frequently more significant than entitlement to the cash value of that property on the open market.136

The suggestion that the idea of ‘use value’ re-emerged in English law, in the form of a new enhanced status for possession, was also advanced by Green, who described the ownership of land as connoting ‘not just piles of coins, walls of exclusion, but also a different ownership, unrecognised in the old books, a having by using, a possessing by sharing’.137 In fact, it is interesting to note that, despite the prosaic nature of Green’s description or the reference to ‘bricks and mortar’ in Gray and Symes’ physically of the account, the analysis put forward by these commentators was profoundly significant for the conceptualisation of home. When Gray and Symes referred to the idea of possession as a basis for legal protection, they envisaged a substantive proprietary protection which would effectively secure the occupier’s position in residence, even against the legitimate claims of third parties, such as creditors. They outlined their perception of security of tenure for occupiers as: the right to enjoy secure accommodation in a house or flat, free from the interventions of third parties . . . the equivalent of a new species of property right. This right is essentially a right of residential protection. It comprises a right to ‘security of tenure’ of a kind not dissimilar to the ‘status of irremovability’ conferred upon protected and statutory tenants under the Rent Act, and as such it is not easily assimilated within existing proprietary interests in land. Nevertheless, the development of our law of property during the past 30 years has thrown up many instances in which existing legal mechanisms have been adapted in order to give effect to the general social interest in protecting persons in actual occupation of land.138

134

Gray and Symes, above n 130, 265. Ibid. 136 Ibid. 137 K Green, ‘Thinking Land Law Differently: Section 70(1)(g) and the Giving of Meanings’ (1995) 3 Feminist Legal Studies 131 at 156–7. 138 Gray and Symes, above n 130, 265. 135

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It is important, especially in light of the zeal with which the policy of the 1925 legislation was embedded in English land law, to realise that the triumph of creditors over occupiers was not always a foregone conclusion. In 1981, when this book was published, there was reason to believe that a socio-political shift was taking place towards the substantive recognition of interests in possession in English law. In the decades that have passed since Real Property and Real People was written it has become increasingly apparent that the status attributed to the possessor or occupier of land is in decline, at the expense of the commercial ‘exchange’ interests of creditors in the property as capital.139 Nevertheless, the instinct to value the interests of the person in possession of residential property is not totally absent from contemporary property law. For example, when a creditor seeks to repossess property, section 36 of the Administration of Justice Act 1970 provides a mechanism for delaying the effect of a possession order for a limited period of time where the disputed property is a dwelling house, and ‘it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable time to pay any sums due under the mortgage’.140 This does provide an example of a legal context in which what are in substance ‘home considerations’ are taken into account, and may provide a basis for the occupier to obtain interim relief. Nevertheless, the conditions for the exercise of the section 36 discretion are strict, and wholly focused on the debtor’s financial ability to make good arrears within a ‘reasonable time’ whilst continuing to meet instalments as they fall due:141 the sole criterion for obtaining relief is financial. When it comes to the exercise of the court’s discretion in applying this putative protection for possession, the commercial interests of creditors in the exchange value of the property have, by and large, prevailed. While property law is clearly capable of developing tools by which to protect the interests of occupiers in possession of the land, policy considerations have dictated the focus on financial criteria, particularly the financial interests of creditors in the capital value of the home, rather than the non-financial claims of occupiers to the use of the property as a home. Nevertheless, the decline of possession-oriented arguments in the creditor/ occupier context must not be interpreted as being indicative of some inherent inability to value the fact of possession in English land law. Rather, it is indicative of the policy preferences that have informed the development of property theory and law in this context.

139 140

See Ch 2, nn 83–121. On s 36 of the Administration of Justice Act 1970, see generally Ch 2, nn 30–40 and associated

text. 141

See, eg, Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR 343.

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Possession of Land and the Doctrine of Seisin The concept of possession has been described as having ‘always had a strange fascination for lawyers’.142 The significance of possession in property law takes its roots from its historical role in the development of the concept of ownership. Indeed, the concept of possession preceded ideas of ownership or title in Germanic legal systems. Pollock and Maitland wrote that: What modern lawyers call ownership or property, the dominium of the Roman system, is not recognised in early Germanic ideas. Possession, not ownership is the leading conception; it is possession that has to be defended or recovered, and to possess without dispute . . . is the only sure foundation of title and end of strife.143

In English law, the idea that possession of land is capable, in itself, of giving rise to legal consequences is most clearly demonstrated through the doctrine of seisin. The essence of the doctrine of seisin was the ability of a person who had been dispossessed of land to bring a writ for the recovery of possession. In fact, the meaning of seisin, in relation to ‘possession’ and to ‘ownership’, has attracted considerable attention in property theory.144 For the purposes of this chapter, and for the conceptualisation of home, the key question to be addressed is whether—and if so, on what basis—property theorists have regarded the possession or occupation of land—distinguished from ownership or title—as deserving of some degree of protection? This was one of the central themes of Maitland’s essays on ‘The Beatitude of Seisin’,145 when he asked whether, and if so in what circumstances, ‘possession itself is protected by law, and protected for its own sake’.146 In his own response to this query, Maitland wrote that while ‘a definite possessory remedy does not seem native to the law of our race’,147 there was evidence of ‘a strong feeling that a possessory action was a strong and good thing’.148 The idea that the protection of possession is instinctive was also reflected in Pollock and Maitland’s discussion of the degree of protection for possession or seisin, ‘for its 142 DR Harris, ‘The Concept of Possession in English Law’ in AG Guest (ed), Oxford Essays in Jurisprudence (Oxford, Oxford University Press, 1961) 69. 143 F Pollock and FW Maitland, The History of the English Law before the time of Edward I (2nd edn, Cambridge, Cambridge University Press, 1898) 57. 144 See, eg, RMW Dias, ‘A Reconsideration of Possessio’ [1956] Cambridge Law Journal 235; Pollock and Wright, above n 139; FW Maitland, ‘The Beatitude of Seisin, Part I’ (1888) 4 Law Quarterly Review 24 and ‘The Beatitude of Seisin, Part II’ (1888) 4 Law Quarterly Review 286; JM Lightwood, A Treatise on Possession of Land (London, Stevens & Sons, 1894). 145 Maitland, (both), above n 143. 146 ‘Part I’, above n 144, 24. 147 Ibid, 26. 148 Ibid, 27.

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own sake’ in English law. They claimed that ‘[p]ossession or seisin, as something quite distinct from ownership or best right, is to be protected by an unusually rapid remedy’,149 but that: the scope of these rules is so narrow, and . . . so capriciously defined, that we have great difficulty in conceiving them as forming part of a rational coherent theory of possession.150

In fact, the question why the law does, or should, treat interests in possession as carrying some special status, rendering them worthy of particular protection, is brought into particularly sharp relief when the claim of a person in possession of land comes into conflict with a competing interest bearing a relatively superior title or ownership interest. In fact, in Pollock and Maitland’s analysis of possession the following query was raised: Why should law, when it has on its hand the difficult work of protecting ownership and other rights in things, prepare puzzles for itself by undertaking to protect something that is not ownership, something that will from time to time come into sharp collision with ownership?151

It is one thing, as the previous section has noted, to recognise that certain interests carry value in some intangible sense; however it is another thing entirely to attribute sufficient weight to outweigh other interests, for example proprietary interests, such as those that are vested in secured creditors. The value conferred on possession in the medieval doctrine of seisin, notwithstanding conceptual difficulties that the doctrine presents for property theorists, has been described as a reflection of a fundamental impulse to acknowledge ‘the organic element in the relationship between man and land’.152 In fact, it is this focus on the relationship between the occupier and the property that gives the idea of possession its contemporary relevance for the conceptualisation of home in law.153 The enduring relevance of possession or seisin—as symbolic of a significant relationship between the occupier and the land—for the legal concept of home was reflected in Tay’s suggestion that:

149

Ibid, 146. Pollock and Maitland, above n 143, ii, Book II, 25. 151 Ibid, 40. 152 Gray and Symes, above n 130, 48–49. Gray and Symes added that ‘[i]t is therefore not without significance that the organic dimension epitomised in the medieval notion of seisin finds a modern counterpart in the importance attached nowadays to the “utility-based” aspects of ownership of land and to the role of the “occupation interest”’: ibid, 50. 153 Thus Gray and Symes wrote that ‘[i]n its technical sense seisin is no longer of importance today. However the emphasis which it placed upon possession rather than title continues to influence several areas of modern law’: ibid, 49. 150

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it is because all proprietary and possessory rights ultimately stem from enjoyment that seisin lies at the very root of the development of the English law of property and of the Englishman’s concept of freedom—of his home as his castle.154

Although her analysis—which was primarily concerned with the citizen’s rights against the state—was focused on privacy and autonomy, the use value of property in the home was also implicitly recognised. Tay claimed that ‘[t]he role of the underlying seisin-possession concept in the common law is to recognise and protect those still important areas in which men live, work and plan as users—owners’.155 In fact, it was this recognition of the use value of land that was identified as ‘the base and shaper of the social sentiment that shrinks with distaste from the forcible eviction’.156 When the idea of protecting possession has been considered in property law discourse, it is interesting to note that property theorists have often expressed the arguments in support of the person in possession in language that suggests an instinctive bias towards preserving the status quo. For example, Pollock and Maitland reasoned that ‘[p]ossession as such deserves protection . . . He who possesses has by the mere fact of his possession more right in the thing than the nonpossessor has’.157 In fact, the idea that possession ought to be protected often seems to be derived from an instinctive awareness that the value that an item of property represents to the possessor of that property is greater than the value that the property holds for a non-possessor, because of the fact of possession. Consequently, the degree of harm caused to a possessor by losing that property would be greater than the harm suffered by depriving the non-possessor of the property. Hume reasoned that: Men generally fix their affections more on what they are possess’d of than on what they never enjoyed . . . it would be greater cruelty to dispossess a man of anything than not to give it to him.158

Tay described this impulse to preserve the status quo as a ‘bias in favour of the factual situation’,159 while the idea that possession is worthy of legal protection— whether or not it is supported by ownership—because it nurtures an attachment to the property was also evident in the Oliver Wendell Holmes’ comment that:

154 A Ehr-Soon Tay, ‘Law, the Citizen and the State’ in E Kamenka, R Brown and A E-S Tay (eds), Law and Society: The Crisis in Legal Ideas (London, E Arnold, 1978) 11. 155 Ibid. 156 Ibid. 157 Pollock and Maitland, above n 143, 42–3. 158 Hume, above n 10, Book III, Part II, Sect. 1. 159 Tay, above n 154, 11.

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It is in the nature of a man’s mind. A thing which you enjoyed or used as your own for a long time, whether property or opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man.160

Applying this logic to the creditor/occupier context, it appears that in weighing the interests of the possessor (occupier) and the non-possessor (creditor) in the disputed property (the home), the fact that the occupier is in possession of the property could provide a basis for adding greater weight to the interest on the occupier’s side. Of course, the proposition that a person in possession of property is more likely to be attached to that property than a non-possessor seeking to obtain possession is not confined to the context of home, or even of land law, but reflects a broader notion, across the gamut of property interests, that ‘[p]ersons . . . have a natural interest in having things’.161 Lomasky wrote that ‘[t]he relation of having . . . is conceptually more basic than and not to be confused with a property right’.162 The idea that having a thing enhances the value of that thing for the person in possession is the basis of the economic phenomenon, the ‘endowment effect’. The demonstrable value that can be added to property through the ‘endowment effect’ and its relevance for the legal concept of home is considered in the next section.

The ‘Endowment Effect’ The proposition that ‘men generally fix their affections more on what they are possess’d of than on what they never enjoyed’ is supported by the ‘endowment effect’. Evidence of the endowment effect provides a modern basis for the idea that possessors have a natural interest in retaining property and supports the argument that possessors of property tend to value that property more highly than nonpossessors.163 The endowment effect constitutes a bias in favour of the status quo, and has been described as the most significant finding yet to have emerged in the field of behavioural economics.164 This theory also provides some pertinent insight for the conceptualisation of home in law. For one thing, the endowment 160 161

OW Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457 at 477. LE Lomasky, Persons, Rights and the Moral Community (Oxford, Oxford University Press, 1987)

120. 162

Ibid. See C Camerer, ‘Individual Decision Making’ in JH Kagel and AE Roth (eds), The Handbook of Experimental Economics (Princeton, NJ, Princeton University Press, 1995) 665–70, for an account of empirical studies of the endowment effect, and some possible psychological explanations for such effects. 164 See S Issacharoff, ‘Can There be a Behavioural Law and Economics?’ (1998) 51 Vanderbilt Law Review 1729 at 1735. On the ‘endowment effect’ as a status quo bias, see W Samuelson and R Zeckhauser, ‘Status Quo Bias in Decision Making’ (1988) 1 Journal of Risk and Uncertainty 7. 163

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effect provides demonstrable evidence in relation to the value that home represents for occupiers—who are in possession—as opposed to the value that it holds for creditors. It also highlights the legal fiction that underpinned the treatment of occupiers’ interests in the home as interests in the proceeds of sale or in the exchange value of the property, as an asset. Furthermore, evidence of the endowment effect provides a rationalisation for the instinctive views on possession that were set out in the previous section. Another interesting aspect of this phenomenon for the conceptualisation of home in the creditor/occupier context is the fact that studies investigating the ‘endowment effect’ have shown that the desire to maintain the status quo in terms of one’s possessions is rooted in loss aversion. In fact, it has been suggested that ‘the main effect of endowment is not to enhance the appeal of the good one owns, only the pain of giving it up’.165 The desire to maintain the status quo is motivated by the fact that ‘the disadvantages of leaving it loom larger than advantages’.166 When considering the losses at stake in any given transaction, the endowment effect is visible when people weigh the losses they would suffer by any change to the status quo more heavily than they would value equivalent gains.167 In this regard, the endowment effect goes against the rational choice model.168 According to the rational choice model: how much a person values a particular item should not depend on whether he already possesses the item . . . One implication is that people should equate opportunity costs with out of pocket costs: whether you already have something and lose it should be no different from failing to get it in the first place. One of the clearest findings in behavioural economics, however, is that valuation often does depend on current holdings, so that opportunity costs do not count the same as ‘real’ costs.169

The endowment effect is anomalous in the context of economic theory, since it does not conform to the general principle that ‘most (all?) behaviour can be

165 D Kahneman, JL Knetsch and RH Thaler, ‘Anomalies: The Endowment Effect, Loss Aversion and Status Quo Bias’ (1991) 5 Journal of Economic Perspectives 193 at 197; see G Loewenstein and D Kahneman, ‘Explaining the Endowment Effect’, Working Paper (Pittsburgh, Department of Social and Decision Sciences, Carnedie Mellon University, 1991). 166 Kahneman et al, above n 165, 197–8. 167 See CR Sunstein (ed), Behavioural Law and Economics (Cambridge, Cambridge University Press, 2000) 30–1. 168 Farber has described the endowment effect as ‘pos[ing] a threat to one of the central pillars of law and economics, the Coase Theorum’. He goes on to explain that ‘[t] he Coase Theorum maintains that, in the absence of transaction costs or income effects, the ultimate outcome should be independent of the initial allocation of rights because people will bargain their way to the efficient allocation. But if valuations depend on the initial allocation, we cannot expect the bargaining process to operate this way. Indeed, under some circumstances, people seem to be very strongly attached to initial allocations’: DA Farber, ‘Towards a New Legal Realism’ (2001) 68 University of Chicago Law Review 279. 169 Ibid, 285.

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explained by assuming that agents have stable, well-defined preferences and make rational choices consistent with those preferences in markets that (eventually) clear’.170 Anomalies in the field of economics are outcomes that are difficult to rationalise. In the case of the endowment effect, the anomaly lies with the fact that, notwithstanding the presumption that individuals act in the market place according to rational choice theory ‘people often demand much more to give up an object than they would be willing to pay to acquire it’.171 The analysis of legal approaches to creditor/occupier disputes in Chapter 2 and the critical evaluation of the balance struck between the competing claims in Chapter 3 highlighted the extent to which law’s response to the concept of home and, specifically, to the creditor/occupier contest has been justified by a model of market economics that relies heavily on rational choice and the pursuit of efficiency. Of course, as the review of property theory and law in this chapter has demonstrated, the unit of value by which the competing interests of creditors and occupiers are measured has been strongly biased towards the financial or exchange value. This approach is also consistent with the preferences of legal analysis more generally, with its bias towards the rational, measurable, objective and impartial interests, over subjective, emotional, unquantifiable interests that are not readily subject to legal proof.172 Another interesting lesson to be learnt from consideration of the endowment effect with regard to the conceptualisation of home in law is the fact that, not only has it been empirically demonstrated, but the endowment effect is also clearly detached from any notion of sentimental or emotional attachment to property. In fact, experiments demonstrating the endowment effect have indicated that ‘people seem to have an almost reflexive tendency to value something more highly if they already possess it, even where there is no rational or even obvious emotional basis for doing so’.173 The value that is added by possession stems purely from the fact of possession, and not from any emotional attachment to the property. It is, of course, important to recognise that the endowment effect operates within the context of rational choice theory. However, in the context of a creditor/occupier dispute, the occupier has no choice in the loss of the home at the hands of a creditor. Nevertheless, evidence of the endowment effect may have a useful contribution to make to the legal concept of home, since it reflects on the value that possession of the property may add to the occupier’s home interest. In addition, the endowment effect may also be significant when evaluating the choice between owning and renting. The promotion of home ownership in government policies and rhetoric was organised around its presumed superiority, in terms of 170 171 172 173

Kahneman et al, above n 165. Ibid, 194. See Ch 3, nn 159–166. Farber, above n 168, 285.

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the social, economic and experiential benefits conferred on the occupier. These putative benefits, as well as the potential costs that go with home ownership— social, economic and experiential—were considered in Chapter 5. The potential costs of home ownership are generally linked to the risks associated with losing the home through repossession in the event of default, and one of the themes explored in Chapter 5 was the importance of balancing the benefits of home ownership against the risk of suffering these costs. A final—if tentative—factor to bear in mind in relation to the endowment effect and the conceptualisation of home is the proposition that ‘[a]n implication of the endowment effect is that people treat opportunity costs differently than “out-of-pocket” costs. Foregone gains are less painful than perceived losses’.174 Consequently, it is arguable that owner occupiers who suffer the loss of their homes as a result of default leading to a creditor possession action may suffer greater loss than a tenant who never entered into home ownership at all.

The Land Registration Act 2002: from Possession to Title The preceding sections have emphasised both the instinct towards protecting possession in property theory and law and the effects of the policy of the 1925 legislation in shifting the focus of property protections from ‘use value’, the property as ‘thing’, and possession of that ‘thing’ to the prioritisation of ‘exchange value’ and the property as ‘wealth’. These changes, as predicted by Tönnies, were part and parcel of the development of the British economy from a system based on land to a modern commercial economy. Possession attracted status in societies where wealth consisted mainly of tangible things.175 However, when the wealth of a society shifts from the physical entity, land, to capital assets—which, being intangible, are inherently incapable of being possessed—the status of possession as a signifier of rights in property declined. When the status of possession was recognised in law, the occupier enjoyed a natural advantage. In a creditor possession action, the occupier’s interest lies in maintaining the status quo, in terms of physical possession. Atiyah claimed that: When property rights are protected by law, as an extension of rights of possession, the man in possession enjoys a much greater protection than the person who seeks to enforce a contractual remedy by legal process, and that is true even when contractual rights are fully protected by law. To hang on to what you already have is so much simpler than to embark on litigation.176 174

Kahneman et al, above n 165, 203. Kahn-Freund, above n 50, 24. Atiyah also commented that ‘[e]xpectations based on, and allied with, physical possession seemed, in a stable society, to be the most natural type of expectation to be protected’: above n 46, 109. 176 Atiyah, above n 46, 112. 175

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Indeed, prior to the Land Registration Act 2002 and notwithstanding the relative decline in the significance of possession, English common law had still recognised the fact of possession as a ‘good root of title’. For example, in the context of adverse possession, squatters who established themselves in possession of land were able, by virtue of their own possession, to acquire a common law estate in the land that was relatively superior to the claims of third party strangers. Physical possession provided the basis for presumptive ownership and the strength of such rights was judged relative to other claims to the land under the principles of relativity of title: thus, the fact of possession was capable of giving rise to property rights. Yet, following the Land Registration Act 2002, there has been a clear shift in emphasis so far as registered land is concerned ‘from possession to title, from empirically defined fact to state-defined entitlement, from property as a reflection of social actuality to property as a product of state-ordered or political fact’.177 The ‘bureaucratisation’ of land law through the reforms enacted in the Land Registration Act 2002 was considered in Chapter 3.178 The Land Registration Act 2002 transformed the fundamental basis of entitlement to land in English law from possession of land as a good root of title to registration as the source of title.179 Registered land now accounts for about 90 per cent of all land in England and Wales,180 and for that land, the ‘basis of title . . . is not possession, but the register itself’.181 Leading commentators have described the Act as ‘a large shift in the philosophical base of English land law away from the phenomenon of possession and towards the ideology of ownership’.182 Indeed, Tay’s discussion of traditional systems of unregistered land (in which possession conferred significant legal status) and mature systems of title registration (in which status in relation to land is derived from registration) anticipated this shift in emphasis. At common law: ownership flowed from possession, from actual use and enjoyment, no matter how acquired . . . The early English lawyer . . . looked primarily to the possession or enjoyment itself and saw rights as flowing from it.183

Tay contrasted the traditional English common law approach with the treatment of possession versus registration in Roman law systems,184 which provided that 177

Gray and Gray, above n 5, 245. Ch 3, nn 93–97. 179 The Law Commission has acknowledged that ‘[a]t its most fundamental level, the basis of title to unregistered land is possession, whereas the basis of registered title is the fact of registration’: Law Commission and HM Land Registry, Land Registration for the Twenty-First Century: A Consultative Document, Law Com No 254, (London, HMSO, 1998), [1.6]. 180 Land Registry Annual Report and Accounts, 2003–4 (London, TSO, 2004). 181 Law Com No 254, above n 179, [2.6]. 182 KJ Gray and SF Gray, Elements of Land Law (4th edn, Oxford, Oxford University Press, 2005) 364. 183 Tay, above n 154, 10–11. 184 The Roman law systems of property holding continue to dominate in continental Europe. 178

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‘a man’s right to use and enjoy, to the exclusion of others, flowed from title, from a state-recognised acquisition or transfer of ownership’.185 With the enactment of the Land Registration Act 2002, English land law has shifted decisively towards the latter model. Gray and Gray have described: the ultimate achievement of the Land Registration Act 2002 [as] its ruthless maximisation of rational legal order, an aim which is symbolised by the statutory vision of an electronic register of virtually indefeasible titles, transactable by automated dealings and guaranteed by the state. Under this tightly organised regime, estate ownership, as constituted by the register record, becomes a heavily protected phenomenon, leaving little room for the operation ‘off the record’ of some ancient and pragmatic principle of long possession.186

Within this broader policy framework, arguments that rely on the fact that the occupier of a home is in possession of the property seem less likely to be fruitful, at least so long as such arguments subsist without a clearly defined policy objective and explicit provision within property theory and law. The problem for the conceptualisation of home is not so much the impossibility of conceiving of home interests within the domain of property law, but the fact that, without explicit analysis and the formulation of clear and defensible policy reasons for taking account of occupiers’ interests in the home, the prevailing legal order can no longer be relied upon to protect occupiers by default. When it comes to conducting that explicit analysis and formulating a clear policy, the instinct for protecting possession or occupation and the proposition that property carries a higher value for the possessor than the non-possessor (the ‘endowment effect’) remain pertinent for the conceptualisation of home in law. Yet, without an appropriate theoretical framework on which to fasten these ideas, it is more difficult to mount a case for their constructive application in legal decision making. The next section considers the prospect for the development of the legal concept of home within the theoretical framework of ‘property for personhood’. The theory of ‘property for personhood’ provides a framework within which it is possible to identify certain types of property as being worthy of additional protection because of the relationship between the property and the person. The final section of this chapter considers the idea of ‘property for personhood’, and the proposition that a person’s home provides an exemplary example of property that is ‘worthy’ of protection based on personhood.

185 186

Ibid, 10. Gray and Gray, above, n 182, 364.

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Property and Personhood The theory of ‘property for personhood’ provides some support, within property theory, for the recognition of a person’s home in law. The chief proponent of ‘property for personhood’ has been Professor Radin,187 who has argued in favour of recognising a ‘personhood perspective’ in property law. The basic gist of this theory is the idea that an individual’s attachment to particular property, for example their home, may be so strong that the particular property becomes constitutive of their personhood. Radin conducted a positivist analysis of the personhood perspective, and concluded that the relationship between property and ‘personhood’ had ‘commonly been both ignored and taken for granted in legal thought’.188 However, the central premise of Radin’s analysis was her normative argument ‘that to achieve proper self-development—to be a person—an individual needs some control over resources in the external environment’.189 The idea of home as a territory within which individuals can exert a degree of control over their surroundings echoes the discussion of home as territory in Chapter 4, and the question of home ownership as a source of ontological security and control, which was considered in Chapter 5. In both of these earlier discussions, one of the key issues highlighted in relation to the home as a valued territory or as a place of security and control for individuals was the danger that these responses could be undermined in cases where occupiers defaulted on payment and therefore faced the risk of losing their homes in a creditor possession action. As the discussion below will indicate, ‘property for personhood’ also has a useful contribution to make to analysis of loss of home through possession actions and forced sale. The previous sections of this chapter have discussed the development of property theory and law, from a system in which the ‘use value’ of the property was dominant, the property was valued as a tangible ‘thing’ and possession of the ‘thing’ attracted status and protection, to the prioritisation of the ‘exchange value’ of the property as an item of ‘wealth’, in a system of ownership that is determined by abstract and formal rules concerning the registration of rights, rather than the material and organic fact of possession. Within this framework, it would seem that there is little prospect for drawing upon property theory and law in the development of a legal concept of home. Yet, by recognising that ‘some property is worthier of protection than other property’190 and—crucially—that the measure of whether property is ‘worthier of protection’ by virtue of its role in personhood can be determined by considering the loss that would be suffered by the property 187 See MJ Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957; MJ Radin, Reinterpreting Property (Chicago, Ill, University of Chicago Press, 1993). 188 Radin, ‘Property and Personhood’, above n 187, 957. 189 Ibid. 190 Radin, Reinterpreting Property, above n 187, 48.

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holder if they were to be dispossessed of that property, the theory of property for personhood clearly supports the idea that the meaning of home to occupiers and the impact of possession actions and loss of home are relevant factors to be taken into account when determining the weight to be attached to home interests in creditor/ occupier disputes. Indeed, Radin proposed that the function of the personhood perspective was to ‘serve as an explicit source of values for making moral distinctions in property disputes’.191 Furthermore, home is presented as a quintessential example of ‘worthy’ property. Radin described different forms of property as being located on a continuum, ranging from property that is constitutive of personhood (described as ‘personal property’192) to property that carries no meaning beyond its capital value (described as ‘fungible property’). Radin argued that ‘in our social context a house that is owned by someone who resides there is generally understood to be towards the personal end of the continuum’.193 This argument was strengthened by the view that, where certain types of property are constitutive of personhood, this is valued as a positive relationship between the person and the property. Radin claimed that: ‘[t]here is both a positive sense that people are bound up with their homes and a normative sense that this is not fetishistic’.194 The discussion in Chapter 5 of the political ideology of home ownership highlighted the extent to which the formation of a strong positive attachment between people and their homes has been valued and positively encouraged in political rhetoric, for its impact on the economic and social wellbeing of individuals and of wider society. Yet, as the conclusions to Chapter 5 suggested, the promotion of home ownership has not been matched by protection for home owners, either in welfare policy or in law. The question considered in this chapter is whether the application of a personhood perspective in relation to home within property theory and law could provide a useful lens through which to view the meaning and value of home, and to recognise the potential consequences, for occupiers, of loss of home through creditor possession actions.

Philosophical Foundations of Property for Personhood The idea that certain types of property, such as the home, can be constitutive of a person’s self-identity—in fact, of their ‘personhood’—is recognised in many theoretical accounts of private property. Tay defined ‘property’ as: 191

Radin, Reinterpreting Property, above n 187, 35. Radin later conceded that this categorisation was not ideal, as it could potentially create confusion with the separate dichotomy between real property (land) and personal property (chattels and intangible property). 193 Radin, Reinterpreting Property, above n 188, 54. 194 Ibid. The notion of ‘fetishism’ is applied to distinguish between ‘healthy’ object relations, which are not fetishistic, and ‘unhealthy’ object relations. 192

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that which a man has a right to use and enjoy without interference; it is what makes him as a person and guarantees his independence and security. It includes his person, his name, his reputation, his chattels, the land that he owns and works, the house that he builds and lives in and so on. These things are seen as his property in early law because they are seen as the reification of his will, as the tangible, physical manifestation of his work and his personality.195

In fact, Tönnies alluded to the idea of ‘property for personhood’ in his discussion of the possession of ‘things’, on the one hand, and the exchange value of wealth, on the other. The argument that certain types of property (for example, the home) are more meaningful than others (for example, money) was reflected in the contrast that he drew between: Possession . . . as deep, organic property [and] wealth as superficial and mechanical property. From a purely psychological point of view, possession is an extension of the individual’s intrinsic being . . . By contrast, the psychological value of wealth . . . has a purely abstract character.196

The proposition that certain types of property can be regarded as constitutive of the ‘individual’s intrinsic being’ is the fundamental basis of property as personhood. It is also significant to note that this link between the property and the ‘individual’s intrinsic being’ also reflects the meaning of home as a source of selfidentity for occupiers.197 In Chapter 4, home was described as an ‘identity shell’, which fosters ‘a certain bonding or mergence of person and place such that the place takes its integrity from the dweller and the dweller takes his or her identity from the place’.198 The idea of home as constitutive of the occupier’s identity is an important element of the argument for personhood in property that is used as a home. Although Radin noted that: ‘[a]lmost any theory of private property can be referred to some notion of personhood’,199 her theory of ‘property and personhood’ drew primarily on Hegel’s general philosophical outlook and on his justification for private property. Hegel argued that in order for human beings to live fully developed, conscious lives, it was necessary that they should be capable of acquiring property. In fact, Hegel claimed that the function of private property as a means of establishing personhood took precedence over the function of private property as a means of satisfying a person’s material needs, since property was fundamental to the existence of the person: thus, Hegel asserted that ‘[n]ot until he has 195 196 197 198 199

Tay, above n 154, 10. Tönnies, above n 8, 188. See Ch 4, n 201–236. Dovey, above n 123, 40. Radin, Reinterpreting Property, above n 188, 957.

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property does the person exist as Reason’.200 For Hegel, the essential basis of property for the existence of the person was derived from the function of private property as a medium through which individuals could exhibit their will. The investment of a person’s will in property was the root of Hegel’s argument for property ownership. He reasoned that ‘[a] person has the right to place his will in any thing’.201 The effect of putting one’s will into property was that ‘[t]he thing thereby becomes mine and acquires my will as its substantial end (since it has no such end within itself), its determination, and its soul’.202 This manifestation of will was described as ‘conferring upon the thing an end other than that which it immediately possessed’,203 thus, Hegel wrote, ‘I give the living creature, as my property, a soul other than that which it previously had; I give it my soul’.204 Yet, the notion of investing oneself in property to give rise to an interest—for example, a ‘home-type’ interest—does not address the problem of how to balance that interest against opposing claims, for example, the commercial interest of a creditor who has proprietary security in the same item of property. In Hegel’s account of property, the ‘realisation’ of this ‘inner act of will’ is achieved by making it recognisable to others: If I make a thing mine, I give to this predicate which must appear in it in an external form, and must not simply remain in my inner will . . . volition is not sufficient, for the form of subjectivity must be removed and must work its way out to objectivity.205

The starting point for Hegel’s theory was that, in order to achieve this development of the self, individuals need to be able to stamp their will (and through that their identity) on the world. However, in order for this inner act of will to become ‘objective’ or ‘external’, it must be recognisable by others. This was achieved, it was suggested, through taking possession of property, manifested through ‘use of the thing’, with ‘use’ designated as the outward appearance and mode of expression of the person’s will.206 Thus, for Hegel, private property was constituted through the 200

Hegel, above n 11, 73 (s41). Ibid, 75 (s44). 202 Ibid. 203 Ibid, 76 (s44). 204 Ibid. 205 Ibid, 81 (s51). 206 Note that Waldron emphasised the idea that use of an object reveals a more direct relationship with the will than merely taking possession: ‘Hegel places great stress on the use of property objects (not just “use” in the sense of consumption, but also ‘use’ in the sense that a tool or a piece of land may be used). Although, at this stage of his theory, he wanted to abstract from the particular wants and needs that drive men to use things, he nevertheless saw that the point of property for humans had to do with the use of the objects in their possession. Merely having something is not enough to constitute a real property relation. “The relation of use to property is the same as that of substance to accident” (61A). Use—the willful satisfaction of material need—is the substantial aspect of ownership; from an ethical point of view, it is the most important thing about an individual’s ownership of some object. Property is important as a means whereby individuals may perceive the effects of their willing in a 201

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‘inner act of will’ combined with the action of making that will recognisable to others through possession. The final stage of this process for Hegel was the idea that people needed to be made secure in their control over parcels of the material world—that is, through the ownership of property—in order to be capable of developing as people within the wider material and social world. Private property was thus justified as a means by which individuals achieved self-fulfillment and developed their personhood. It is important to recognize that while Hegel’s philosophy of property rights goes some way to providing a framework in property theory for valuing the home interests of occupiers, the fundamental weakness of Hegel’s approach for home analysis is that he ultimately regarded the owner of property as the owner of the value of the property—that is, as owner of an asset—rather than being bound to the ‘thing’ itself. On the one hand, the use value of the property was clearly significant in Hegel’s analysis—in fact, he described the distinction between the complete use of a thing and ownership of the thing as ‘empty proprietorship’, and thus as a ‘madness of personality’.207 Transposing this framework to the creditor/ occupier context, the secured creditor, who effectively ‘controls’ the ownership of the property through the power to force sale on default of payments, but who has no ‘use’ for the property in its existing form (an institutional creditor has no interest in occupying the property as a home), could be regarded as having ‘empty proprietorship’. Yet, on the other hand, Hegel’s justification of private property allowed considerable scope for dealing with the property through alienation or exchange. In fact, he argued that ‘[r]eason makes it just as necessary that human beings should enter into contractual relationships—giving, exchanging, trading, etc—as that they should possess property’.208 In order to achieve this function, it was necessary that the property in which the owner had manifested his will could be valued in objective terms. It was important that the: specific utility [of the thing], as quantitatively determined [could be] at the same time comparable with other things of the same utility . . . Consequently, the thing is also comparable with things which serve other needs. This universality, whose simple determinacy arises out of the thing’s particularity in such a way that it is at the same time abstracted from this specific quality, is the thing’s value, in which its true substantiality is determined and becomes an object of consciousness.209 concrete form; and one does not understand what it is for a will to affect the material world unless one understands that the will is driven by need. It follows that Hegel must reject the jurisprudence which suggests that an individual can Be the owner of an object even while he is not involved at all with the use of it. From an ethical point of view, such ‘ownership’ is an empty abstraction (61A)’: J Waldron, The Right to Private Property (Oxford, Oxford University Press, 1991) 366. 207 Hegel, above n 11, 91 (s62). 208 Ibid, 102 (s71). 209 Hegel, above n 11, 92, (s63).

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For these purposes, Hegel regarded ‘the thing itself . . . merely as a sign . . . it counts not as itself but as what it is worth’.210 As a result, it was necessary that the ‘full owner of the thing’ was capable of exchanging his property—‘both its value and its use’211—by withdrawing his will from the property. In Ryan’s account of Hegelian property, it is suggested that the ability to withdraw one’s will from property through alienation was ‘a mark of something really being property’.212 He claimed that: As a free agent, I rightly bring any and every external thing under control as ‘mine’. Were men able to take but not relinquish, this freedom would be a bad joke—we would be much like the monkey who seized the sweets in the sweet jar, but could not extract his clenched fist when he had done so. If we could not get rid of what we had once acquired, we should be the prisoners of the world, not its governors.213

The notion that owner occupiers should be able to relinquish their property interests in the home is obviously a necessary component of the modern property market. The system of mass home ownership as a route to greater independence, social mobility, autonomy and citizenship would indeed be a ‘bad joke’ if owner occupiers were not also capable of selling their homes and either buying another property or using the money in another way. However, there is also a clear distinction to be drawn, in Hegelian terminology, between the circumstances in which an owner occupier voluntarily withdraws his will through sale and cases in which the sale of the home is forced by a creditor seeking to capitalise the value of the property against the will of the occupier. Furthermore, focusing on the voluntary transaction upon which the secured creditor’s rights are based, it is interesting to consider whether owner occupiers, by obtaining a mortgage and thus granting a proprietary interest in the property to a secured creditor, can realistically be regarded as having withdrawn their will from the property. In fact, this question has implicitly arisen in the context of legal discourse on the creditor/occupier dispute. As the discussion of legal provisions in Chapter 2 has indicated, one principle to have emerged in the context of creditors’ applications for the sale of properties that were used and occupied as a home was the ‘collateral purpose’ doctrine.214 The ‘collateral purpose’ was a judicial doctrine whereby the presumption in favour of sale could be displaced by recognition of the fact that the property has been purchased, not merely as an investment asset, but for use and occupation as a home. For example, in Stott v Radcliffe 215 the Court of Appeal held that when faced with an application for sale, the court: 210 211 212 213 214 215

Hegel, above n 11, 93, (s63). Ibid. A Ryan, Property and Political Theory (Oxford, Blackwell, 1984) 130. Ibid. See Ch 2, nn 144–154. Stott v Radcliffe (CA), 19 Feb 1982, Transcript: Lexis.

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should allow the trust to continue—and there should be no sale—so long as the purpose of the trust continues—that the house should be used as a home for the two of them. But when the purpose of the trust comes to an end the house should be sold.

Yet, although this appeared to suggest that the court should not order sale until the owner occupiers voluntarily withdrew their will from the property, in the sense that the purpose of use and occupation as a home no longer subsisted, it subsequently emerged that the court would regard the occupier’s collateral purpose as being spent by virtue of the fact that the home had been used as security for a debt. For example, in Re Citro the court held that in order for joint occupation of the home to remain in force as a collateral purpose of the trust, the co-owners must both retain their joint ownership interests in the property.216 Thus, once the use of the property was separated from full ownership (for example, through the grant of proprietary security) the argument for protecting the occupier’s interest was undermined. On the one hand, the expansion of home ownership, as discussed in Chapter 5, could not have occurred without the availability of credit finance and therefore, by extension, it would not have been possible without the securitisation of loan capital against the owner-occupied home. Nevertheless, the promotion of home ownership was premised on the claim that owner occupiers would enjoy a greater degree of security in their homes, and that the ‘x factor’ meanings of home—home as territory, home as identity, home as socio-cultural unit—would be enhanced by ownership. The risk that these values will be undermined when an owneroccupier-subject-to-a-building-society-mortgage is threatened with loss of home through a creditor possession action was highlighted in Chapter 5. Furthermore, the potential consequences of loss of home through repossession—including costs impacting on quality of life, social status and identity, personal and family relationships, future aspirations and health and wellbeing—were set out in Chapter 3.217 The extreme sense of loss that is suffered in the event of loss of home is clearly rooted in the occupier’s attachment to the property. Olivecrona described this attachment as ‘a feeling of things being so intimately connected with ourselves that they are part of our very selves’,218 and further claimed that ‘[b]eing deprived of such objects represents something more than an economic loss. It is experienced as an attack on the personality itself’.219 Furthermore, the argument that the 216 ‘[W]hile the purpose of its enjoyment as a matrimonial home still exists . . . In order to be so enjoyed it must be occupied by the spouses jointly. As a matter of property law, the basis of their joint occupation is their joint ownership of the beneficial interest in the home. Although the vesting of one of their interests in a trustee for creditors does not in itself destroy the secondary purpose of the trust, the basis for their joint occupation has gone’: Re Citro [1991] Ch 142 at 158, per Nourse LJ. 217 See Ch 3, nn 116–158. 218 K Olivecrona, ‘Locke’s Theory of Appropriation’ (1974) 24 Philosophical Quarterly 220 at 224. 219 Ibid.

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occupied home may represent such a property is acknowledged in the suggestion that: The feeling of unification with a physical thing varies according to circumstances. It is strongest with regard to things in daily use or dear to us for sentimental reasons. The farmer feels united to the soil on which he works. The town-dweller has a similar feeling for the house that is his own; something of himself sticks in that house where he has been living so long with his family.220

Yet, the key issue that must be addressed by legal policy makers when evaluating the balance to be struck between the commercial claims of creditors and the home interests of occupiers is the question whether the fact that the occupier feels an attachment to the property, or identifies with the property, is a sufficient justification for legal protection. The reason the creditor/occupier context provides an effective paradigm within which to consider the conceptualisation of home in law is that the occupier’s home interest is brought into sharp relief when it comes into conflict with the commercial claims of a secured creditor. The discussion of this context in Chapter 1 suggested that it is not inherently difficult for law to confer some protection on home interests where a particular policy demands such a measure. The challenge from a conceptual point of view arises when the home interest must be balanced against another valid competing claim. The effect of having to balance the interests of a claimant who is seeking to rely on an identification with the property against other legitimate claims was considered by Waldron in his analysis of Locke’s theory of property and appropriation, when he asked: When a man gathers acorns or shoots a rabbit does he necessarily identify himself with these humble objects and extend his personality to comprehend them? If by some psychological quirk he does, is that sufficient to justify the imposition of irksome duties on other people? Is it not more plausible to say that what he identifies with himself is his business but cannot prejudice the moral position of anyone else? . . . What about cases where people identify themselves with resources belonging to others—for example, when a man identifies with the house he has been occupying on a monthly lease? Does this generate any entitlement beyond that agreed to by his landlord?221

The examples which are often used to illustrate the process of acquiring defensible property rights by identification usually pertain to the first appropriation of natural goods that are ‘lying around in common’. However, Waldron broadened his analysis to consider cases where competing interests must be balanced, for example, the case of a rented home, in which the tenant’s property entitlement is 220 221

K Olivecrona, ‘Locke’s Theory of Appropriation’ (1974) 24 Philosophical Quarterly 220 at 224. Waldron, above n 206, 195.

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limited by the rights of the landlord. A comparable example could be found by considering the balance struck between owner occupiers’ rights to retain the property for use and occupation as a home, and the the proprietary interest of a secured creditor. When it comes to this type of case, Waldron acknowledged that since ‘[i]dentification seems a very subjective phenomenon’,222 there are some issues as to whether it can be recognised as capable of affecting third parties. The discussion in Chapter 3 emphasised the difficulties associated with recognising subjective, emotional interests within a legal framework which prioritises objectivity.223 It is therefore interesting to consider Waldron’s objective justification for protecting identification with property. Waldron argued that where identification—which, on its own, amounted to nothing more than a subjective wish—was combined with expectation this could give rise to ‘settled expectations’. It was these ‘settled expectations’ which, it was suggested, formed the legitimate grounds for legal protection. Waldron’s analysis of Locke’s theory of property and appropriation included reference to the difficulties of balancing the interests of claimants who seek to rely on the fact that they have ‘identified’ with the property, against other legitimate claims. When it came to judging what circumstances were capable of giving rise to ‘settled expectations’, Waldron relied on Bentham’s argument that ‘[t]he legislator owes the greatest respect to this expectation which he has himself produced’.224 Bentham wrote that while ‘[a] feeble and momentary expectation may result from time to time from circumstances purely physical . . . a strong and permanent expectation can only arise from law’.225 Thus, Waldron argued that ‘[o]nly when [a property holder] can predict that by and large others will abide by some principle of respect for his acquisitions is he likely to form a settled expectation of keeping them’.226 In fact, Waldron regarded Bentham’s argument as ‘lead[ing] only to the conservative requirement to maintain whatever system of property rights is already in force’.227 Bentham wrote that, ‘[a]s regards property, security consists in receiving no check, no shock, no derangement to the expectation founded on laws of enjoying such and such portion of good’.228 Indeed, when transposed to the creditor/occupier context, this argument could readily be advanced in support of the creditor’s settled expectations (albeit without the degree of ‘identification’ associated with home) that the law will support the creditor in enforcing proprietary remedies in the event of default. 222

Ibid, 195. See Ch 3, n 165 and associated text. 224 J Bentham, ‘Principles of the Civil Code’ in CK Ogden (ed), Jeremy Bentham: The Theory of Legislation (London, Routledge & Kegan Paul, 1931) 114; quoted in Waldron, above n 206, 198. 225 Ibid, 113. 226 Waldron, above n 206, 197. 227 Ibid. 228 Bentham, above, n 224, 113–14. 223

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Yet, on the other hand, it is also interesting to consider whether the manner in which the government has promoted home ownership as a source of security— financial security, emotional security, ontological security—might be construed as generating an expectation on the part of owner occupiers that they enjoy security of tenure in respect of the property. A final point for reflection in relation to Waldron’s Benthamite analysis is whether, if it was accepted that the political ideology of home ownership has generated such an expectation, it might be arguable that when the home buyer does, in fact, come to identify with the property in response to this expectation, there is a case for considering whether law should also provide some degree of protection for that settled expectation.

Radin and the Theory of ‘Property for Personhood’ When exploring the idea of home in property theory and law, it is also important to consider Radin’s theory of property for personhood. Radin described the ‘personhood perspective’ as the idea that: to achieve proper self-development—to be a person—an individual needs some control over resources in the external environment. The necessary assurances of control take the form of property rights.229

While Radin noted that ‘explicit elaboration of this perspective is wanting in modern writing on property’,230 she rooted her positivist analysis in the fact that ‘the personhood perspective is often implicit in the connections that courts and commentators find between property and privacy or between property and liberty’.231 Radin’s analysis also had a normative dimension. She argued that: In addition to its power to explain certain aspects of existing schemes of property entitlement, the personhood perspective can also serve as an explicit source of values for making moral distinctions in property disputes, and hence for either justifying or criticizing current law.233

Specifically, Radin claimed that the ‘personhood perspective’ could provide a useful tool through which to resolve competing claims to property, for example, the contest between creditors and occupiers. Of course, it is important to acknowledge that, when considering the balance to be struck between the commercial claims of creditors and the home interests of 229 230 231 232 233

Radin, Reinterpreting Property, above, n 187, 35. Ibid, 35. Ibid. Ibid. Ibid, 38.

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occupiers, personhood analysis clearly favours the latter. The dichotomy between personal property (for example, the occupier’s home interest) and fungible property (for example, the creditor’s claim against the property for its asset value) was central to Radin’s analysis. Furthermore, the normative elements of the theory of ‘property for personhood’ emphasised the argument for protecting ‘personal property’—in Radin’s definition, ‘things’ that people become ‘bound up with’233—over claims to ‘fungible property’—or ‘property that is held purely instrumentally’234— for example money. The notion of ‘personal property’ was clearly rooted in the values of identity and personhood that have been discussed in the previous sections. In Radin’s analysis, it was argued that: Most people possess certain objects that they feel are almost part of themselves. These objects are closely bound up with personhood because they are part of the way we constitute ourselves as continuing personal entities in the world. They may be as different as people are different, but some common examples might be a wedding ring, a portrait, an heirloom, or a house.235

On the other hand, a person who owned ‘fungible property’ was regarded as ‘holding an object that is perfectly replaceable with other goods of equal market value. One holds such an object for purely instrumental reasons. The archetype of such a good is, of course, money’.236 While Radin described these positions as ‘theoretical opposites’, they were not presented as discrete categories. Rather, Radin argued that different items of property can be located at some point along a spectrum that runs from personal to fungible, depending on the degree to which the property is ‘bound up’ with the property holder’s personhood. It is noteworthy that, once again, the idea that the property holder would suffer loss following dispossession was central to the valuation of specific types of property. In seeking to determine where any given item of property should be located along this spectrum, Radin suggested that ‘[o]ne may gauge the significance of someone’s relationship with an object by the kind of pain that would be occasioned by its loss’.237 The impact of loss of home on dispossessed occupiers was considered at length in Chapter 3,238 when it was noted that the experience of losing one’s home has been demonstrably linked with negative social, social psychological and mental and physical health consequences. This clearly supports Radin’s own suggestion that, within her system of value, an 234

Ibid, 37. Ibid, 36. 236 Ibid, 37. 237 Radin, Reinterpreting Property, above, n 187, 36–7. Radin went on to add that ‘[o]n this view, an object is closely related to one’s personhood if its loss causes pain that cannot be relieved by the object’s replacement. If so, that particular object is bound up with the holder . . . the price of a replacement will not restore the status quo—perhaps no amount of money can do so’ ibid. 238 See Ch 3, nn 138–153 and associated text. 235

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occupier’s interest in the home is an archetypal example of ‘personal property’. In stark contrast, the creditor’s interest in the capital value of the property—essentially, an interest in money—clearly lies at the ‘fungible’ end of the spectrum. The significance of this finding in relation to the balance struck between creditors and occupiers rests with the normative element of ‘property for personhood’ for legal decision making. Radin claimed that, once interests had been located on the spectrum, it was arguable that ‘those rights near one end of the continuum— fungible property rights—can be overridden in some cases in which those near the other—personal property rights—cannot be’.239 This approach to competing claims suggests that Radin’s theory of ‘property for personhood’ offers an interesting alternative perspective on the treatment of the home interest in law. The proposition that some types of property are accorded greater protection—and, indeed, from a normative perspective, are more worthy of protection—than others is a recurrent theme of dualist property analyses. As the discussion in this chapter has shown, the exchange value has triumphed over use value, and ‘property as wealth’ has prevailed over ‘property as thing’. It is interesting to note, however, that ‘property for personhood’ appears to yield the opposite outcome: Radin’s analysis of legal decisions in the United States of America provided some evidence of the implicit value attributed to ‘personal property’, rather than ‘fungible property’ interests. In fact, Radin specifically identified judicial acceptance of the ‘traditional connection between one’s home and one’s sense of autonomy and personhood’.240 Yet, ‘property for personhood’ went beyond these ideas of autonomy and personhood. Although legal analysis concerning home has often tended to focus on the values of autonomy and privacy—particularly when the discussion is located within constitutional or rights-based frameworks241—it is important to emphasise the fact that the personhood perspective goes beyond such considerations. Radin’s analysis of personhood was rooted in her ‘intuitive’ belief that certain types of property are more ‘personal’ than others. However, the fact that property is viewed as being ‘personal’ did not in itself justify any particular status in law. At the very least, in order for the argument that certain types of property are more personal that others to be translated into a basis for legal protection, it would be necessary to demonstrate that the person’s attachment to the property had a positive valence. As Radin commented: this intuitive view does not compel the conclusion that property for personhood deserves moral recognition or legal protection, because arguably there is bad as well as good in being bound up with external objects . . . If there is a traditional understanding that a well-developed person must invest herself to some extent in external objects, there

239 240 241

See Ch 3, nn 138–153 and associated text, 53. Ibid, 57. See further, Ch 10.

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is no less a traditional understanding that one should not invest oneself in the wrong way or to too great an extent in external objects.242

Consequently, a vital step in the development of ‘property for personhood’, from an intuitive view towards a defensible legal theory, was to demonstrate that certain types of attachment to property can be objectively regarded as ‘good object relations’, and, therefore as a positive activity, which deserved some degree of legal protection. To this end, Radin sought to draw upon Hegel’s approach to property, although, she claimed, the reference to Hegal was to be achieved without ‘assum[ing] away those characteristics that render individuals unique beings—particular commitments with other people and with the world of external objects’.243 While Hegel relied on the principle of private property and the manifestation of one’s will in property as a step on the path towards ethical development, Radin’s ‘person’ was a ‘developed, individual human being in the context of the external world’.244 Thus, while ‘Hegel makes object-relations the first step on his road from abstract autonomy to full development of the individual’,245 Radin approached the role of object-relations ‘with the notion that human individuality is inseparable from object-relations of some kind’.246 While Hegel’s ‘person’ had no concrete existence until his will acted upon the world through property relationships, Radin explained that ‘the concept of person in the theory of personal property refers to the fully developed individual’.247 It is also interesting to note that, since Radin’s focus was ‘on the person with whom [the property] ends up—on an internal quality in the holder or a subjective relationship between the holder and the thing, and not on the objective arrangements surrounding production of the thing’,248 she avoided the difficulties faced by Hegel in relation to the applicability of his theory in the context of modern production relations. Waldron argued that Hegel’s model of property relations was of limited applicability in the modern context, since it was more suited to a petit bourgeois economy than to commerce and commodity exchange. Waldron claimed that:

242 Radin, Reinterpreting Property, above n 188, 38. Radin argued that ‘[p]roperty is damnation as well as salvation, object fetishism as well as moral groundwork. In this view, the relationship between the shoe fetishist and his shoe will not be respected like that between the spouse and her wedding-ring. At the extreme, anyone who lives only for material objects is considered not to be a well-developed person, but rather to be lacking some important attribute of humanity’: ibid. 243 Ibid, 44. 244 Ibid, 45. 245 Ibid. 246 Ibid. 247 Ibid, 46. 248 Radin, Reinterpreting Property, above n 187, 54.

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[a]n argument depending this strongly on the persistence of an individual’s control of the objects he works on is clearly vulnerable to the charge that it ignores the effects of modern production relations and, in particular, the division of labour, on an individual’s relationship with the objects he is working on.249

This difficulty was avoided by Radin since, while for Hegel the property right was constituted by the individual’s will, Radin’s approach to property for personhood did not rely on the individual’s input to the production of property. Rather, ‘property for personhood’ required showing: (a) that a person is sufficiently bound up in property that its loss would occasion pain that could not be satisfied with a replacement object; and (b) that that relationship is a good rather than a bad thing, based on social consensus; in order to justify protecting the individual’s personhood interest in the property.

Home as ‘Property for Personhood’ The relationship between occupiers and their homes was considered at length in Chapter 3, which analysed both the nature of the attachment to home and the consequences of losing their home for dispossessed occupiers. Furthermore, as the discussion in Chapter 5 has demonstrated, there does appear to be a social consensus in which the relationship between owner occupiers and their homes is regarded as supporting healthy self-constitution. Radin relied on this consensus to provide an objective moral basis for protecting ‘personal property’ against third party claims. For example, while Radin suggested that ‘most people view the caricature capitalist with distaste’,250 she claimed that ‘in our social context a house that is owned by someone who resides there is generally understood to be towards the personal end of the continuum. There is both a positive sense that people are bound up with their homes and a normative sense that this is not fetishistic’.251 As the discussion in this chapter has indicated, the creditor/occupier context provides a paradigmatic illustration of a clash of interests between ‘personal property’ and ‘fungible property’. The home provides a clear example of personal property—for example, the pain of losing the property may not be adequately met by financial compensation—while the creditor’s commercial interest in the capital value of the property can be cast as ‘fungible property’, since it represents a claim that can be readily exchanged for money without any damage to personhood. According to the ‘property for personhood’ analysis, the personal nature of the home interest means that it should carry greater weight in legal analysis than the

249 250 251

Waldron, above n 206, 374. Radin, Reinterpreting Property, above n 187, 44. Ibid, 54.

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fungible interests of the creditors. Although this view is clearly not reflected in English law in the context of the creditor/occupier dispute, Radin demonstrated the capacity for her theory to translate into a basis for legal decision making by pointing to a range of analogous instances in which the personal interest had prevailed over a fungible interest in the United States of America. Having recognised that ‘the idea of the sanctity of the home is a rich field for examining property for personhood in the positive law’,252 Radin reviewed several decisions of the United States Supreme Court which she claimed had been ‘influenced by an appreciation of our society’s traditional connection between one’s home and one’s sense of autonomy and personhood’.253 For example, in the field of landlord and tenant law, Radin identified evidence that the courts had begun ‘to view the rights in question as more closely related to the personhood of the tenant than to that of the landlord, and accordingly moved to protect the leasehold as the tenant’s home’.254 In the field of takings—that is when private property is taken for public use through exercise of the state’s power of eminent domain—Radin claimed that the courts had a tendency to consider ‘object loss’—ie, the loss of personal property—to be more important than ‘wealth loss’—the loss of merely fungible property.255 It is interesting to note, however, that while Radin identified evidence to suggest that the personhood associated with the home was implicitly significant in this context, the general limitation on the power of eminent domain had not been developed into an explicit protection that banned takings where the property was a home. She suggested that: one might expect to find that a special class of property like a family home is protected against the government by a ‘property rule’ and not just a ‘liability rule’. Or one might expect to find that a special class of property is protected against taking unless the government shows a ‘compelling state interest’ and that taking it is the ‘least intrusive alternative’.256

Although she acknowledged that the law has not, in fact, developed to protect the home in this way, Radin defended her theory by suggesting a range of explanations for the law’s failure to treat ‘personal property’ as a special class of property, worthy of additional protection. For example, Radin suggested that: perhaps the personhood perspective is so deeply embedded that, without focusing on the problem, we expect that the condemning authority will take fungible property where

252

Ibid, 56. Ibid, 57. 254 Ibid, 57–8. 255 In the UK, this process is known as ‘compulsory purchase’. The relevance of home-type interest in the law of compulsory purchase was considered in Ch 1, nn 12–13 and associated text. 256 Radin, Reinterpreting Property, above n 187, 66. 253

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possible. We may simply take for granted that the government will not take homesteads when parking lots will do.257

Of even greater interest for the purposes of this discussion, Radin alternatively suggested that, despite law’s instinctive impulse to protect personal property, ‘[p]erhaps the personhood perspective is not strong enough to outweigh other concerns, especially the government’s need to appear evenhanded and the lower administrative costs associated with simpler rules’.258 In fact, this goes to the crux of the balance struck between creditors and occupiers in claims affecting the home. Another argument against the development of home-oriented protections has been the idea that a principle pertaining to the occupier’s interest in the home would demand a case-by-case investigation of individuals’ attachments to their properties, and that this would create an administrative nightmare. Radin addressed this in her discussion of the failure to make explicit provision for personal property interests in the law of eminent domain. She suggested that, if it cannot be presumed that all individuals have sufficiently personal relationships with their properties to justify their protection as ‘personal property’—for example, because some properties are held for investment—then it would be incumbent on the courts to investigate the nature and degree of the subjective attachment between specific individuals and their homes in any given case, where ‘a subjective inquiry into each case slows down government too much’.259 This line of argument will be considered again in Chapter 10, in the context of the human rights discourse. The framework of the European Convention on Human Rights (ECHR), given effect in to UK domestic law by the Human Rights Act 1998, potentially provides an alterative mechanism for balancing competing rights, such as the clash of interests between creditor and occupier in respect of the home. One of the issues considered in Chapter 10 in respect of the potential impact of the Human Rights Act 1998 on the balance struck between creditors’ claims and occupiers’ interests in the home is the significance of efficiency and administrative workability and the fear of opening the ‘floodgates of litigation’. If the Human Rights Act provides an impetus to reconsider the balance struck between competing claims, this could have a major impact on legal decision making. This could, in turn, potentially threaten the ‘settled expectations’ of the parties. One fear that stems from this prospect is the possibility that this outcome could potentially require the courts, in the future, to examine every case according to its individual facts and circumstances. For this reason, it will be suggested in Chapter 10 that particular attention should be paid to the question of ‘group property rights’, when seeking to develop 257 258 259

Radin, Reinterpreting Property, above n 187, 66. Ibid. Ibid.

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the concept of home within a human rights framework. In her examination of eminent domain, Radin suggested that there was ‘some fragmentary evidence suggests that group property rights, if connected with group autonomy or association, are given enhanced protection’.260 As the discussion in Chapter 10 will illustrate, the prospect that the occupier’s (personal) right to respect for home—as set out in Article 8 of the European Convention on Human Rights—could be employed to undermine the (fungible) property rights of third parties has received a lukewarm reception in the English courts. However, there is some scope for considering whether it may be possible to develop a stronger case for certain specified classes of home interests, either through the right to respect for ‘family life’ in Article 8 or through the non-discrimination provision in Article 14. These more specific ‘group’ interests form the focus for the remainder of this book. Chapter 7 now proceeds to consider the significance of family in theories, laws and policies concerning home; Chapter 8 considers the role of gender in home-oriented analysis; and Chapter 9 analyses the treatment of children as occupiers of the home in creditor actions against the property. Finally, Chapter 10 will conclude the discussion with an evaluation of the potential future scope for Conceptualising Home within a human rights framework.

Conclusions This chapter has explored the framework of property theories, laws and policies so far as they have influenced the (under-)development of the legal concept of home. One of the key observations that can be made about the treatment of the creditor/occupier dispute within property theory and law relates to the impact of dualist theories on this pair of claims. The classification of property interests as use value or exchange value provides one such example: while the property undoubtedly represents an exchange value to the owner occupier, the occupier’s home interest is also influenced—and arguably dominated—by the use value of the property as a territory, as a source of identity and as a site of socio-cultural importance for the occupier. On the other hand, the creditor’s interest in the capital value of the property is clearly dominated by—if not exclusively comprised of—the exchange value of the property. In a similar vein, the dichotomy between ‘property as thing’ and ‘property as wealth’ reflects competing outlooks on the functions of the house/home as an item of property. Furthermore, within these dichotomies, it is clear that, with the development of a commercialist, credit-based economy, the use value in property as a thing that one possesses—in the tangible sense—has 260

Ibid, 66.

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been superseded by the exchange value of property in assets, as an intangible item of wealth. As a result, it seemed that there was little scope within property theory and law for the development of a legal concept of home that reflected the meanings and values that the home itself, as an item of property for use and occupation rather than exchange, represented to its occupiers. The proposition that the values represented by home should be brought to bear in legal analysis was considered in Part I of this book. While the idea of home in law has been predominately dismissed within legal discourses on the basis that it is subjective, difficult to prove, ‘mere emotion’ and incapable of legal protection, particularly in contrast to the commercial interest of creditors, the discussion in Part I of this book addressed the arguments for reconsidering the legal concept of home. Indeed, it was suggested that, since empirical and theoretical analysis has clearly demonstrated the existence of the home interest, as well as the impact of losing one’s home on both the occupier and on other stake-holders, ranging from the health services to the labour market, from local and central government to insurers, it is not only legitimate for socio-legal scholarship to consider the weight conferred on such interests in law, but it is incumbent on policy makers to consider the wider implications of creditor possession actions on both the parties themselves—the creditors and occupiers—and other agencies. Radin’s theory of ‘property for personhood’ appears to present a theoretical basis for developing the idea of home in law. For one thing, her concept of ‘personal property’ reflects the importance of the attachment between individuals and their homes, as demonstrated by interdisciplinary analysis.261 Radin’s starting point was the argument that ‘[a]t least some conventional property interests in society ought to be recognized and preserved as personal’.262 Furthermore, once it has been established that a given property interest—for example, the occupier’s home interest—is ‘personal property’, then ‘there is a prima facie case that that right should be protected to some extent against invasion by government and against cancellation by conflicting fungible claims of other people’.263 Thus, in the creditor/occupier context, this theory would provide a basis for regarding the occupier’s home interest as more worthy of protection than the creditor’s fungible claim to the capital value of the property. Radin claimed that: ‘[w]here we can ascertain that a property right is fungible, there is a prima facie case that that right should yield to some extent in the face of conflicting, recognized personhood interests not embodied in property’.264 Of course, the idea that the commercial claims of creditors to the capital value of the property must be made to give way to the home interests of occupiers raises 261 262 263 264

See generally, Ch 4. Radin, Reinterpreting Property, above n 187, 71. Ibid. Ibid.

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natural concerns about the potential consequences of this line of analysis for creditors. This is particularly significant in light of the arguments concerning the availability of credit finance to fund home ownership, as well as a reminder that, as indicated in Chapter 1, while we may be sympathetic to the plight of occupiers who are at risk of losing their homes, there are human interests behind the creditor’s commercial claim, since: all organisations established to lend money for house purchase are in essence financial institutions operating in the market place with responsibilities to their shareholders or investors to secure their investment and minimise losses.265

However, it is also important to remember that any measure that is likely to be enacted to redress the balance between the home interests of occupiers and the commercial claims of creditors would not—could not—expose creditors to the prospect of losing their proprietary security interest in the property. Rather, it is more likely that, if such a measure were to be adopted, the outcome would be a delay in the creditor’s ability to capitalise that interest. Radin’s property for personhood theory could usefully be brought to bear, not only in relation to the first hurdle—that is, establishing a case for re-evaluating the balance struck between creditors and occupiers—but when it comes to determining the weight that should be attached to the respective interests. There are several questions still outstanding in relation to the weight that ought to be conferred on the occupier’s home interest. For example, it would be pertinent to consider how the degree of protection conferred on home interests is influenced by other factors, such as the fact that the property is a family home; that the property is occupied by children, or, perhaps, the suggestion that home bears particular meanings for certain categories of occupier on the basis of gender or some other factor. When it comes to considering these issues, it is also important to recognise the broader policy contexts of family, child and gender studies, and to evaluate whether, if any additional protection might be deemed to be justifiable on the basis of the strength of the occupier’s interest in the home, that would have any wider impact when it came to promoting, or possibly undermining, the interests of such occupiers as a group. These issues are considered in Chapters 7, 8 and 9. Finally, Chapter 10 concludes the book by considering the balance struck between the home interests of occupiers and the commercial claims of creditors within a human rights framework. This analysis will also consider the potential weight of these group interests in the context of non-discrimination.

265 C Hunter and J Nixon, ‘Better a Public Tenant than a Private Borrower Be’ in D Cowan (ed), Housing: Participation and Exclusion (Aldershot, Ashgate, 1998) 92.

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7 Valuing ‘Family’ in the Family Home

Introduction

T

HE FIRST PART of this book considered the meanings and values of the owner-occupied home. Chapter 1 identified the creditor/occupier context as a paradigmatic framework through which to explore the weight attached to home interests in legal analyses, and Chapter 2 considered the treatment of home across the range of legal principles and provisions that regulate the competing claims of creditors and occupiers to property that is used and occupied as a home. One of the themes that emerged from this analysis was the special significance associated with property when it is a family home, rather than simply home per se. Analysis of the meanings and values associated with home in Chapter 4 highlighted the way in which the theme of family values has influenced the meanings and values associated with home for many occupiers, while the discussion of the owner-occupied home in Chapter 5 included reference to the popularly held idea that ownership of one’s own home is a necessary stepping stone to ‘family life’. This chapter considers the question whether the family home should be afforded special protection from creditors. Of course, as the discussion throughout this book has emphasised, a major obstacle to the development of a coherent concept of home in law has been the absence of any clear legal basis on which to value the home interest, and so to attribute weight on that side of the balance, when weighing the occupier’s claim against the commercial interests of creditors in the capital value of the property. Chapter 6 explored the potential for developing a concept of home, drawing upon property theory and law. Although it was evident that the prevailing values informing property law discourse—particularly the emphasis on the exchange value of property—do not tend to encourage consideration of home-type interests, it was also clearly apparent that this does not reflect any inherent incapacity for taking account of interests of this nature in property law. Rather, it is indicative of the policy norms that have dominated property theory and law through, for example, the 1925 legislation, which sought to assimilate land with capital and, more recently, in the bureaucratic approach to title registration in the Land Registration Act 2002.

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In fact, it is suggested that, if a compelling policy initiative were to emerge in support of the home interest, there is no reason why it could not be accommodated within property theory and law. This was illustrated by the final section of Chapter 6, which considered the personhood perspective identified and advocated by Radin. The theory of ‘property for personhood’ provides an example of the capacity for the development of a coherent legal concept of home. However, crucially, the decision to pursue this line of reasoning relies on a sufficiently strong policy impetus. In the context of creditor/occupier disputes, the tendency to focus on the arguments in support of the creditor has deflected attention away from home-type analysis. In a circuitous process of reasoning, it follows that: creditors generally win, so the home interest is dismissed in legal practice; the seeming irrelevance of the home interest in practice does not encourage academic interest in the subject of home; and without a theoretical framework for the development of a coherent concept of home in law, home interests continue to be overlooked in legal analysis. The arguments for breaking out of this cycle were considered in Part I, particularly in Chapters 3 and 4. For one thing, research in other disciplines has verified the authenticity of the occupier’s home interest; furthermore, studies investigating the affective significance of the home have also highlighted the impact of losing one’s home, for example, through a creditor possession action. In addition, it has been shown that the costs of possession actions are not only experienced by the dispossessed occupier, but also impact on a range of other interests, for example, local and central government, the housing market, health services, the labour market, insurers and even creditors themselves. These issues raise a prima facie argument for reconsidering law’s approach to the meanings and values of home. However, even if home was recognised as a special type of property, worthy of some additional protection over and above other types of property, the difficult next step in the development of a legal concept of home would be to identify the circumstances in which such protection should be afforded. For example, Radin’s theory of ‘property for personhood’, recognised the challenge of balancing claims to ‘personal property’ with other well-established interests. Even if it were to be accepted that home interests should be taken into account in the creditor/occupier context in some way, the issue of how to strike the balance between the competing claims of creditors and occupiers would also need to be addressed. On the one hand, if home interests were substantively protected, across the board, then the consequences for creditors would be drastic. In fact, one lesson of experience, from the context of acquisition of interests in family property, is that when hometype protection is widely available, the extent of any protection offered tends to be diluted; conversely, when the availability of the protection is curtailed, stronger protections can be provided.1 1 The tendency for this type of trade-off to occur in family property—between protections that are widely applicable but confer a shallow protection, and those that provide a deep proprietary protection but are available only to a narrow range of claimants—was considered in L Fox, ‘Reforming Family

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This chapter considers the possibility that certain categories of home—for example, family home—might carry greater weight within the legal concept of home. There are several reasons for focusing on family home as a special category of home. For one thing, many would instinctively argue that the family home is a special type of property because it plays such a central role in our everyday lives. Indeed, this is reflected in the popular consciousness and in legal discourse. For instance, as the discussion in Chapter 4 revealed, empirical studies focusing on the meaning and values of home have indicated that ‘family home’, as a special type of property, is conceptually significant, even over and above home per se. The significance of family cuts across many of the values that emerge from qualitative studies on the meanings of home. Inferences extrapolated from occupiers’ responses have included the propositions that ‘it is the presence of children and the activity of family life that makes a house into a home’2 and that the family home is: ‘a projection and basis of identity, not only of an individual but also of the family’.3 These findings suggest that the special significance of ‘family’, in association with ‘home’, may in fact exacerbate the effects of losing one’s home. For example, research has indicated that the importance of home as a ‘place of security and protection’ becomes even more significant to occupiers when the property is a family home shared with children.4 These popularly-held associations raise interesting issues in relation to the conceptualisation of home and, specifically, in relation to the legal protection of the owner-occupied home when creditors seek recourse to mortgage possession actions and other remedies to enforce their security interests against domestic property. In fact, as the discussion in Chapter 2 has indicated, the popular view that family homes hold particular value has been reflected in English law, in the form of a tendency to elevate the family home over and above home per se. When legal policy has allowed some degree of protection for a home-type interest, the ‘special status’ conferred on the property has typically been derived from its function as a family home. Yet, while the evidence that has emerged from studies extrapolating the values of home with regard to the importance of the relationship between home and family supports legislative and judicial policy leanings towards Property: Comparisons, Compromises and Common Dimensions’ (2003) 15 Child and Family Law Quarterly 1. 2 RM Rakoff, ‘Ideology in Everyday Life: The Meaning of the House’ (1977) 7 Politics and Society 85 at 93. 3 J Pallasmaa, ‘Identity, Intimacy, and Domicile—Notes on the Phenomenology of Home’ in DN Benjamin (ed), The Home: Words, Interpretations, Meanings and Environments (Aldershot, Ashgate, 1995) 137. 4 ‘An image of the home as a refuge from the dangers of the outside world has deep historical roots in society, perhaps captured in the mythical pioneer image of the rough cabin on the prairie, in which the husband-father is pictured protecting his family and its new home from the dangers of wilderness life. Though the nature of the perceived dangers has changed over time, the home is still thought of as a haven, where people, especially children, are safe’: J Fitchen, ‘When Toxic Chemicals Pollute Residential Environments: The Cultural Meanings of Home Ownership’ (1989) 48 Human Organisation 313 at 316.

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protecting family homes, over and above homes in general, there is no evidence to suggest that these policies have been based on any explicit and systematic examination of the meaning of home to occupiers.5 This chapter considers the impulse towards safeguarding family homes as a special category, deserving greater protection than homes per se. The idea of providing such special protection raises complex issues in relation to the value of the ‘family’ component in the context of the family home. This chapter considers the practical and theoretical implications of privileging family home analysis in the conceptualisation of home. By analysing the treatment of family home in the context of creditor/occupier disputes, this chapter considers whether the concept of family home, as it is currently manifest in English law, provides the most suitable vehicle by which to achieve any ‘special protection’ of home interests that may be deemed appropriate.

Alternative Models for Protecting ‘Family Home’ It is useful to bear in mind the fact that, if the law is concerned to recognize ‘home’ values by focusing on a special protection for the family home, there are a number of models by which such a protection could be realized. In some jurisdictions, for example, in certain Canadian provinces and some states of the USA, homestead provisions provide an explicit and systematic scheme of legal protection for the home by exempting it—to a greater or lesser extent—from the pool of assets which creditors may access to recoup their losses on default. In others, including New Zealand and Ireland, legislation regulates dealings affecting the home by requiring the consent of certain family members in order to validate security, and other transactions. In England and Wales, a more ad hoc approach to the protection of the (family) home has emerged, with provisions scattered across matrimonial homes legislation, bankruptcy legislation and provisions dealing with co-owned property or charging orders. The more explicit approaches adopted in other jurisdictions reflect, more obviously, the policies adopted in those jurisdictions. On the other hand, the ad hoc approach that underpins the collection of principles and provisions that relate to the family home in English law has tended to obscure the overall policy approach and, to a certain extent, even the outcomes for creditors and occupiers. In England and Wales, as in the other jurisdictions considered in this chapter, it is possible to find evidence—albeit of varying degrees—of a legislative and judicial 5 It is reasonable to infer, however, that the tendency to confer greater legal protections on family homes may be implicitly derived from the socio-cultural importance of ‘home as family home’.

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impulse towards safeguarding the home, and acknowledging that it is not, in fact, the same as other types of property. However, the nature and degree of any protection conferred on home occupiers against creditors varies significantly according to the prevailing policies adopted in each regime. A further dichotomy also exists within each system, between policies that seek to protect the family home— by focusing on the family unit, often typified by the conjugal relationship—and those which value home per se, thus considering the members of a family as a group of individuals, and focusing on their individual attachments to, and relationships with, the property as their home. In fact, although English law does not systematically treat the family home as ‘protected territory’, evidence can be found of policies focusing on both family home and home per se. Between these options, the tendency of the English legislature and judiciary appears to favour a ‘family unit’ approach, rather than focusing on the interests of individual occupiers in the home per se. On the one hand, this approach does appear to reflect the implicit socio-cultural values informing legal decision making in this area: as the discussion below will demonstrate, the idea of family is a significant element of home meanings as identified in empirical studies. Yet, while this proclivity towards a ‘special protection’ for the family home may be readily comprehensible, the tendency to focus on ‘family’ within the legal concept of home does raise several significant and controversial issues. For one thing, adopting ‘family home’ as the relevant unit of analysis—rather than simply focusing on the home occupier—necessitates a delineation of the relationships that qualify as ‘family’ for these purposes. What is more, however broadly these relationships may be defined, a sole occupier clearly cannot establish a family home in this context, since the idea of ‘family’, by necessity, must involve relationships between at least two separate individuals. The limitations imposed by these criteria are highlighted when one considers the treatment of single parent families in the context of policies seeking to protect the ‘family home’ against creditor possession actions. One consequence of focusing on the family unit as the model against which ‘home’ status is conferred has been the exclusion of single parents who are sole adult owner occupiers, living in a property with children. The treatment of single custodial parents within the ‘family home’ framework is considered further below.6 Difficult questions may also arise, even when a property qualifies as a ‘family home’, however that may be defined. Another ground for criticising the focus on ‘family’ in policies seeking to protect home is the fact that, by focusing on the collective interests of the family unit, it is presumed that the interests of family members in respect of the home can be represented as a single, unitary interest. This approach fails to recognise the fact that individual occupiers—even if they live within a family unit—may have a range of different interests in a single property: one or more of the adult occupiers 6

See below, nn 144–149, 185–187, 227 and associated text.

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will be the owner(s); amongst joint owners, at least one, but possibly more, will be the debtor; others may be non-debtor occupiers, including children, who generally have no legal interest in the property. When these interests are aggregated into one ‘family unit’, both the individual needs and interests of less powerful family members and the individual and personal nature of their attachments to the property as a home may be overlooked. The implications of adopting this ‘broad brush approach’ towards the needs and interests of individual family members are particularly apparent when the role played by gender issues in theories, laws, policies and practices pertaining to the home, and their significance for the conceptualisation of home interests in law is considered. The significance of gender analysis for the legal concept of home is explored in Chapter 8, which considers the treatment of home in feminist scholarship, empirical evidence relating to the meanings and values of home as experienced by men and women, and the relevance of both home ownership and the experience of losing the home in a mortgage possession action, across gendered lines. One of the key issues underpinning much gender-oriented analysis of the concept of home is the traditional—and, from a feminist perspective, negative— association between women and home. This chapter will also consider the way in which the undesirable consequences of this association—in short, the idea of home as confinement for women, within which they are governed by a (benevolent?) patriarchal male head of household, whose power to make decisions for the family unit renders women and children invisible within the household7—are compounded by the marriage between the twin pillars of the ‘private sphere’: the concept of family and the concept of home. Critical analysis of the concept of ‘family home’ is also complicated by the way in which both concepts—‘Home’ and ‘Family’—tend to be culturally idealised. The idea that the home ought to attract greater protection because it is a meaningful site for family life is a potent one. On the one hand, it is important to recognize the fact that ‘[t]he home as a social concept is strongly linked with a notion of family—the parental home, the marital home, the ancestral home’.8 In fact, as the discussion in Chapter 4 has demonstrated, in empirical evidence relating to the meanings and values of home ‘family’ has been linked with positive attachments to a property.9 Yet, it is also important to bear in mind the potential impact of idealism in relation to the family home. The danger, for conceptual analyses of home, lies with the prospect that the idealism surrounding ‘family home’ may make an objective assessment, or a ‘real measure’ of the values that family home represents, 7 See, eg, D Strassmann, ‘Not a Free Market: The Rhetoric of Disciplinary Authority in Economics’ in MA Ferber & JA Nelson (eds), Beyond Economic Man: Feminist Theory and Economics (Chicago, Ill, University of Chicago Press, 1993), p58; this argument is considered further below, see nn 84–86, 133–135 and associated text. 8 S Watson, with H Austerberry, Housing and Homelessness: A Feminist Perspective (London, Routledge, 1986) 8. 9 See above, nn 2–4 and associated text.

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more difficult to achieve.10 In Wright’s analysis of the relationship between ‘home’ and ‘family’, she claimed that: Every society tends to approach home and family with an implicit ideal about both, an inspiration simultaneously universal and quite particular, at once architectural and cultural. To a great extent, the two intersect and fuse together into an archetypal setting: the ‘model home’.11

The idealism surrounding family home is undoubtedly informed by real values and responses to the concepts of ‘home’ and ‘family’. Nevertheless, in order to evaluate what the qualification of ‘family’ adds to ‘family home’, it is necessary to temper the idealism surrounding family home as a concept with a sober analysis of the implications of the ‘family unit’ approach on family members and other individuals within their homes. This chapter analyses the value of focusing on ‘family’ within the legal concept of home. It seeks to explore whether the qualification of ‘family home’ is an appropriate or desirable element of the legal concept of home, or, on the other hand, whether it would be preferable for any special status conferred on the home in law to be detached from a ‘family unit’ analysis and rooted in an alternative, individual-oriented framework. This chapter argues that, from a practical perspective, the focus on family in policy initiatives seeking to protect the home interest in English law has to date been unhelpful when it comes to redressing the balance between the occupier’s home interest and a creditor’s commercial claim to the property as a capital asset. In addition, the application of a family-oriented framework reinforces an undesirable ethos of female dependency and invisibility within the home. Criticisms of family-centric analysis in this context are also supported by analysis of the relationship between family and home in other disciplines. This chapter will also consider the benefits of adopting an individual-oriented approach when framing the legal protection of the home. Aspects of this individual approach, which recognises the value of home per se and the discrete interests of individual family members, as well as the value of the home to the family as a collective unit, have emerged in recent years when the protection of domestic property has been discussed by Parliament, by the judiciary and by the Law Commission. In fact, it will be suggested that it would be both theoretically sound and practically advantageous if, rather than being posited on relationships between occupiers within a ‘family unit’, the conceptualisation of home in law were based upon the relationship between individuals—including individual family members—and their homes. 10 ‘[T]here is a complex ideology of home which includes our expectations and desires . . . home is both an imposed ideal and a potent cultural and individual ideal’: J Moore, ‘Placing Home in Context’ (2000) 20 Journal of Environmental Psychology 207 at 212. 11 G Wright, ‘Prescribing the Home Model’ in A Mack (ed), Home: A Place in the World (New York, New York University Press, 1993) 213.

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The Concept of ‘Family Home’ in English Law Since English law has not adopted a systematic scheme for the protection of the (family) home against third parties, it has been suggested that the concept means relatively little in English law.12 However, as the discussion in Chapter 2 has demonstrated, although disputes between creditors and occupiers are characterised by a general pro-creditor, pro-sale tendency, there are instances in which the family home has been regarded as a special type of property which may deserve some degree of protection.13 On the other hand, examples can also be found of instances in which the interests of individual family members have been the focus of attention for policy makers. However, in these cases, the context of the family unit has generally remained significant. Meanwhile, the interests of individual occupiers in the home per se—rather than the family home—have attracted less attention. For more than half a century, there has been evidence, manifested in various ways, of a policy initiative to increase the protection of the family home against creditors. From the doctrine of the ‘deserted wife’s equity’, through the enactment of the matrimonial homes legislation, to the ‘collateral purpose doctrine’ in the context of section 30 applications for sale and the provision for ‘family home’ in bankruptcy, the history of ‘family home’ provision in English law reads as a stream of ad hoc—and arguably unsuccessful—attempts to develop specific principles and provisions for dealing with interests in the family home. The following sections consider the ways in which these ad hoc initiatives have affected the balance struck between the commercial claims of creditors and the home interests of occupiers. In fact, it will be suggested that the tendency in English law to focus on ‘family home’ in this context, rather than home per se, has tended to hinder, rather than help, the interests of both individual family members and the family unit as a whole, when seeking to preserve the home against forced sale.

The ‘Deserted Wife’s Equity’ in the Family Home The doctrine of the ‘deserted wife’s equity’ provides the first example in English law of a judicial policy devised to deal specifically with the interests of a nonowning spouse in the family home. The doctrine was based on section 17 of the Married Woman’s Property Act 1882, which provided that a husband who had 12

See L Fox Harding, Family, State and Social Policy (Basingstoke, Macmillan, 1996), Ch 4. See, eg, debate in the House of Lords following the decision in Williams and Glyn’s Bank Ltd v Boland [1981] AC 489 when Lord Simon argued that the ‘integrity’ of the family home is ‘of great social importance’, while Lord McGregor argued for the need to: ‘secure and safeguard the values which society upholds in the institution of marriage and the family’: HL Debs vol. 437, col 640, 653 (15 Dec 1982). 13

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deserted his wife, leaving her in occupation of the family home, could not re-take possession of the property against his wife without a court order.14 However, in a series of cases, from 1952 until 1965, this principle was extended and applied in the context of disputes concerning the family home with third party creditors. The ‘deserted wife’s equity’ was finally demolished in 1965 when, in National Provincial Bank Ltd v Ainsworth,15 the House of Lords held that any right a wife acquired to occupy the family home following desertion by her husband was a personal claim against her husband only, and could not compete with a secured creditor’s proprietary rights against the property. In the early case law on the ‘deserted wife’s equity’, the doctrine was not regarded as conferring any proprietary estate or ‘interest in land’ on the deserted wife, but only a right to occupy the property, enforceable against her husband. In Thompson v Earthy16 the court held that ‘[a] deserted wife who remains in occupation of the matrimonial home does not acquire any legal or equitable interest in the premises so as to bind them in the hands of a purchaser’.17 Early academic commentary reflected a disinclination towards the idea that the doctrine would affect third party claims. For example, while Megarry accepted the fact that the court had recognised the ‘equity’ per se, he claimed that ‘at least, it may be hoped that the right will be held not to amount, either in name or in substance, to any legal or equitable interest in land, and to bind none save the husband’.18 While the impulse to protect the wife’s status in the family home was clearly present, the notion of developing a model of family home protection which went beyond the relationship between the spouses and was capable of affecting the claims of creditors, was a very different proposition. This response reflects the argument, set out in Chapter 1, that when policy makers are concerned to recognise and protect the status of home, or family home, this can readily be achieved without encountering any major practical or theoretical difficulties. The challenge, from a practical and conceptual point of view, emerges when it becomes necessary to balance these home-type interests against other, competing claims. Furthermore, as the discussion in Chapter 1 has indicated, the issue of reconciling home-type interests with competing claims is particularly problematic when the 14 The husband was treated as having conferred an implied contractual licence on his wife. The contractual licence was based on the inference of an agreement between the spouses that the wife could occupy the property. The ‘consideration’ for this agreement was constructed from the fact that provision of rent-free accommodation in the family home would be taken into account when a property settlement was eventually reached between the spouses. 15 [1965] AC 1175. 16 [1951] 2 KB 596. 17 As Roxburgh J acknowledged, to have done so would have involved ‘declar[ing] the existence for the first time of a suggested equitable interest for which there is no previous authority whatever’: Thompson v Earthy [1951] 2 KB 596 at 600, per Roxburgh J. 18 R Megarry, ‘The Deserted Wife’s Right to Occupy the Matrimonial Home’ (1952) 68 Law Quarterly Review 379 at 390.

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competing interest carries significant weight—as has been seen to be the case with the commercial claims of creditors. The idea of a ‘deserted wife’s equity’ was criticised almost from the point of its inception, particularly in relation to its potential effect on third party creditors. In Bendall v McWhirter 19 the Court of Appeal held that since a deserted wife’s right to occupation could not be revoked by her husband without an order of the court, the trustee in bankruptcy, who could take no better title than the husband had, must also be bound by the wife’s right to occupy the property. However, in Street v Denham,20 Lynsky J was reluctant to accept that the ‘deserted wife’s equity’ was a ‘legal or equitable or any other interest in the premises so as to bind them in the hands of the purchaser’.21 The court’s reluctance to recognise the wife as having an interest in the home which was capable of binding third parties was also apparent in Barclay’s Bank v Bird,22 when Harman J suggested that, while there could be circumstances in which the wife might be permitted to remain in the matrimonial home following desertion, he ‘should have preferred to look on her in that situation as being in what I may call a ‘status of irremovability’ vis-à-vis her husband’.23 These concerns were clearly motivated by the potential implications that conferring a proprietary right on deserted wives would have on third party purchasers. Following a now-familiar line of reasoning, Harman J suggested that although the court was sympathetic to the wife’s situation, a doctrine which adversely affected third party interests: may in the end prove detrimental to the public interest, because money will not be lent to men who have houses in case they should thereafter turn out to have a deserted wife, or should thereafter desert their wives, and so deprive their creditors of their security.24

The prospect that legal recognition of the occupier’s home interest could have an adverse effect on the protection afforded to secured creditors, and that this would have a knock-on effect on the availability of credit, has been considered elsewhere in this book.25 In relation to the ‘deserted wife’s equity’, the court was concerned about the implications of imposing a higher burden of inquiry on creditors who provided capital against the security of the family home. The issues surrounding the burden of inquiry imposed on creditors dealing with family—and other— homes was discussed in Chapter 2, in relation to the decision in Williams & Glyn’s Bank Ltd v Boland.26 In this context, the courts were particularly reluctant to fix a 19 20 21 22 23 24 25 26

[1952] 2 QB 466. [1954] 1 WLR 624. Ibid, 627. [1954] 2 WLR 319. Ibid, 321. Barclays Bank Ltd v Bird [1954] 2 WLR 319 at 322, per Harman J. See Ch1, n 39–53; Ch3, nn 34–63. [1981] AC 487; see Ch 2, nn 61–122 and associated text.

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creditor with constructive notice of the occupier’s interest in the home. Although there was clear evidence of the policy impulse to recognise and protect the home interest, the courts were concerned about the potential effects of shifting the balance towards the occupier rather than the creditor. Indeed, these concerns played a major role in the demise of the ‘deserted wife’s equity’ as the courts were reluctant to bind third party purchasers with constructive notice of such a claim.27 As Upjohn J suggested in Westminster Bank Ltd v Lee,28 it was considered ‘entirely unreasonable for the bank to send an officer to inquire, not whether a stranger was in occupation, but to inquire of the wife whether she has been deserted’.29 Similarly, in Rock Permanent Benefit Building Society v Kettlewell,30 Harman J was reluctant to find that it was ‘any part of a surveyor’s duty when he was valuing a house for mortgage purposes to inquire into the matrimonial concerns of the mortgagor or to listen to the complaints of his wife: it was a new terror in the surveyor’s professional life if that was so’.31 Of course, this approach to investigations and inquiries concerning family life was entirely consistent with the prevailing legal stance on constructive notice of the proprietary claims of occupying spouses at this time. Prior to the decision in Williams & Glyn’s Bank Ltd v Boland,32 the courts distinguished between the occupation of a co-owning stranger and that of a co-owning spouse, so that, whilst purchasers were required to investigate the interests of ‘occupying strangers’,33 the occupation of a spouse was treated as a ‘mere shadow’ of the vendor’s occupation.34 It is therefore interesting to note that the suggestion that the deserted wife’s equity could bind a creditor with constructive notice presented a new risk by exposing creditors to a burden of inquiry from spouses in occupation which, in the 1950s and 1960s, was unprecedented as, prior to the decision in Boland, creditors were not even bound by the equitable ownership interests of spouses who lived in the property. Even though section 70(1)(g) of the Land Registration Act 1925 provided that the equitable ownership interests of persons in occupation were overriding interests, which bound third parties unless inquiry had been made of the occupier, creditors were not obliged to make such inquiries from occupying spouses. The inappropriateness of imposing such a burden of inquiry on third parties was one of the two principal grounds on which the House of Lords demolished the

27 Jess B Woodstock & Son’s Ltd v Hobbs [1955] 1 WLR 152 at 159–160; Westminster Bank Ltd v Lee [1955] 3 WLR 376 at 383, per Upjohn J. 28 Ibid. 29 Ibid, at 383–4, per Upjohn J. 30 [1956] EGD 315, 3 Oct 1956. 31 Ibid. 32 [1981] AC 487. 33 Hodgson v Marks [1971] Ch 892. 34 Bird v Syme-Thomson [1979] 1 WLR 440.

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‘deserted wife’s equity’ in National Provincial Bank Ltd v Ainsworth.35 In Ainsworth, the House of Lords held that any interest acquired by Mrs Ainsworth as a ‘deserted wife’ was not an ‘interest in land’ for the purposes of section 70(1)(g) of the Land Registration Act 1925.36 Consequently, although she was in ‘actual occupation’ of the property, her interest could not be regarded as an ‘overriding interest’ which was capable of binding the bank. Although Lord Denning MR, who found in favour of Mrs Ainsworth in the Court of Appeal, had reasoned that ‘anyone who is buying a dwelling house or lending money on the security of it, ought reasonably to make inquiries as to who is in actual occupation of the house and on what terms’,37 this obligation to make inquiries into matrimonial occupation was rejected in the House of Lords. It is also interesting to note that the House of Lords regarded the flexible nature of the doctrine as a factor that militated against its recognition as a proprietary interest. For example, Lord Upjohn held that Mrs Ainsworth’s claim could not be a property interest because: it was not capable of precise definition; it depended on the circumstances of the case; and it was subject to the exercise of judicial discretion.38 Lord Wilberforce also noted that, ‘[b]efore a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability’.39 Described by Sir Robert Megarry as ‘[o]ne of the most lusty infants to which English law has given birth in recent years’,40 the ‘deserted wife’s equity’ attracted considerable criticism from the outset.41 Nevertheless, it is interesting to note that while Megarry stated that, ‘[f]ew would suggest that the law as to this new-found right of the wife is at present in a satisfactory state, and some, indeed, may express the hope that the House of Lords will blow away the whole uncertain structure’,42 the proposition that, in the interests of justice, ‘something should be done’ to

35

[1965] AC 1175. Lord Cohen reasoned that ‘section 70 is dealing in all its parts with rights in reference to land which have the quality of being capable of enduring through different ownerships of the land according to normal conceptions of title to real property’: ibid, 1228. 37 [1964] 1 Ch 665 at 689, per Lord Denning MR. Russell LJ dissented, arguing that ‘the answer that the third person need not embark at all, or should refuse to embark unless in the case of every married customer the wife joins in the transaction, will hamper ordinary financial processes and perhaps work great injustice to property owners’ ibid, at 700. 38 [1965] AC 1175 at 1223, per Lord Upjohn. 39 Ibid, at 1247–8, per Lord Wilberforce. 40 Megarry, above n 18. 41 Ibid; see also HWR Wade, ‘Licences and Third Parties’ (1952) 68 Law Quarterly Review 337; GC Cheshire, ‘A New Equitable Interest in Land’ (1953) 16 Modern Law Review 1; AD Hargreaves, ‘Licensed Possessors’ (1953) 69 Law Quarterly Review 466; LA Sheridan, ‘Licences to Live in Houses’ (1953) 17 Conveyancer and Property Lawyer 440. 42 Megarry, above n 18, at 389–90. 36

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protect the family home against creditors was not refuted.43 However, Megarry did not think that it was feasible to achieve this goal through judicially developed principles. Rather, it was suggested that ‘legislation and not litigation is the only satisfactory way of delimiting the bounds of so complex a subject’.44 The House of Lords in Ainsworth clearly agreed, and the following year Baroness Summerskill took this initiative forward with the proposal which would become the Matrimonial Homes Act 1967.

Matrimonial Homes Legislation The matrimonial homes legislation in England and Wales 45 provided a clear example of a policy directed at the protection of the matrimonial or family home, over and above other types of property. Analysis of the ‘family’ dimension of this legislation provides a useful illustration of some of the difficulties associated with the development of workable policies to protect the family home. The enactment of the first Matrimonial Homes Act in 1967 was a response to the fact that, following the decision in National Provincial Bank Ltd v Ainsworth,46 English law provided no specific protection for wives in respect of their occupation of the family home. The decision to legislate on the subject was prompted, in part, by the observation in the House of Lords in Ainsworth that English law: [did] not, as does the law in many places (particularly in the USA and Canada), recognise a ‘homestead’ right of the wife, nor does it give the wife of a bankrupt any preference or priority—perhaps it ought to do so.47

In fact, the legislative policy initiative that was instigated by the Royal Commission on Marriage and Divorce,48 and which became the Matrimonial Homes Act 1967, was intended to fill this gap in English law by giving non-owning spouses some rights in the home against the owning spouse. The Royal Commission reported in 1956 (in highly gendered language) that ‘it would be shocking to contemplate that a husband could put his wife and children into the street so that he could himself 43 ‘It may well be that justice requires that the wife’s occupation of the home should be protected in some special way; and modern ideas of sex equality may require that the right should not be exclusively feminine in gender’: ibid, 389. 44 Ibid. Megarry went on to argue that ‘[a] ny protection of the wife should, it is suggested, be provided by statutory amendments of the matrimonial law operating on the recognised rights of property, rather than by what is (in effect, at all events) the judicial invention of a new proprietary right’: ibid. 45 This body of legislation comprises collectively to the Matrimonial Homes Act 1967, Matrimonial Homes Act 1983 and Family Law Act 1996. 46 [1965] AC 1175. 47 Ibid, 1256, per Lord Wilberforce. 48 Royal Commission on Marriage and Divorce, Report (Cm 9678) (London, HMSO, 1956), hereafter ‘Morton Report’.

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return to live in the home, perhaps with another woman’.49 However, the Commission was also concerned with the impact of ‘deserted wife’s equity’ on the contest between occupiers of the matrimonial home and third party claims against the property. For one thing, it was noted that ‘[t]he law . . . has been criticised on the ground that it leaves to some extent uncertain the position both of a wife and of third parties’.50 The Commission acknowledged that the law ‘was not firmly settled’, and suggested that ‘it would be preferable to lay down in a statute the circumstances in which a wife should have a right to remain in the matrimonial home’.51 Although the interest which the Commission sought to protect was occupation of the home, rather than ownership, the enforceability of the wife’s occupational status against third parties was central to its reasoning and, once again, the issue of third parties proved the principal stumbling block in policy development. While the Commission was broadly in favour of protecting a spouse’s right to occupy the family home, it concluded that the: ‘decisive objection to that course . . . is the unsatisfactory and insecure position in which it would place third parties’,52 particularly in respect of the standard of inquiry that would be imposed on purchasers. As a result, the Commission recommended that a spouse who wished to protect her interest in the home against both her husband and third parties should be required to apply to the court for an order safeguarding her occupation, and to register the court’s order before any transaction involving third parties took place if it was to bind the third party.53 The Matrimonial Homes Act 1967 was introduced by Baroness Summerskill to protect spouses with regard to their occupation of the family home.54 The mischief of the legislation was to protect: the right of the wife to occupy the matrimonial home . . . which I submit ought to arise by reason of her married status . . . It is something which ought to be inherent in the married position that a wife is entitled to occupation of the matrimonial home;55

49

Morton Report, [664]. Ibid, [664]. 51 Ibid. 52 Ibid, [665]. The Commission went on to suggest that ‘[i] t would be necessary, for instance, for a would-be purchaser of a house, or for an intending mortgagee, to make full enquiries into the matrimonial circumstances of the owner before the transaction could be safely conducted’. 53 Ibid, [670]–[671]. 54 The remit of this legislation was extended by the Matrimonial Homes Act 1983 and the Family Law Act 1996, but the mechanics remain the same. The provisions of these Acts pertaining to the home come into play to ‘protect’ the family home against third parties only when the non-debtor spouse has registered ‘matrimonial home rights’ as a charge prior to the credit transaction. A simple search reveals that rights have been registered, so alerting third parties, and ensuring that they can request that the charge is removed, ensure that the non-debtor spouse is joined in the transaction, or refuse to proceed. 55 275 HL Deb (5th Series) col 40 (14 June 1966), Lord Lloyd. 50

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or, in the blunt terminology employed by Lord Denning, to protect the ‘poor ignorant wife’.56 This protection took the form of conferring a ‘right of occupation’ on ‘non-owning spouses’ in respect of the matrimonial home.57 In fact, the Law Commission took a slightly different tack from that proposed by the Morton Commission, which had recommended that spouses had to obtain and register a court order before their occupation would be protected against third parties. The Bill drafted by the Law Commission proposed to enable any spouse to register a charge against the family home, without first acquiring a court order,58 on the ground that ‘many wives might fail to take proceedings until it was too late to prevent a disposition taking place’.59 While Professor Gower, on behalf of the Law Commission, acknowledged that: ‘[i]n practice, no doubt, registration will not be effected until matrimonial disputes arise’,60 registration was preferred to the court order alternative, since ‘at least the wife will then be able to protect herself speedily and cheaply’.61

Creditors and the Burden of Inquiry In addition, one of the perceived advantages of registration, in the view of the Law Commission, was that the burden imposed on third party creditors would not be very significant. In a communication from Professor Gower (on behalf of the Law Commission) to Scarman J (at the Lord Chancellor’s Department) he re-assured the judge that ‘[u]nless there is registration there will be no protection against a purchaser even if the spouse is in occupation . . . A purchaser therefore merely has to search the register and is not called upon to make laborious enquiries at the home’.62 The fact that purchasers would be bound only by interests that had been registered was also emphasised by Baroness Summerskill in the House of Lords debate on the Bill. In fact, she claimed that ‘it would, of course, defeat the object of the Bill if the purchaser of registered land had to inspect the land to see whether the vendor had a spouse in possession with rights of occupation under the Bill’.63 Lord Lloyd agreed that ‘[t]his hardly seemed to be the sort of inquiry which a purchaser of an ordinary house could be expected to embark upon’.64 Lord Derwent 56

275 HL Deb (5th Series) col 45 (14 June 1966), Lord Denning. Matrimonial Homes Act 1967, s1(1). 58 ‘Accordingly, the spouse can fully protect his or her interest by registering. This, it will be observed, he or she can do without having first to go to the trouble and expense of obtaining a court order’: Letter from the Law Commission to the Honourable Mr Justice Scarman (Lord Chancellor’s Department), 17 Dec 1965, Public Record Office, ref 56/133/03, BC-3-424, document 35. 59 Letter from Mr Gregory (Lord Chancellor’s Department) to Professor Gower, BC-3-424, doc 39A. 60 Ibid. 61 Ibid. 62 Ibid. 63 275 HL Deb (5th Series) col 24 (14 June 1966), Baroness Summerskill. 64 Ibid. 57

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also expressed concern that the spouse’s statutory right of occupation: ‘may be a serious fetter on dealings in property, and . . . will certainly, I would think, add to the expenses and complications of mortgages on houses and other dealings’.65 Lord Derwent also added the usual reminder that there is an onus on legal policy makers to ensure that the matrimonial home, as the only capital asset for many people, should be attractive and available to lenders for the purposes of security.66 This was echoed in Lord Cohen’s suggestion that, whatever policy initiative was adopted by Parliament, it ought not to ‘make it too difficult for a husband, when he is looking for a matrimonial home, to borrow money’.67 In fact, Lord Cohen even seemed to think that a protection that was dependent on registration might present a problem when it came to the marketability of security interests in the home, as he suggested that the proposals under consideration could make it ‘increasingly difficult to persuade banks and building societies to advance money for the purchase of matrimonial homes if they are likely to be faced with trouble in the event of a break-down in the marriage’.68 These issues have arisen time and again when the appropriate balance to be struck between the home interests of occupiers and the commercial claims of creditors has been considered. However, in the context of family (or matrimonial) home, there was an additional obstacle, which actually stemmed from the status of the property as a family home. A significant aspect of the debate surrounding the balance struck between the creditors and the occupiers of the family home was the belief that such protections would involve requiring creditors to investigate the personal and marital relationships of their debtors. This was a factor in the context of the deserted wife’s equity, and was also relevant to the requirement that statutory rights of occupation under the matrimonial homes legislation would have to be registered before they impacted upon creditors. The prospect that creditors might be required to investigate circumstances surrounding matrimonial occupation was clearly repugnant to the courts and to the legislature. For example, in Westminster Bank Ltd v Lee,69 Upjohn J sounded a cautionary note regarding the standard required of ‘reasonable inspections and inquiries’ in the context of the matrimonial home. He suggested that:

65

275 HL Deb (5th Series) col 30 (14 June 1966), Lord Derwent. ‘We are dealing with the sort of people whose only asset is the matrimonial home. It may be their only capital asset on which they can raise money; and that is quite common, particularly among young married people’: 275 HL Deb (5th Series) col 1208 (7 July 1966), Lord Derwent. 67 275 HL Deb (5th Series) col 46 (14 June 1966), Lord Cohen. 68 Ibid. This was countered, however, by Lord Denning’s suggestion that: ‘the fears about a young couple not being able to raise money are not supported in the least. It is mere speculation. One knows that building societies who advance money often like to have the names of both parties on it’: 275 HL Deb (5th Series) col 646 (28 June 1966), Lord Denning. 69 Above n 28. 66

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the law does not require an intending purchaser or mortgagee, who has no reason to believe that a wife is deserted, to make any inquiry upon the footing that it is conceivably possible that she may be; that is not a reasonable inquiry.70

In fact, Upjohn J suggested that a distinction should be drawn between the occupation of a stranger and the occupation of a deserted wife. Creditors could be required to make inquiries from strangers in occupation, but not from a wife, since it was considered to be ‘entirely unreasonable for the bank to send an officer to inquire, not whether a stranger was in occupation, but to inquire of the wife whether she has been deserted’.71 The proposition that a purchaser of domestic property could be expected to investigate the personal lives and marital relations of the vendor—‘matters which are no concern of his’72 was dismissed as a requirement that ‘could not be right’.73 Similarly, in Rock Permanent Benefit Building Society v Kettlewell,74 Harman J doubted whether it could be ‘any part of a surveyor’s duty when he was valuing a house for mortgage purposes to enquire into the matrimonial concerns of the mortgagor or to listen to the complaints of his wife’. As Russell LJ suggested in the Court of Appeal in National Provincial Bank Ltd v Ainsworth, the prevailing view in relation to inquiries into matrimonial occupation was that ‘[t]he very nature of inquiry into these matters surely shows the undesirability of importing notions of constructive notice of domestic relations into the field of business and financial affairs’.75 In fact, when considering the question of making inquiries in relation to the family home, it is interesting to bear in mind the current position in relation to the standard of inquiry under general property law provisions.76 One important point to note is the clear distinction between the standard of inquiry required of creditors dealing with occupiers who have an ownership interest, compared to those who rely merely on the fact of occupation or on their relationship with the debtor. Since people with an ‘interest in land’ who are also in ‘actual occupation’ of the land have an ‘overriding interest’ under Schedule 3, paragraph 2, of the Land Registration Act 2002 (formerly section 70(1)(g) of the Land Registration Act 1925), creditors are effectively required to investigate the occupation of property in order to ascertain the possible existence of co-owning occupiers. This reflects the burden imposed on purchasers for the purposes of avoiding constructive 70 Ibid, at 384, per Upjohn J. ‘In a normal mortgage transaction, where a proposing lender has reasonable grounds for believing that an intending mortgagor husband is in occupation of the security offered, he is entitled to assume that a normal relationship exists as between husband and wife, and is under no obligation to make any inquiry relating to their domestic relationship’: ibid, at 376. 71 Ibid, at 383–4, per Upjohn J. 72 Ibid, at 384, per Upjohn J. 73 Ibid. 74 [1956] 168 EG 397, [1956] EGD 315, 3 Oct 1956. 75 [1964] 1 Ch 665 at 700, per Russell LJ. 76 See Ch 2, n 55–119, and associated text.

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notice in respect of unregistered land. Indeed, since the decision in Williams & Glyn’s Bank Ltd v Boland,77 it has been clear that this burden of inquiry includes making inquiries from occupying spouses. While this obviously means that, in practice, the creditor must ascertain the identity of all occupiers before proceeding to ensure that co-owning occupiers consent to the transaction, the creditor is not required to take any further steps in respect of non-owning occupiers. Since only occupiers with a ‘right’ then qualify for protection, while the creditor is in effect already required to investigate occupation, at present the occupier’s interest need be taken into account only if that occupier is a co-owner. This distinction is clearly justified in the context of property law, since the pertinent question is whether equitable proprietary interests are capable of surviving a transaction to a third party. Yet there is no difference in the discoverability of owning and non-owning occupiers. Creditors are currently required to identify any occupiers in the property, so long as the interest holder’s occupation would have been obvious on a reasonably careful inspection of the land at the time of the disposition,78 but they are potentially at risk of losing priority only if the occupier has a proprietary interest. Policy makers have generally been reluctant to embrace initiatives which would enhance the protection of home interests against the claims of creditors, on the ground that any enhancement of the occupier’s position would necessarily have a detrimental effect on the position of creditors. For example, there is a general reluctance to increase the burdens of inquiry on creditors when dealing with domestic property. It has generally been concluded that to require creditors to investigate the personal matrimonial relationships of the debtor would constitute an inappropriate and overly onerous burden on the creditor. However, it is suggested that, if there was a desire to protect the priority of an occupier’s right to remain in occupation of the family home against a creditor, to develop such a policy based on occupation rather than the relationship between the debtor and the non-debtor would not actually increase the burden of inquiry imposed on creditors. In fact, in the years that have passed since the decision in Boland, creditors have clearly ‘learnt to live with’ the burden of inquiry pertaining to occupation. So long as occupation remained the touchstone for inquiries, rather than marriage, or the relationship, the proposition that creditors could be expected to make inquiries concerning all occupiers should not be unacceptable. So, for example, if a new statutory protection for home were to be introduced that did not depend on ownership for protection but was triggered by occupation, the burden of inquiry for creditors would not, in fact, be any greater than it is at present. Furthermore, the fact of occupation is more readily discoverable than matrimonial- or relationshipbased factors and does not involve personal inquiries. It is therefore suggested 77 78

[1981] AC 487. Land Registration Act 2002, Sched 3, para 2(c)(i).

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that, in considering the mechanics of provisions determining priorities, the movement away from relationship-orientated approaches (like the deserted wife’s equity) towards an occupation-based protection would ensure that any new protection for occupiers would not have an overly onerous effect on the burden of inquiry placed on creditors.

The Decision in Boland and the ‘Family’ Home The choice between focusing on the interests of individual family members or on the family unit emerges time and again when evaluating policies that have sought to provide a degree of protection for the family home against creditors. Another example can be found in the seminal decision in Williams and Glyn’s Bank Ltd v Boland,79 and the policy debates that followed that decision. Both the decision in Boland and the discourse that it generated were considered in detail in Chapter 2.80 However, it is useful to reconsider the issues raised by Boland in light of the discussion of family home in this chapter. The decision in Boland concerned the interpretation of section 70(1)(g) of the Land Registration Act 1925, a property law provision designed to protect the interests of individuals with ‘interests in land’, who were in ‘actual occupation’ of property.81 The implications of section 70(1)(g) in relation to family homes were highlighted by the decision in Boland,82 when the House of Lords refused to grant possession of the family home to a mortgagee following default, because the debtor’s wife—who had not been joined in the mortgage transaction—had an equitable interest in the land and was in actual occupation. However, rather than providing special protection, this merely raised the standard of protection for wives in family homes to the level afforded to all other occupiers. The decision in Boland confirmed that section 70(1)(g) applied equally to all persons in actual occupation of property, regardless of their relationship to the legal owner. Previously, although non-spouse co-occupiers had been entitled to claim overriding status under section 70(1)(g),83 spouses who shared occupation of the property had been excluded on the ground that the wife’s occupation was a ‘mere shadow’ of her husband’s occupation.84 Although this no longer represents good law, the pre-Boland position highlights one of the dangers associated with a concept of home that is defined in relation to the family unit in occupation: one 79

Above n 13. See Ch 2, nn 75–122 and associated text. 81 S 70(1)(g) protected the interests of ‘every person in actual occupation of the land’ by conferring overriding status on such interests, enabling them to take priority over subsequent third party interests, ‘save where inquiry was made of such person and the rights are not disclosed’. 82 Above n 13. 83 Hodgson v Marks [1971] Ch 892. 84 Bird v Syme-Thomson [1979] 1 WLR 440. 80

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partner, typically a female partner, may become ‘invisible’ to the law, and so left without protection against third party claims. In Boland, Lord Wilberforce adopted a pragmatic, gender-neutral and individualistic approach to the question, stating clearly that: ‘[o]ccupation, existing as a fact, may protect rights if the person in occupation has rights’.85 The idea that spouses could be excluded from consideration as persons in ‘actual occupation’ was rejected by the House of Lords as ‘heavily obsolete’ and ‘unacceptable’. As a result, following the decision in Boland, spouses were no longer barred from asserting their equitable interests in actual occupation as ‘overriding interests’ merely because of their status as spouses,86 and the focus of the provision was redirected towards the protection of individual occupiers. The extension of section 70(1)(g) to include spouses in the Boland decision gave rise to a substantial body of academic debate,87 two Law Commission reports88 and two failed attempts at reformist legislation. An interesting feature of this postBoland discourse was the persistent impetus towards protecting family home, over and above home per se. For example, when the Law Commission reviewed the implications of the decision, it proposed limiting overriding status to spouses in occupation, rather than all occupiers, on the basis that the law ‘has long recognized the need to protect wives in their enjoyment of their property and the matrimonial property, and has developed a growing regard for their position’.89 Discussion in the House of Lords followed a similar slant, as Lord Simon argued that the ‘integrity’ of the family home is ‘of great social importance’,90 while Lord McGregor welcomed steps to ‘secure and safeguard the values which society upholds in the institution of marriage and the family’.91 Even though the proposals were regarded as creating ‘additional risk, complication and cost of conveyancing’92 for third parties, these disadvantages were thought to be ‘outweigh[ed by] the advantages of promoting, or further promoting, the integrity of family life’.93 Although these proposals were later withdrawn due to lack of time in the parliamentary calendar, it is interesting to note that this reasoning emphasised the 85

Above n 13, at 506. ‘A wife may . . . have rights of her own . . . and if she has such rights, why, just because she is a wife . . . should these rights be denied protection?’: ibid, per Lord Wilberforce. 87 See, eg, M Beaumont, ‘Mortgage Fraud, Equitable Priorities and Overriding Interests’ [1989] Conveyancer and Property Lawer 158; S Bright, ‘Lenders and Overriding Interests’ (1988) 138 NLJ 685; R Deech, ‘Williams & Glyn’s and Family Law’ (1980) 130 New Law Journal 896; M Freeman, ‘Wives, Conveyancers and Justice’ (1980) 43 Modern Law Review 692; Russell, ‘Williams & Glyn’s Bank v Boland & Brown: The Practical Implications’ (1981) 32 Northern Ireland Legal Quarterly 3. 88 The Implications of Williams and Glyn’s Bank Ltd v Boland, Law Com No 115 (London, HMSO, 1982); and Third Report on Land Registration, Law Com No 158 (London, HMSO, 1987). 89 Law Com No 115, above n 88, [66]. 90 437 HL Deb (5th Series) col 640 (15 December 1982), Lord Simon. 91 437 HL Deb (5th Series) col 653 (15 December 1982), Lord McGregor. 92 437 HL Deb (5th Series) col 642 (15 December 1982), Lord Simon. 93 437 HL Deb (5th Series) col 640 (15 December 1982), Lord Simon. 86

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willingness of the legislature to countenance special protections for the family home, even within the context of general property provisions. However, the difficulties with this approach were brought to the fore once again when the initiative was re-launched, albeit unsuccessfully, in 1985.94 For one thing, the proposition that ‘non-spouse’ individuals who occupied the ‘family’ home—such as ‘grandma, the mother-in-law, and possibly the common law wife’95—would be excluded by the definition of ‘family’ set out in the provisions attracted some criticism. The tension between the competing approaches to the treatment of occupiers in the family home—as a collection of individuals or as a family unit—was evident once again. One disadvantage of the family unit approach was that the ‘family’ would have had to be defined by reference to some pre-determined criteria. However, as the discussion in Chapter 2 has indicated, this approach was rejected; the legislation was withdrawn; and section 70(1)(g) which, on the interpretation of Boland, protected the proprietary interests of all occupiers continued to apply.

Section 30 of the Law of Property Act 1925 and the ‘Collateral Purpose Doctrine’ The idea of providing special protection for the family home has also emerged in the context of another property law provision, section 30 of the Law of Property Act 1925 (LPA). As the account of this provision in Chapter 2 explained, section 30 of the LPA allowed a third party, such as a secured creditor, to apply for a court order for the sale of co-owned land.96 The judicial power to order sale was discretionary. However, since the land was held on a ‘trust for sale’, the courts generally tended to order sale when it was requested. Although section 30 did not make any special provision for family homes, in a series of cases the court exercised its discretion to refuse sale on the ground that the property was occupied as a family home. For example, in Stevens v Hutchinson,97 Upjohn J stated that, despite his opinion that the debtor was a ‘ne’er-do-well and a waster’98 who was unlikely to make good on his debts, a forced sale of the property would be ‘unjust’ since it would result in turning an innocent wife out of her home. Subsequent cases suggested that the court’s tendency to favour sale could be tempered in cases involving matrimonial homes by the fact that ‘the house should be used as a home for the two of them’.99 When the collateral purpose doctrine was adopted by the Court of Appeal in Re Evers’ Trust,100 the court emphasised its ‘great regard [for] 94 95 96 97 98 99 100

Land Registration and Law of Property Bill 1985. 472 HL Deb (5th Series) col 752 (13 March 1986), Lord Mishcon. See Ch 2, nn 136–154 and associated text. [1953] Ch 299. Ibid, 307, per Upjohn J. Stott v Radcliffe (CA), 19 Feb 1982, Transcript: Lexis. [1980] 1 WLR 1327.

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the fact that the house is bought as a home in which the family is to be brought up’.101 These decisions are indicative of the court’s tendency to treat the family home as a special type of property, with a higher degree of immunity against forced sale by creditors than other properties. Nevertheless, this apparent attempt to confer special status on the family home was ultimately unsuccessful. The failure of this judicial initiative can be attributed, in part at least, to the strong pro-creditor and pro-sale stance that characterises decisions in this context. In addition, however, it is arguable that one of the weaknesses of the doctrine was its focus on the ‘family home’, rather than the individual interests of the family members who occupied the property as a home. The basis of the collateral purpose doctrine was the retention of the property for the purpose for which it had been purchased. However, when that perceived purpose was occupation by the family unit, the court reasoned that this purpose would continue to subsist for only as long as the family unit remained intact. Thus, since the relevant unit of analysis for the purposes of this doctrine was the ‘family home’, the use of the property as a home by individual family members— for example, the debtor’s partner and children—was not regarded as a relevant purpose, and these individual family members could not invoke the doctrine in their favour. The court was not capable of recognising the continuing interests of individual family members in occupying the property as a home. Rather, when one family member left the home, the court held that the family unit and, consequently, the ‘collateral purpose’ of occupation as a family home no longer existed.102 The interests of individual family members and their desire to continue living in the property as a home were disregarded. This reasoning was also extended to include cases where the family unit remained intact, but one member of the family incurred a charge against the property, as the court held that this, also, revoked the original purpose of occupation as a family home.103 While it is clearly the case, and arguably appropriate, that ‘family-type’ considerations are less persuasive in the context of disputes involving third party creditors compared to disputes between family members, the use of collateral purpose analysis in the context of creditor applications (albeit without accepting that the purpose survived the transaction) perpetuated the idea that the use of the property as a home was relevant only so long as no individual family member disrupted the continuity of the shared occupation and no third party transactions took place affecting the property. Ultimately, the irony of the ‘family unit’ approach in the collateral purpose doctrine was that the family home was protected only if there was no dispute to be resolved, and therefore, there was no necessity to weigh the home interest against the claims of creditors. 101 102 103

Williams v Williams [1976] Ch 278 at 285, per Lord Denning MR. Jones v Challenger [1960] 2 WLR 695. Re Soloman, a Bankrupt [1967] Ch 573 at 581, per Goff J.

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Finally, it is interesting to consider the operation of the collateral purpose doctrine in a more individualised context, as illustrated by the decision in Abbey National Plc v Moss.104 In Moss, the court accepted the existence of a collateral purpose where the purpose for which the property had been purchased was not joint occupation of a husband and wife, but the independent occupation of Mrs Moss for the duration of her life. In refusing to order sale, the court acted to protect Mrs Moss’s independent occupation, since that had been the original purpose of the purchase. It is interesting to compare the position of individual occupiers of the home when the court declared that the original purpose of the trust was occupation as a family home with that of individuals whose purpose was defined more simply as occupation of the property as a home. Whereas the individual family members’ claims were subverted within the collective but fragile purpose of occupation as a family home, the continued existence of Mrs Moss’ purpose of individual occupation did not depend on anyone else remaining in the home or refraining from executing transactions on the property. Although Moss can in some regards be considered an exceptional case,105 the analytical point remains valid and significant. Although the doctrine was ostensibly intended to protect family homes, individuals living in family homes were in a much more tenuous position than an individual occupier living alone, since, in the family home case, the court recognised only the family unit. As a result, it could not act to safeguard the home against forced sale in the interests of family members.

Bankruptcy It is, of course, undeniable that the failure of the collateral purpose doctrine was attributable in large measure to the court’s general policy in favour of the interests of creditors. Furthermore, even a successful outcome at this stage could leave the occupiers of the (family) home facing the ultimate threat of bankruptcy proceedings.106 When an order for sale was requested by a trustee in bankruptcy, the court typically reasoned from the premise that ‘[b]ankrutpcy has, in relation to the matrimonial home, its own claim to protection’.107 The trustee in bankruptcy’s duty to realise assets for the benefit of the bankrupt’s creditors outweighed any possible inclination to safeguard the family home. It is interesting, however, to note the elevation of the family home in the enactment of legislative provisions that have 104

[1994] 1 FLR 307. The court was heavily influenced by the merits of the case: ‘if the court considers the wider merits apart from the bare requirement of consent, it is hard to conceive of a stronger case for the requirement not to be overridden than one where the owner of the property is induced to create a joint tenancy by way of a gift for the purpose of simplifying the passing of the property on her death and does so on the express condition accepted by the donee that the property is not to be sold in the donor’s lifetime without her consent’: ibid, 312. 106 Alliance & Leicester plc v Slayford [2001] 1 All ER (Comm) 1. 107 Re Bailey [1977] 1 WLR 278 at 279, per Megarry V-C. 105

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sought ‘to alleviate the personal hardships of those who are dependent on the debtor but not responsible for his insolvency’.108 Section 336 (amended as section 335A) of the Insolvency Act 1986 was enacted to provide some protection for the family home in the context of bankruptcy. The legislature’s concern was to recognise the interests of members of the family unit other than the bankrupt, since ‘eviction from the family home . . . may be a disaster not only to the debtor himself . . . but also to those who are living there as his dependents’.109 This focus on dependency, rather than the needs or interests of individual occupiers, is a significant aspect of the ‘family unit’ approach. On the one hand, the focus on dependency in the bankruptcy context enables a distinction to be drawn between the debtor (who is cast as the wrongdoer) and the debtor’s dependents (who may be regarded as innocent victims of the bankrupt’s default).110 This analysis is attractive to those who support the idea that home attracts special protection, but who are concerned about the merits of elevating a defaulting debtor’s interests over the claims of the creditors. Yet, the idea that occupiers must be constructed as dependents in order to provide some protection for their home interests is problematic. Although this approach presents less difficulty when the dependent in question is a child, where partners—usually wives— are concerned, the dependency analysis is awkward. Furthermore, it is clear that a presumption of adult female dependency was at the root of the protection. The debates that preceded the enactment of the Insolvency Act 1986 revealed an intrinsic assumption that the male partner would be the bankrupt, and that the female partner and any children would be dependent on the male partner.111 The continual use of the feminine person was accompanied by an assumption that, in the event of repossession, she would be more severely affected: ‘she risks not only losing the income from her breadwinner and facing the humiliation that bankruptcy inevitably brings, but she will be penalized in practice more heavily than almost anyone else by losing the matrimonial home’.112 The 108 Report of the Committee on Insolvency Law and Practice (Chair: Lord Cork) (Cm 8558) (London, HMSO, 1982) (hereafter Cork Report), [1118]. 109 Ibid, [1116]. 110 Note, however, that where partners, rather than children, are concerned, this categorisation is not unproblematic; it has been suggested that a partner cannot properly be regarded as ‘innocent’ of the debtor’s default in this context since the debtor’s partner must ‘take the bad times with the good’: see, eg, M Freeman, ‘Wives, Conveyancers and Justice’ (1980) 43 Modern Law Review 692. 111 The Law Lords argued for the protection of the ‘principal residence of the bankrupt or of his spouse or former spouse or any dependent of the bankrupt or of his spouse or former spouse’: HL Papers (1984–5) Nos 29-II (28 Jan 1985), Lord Meston, HC Papers (1984–5) No 29-III (1 Feb 1985), Lord Meston, HC Papers (1984–5) No 114–I (25 Mar 1985), Lord Bruce, emphasis added. Lord Meston described the object of the proposals as ‘to strengthen the really very weak position of the wife and child’: 459 HL Deb (5th Series) col 1263 (7 February 1985), Lord Meston; who were identified as ‘the less able victims of bankruptcy’: 459 HL Deb (5th Series) col 1262 (7 February 1985) Lord Meston. 112 78 HC Deb (6th Series) col 176 (30 April 1985) Mr John Fraser; for further discussion of the issue of a gender differential in the experience of mortgage possession actions see Ch 8, nn 162–187.

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personal hardships attendant on bankruptcy: anxiety, financial straits and social consequences; were regarded as acting more on the female dependent than the male bankrupt, thus implying the proposition, heavily criticised by feminist theorists,113 that the home is the woman’s domain, yet that, within the home, she remains dependent on a male breadwinner to provide for her. However, even within this ‘family home’ provision, elements of a more individualistic model are discernible. Section 336 of the Insolvency Act 1986 provided that when dealing with a dwelling house comprised in the bankrupt’s estate in which a spouse has registered rights under the matrimonial homes provisions, or where the bankrupt and his spouse or former spouse held the property as trustees for sale,114 the court could exercise a discretion to order sale, while section 335A made similar provision for property that was co-owned under a trust of land.115 In each case, when exercising its discretion to sell the bankrupt’s family home, the court was directed to make ‘such order as it thinks just and reasonable’, having regard to a range of factors including the needs and financial resources of the spouse or former spouse, and the needs of any children. This does enable the court to recognise individual interests, although the property must first be identified as a ‘family home’—that is ‘a dwelling house which is or has been the home of the bankrupt or the bankrupt’s spouse or former spouse’.116 Furthermore, the reference to the needs of children as individual stake holders in the home is preferable to subsuming, at the risk of obscuring, their interests within the family unit. Having said this, the benefit of the bankruptcy provision is limited in a number of respects. First, case law on the exercise of the court’s discretion under sections 336 and 335A of the Insolvency Act 1986 indicates that the overarching procreditor policy adopted by the English courts has been decisive in almost all cases: the court will refuse to order sale only if the circumstances are exceptional,117 and only the most extreme situations have been deemed to be exceptional. Thus, for example, the mere presence of children118 has not been regarded as justification for even delaying the sale of the family home.119

113 See further B Martin and M Mohanty, ‘Feminist Politics: What’s Home Got to do with it?’ in T de Laurentis (ed), Feminist Studies/Critical Studies (Bloomington, Ind, Indiana University Press, 1986) at 191; T de Laurentis, ‘Eccentric Subjects: Feminist Theory and Historical Consciousness’ (1990) 16 Feminist Studies 115; B Honig, ‘Difference, Dilemmas and the Politics of Home’ (1994) 61 Social Research 563. 114 The trust for sale was automatically imposed on co-owned land by the Law of Property Act 1925. 115 The trust of land superseded the trust for sale and now governs co-owned land under the Trusts of Land and Appointment of Trustees Act 1996. 116 Insolvency Act 1986, s 335A(2). 117 Insolvency Act 1986, s 335A(3). 118 Trustee of the Estate of Eric Bowe (A Bankrupt) v Bowe [1998] 2 FLR 439. 119 Judd v Brown [1998] 2 FLR 360; Claughton v Charalamabous [1999] 1 FLR 740; Re Raval (A Bankrupt) [1998] 2 FLR 718, where life-threatening illness was considered sufficiently exceptional to justify delaying the order for sale.

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Furthermore, in addition to the limitations on the degree of protection conferred on the ‘family home’ by sections 336 and 335A, it is also significant to acknowledge that the scope of any purported protection is curtailed by the threshold requirements. For one thing, sections 336 and 335A are triggered only if the property is co-owned. Under section 335A, the property must be held on a ‘trust of land’ (section 335A(1) ), and must be a ‘dwelling house which is or has been the home of the bankrupt or the bankrupt’s spouse or former spouse’ (section 335A(2)(b) ) for the court to consider factors such as ‘the needs and financial resources of the spouse or former spouse’ (section 335A(2)(b)(ii) ) or ‘the needs of any children’ (section 335A(2)(b)(iii) ). Similarly, under section 336, the court’s discretion to consider the ‘needs and financial resources of the spouse or former spouse’ (section 336(4)(c) ), and ‘the needs of any children’ (section 336(4)(d) ) was brought to bear only in cases in which a spouse had either registered statutory rights of occupation under the matrimonial homes legislation (section 336(2)) or the bankrupt and the bankrupt’s spouse or former spouse were trustees for sale of a dwelling house—that is, where they had joint legal title to the property (section 336(3)). These criteria ensured that the protection afforded to the family home in the context of bankruptcy was restricted to certain narrow fact situations. For one thing, the disputed property must fall within the statutory definition of ‘family home’. Not only does this require a relationship of marriage between the bankrupt and the bankrupt’s spouse, but the provisions do not kick in unless the property itself is also co-owned. It might be argued that the need to establish a ‘family home’ before the court’s discretion arises provides a convenient means of determining which individuals should be included within any protection. However, one consequence of this requirement is that the court has no discretion to take account of the needs of children living in non-marital families or in single parent households—where there will be neither a ‘spouse’, nor another adult with whom to coown—however exceptional the circumstances of the case may be. It is therefore important to recognise that, although the court can consider the needs of particular individuals so long as the property falls within the scope of section 335A, the discretion to postpone the sale of the property arises only in a family home context.

Charging Orders A further illustration of the difficulties underpinning the application of the concept of ‘family home’ can be found in the charging orders context. The Charging Orders Act 1979 provided a legal route through which an unsecured creditor could secure a debt on the debtor’s property, ex post facto, thus acquiring the status of secured creditor. Significantly, with the status of secured creditor comes locus

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standi to request an order for the sale of the property.120 The acquisition of a charging order, which is clearly a significant step towards forcing the sale of the property, lies within the court’s discretion.121 It is therefore interesting to note that the notion that family homes should attract special protection was considered in a series of cases concerned with the exercise of the discretion to make a charging order. In fact, the court identified the fact that the property was used for the purposes of occupation as a matrimonial home as a relevant factor in the exercise of this discretion. The tendency towards family home analysis in this context highlights, once again, the implications of focusing on family status rather than individual occupiers’ interests. These issues were most clearly brought out in Harman v Glencross,122 when Ewbank J described Mrs Glencross—who was a joint owner of the property as well as an occupier and the debtors’ spouse—as having a claim on the basis of her status as a wife. As a wife, the court held she had a ‘common law . . . right to be maintained and housed during the marriage’. The court held that her right in relation to property ‘arises from the status of the marriage itself’.123 The Court of Appeal concurred with this analysis. The court accepted the argument that Mrs Glencross’s status as a spouse and the fact that the property concerned was a matrimonial home124 were relevant to the exercise of its discretion, since they formed part of the ‘personal circumstances of the debtor’.125 The court focused on Mrs Glencross’s position as the debtor’s wife, and therefore his dependent, rather than the fact that she was a co-owner and an occupier of the property in her own right.126 Although the reasoning was clearly influenced by the court’s desire to protect the matrimonial home, it seems odd, particularly in the context of a property law provision, that her interest was represented in terms of gender and marriage, rather than her own property ownership or independent occupation. Finally, the philosophy of dependency underpinning this approach was highlighted in 120 See Stevens v Hutchinson [1953] 1 Ch 30, where Upjohn J distinguished between a judgment creditor who was not a ‘person interested’ within s 30, having only personal rights, and a chargee, who, having the same proprietary rights as an equitable mortgagee, would be entitled to apply for sale. 121 See generally Ch 2, nn 43–51. 122 Harman v Glencross [1984] 3 WLR 759 (Ch D); [1986] 2 WLR 637 (CA). 123 Ibid (Ch D), 764, per Ewbank J. 124 Harman v Glencross (CA), see above n 122, 648, per Balcombe LJ. 125 S 1(5) of the Charging Orders Act 1979 provides that: ‘[i]n deciding whether to make a charging order the court shall consider all the circumstances of the case and, in particular, any evidence before it as to—(a) the personal circumstances of the debtor; and (b) whether any other creditor of the debtor would be likely to be unduly prejudiced by the making of the order’. 126 Fox LJ stated that: ‘[i]t seems to me that “the personal circumstances of the debtor” would include the fact that he is obliged to make provision for his wife and young children, that he has no property with which to do so apart from the equity of his share of the matrimonial home, and that his former wife has no resources of her own of any consequence’: Harman v Glencross (CA), above n 122, at 657, per Fox LJ. A similar sentiment was expressed in Interpool v Galani [1988] 1 QB 738, where the court indicated its reluctance to make a charging order relating to a debtor’s interest in his matrimonial home on the basis of the debtor’s obligation to provide for his family.

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Balcombe LJ’s suggestion that sale of the property should generally be postponed until ‘her death, remarriage, voluntary removal from the premises or becoming dependent on another man’.127

Family Home: Themes and Issues Across the gamut of these creditor/occupier contests, a number of common themes emerge. Although creditor/occupier disputes are generally determined according to general property law provisions, the policies which have emerged in the application of these provisions reveal the ‘added value’ implicitly attached to family homes. However, the discussion above has also revealed a number of practical weaknesses in this analysis, along with some broader difficulties associated with the rationale of the family home framework. First, a focus on family home requires a definition of ‘family’. The specific policies discussed above generally correlate ‘family home’ with ‘matrimonial home’—a property occupied by spouses. The ‘deserted wife’s equity’, the matrimonial homes provisions, the preand post-Boland discourses and section 335A of the Insolvency Act 1986 all defined a ‘family home’ as a property occupied by spouses. This bias towards matrimonial rather than a more broadly defined family home, or, indeed, home per se was also evident in the case law pertaining to charging orders, which based the protection of the debtor’s wife on her status as a spouse, rather than her occupation of the property as a home, or, indeed, her ownership interest.128 Although a cynical commentator might suggest that the exclusion of non-marital families from these policies has not been highly significant, owing to the general ineffectiveness of these ‘protections’ against third parties, from a conceptual as well as a practical perspective, the narrow view of family adopted for these purposes raises a number of crucial issues. One such issue concerns the prevalence of dependency arguments in the bankruptcy and charging orders provisions. The paternalistic view of a dependent woman, supported by a breadwinning man, is rooted in the legal disabilities historically imposed on married women, who could not hold property in their own right and were rendered dependent on the common law duty of a husband to maintain his wife. This paternalist approach can be interpreted in various ways. On the one hand, some commentators have rejected policies that seek to confer special ‘protection’ on the basis that they require ‘submission and control’ from women in exchange for recognition of their interests. Such policies have been rejected by feminists on the basis that ‘[i]f . . . women are subordinating themselves in return for legal protection, then it may be that they are paying too high a 127 128

Harman v Glencross (CA), above n 122, 651, per Balcombe LJ. Ibid.

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price . . . Stripped to its essentials the argument is that law confers, woman defers and law protects’.129 On the other hand, protectionist approaches are sometimes justified as ‘redressing the balance’ of social and economic inequality. Nevertheless, as Bottomley has argued ‘whilst we must recognize the structural inequalities that women suffer from, any legal strategies developed as an attempt to mitigate this must not reproduce models of dependency’.130 In family property terms, this can been characterised as the choice between recognising the economic vulnerability of women, and so regarding the husband’s property in ‘more familial terms’, and treating women and men within family units as separate individuals, with independent interests and claims to the property.131 The application of family unit analyses in domestic property disputes has tended to cast the ‘poor innocent wife’ as a dependent, and while this approach could be potentially useful when considering the needs of children, in the case of adult occupiers it is undesirable. As O’Donovan argued, ‘[t]he crucial factor . . . is to provide the necessary “special protection” without implying that women lack full competency or sanctioning submission and control’.132 A further criticism to be made of the focus on family unit rather than individual occupiers of the home—whether within a family context or not—is the tendency of policies regulating protection of the owner-occupied home to render certain individuals—often the debtor’s wife and/or children—‘invisible’ in the eyes of the law. The ‘collateral purpose’ doctrine in the context of orders for sale of the family home illustrated this effect. When developing and applying the doctrine, the court focused on the purpose of occupation as a family home. This focus on the family unit, rather than on individual family members, meant that once one partner (the husband) had left the home the family unit was broken. Consequently, family members who remained in the home could not argue their individual independent status as occupiers of the property.133 Even where the husband had not left the home, but had incurred a debt secured against his interest in the property,134 this action was regarded as defeating the collateral purpose of occupation as a family home. Finally, it is useful to note that the adoption of a ‘family unit’ analysis also implicitly presumes that ‘the family’ has a coherent, unitary interest in the family

129 K O’Donovan, ‘Protection and Paternalism’ in MDA Freeman (ed), The State, the Law and the Family: Critical Perspectives (London, Tavistock, 1984) 85–6. 130 A Bottomley, ‘Women, Family and Property: British Songs of Innocence and Experience’ in M Maclean and J Kurczewski (eds), Families, Politics and the Law (Oxford, Oxford University Press, 1994), p261. 131 Ibid, 264. 132 O’Donovan, above n 129, 87. 133 Jones v Challenger, above n 102. 134 Re Soloman, a Bankrupt, above n 103.

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home, although this will clearly not always be the case.135 A presumption that the family unit has a single collective interest in the home runs the risk of rendering individuals within the family, particularly less powerful family members—including children—invisible, leaving their interests overlooked and unrepresented. The structural inequalities that have historically existed between women and men have meant that men are often more likely to control property in the home. Consequently, when a broad brush measure of the interests of the ‘family unit’ is taken, it is possible that the interests of the (often male) ‘head-of-household’ could be taken to represent the interests of the ‘family unit’, notwithstanding the possibly diverse interests of (often male) ‘heads-of-household’ and and/or children. This could have the effect of marginalising the interests of women and children in relation to the home.

Home per se Although the tendency to elevate family home over home per se has limited the extent to which English law has protected the individual occupier’s home, a few developments in recent years have indicated that this perspective is not altogether absent, and may be suitable for future development. The individualistic ‘home per se’ perspective recognises that the (family) home is a special type of property, which ought to be protected over and above other types of property because of the nature of the attachment which occupiers have to their homes. The ‘home per se’ approach focuses on the relationship between the occupier and the property, rather than the relationship between occupiers inter se. The empirical studies on meanings of home, considered in Chapter 4, emphasised the individual nature of the attachments that develop between occupiers and their homes. Family status analysis, on the other hand, focuses on, and takes as its trigger, relationships between people, rather than a relationship between the person and the property. The idea that home per se is not identical to other types of property also underpinned the Trusts of Land and Appointment of Trustees Act 1996, which replaced the trust for sale, previously imposed on all jointly owned land, with a trust of land.136 As the discussions in Chapters 2 and Chapter 6 have recounted, the trust for sale presumed that the principal purpose of owning land was ‘as an investment rather than as a home, to be bought and sold as market conditions demand, with the beneficiaries being interested in the proceeds of sale rather than the property 135 ‘Economic theories as well as legislative doctrines treat the family as a private economic unit and avoid the fact that opposite interests might exist within the same entity . . . the family institution is supposed to function in harmony after the contract is signed and until the relationship has possibly deteriorated to the extent that a disclosure is necessary’: TS Dahl and A Snare, ‘The Private Sector and the “Invisibility” of Women’ in C Smart and B Smart (eds), Women, Sexuality and Social Control (London, Routledge, 1978) 18. 136 See generally Ch 2, nn 174–182; Ch 6, nn 82–105.

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for its own sake’.137 The shift to a trust of land was intended to acknowledge that: ‘most co-ownership of property is for the purpose of providing a home rather than for an investment’.138 The 1996 Act recognised the likelihood that jointly owned property was bought for occupation as a home, and the guidelines accompanying the court’s discretion to regulate the trust included ‘the purposes for which the property was acquired’. However, evidence to date concerning the exercise of this judicial discretion has indicated that the interests of individual occupiers are not enjoying a great deal more success than interests under trusts for sale, when it comes to contests with the ‘non-home’ interests of third party creditors requesting sale.139 Indeed, despite references to the use of property as a home in the debates preceding the 1996 Act, the idea of conferring special status on property because it is occupied as a home has not generally been translated into any significant practical protection in the context of orders for sale. One possible exception does appear to have arisen, in relation to cases involving child occupiers. The discretion to order sale set out in section 14 of the Trusts of Land and Appointment of Trustees Act 1996 is accompanied by guidelines, which are set out in section 15, and which direct the court to have regard to: the intentions of any person (or persons) who created the trust; the purposes for which the property subject to the trust is held, the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and the interests of any secured creditor of any beneficiary.

Nevertheless, in Bank of Ireland Home Mortgages Ltd v Bell,140 the Court of Appeal reversed a decision of the lower court in relation to a bankruptcy application, because the court had taken account of the fact that the property was purchased as a family home, the fact that it was occupied by the bankrupt’s former wife and child and the poor health of the bankrupt’s former spouse, and decided not to order sale. The Court of Appeal held that the intention that the property should be held on trust as a matrimonial home was irrelevant since Mr Bell had left the home, so that it was no longer a ‘family home’ when the bank sought possession. Although the interests of the children were not argued separately, it appeared that, notwithstanding the specific reference to the welfare of children in the trusts of land provisions, the implicit ‘family unit’ framework had been carried across to the new provisions, through the reference to ‘the purposes for which the property

137

HL Debs vol. 569, col. 1722 (1 Mar 1996), Lord Mackey. Ibid; see further, L Fox, ‘Living in a Policy State: From Trust for Sale to Trust of Land’ [2000] Liverpool Law Review 59. 139 A v B, 23 May 1997, Transcript: Lexis; TSB Bank plc v Marshall [1998] 39 EG 208; Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 FLR 809; First National Bank plc v Achampong and others [2003] EWCA Civ 487. 140 [2001] 2 FLR 809. 138

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subject to the trust is held’. This precluded consideration of the individual interests of Mrs Bell and the children after Mr Bell had left the property. The decision in Edwards v Lloyd’s TSB Bank plc,141 has suggested, however, that ‘the interests of minor occupiers’ may carry more weight than erstwhile appeared to be the case, in arguments against sale. In Edwards, the court postponed the sale of the disputed property after balancing the interests of the debtor’s children in staying in their home against the creditor’s request for sale of the property. The decision in Edwards also suggested that, under the trusts of land legislation, in cases involving children the original intentions of the parties may carry some weight. Furthermore, although one of the original parties—Mr Edwards—had left the family home, Park J held that the object of the trust was ‘no doubt to provide a matrimonial home for the husband, Mrs Edwards and their children’,142 and that this purpose continued to operate, notwithstanding Mr Edwards’ departure from the home or the fact that there was a charge against the land. In fact, the court held that the presence of children kept the original purpose alive, notwithstanding these two factors, since ‘[i]n part that purpose has gone, because the marriage is over, but in part the purpose still survives because the house is still the home for Mrs Edwards and the two children of the former marriage’.143 The treatment of child occupiers in creditor/occupier disputes is considered in more detail in Chapter 9. One important factor to bear in mind in relation to the decision in Edwards is that, if it does indicate a more generous approach towards child occupiers, there is an important limit in the applicability of sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996. In fact, it is a matter of some concern that the legal recognition of the child occupier’s interest in the property as a home depended, indirectly, on the child’s family context. The provision on which the decision in Edwards was based was section 15 of the Trusts of Land and Appointment of Trustees Act 1996. The framework set out by this legislation governs actions by creditors against co-owned land. However, neither the guidelines in section 15 nor the decision in Edwards applies to actions against solely owned property, for example, where single adult households are concerned. Where property is owned by a single individual, including a single parent, third party actions against the property are governed by a separate set of principles. As it happened, Mrs Edwards had become a single parent by the time the dispute arose. However, when the property was purchased, it was with her (by then ex-)husband, and this triggered a trust of land. However, it is significant to note that if she had been a single parent—and thus a sole owner—from the outset, the case would not have fallen within section 15 and the court would not have been able to take account of the interests of the children. 141 142 143

[2004] EWHC 1745. Ibid, [29]. Ibid.

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When dealing with solely owned property, a mortgagee has two principal options: either to conduct an out-of-court sale where the procedural criteria are satisfied,144 or, where this cannot be achieved, to seek a judicial order for the sale of the property.145 When the requirements for an out-of-court sale are satisfied— briefly, that the mortgage was made by deed, that the legal date of redemption has passed, and that one of three breaching events has taken place to render the power of sale actionable—the occupiers have no opportunity to defend the sale, and, as discussed below, must attempt to postpone the possession proceedings instead. When a judicial sale is requested, the court has an unfettered discretion to order sale, notwithstanding the objections of any person, and it has been suggested that: ‘[i]n exercising its discretion the court is not limited to considering financial matters, but can also take into account social considerations’.146 In Polonksi v Lloyd’s Bank Mortgages Ltd,147 for example, the court ordered sale notwithstanding the mortgagee’s objections that the sale of the property would not suffice to discharge the debt, because the mortgagor had social reasons for wanting to move to a different area. The mortgagor in this case was a single mother of two young children, and they lived in a solely owned property. Her reasons for wishing to move included her concern that the area she was living in was ‘rough’ and undesirable, and the belief that a different area would provide better schooling opportunities for her children as well as better job prospects for her. While the decision in Polonski suggested that the court might, in circumstances of this nature, take account of the needs of the mortgagor and her children, the decision in Polosnki was significantly different from that in Edwards, since Mrs Polonki was arguing in favour of sale148 while Mrs Edwards wanted to avoid the sale of the home. For a child in a solely owned property, the fact that the property is their home has not yet emerged as an argument against sale. The human rights implications of this de facto distinction between children of single- or dual-parent families are considered further in Chapter 10. Whether the creditor has an automatic right to sell the property or the court orders sale, the occupier may still defend the possession proceedings under section 36 of the Administration of Justice Act 1970. Section 36 conferred discretion on 144 The mortgagee has an automatic power to conduct an out-of court sale where the mortgage was made by deed, and the criteria set out in ss 101–103 of the Law of Property Act 1925 (LPA) have been satisfied: that the legal date of redemption, as specified in the mortgage deed, has passed and that either: (i) there has been a default in the payment of the mortgage money for 3 months after notice requiring payment is served; or (ii) interest under the mortgage is in arrears and unpaid for 2 months; or (iii) there has been a breach of some other provision contained in the mortgage deed: see Ch 2, n 22–23 and associated text. 145 S 91(2) of the LPA provides that in an action for sale of the property the court may direct a sale of the mortgaged property, on such terms as it thinks fit: see Ch 2, nn 24–25 and associated text. 146 W Clark, K Lewison, P Morgan, K Astill, J Bignell, M Dray, E Peters, A Tanney and A Rosenthal, Fisher & Lightwood’s Law of Mortgage (11th edn, London, LexisNexis, 2002), para 21.8. 147 [1997] 31 HLR 721. 148 The bank wished to delay the sale of the property in the hope of reducing the negative equity.

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the court to delay possession proceedings for a limited period of time where the disputed property is a dwelling-house and ‘it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage’.149 This provision provides a rare example of a legal context in which (what are in substance) home considerations are taken into account. It is important, however, to bear in mind that the conditions for the exercise of this discretion are strict. The court will not refuse immediate possession unless debtors can show that they have the financial capability to make good on arrears within a ‘reasonable time’ whilst continuing to meet instalments as they fall due.150 Consequently, although section 36 appears to acknowledge the value of home per se, the court’s discretion is not a general discretion under which ‘home-oriented’ or social factors might be taken into account, but is limited to an assessment of the debtor’s financial standing and the likelihood that the debtor will repay any sums due within a reasonable time. Section 36 does not depend on family status, but applies to all ‘dwelling houses’; yet, it is noteworthy that in the context of this protection, which does not adopt the ‘family unit’ approach, the factors that can be taken into account by the court are limited to financial criteria.

The ‘Marriage’ of Family and Home The previous section considered the ways in which English law has responded to arguments in support of the family home, or even home per se, albeit within an ad hoc framework. It was suggested that although the tension between these approaches has emerged at various junctures, English law has, traditionally, implicitly preferred the idea that family home should be protected, over and above home per se. Nevertheless, this chapter has also identified a number of practical and theoretical criticisms that can be made of this approach, based on the definition of the ‘family unit’, the exclusion of single adults, differential approaches towards children and the assumptions the family approach makes about relationships within the home. The tendency to treat the ‘family home’ as a special type of property is conceptually significant in relation to the meanings and values of home in law. The following section builds on this analysis by arguing that, far from being an obvious or automatic association, the concept of family home is the product of a particular set of outmoded cultural precepts. Finally, it will be argued that a more individualistic ‘home per se’ approach would provide a more appropriate modern basis on which to construct any legal protections for domestic property. 149 150

Administration of Justice Act 1970, s 36(1). See eg, Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR 343.

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Although the etymology of words relating to family and to home tends to suggest a long-standing and almost instinctive association between the concepts,151 the link between family and home, in the sense of home as a private space for the family was established much more recently.152 Hareven has noted that: [o]ver historical time . . . ‘family’ and ‘home’ were overlapping concepts, but were by no means identical. The close identification of home with family is a relatively recent phenomenon that can be traced to the late eighteenth or early nineteenth century. The concept of the home as the family’s haven and domestic retreat emerged only about one hundred and fifty years ago, and was, initially, limited to the urban middle classes.153

Hareven traced this modern concept of family home to the family values that emerged in bourgeois families in eighteenth century England and France, and in the early nineteenth century in the United States of America. She claimed that ‘home was the invention of the middle class and was closely related to the emergence of the family as a private, emotional entity’.154

Gender and ‘Other’ Roles in the ‘Family Home’ This concept of family home was strongly influenced by gender roles. For example, Watson claimed that ‘[t]he home represented security and comfort, the woman within it was the “Perfect Lady”, the idealized feminine wife/mother, the homemaker, the pure and womanly woman’.155 This image reflects an archetypal vision of the home as the embodiment of the private sphere. Feminist scholars have written extensively on the public/private divide, the separation between the ‘private sphere’ of home and family and the ‘public sphere’ of work, the market and political involvement. In fact, the marriage of home and family in the eighteenth and nineteenth centuries coincided with the movement of paid work to outside the home. Following the Industrial Revolution, when male labour moved 151 The origins of expressions for home in the Roman (domus) and Greek (domos) languages were those of ‘very similar words arrived at in classical languages by different routes. The Romans got their domus from the Old Indo-European root dem, family; while the Greeks derived it from exactly the same-sounding root, meaning to build’: J Rykwert, ‘House and Home’ in A Mack (ed), Home—A Place in the World (New York, New York University Press, 1993) 48. Rykwert suggests that although the fact that ‘the two different words moved so close together, linguists now tell us, was a coincidence . . . it seems to me to indicate an affinity which is not just accidental’: ibid. 152 Lawrence claimed that ‘conceptions of family, households, and domestic space have varied over time . . . the close association between the family and a place of domicile is relatively recent’: RJ Lawrence, ‘Deciphering Home: An Integrative Historical Perspective’ in Benjamin, above n 3, 58–9. 153 T Hareven, ‘The Home and the Family in Historical Perspective’ in Mack, above n 151, 228. 154 Ibid, 258. See also L Davidoff and C Hall, ‘“My own fireside”: the Creation of the Middle-class Home’, in S Jackson and S Moore (eds), The Politics of Domestic Consumption: Critical Readings (London, Prentice-Hall, 1995) Ch 5.1. 155 Watson, above n 8, 26.

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outside the home into the public sphere, women became confined to the private sphere, away from public power and influence.156 In fact, the family home represented an archetypal ‘private space’. This is illustrated in Hareven’s description of the emerging concept of family home, which derived its values from: the new ideals of domesticity and privacy that were associated with the characteristics of the modern family—a family that was child-centered, private, and in which the roles of husband and wife were segregated into public and domestic spheres, respectively.157

Furthermore, as Green and Lim have commented, ‘[t]he public–private dichotomy is not a mere statement of difference: the difference matters because the public is economically and politically more important than the private’.158 The marriage between the concepts of ‘family’ and ‘home’—the twin pillars of the private sphere—was also underpinned by the husband’s duty to provide for his wife and family. Thus: [t]he husband was expected to be the main breadwinner and worker outside the home, and the wife a full-time housekeeper and mother. This new separation of domestic and public spheres led to the rearrangement of the family’s work and living patterns within the home . . . the world of work became separate from family activities.159

Women were positioned within the family home, while their husbands participated in the public sphere to satisfy a duty of support which was both genderspecific and patriarchal. The ‘gendering’ of home is considered further in Chapter 8. However, it is also important to recognise the significance of these values for the purposes of ‘family home’ analysis. On the one hand, it has been suggested that: [t]oday images of well-accoutered family places and domestic communities shaped by absolute gender roles and sanctioned by sentiment seem outlandishly retrograde, unacceptably patriarchal, and embarrassingly naïve.160

Yet, although the nineteenth century concept of family home might be thought no longer relevant to modern discourse, Wright’s analysis of the values that underpin the contemporary ‘home model’161 across a range of cultural contexts illustrated 156 See, eg, SB Boyd (ed), Challenging the Public/Private Divide: Feminism, Law and Public Policy (Toronto, University of Toronto Press, 1997). 157 Hareven, above n 153, 232. 158 K Green and H Lim, ‘Weaving Along the Borders: Public and Private, Women and Banks’, in S Scott-Hunt and H Lim (eds), Feminist Perspectives on Equity and Trusts (London, Cavendish, 2001), 91. 159 Hareven, above n 153, 233. 160 A Trachtenberg, ‘Introduction’ in Mack, above n 151, 211. 161 G Wright, ‘Prescribing the Home Model’ in ibid.

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the continuing influence of ideals and expectations relating to family and gender, and also race and class, on attitudes towards home. In fact, Wright argued that ‘[e]mbedded within the spaces, between the objects, of all homes are implicit roles for men and women, for individual and community, for majority and minority groups within any society’.162 The suggestion that the concept of ‘family home’ is representative of an outdated ideal is also supported by research that has characterised ‘family home’ as not only gender-specific, but also enmeshed in values that are both ‘middle-class’ and, in Britain at least, predominately oriented towards white people. Webster’s study of the significance of home in relation to gender, race and identity in Britain163 highlighted an additional source of inequality when she argued that the ideal of ‘family home’ was not equally available to all women. Webster claimed that, on the one hand, white women were rooted in a culture that demanded that they (re)-create ‘family homes’ ‘where maternity ruled, involving immurement with family and submergence in domesticity’.164 Conversely, the concept of the private and domesticated family home was unavailable to black women, who instead faced: ‘poorly paid, low-status, full-time employment, separation from family through the process of migration, a search for accommodation in which the sign “no coloureds” was repeatedly encountered’.165 Webster also emphasised the cultural exclusion that resulted from differential access to the ‘ideal’ of family home. She claimed that: Englishness was represented in images of family and home which were portrayed as white. Black was not associated with domestic and familial life except through its connections with this white family—connections which were usually seen as threatening.166

Cultural images of ‘family home’ reflected the expectations and experiences of white, middle-class women, while being denied to others. Such disparities in the availability of the culturally cherished ideal of ‘family home’ continue to raise important questions about the value of retaining the concept as a central organising theme of legal discourse. Contemporary analysis of the concept of family home must of course address the current debate surrounding the definition of ‘family’. This debate has raised major legal and social policy issues, as arguments have been advanced in support of a more inclusive approach towards family status, based on a more functional analysis of the family unit. The current shift towards more inclusive approaches to family law in England and 162

Ibid, 214. W Webster, Imagining Home: Gender, Race and National Identity, 1945–64 (London, UCL Press Ltd, 1998) 58. 164 Ibid, preface, p x. 165 Ibid. 166 Ibid, 47. 163

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Wales is reflected in the Civil Partnership Act 2004,167 the Law Society for England and Wales’s proposals for greater legal recognition of cohabitation,168 and the Law Commission’s current project on cohabitation.169 In relation to family property, these initiatives focus on claims between partners, particularly those arising at the termination of relationships. In this relational context—that is, when addressing claims based on the existence of a certain relationship and the need for appropriate rights and remedies when that relationship ends—it is natural and appropriate that the legal framework adopted is a family-oriented relational approach. Within this context, issues that have arisen include ‘what property’ should be regarded as ‘family’ property, as well as ‘who should qualify’ as a ‘family’ member. Indeed, the common object across the range of schemes set out above has been to address specific issues associated with both same-sex and opposite-sex cohabiting relationships. The relationship approach adopted in the Civil Partnerships Act 2004 and in policy discussions concerning the rights and interests of cohabitees, so far as it is concerned with rights in the home, focuses on the rights of partners against one another, in the event of the death of one partner or separation. Furthermore, the prevailing approach at present is that the rights and interests of creditors in such properties would not be affected by such provisions. One of the central arguments of this book has been that, while the impulse to protect home-type interests does not present any significant conceptual or practical challenge when policy makers are specifically motivated to protect such interests, the conceptualisation of home in law is brought into sharp relief when the home interest is balanced against a competing interest, especially when that interest carries significant weight in terms of policy goals. This book has concentrated on the conflict of interests between creditors and the occupiers of the home as a paradigmatic example of this phenomenon. The policies adopted to address issues concerning family property provide a clear example of the contrast between disputes between partners and disputes involving third parties, in terms of the issues that must be taken into account. The idea of a home interest that could potentially affect third parties raises a different set of issues from those concerning interests in the home between partners inter se. The issues pertaining to a more individually oriented approach that values the interests of occupiers (including individual family members) in home per se are considered below. 167 See Civil Partnership; http://www.womenandequalityunit.gov.uk/lgbt/partnership.htm (London, Law Society, 2005). 168 Law Society for England and Wales, Cohabitation: The Case for Clear Law, Proposals for Reform, (July 2002). This paper proposed a second layer of rights, for unmarried heterosexual cohabitants and unregistered homosexual cohabitants. In relation to family property, the Law Society focused on the rights of non-property-owning partners on separation. 169 Details of the Law Commission’s current project on cohabitation can be found online at http://www.lawcom.gov.uk/cohabitation.htm.

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The ‘Individual Occupier’ Approach to the Concept of Home The individualist model presented in this book focuses on the relationship between individual occupiers and their homes rather than the (gendered, or dependent, or narrowly defined) relationship between the occupiers. This individual perspective draws upon various theoretical and policy objectives, in law and in other disciplines. For one thing, the discussion in Chapter 6 reflected the traditional focus on the interests of individual occupiers in property theory and law. From the idea that possession should be protected independently of ownership— since ‘[m]en generally fix their affections more on what they are possess’d of than on what they never enjoyed . . . it would be greater cruelty to dispossess a man of anything than not to give it to him’170—to Radin’s personhood perspective—that ‘to achieve proper self-development—to be a person—an individual needs some control over resources in the external environment’171—the link between the person and the property is ‘personal’, and thus it is necessarily concerned with individual interests arising by virtue of the individual’s relationship with the property. This again adds weight to the argument that, in the realm of security of tenure and attachment to home, the relevant relationship is that between the individual and the property, rather than relationships between individuals, for example within a family setting. A more individualist approach would not only provide a more appropriate framework for any ‘home’ protection, on the basis that it would protect the individual attachment between the occupier and the home, but would also avoid the difficulties inherent in defining ‘family’ for the purposes of classifying ‘family’ home. When comparing the approaches adopted towards disputes between partners and contests involving third parties, it is also important to bear in mind the fact that, in cases concerning creditors, the individual perspective offers an alternative framework available for analysis of the interests of occupiers in their (family) homes, vis-à-vis external claims. The idea that the home is a special type of property, which ought to be protected over and above other types of property because of the nature of the attachment which occupiers have to their homes, revolves around the relationship between the occupier and the property, not the relationship between occupiers inter se. Furthermore, it is useful to bear in mind that research on the meanings of home emphasises the attachments that develop between individuals and their homes. Family status analysis, on the other hand, focuses on, and takes as its trigger, the relationship between people, rather than that between the person and the property.

170 D Hume, A Treatise of Human Nature: being an Attempt to Introduce the Experimental Method of Reasoning into Moral Subjects (London, Thomas and Joseph Allman, 1817), Book III, Part II, Sect I. 171 MJ Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957.

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In Sharing Homes,172 the Law Commission reviewed the law governing the acquisition of ownership interests when people share homes, and endorsed the individual attachment model. It is significant to note the Law Commission’s perspective on the importance of home per se. The Commission described its project as ‘centered on a belief in the importance of the home as property. The home is unique. It is the place where life is lived, it is the focus of the family, and the centrepiece of their communal security’.173 Furthermore, the stark conflict between home interests and the commercial claims of creditors was clearly recognised by the Commission when it noted that: The dual function of the home, as place of occupation and capital asset, can be seen very clearly in litigation initiated by creditors. It is often the duty of the court to decide whether, in a given case, priority is to be given to those, typically members of the debtor’s family, who wish to continue living there for as long as possible.174

Although the project concerned home sharers, the Law Commission’s review was not focused on the relationship between occupiers inter se,175 but on the relationships between occupiers and their homes. As it happened, the Law Commission ultimately endorsed a shift in strategy, towards a ‘relationship approach’, which would confer ‘special status’ on people in particular relationships with regard to the acquisition of interests in the family home.176 This decision was made in anticipation of a number of difficulties in the application of the scheme.177 However, this change in approach should not be regarded as a rejection of the importance of the home or of the special relationship between occupiers and their homes. In the context of ownership interests, difficult issues must be addressed, such as the value to be attached to different types of contributions and the proportions in which ownership shares should be acquired. The Law Commission’s ownership model for all ‘home sharers’ presented insuperable difficulties because of the complex web of issues linked with capital acquisition of property interests in the home. These included the expectations of different occupiers and the extent to which those expectations were encouraged or relied upon, the parties’ intentions, their relative contributions, the extent to which they were regarded as ‘deserving’ a 172

Law Commission, Sharing Homes: A Discussion Paper (London, HMSO, 2002). Ibid, [1.8]. 174 Ibid, [1.9]. 175 The Commission’s intention was to devise a statutory scheme which would enable a broad range of homesharers, including: ‘ “couples”, married or unmarried, but also friends, relatives and others who may be living together for reasons of companionship or care and support’, (above n 172, Executive Summary, [1] ) to acquire interests in property on the basis of various types of contributions—direct and indirect financial contributions, as well as non-financial contributions. 176 Ibid, Part V. 177 The Commission was ultimately concerned that the proposed scheme ‘does not go far enough in remedying injustices which arise under the current law, but creates new ones of its own. It is not, therefore, one which we can even provisionally propose’: Law Commission, above n 172, [3.100]. 173

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share of the beneficial ownership of the property and concern at the prospect of conferring disproportionate benefit on a person who has been sharing a home with the legal owner.178 The difficulties inherent in this ownership model do not, however, warrant the jettisoning of the core principle on which the Law Commission’s project was based: ‘a belief in the importance of the home as property’.179 Furthermore, this principle could be more appropriately and effectively implemented through an occupation-based model. Not only would the problems encountered by the Law Commission be avoided, but an occupation model would also reflect more clearly the values that individual occupiers derive from living in their homes and the importance of security of tenure for these home meanings. Another important factor to bear in mind in relation to the individual approach is the fact that the ‘family unit’ framework considered in this chapter necessarily excludes single people, as well as ‘non-family’ households. Aside from the obvious practical and social implications of such exclusions, the legal endorsement of this approach in the context of policies protecting the home undermines the importance of home for individual occupiers. It is important to recognise the fact that, although family has emerged as a significant aspect of home meanings for occupiers,180 and thus may ‘add value’ when weighing the home interest, family is not an essential pre-requisite for a property to become a home. Many of the values of home—for example, shelter, security, privacy, identity and investment—can be equally valued by those who fall outside the legal definition of ‘family’, either because their relationship does not meet particular criteria or because they live alone. This argument is also addressed in philosophical analyses of the meaning of the (family) home as a dwelling place. The importance of the home as a dwelling place, that provides ‘something essential and central for human life’181 was considered in Chapter 4.182 There has been some debate about the role of family when it comes to constituting dwelling places. On the one hand, Bollnow’s theory of home, space and place has been cited in support of the proposition that the presence of family is a constituent element of home values. Wikstrom, for example, claimed that Bollnow’s theory treated ‘the complementary use of space of the family [as] inseparable from the home’.183 It was suggested that some form of relationship between dwellers was a necessary requirement for the creation of a home place—thus excluding single people. However, Wikstrom also cautioned that the: 178

Ibid, [3.56–3.100]. Ibid, [1.8]. 180 See above, nn 2–5 and associated text. 181 T Wikstrom, ‘The Home and Housing Modernisation’ in Benjamin, above n 3, 270. See also OF Bollnow, Mensh und Raum (Stuttgart, Kohlhammer, 1990); N Egenter, ‘Anthropological Concept of Space’ [2002] Internet Journal of Architecture. 182 See Ch 4, nn 11–32 and associated text. 183 Wikstrom, above n 181, 277. 179

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emphasis on the family must not be taken literally. What he says about the family seems to be applicable to any small group of people living together: a household, a group of friends going camping, or close neighbours.184

The idea that individuals living in neighbouring households would be capable of satisfying the requirement of community between dwellers suggested that a single person living alone could be capable of establishing a home within this analysis. Thus the ‘relational’ aspect of home could be satisfied by ‘the single old lady, who expanded her home by caring for her neighbours, really had a home and knew how to dwell’.185 Another important point to bear in mind is the possibility that sole occupiers may be even more dependent on the meanings of home, such as identity, security and continuity, than those living together within a family. The existence of close relational ties within a family could enable them to bring many of their ‘home values’—for example, family life, a sense of belonging, security, continuity and identity—to a new property. The idea that families may have less need of home as a source of continuity, since their home meanings can travel with the family unit, is supported by evidence that, for children at least, the ‘experiential home’ may travel with the child. For example, Pallasmaa referred to empirical evidence from a child who had lived in eight different properties, which indicated that despite the family’s mobility the child ‘only had one experiential home in my childhood; my experiential home seems to have traveled with me and constantly transformed into new physical shapes as we moved’.186 It is perhaps arguable that since, in the absence of family, a single individual’s personal identity may be more closely bound to the property itself, the occupation of a particular property could, in fact, be even more meaningful for single dwellers, and therefore ought to attract even greater weight. In any event, it must be at least highly questionable for individual single occupiers to be automatically excluded from the legal concept of home. The next section considers how some other jurisdictions have responded to the definition of ‘family’, and the status of single occupiers in their treatment of (family) home.

Alternative Approaches: Homestead Legislation How could the importance of the (family) home be appropriately realised in the context of an individual concept of home, without attracting criticisms on the 184 185 186

Wikstrom, above n 181, 277. Ibid. Pallasmaa, above n 3, 135.

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basis of discrimination (in relation to either gender or qualifying relationships), paternalism or a presumption of dependency? How could an individual concept of home reflect the occupier’s attachment to the property itself, rather than focusing upon the relationship between occupiers? This section suggests that, in seeking to identify a framework for the conceptualisation of home in law, it is useful to consider the approaches taken in other jurisdictions in respect of home protection. In some jurisdictions, ‘homestead’ provisions have been developed to confer systematic legal protection on domestic property against creditors. These policies explicitly recognise the home as a site of special significance, yet although the label conferred on such policies suggests that it is ‘home’ per se which attracts the relevant protections, in reality these policies have traditionally safeguarded only the ‘family home’ against external third party claims. For example, in New Zealand, the Joint Family Homes Act 1964 was enacted in order to protect the family home against third parties. In order to qualify for this protection, the property must be registered as a joint family home, and only spouses can register. Once a property is registered, a degree of immunity is provided against the claims of creditors, up to a maximum sum.187 In practice, this means that although creditors can bring actions to realise the capital value of the property itself, registered spouses enjoy some degree of financial protection. The object was ‘to ensure a degree of security for the family home, particularly against the claims of creditors’.188 It is interesting to note, however, that this protection was targeted at property as wealth rather than the property as thing, since it operated by providing that a portion of the capital value of the home should be preserved, to be paid out to the occupier when the creditor realised the capital value of the property, thus enabling the family to recover some of the asset value of the property. In Canada, third party claims are controlled by legislation in Ontario,189 British Columbia,190 Alberta,191 Manitoba,192 New Brunswick,193 Prince Edward Island,194 Quebec195 and Newfoundland,196 which generally enables non-transacting spouses to prevent unilateral dispositions of the family home without their consent. A ‘homestead-type’ protection was also enacted in Ireland by the Family Home Protection Act 1976, which was designed to protect the family home against dispositions by one spouse without the consent of the other. The legislative policy backgrounds of these provisions highlight, once again, the implications of the 187 188 189 190 191 192 193 194 195 196

This sum is currently NZ$103,000, Joint Family Homes (Specified Sum) Order 2002. BH Davis, Introduction to Real Property (Wellington, Butterworths, 1979) [8.11]. Family Law Act 1986, s 21. Land (Spouse Protection) Act 1996. Dower Act 2000. Homesteads Act 1992. Marital Property Act 1980. Family Law Act 1995. Quebec Civil Code. Family Law Act 1990.

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association between family and home. In Ireland, for example, the Family Home Protection Act was informed by Article 41 of the Irish Constitution,197 which includes a specific aspiration in support of the home as the seat of the family. The basis for this association between home and family is the presumption that ‘by her life within the home, woman gives to the State a support without which the common good cannot be achieved’.198 The overtly gendered reasoning behind the Irish provisions was clearly associated with the idea of the home as ‘a woman’s place’. Furthermore, although the provisions adopted in Ireland, New Zealand and Canada were clearly ‘homeoriented’—that is, they focused on the relationship between the occupier and the home, rather than the relationship between the occupiers—the ‘home’ protection was by and large restricted to spouses, thus excluding both non-qualifying family members and single people. This approach was partially challenged in the Canadian province of Nova Scotia, where the Matrimonial Property Act 1989 gave homestead rights to spouses only. In Walsh v Bona199 the plaintiff argued that the legislation breached the equality obligation imposed by the Canadian Charter of Rights and Freedoms. Although the enumerated grounds of discrimination set out in section 15 did not include marital status or sexual orientation, the Canadian Supreme Court has included these as ‘analogous’ grounds.200 The Nova Scotia Court of Appeal held that this provision breached the equality obligation in section 15, since it excluded and thus discriminated against cohabitants. As a result, the provision was declared to be unconstitutional. The Nova Scotia legislature responded by enacting the Law Reform Act 2000, which extended the provisions of the Matrimonial Property Act to include cohabitants, either heterosexual or homosexual.201 Thus, the solution in Nova Scotia was to widen access to existing family home protections (to a certain extent). Yet, it is important to recognise the fact that the inclusion of conjugal cohabitants does not resolve the issues associated with ‘family status’ for other individuals living either in ‘non-family households’ or living alone. An interesting alternative model has emerged in the United States of America, where 46 out of 50 states offer some form of homestead exemption to protect equity in the home from the general reach of creditors.202 The level and availability of protection vary from state to state. For the purposes of this discussion, it is 197

Bunreacht na hEireann (The Irish Constitution), Art 41. Bunreacht na hEireann Art 41.2.1. 199 (2000) 183 NSR (2d) 74. 200 See, eg, Miron v Trudel [1995] 2 SCR 418; M v H (1996) 40 CRR (2d) 240; Watch v Watch (1999) 67 CRR (2d) 311. 201 It is noteworthy however that a ‘domestic partnership declaration’ must be executed before cohabitants come within the remit of this homestead scheme. 202 The only states offering no exemption are Delaware, New Jersey, Pennsylvania and Rhode Island. The amount of the exemption ranges from $500 in Iowa to $200,000 in Minnesota, with five states (Florida, Kansas, Oklahoma, South Dakota, Texas) offering total exemption. 198

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interesting to focus on the Texas homestead exemption,203 which has provided one of the most generous homestead protections in the US since its inception in 1839. The Texas homestead exemption operates by limiting home-equity borrowing to loans for the payment of the purchase price, improvements or taxes due on the property. It is also significant to note that the interpretative commentary accompanying the Texas Constitution stated that the principal object of the scheme was the ‘protection of the family’. One commentator has highlighted the traditional family-centric approach of the US homestead schemes by suggesting that ‘[i]n popular as well as legal parlance, homestead means not only family home but property that is accorded particular protection because it is the family home’.204 Nevertheless, judicial dicta concerning the application of the Texas homestead exemption suggested that although the scope of the provisions was originally limited to the context of marital families, even in the early years, the concept of homestead was not inextricably bound up with the concept of family. This was most clearly established in Wood v Wheeler, where Chief Justice Hemphill stated that: [t]he object of such exemption is to confer on the beneficiary a home as an asylum, a refuge which cannot be invaded nor its tranquility or serenity disturbed, and in which may be nurtured and cherished those feelings of individual independence which lie at the foundation and are essential to the permanency of our institutions.205

It is interesting to note that the values underpinning this dictum correlate with many of the values that have emerged from empirical studies into individual attachment to the home, as discussed in Chapter 4. Furthermore, the court clearly framed the protection in terms of the individual’s attachment to the property, rather than the presence of family or relationships between the occupiers of the property. For example, in Franklin v Coffee,206 the purposes of the scheme were described as: ‘not only to protect citizens and their families, [sic] from the miseries and dangers of destitution, but also to cherish and support in the bosoms of individuals, those feelings of sublime independence which are so essential to the maintenance of free institutions’.207 Considerable emphasis was placed on the security and independence of individuals and the importance of protecting their home environments. This approach has also been reflected in more recent developments—both judicial and constitutional—in the scope of the homestead protection. Although 203 See generally JL Baker, ‘Comment: The Texas Homestead Exemption’s Near Ban on Home Equity Lending: It’s Time for the People to Decide’ (1996) 33 Houston Law Review 239. 204 JW McKnight, ‘Protection of the Family Home from Seizure by Creditors: The Sources and Evolution of a Legal Principle’, (1983) 86 Southwestern Historical Quarterly 369. 205 Wood v Wheeler, 7 Tex 13, 22 (1851), per Hemphill CJ. 206 18 Tex, 412. 207 Ibid, 415–16, cited in Baker, above n 203, n 94.

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the protection was initially confined to a family home, interpreted as the spouses’ matrimonial home, the courts gradually broadened the definition of the family unit to include various relationships of care and dependence, for example, between single parents and minor children, adult children and elderly parents and between siblings, rather than focusing on the official ‘status’ of the relationship.208 In addition to this, the underlying individualist-orientation of the Texas provisions was highlighted by an amendment to the Texas Constitution in 1973, which extended the protection provided by the homestead exemption to include single adults.209 As a result, this homestead provision now comprehensively and systematically protects the homes of both individuals and family units. Furthermore, even where the ‘family’ home is protected, the central organising concept is the value of home per se: in order to establish ‘membership’ of the family, an individual does not need to show economic support as evidence of a relationship of care and dependence, but use and occupation of the property as a home.210 The model adopted by the Texas homestead provisions can be used to demonstrate the practical advantages of a concept of home that relates the special significance of home to the relationship between the individual and the property rather than focusing on the collective interest of the family unit. First, an understanding of the value of home which focused on the individual claims of occupiers to use and enjoyment of property as a home would reflect the reality that, while family may add value to the concept of home, it is not an essential attribute in order for a property to become a home. Secondly, a more individualistic approach to the concept of home would avoid the exclusionary implications of restricting whatever ‘special status’ was attached to the home to a pre-defined family unit, and thus exclude households and single individuals who fall outside this definition. Furthermore, if weight were attached to the value which individual occupiers have in property that is occupied as a home, the fiction that the property ceases to be ‘a family home’ if one member of the family leaves the home could be avoided. Instead, this approach would reflect the reality that a property can continue to 208 The head of the family must be legally or morally obligated to support at least one other member of the family, and there must be a corresponding dependence by the other family member for this support; NCNB Texas Bank v Carpenter, 849 SW 2d 875, 879 (Tex.Civ.App. Fort Worth 1993); relationships accepted as showing ‘family’ have included adult child and parent: NCNB Texas Bank v Carpenter, above; brother and sisters, Real Estate Land Title & Trust Co v Street, 85 SW 2d 341; divorced parent and minor child, Renaldo v Bank of San Antonio, 630 SW2d 638, 639 (Tex 1982); and a widower with no dependent children, Border v McDaniel, 70 F3d 841, 844 (5th Cir 1995). See MT Curry, ‘An Overview of the Texas Homestead Law’, available online at http://library.lp.findlaw.com/articles/file/ 00494/001069/title/subject/topic/bankruptcy%20law_collections%20%20repossessions/filename/ban kruptcylaw_1_24#N_21_. 209 Baker, above n 203, p257. S 50 of Art XVI of the Texas Constitution states that: ‘[t] he homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts except for . . . [the section then sets out permitted encumbrances] ’. S 51 of the Texas Constitution now permits that a ‘homestead claimant’ may be ‘a single adult person, or the head of a family’. 210 In re Mitchell, 132 BR 553 (Bankr WD Tex 1991).

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hold value as a home for a remaining partner (and possibly the children of the family) even though the family unit has been disrupted.

Family Home or Home per se: Evaluating the Options When evaluating the legal protection of occupiers in domestic property, it is important to bear in mind the overarching policy trend of English law towards creditor/occupier disputes. Even after the arguments surrounding the protection of family units versus individual occupiers are unpacked, evaluated and rendered conceptually sound, the apparently unshakable pro-creditor stance adopted by the English courts when balancing these claims presents an enduring practical obstacle to real recognition of the value of home in this context. The successful development of a more systematic approach to the protection of the home in law must be premised upon acceptance of the proposition that home has some meaning in law outside its economic value as a source of capital. In Texas, for example, the generosity of the homestead legislation evolved from its historical background as a frontier society, where the value of home as a home was recognised, alongside the broader economic consequences of loss of home through repossession: [t]he homestead exemption . . . had a three-fold purpose: (1) to encourage colonization, for in a frontier society, each pioneer family was of definite value to the community; (2) to provide the debtor with a home for his family and some means to support them and to recoup his economic losses so as to prevent the family from becoming a burdensome charge upon the public; (3) to retain in pioneers the feeling of freedom and sense of independence which was deemed necessary to the continued existence of democratic institutions.211

Homestead provisions in the USA function by restricting the use of the home as security for purposes that are not directly linked to the acquisition or improvement of property itself, and exempting the property from actions to recoup other, unsecured debts. The argument that the use of the home as security for business loans should not be facilitated—or even discouraged—has been considered in the English context.212 When it comes to considering whether home-type interests should be protected in law, one of the arguments against providing greater legal protection for occupiers’ interests has been the assumption that, if occupiers were protected 211 Vernon’s Interpretative Commentary to the Texas Constitution (St Paul, West Publishing, 1993) art XVI, ss 49–50, cited in Baker, above n 203, n 94 212 See Ch 1, nn 39–53 and associated text; Ch 3, nn 34–53 and associated text.

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in law, then creditors would be less likely to lend money. Against this, it has been argued that creditors are in the business of lending money; that the risk of default is inherent to the nature of that business; and that creditors are in a much stronger position than occupiers when it comes to taking steps to protect their interests213—particularly if we ‘count’ children as individual occupiers.214 Furthermore, the broader social and economic costs of repossession215 add weight to the argument that the interests of creditors should not be presumed routinely to outweigh the home interests of occupiers, but rather that their respective interests should be re-evaluated within a more systematic framework. The development of a systematic approach would necessitate a more explicit policy in support of either: the family unit in a family home; individuals in a family home; or individual home occupiers. It must be admitted that, from an instrumentalist perspective, the concept of family home is attractive. The idea(l) of ‘family home’ is a powerfully emotive idiom, with considerable cultural kudos, and, as such, may be regarded as carrying significant weight in policy debates. ‘Family’ is clearly associated with ‘home’ in the popular consciousness, and this is reflected in the tendencies for legal discourse to lean towards family home, as noted in the sections above. Furthermore, although, to date, the tendency to focus on ‘family’ home has not yielded significant results when it comes to developing effective protections for occupiers in the context of repossession actions, family policy advocates could regard an ostensible ‘rejection’ of the family interest in the home as a high-risk and undesirable strategy, leaving them reluctant to cede any ground here. This is particularly pertinent at a time when the rhetoric of equality is gaining ground in other family policy debates.216 Finally, from a principled perspective, it is also important to bear in mind that empirical research has shown that family (in the non-legal sense of the term) is a significant factor in home attachments,217 and that this should arguably be reflected in legal analysis. An alternative approach would be to focus on the interests of individual occupiers in their homes. The advantages of individually oriented rather than family 213 An illustration of the ability of creditors to protect their own interests is provided by the Boland litigation. Although the decision in Williams & Glyn’s Bank Ltd v Boland [1981] AC 487 caused some alarm on the part of both creditors and conveyancers with regard to its deterrent effect on the grant of mortgages, the alleged difficulties were described by Lord Scarman as ‘exaggerated’: ‘bankers, and solicitors, exist to provide a service which the public needs. They can—as they have successfully done in the past—adjust their practice if it be socially required’: Boland, at 510. By 1987 the Law Commission conceded in relation to Boland that: ‘conveyancers have learnt to live with it’: Third Report on Land Registration, Law Com No 158 (London, HMSO, 1987), [2.63]. 214 See further, Ch 9. 215 See Ch 3, nn 135–177 and associated text. 216 See, eg, the decision in White v White [2000] FLR 981, which established a ‘yardstick of equality’ for the division of assets between a wealthy breadwinner husband and a homemaker wife when property adjustment orders are made on divorce. 217 The basis for this ‘added value’ was the presence of children, or the value placed on ‘family life’ within the home by occupiers.

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unit-focused approaches to issues of family policy have attracted some debate in recent years. In Britain it has been argued that ‘[t]he fundamental dilemma for government at the end of the twentieth century has become how far it can or should treat adult family members as independent individuals’,218 while the movement towards a more ‘individual rights’ approach for adults and children in family law and policy in the US has been described as ‘the most important event that has occurred in family law that has affected family relationships in the last fifty years’219 From a broad family policy perspective, some concerns have been raised about the appropriateness of individual-oriented approaches in family contexts, where family members may not, in reality, be autonomous individuals.220 It has been suggested that: ‘[a]t first blush, the focus on individual rights may seem to diminish family relationships, perhaps even pitting one family member against another’.221 On the other hand, Katz has argued that the individual-oriented approach to family life can be more appropriately regarded as a positive recognition of ‘individual rights’ rather than ‘selfish individualism’.222 Indeed, in the context of creditor/occupier disputes, an individual rights approach to retaining the home would facilitate the recognition of the interests of individuals who have erstwhile been ignored in the context of such disputes. Since the effect would be to strengthen the claim of the individual family member against an external third party, rather than to pit individual family members against each other, the effect would be to enhance individual rights, rather than promoting ‘individualism’ within the family unit. Another factor to bear in mind is the notion that, in one sense, the ‘family unit’ approach may be regarded as a convenient means to distinguish between ‘wrongdoers’, ie the debtor(s) him/herself; and ‘victims’ of the debtor’s default (nondebtor occupiers), and for determining whether certain non-debtor occupiers should receive additional protection. Yet, it is interesting to note that it is not necessary to make such a distinction, depending on the nature of the policy pursued: for example, the Texas ‘individual approach’ extended to single member households—in which case a sole occupier without children would be protected. This meant that the protection was available even in a straightforward creditor/debtor dispute, which did not impact on the home interests of other occupiers. It may be 218 J Lewis, ‘Family Policy in the Post-War Period’ in SN Katz, J Eekelaar and M Maclean (eds), Cross Currents: Family Law and Policy in the United States and England (Oxford, Oxford University Press, 2000) 82. 219 SN Katz, ‘Individual Rights and Family Relationships’ in ibid, 621. 220 Lewis discusses a number of concerns associated with the trend towards greater individualisation in family policy, particularly in relation to the interests of lone mothers and children: see Lewis, above n 218; while O’Donovan has argued that it is important not to lose sight of the: ‘danger in raising individual autonomy in opposition to protective legislation in that this ignores the fact that family responsibilities, however, voluntarily taken on, deprive individuals of autonomy’: above n 129, 85. 221 Katz, above n 219, 621. 222 Katz stated that: ‘I believe this emphasis on individual rights is a positive development, leading to a new concept of the marriage relationship’: ibid, 622.

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more difficult to generate support for the idea of conferring protection on debtors against their own default in this jurisdiction. On the other hand, the discussion of home ownership in Chapter 5—particularly in relation to the promotion of mass home ownership; the residualisation of public rented housing; the erosion of state safety nets for home owners; the adverse impact of macroeconomic developments on the sustainability of home ownership; and the increased likelihood that an action against the property will result in repossession for owner occupiers relative to tenants—casts a new light on the ‘blameworthiness’ of defaulting mortgagors. Nevertheless, even outside the context of a sole occupier, the individualoriented approach could be moulded to serve a range of policy ends. For example, if, as a matter of policy, it were considered desirable to prioritise the protection of a debtor’s partner and/or children in the home, this could be achieved by an ‘individuals in the context of the family home’ approach, rather than conferring equal protections on all individual occupiers. As the Law Commission acknowledged in Sharing Homes, a systematic framework within which all occupiers are treated the same overlooks the reality that some occupiers instinctively seem more deserving of protection than others. For example, the Law Commission claimed that: ‘[t]here can be little doubt that a court would instinctively have greater sympathy for the unmarried mother . . . than for the child of elderly parents’.223 Although the traditional ‘family unit’ analysis has been exclusionary, and children have not counted for the purposes of a property-owning family, the idea of family context is clearly significant. Perhaps it would be preferable if the idea of family context could be utilised in fashioning a legal concept of home that reflected a range of home meanings, for a range of individual occupiers, including partners, single parents and child occupiers. A heterogeneous approach towards the legal protection conferred on individual occupiers in their homes could also be justified on the basis that not all occupiers value their homes in the same way. Different individuals may have different levels of attachment to their properties. For instance, Wikstrom’s research indicated that while ‘[i]n some cases these bonds [to the home] seemed to be so strong, that breaking them by moving would lead to disaster [while] [f]or some young people, the flat was just a place where they slept and stored their belongings’.224 A more impact-sensitive approach would focus on the effects of repossession and loss of home on the occupier(s), not only from a shelter perspective, but also in relation to psychological and emotional attachments. Alternatively, the relative status of individual occupiers could be approached from a welfare perspective by focusing on those who are regarded as being most in need of protection. This would enable a more individualised approach to be pursued, with any protection based on individual needs and attachment, yet could still 223 224

Law Commission, above n 172, [3.71]. Wikstrom, above n 181, 268.

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provide an avenue by which the concerns of family advocates, particularly in relation to children, could be met. Children could be counted as ‘individuals’ for these purposes,225 as could single people, including, for example, an elderly widowed person living alone or a single custodial parent.226 Finally, the issue of ‘special protection’ for certain categories of occupier is considered further in Chapter 8, which analyses the significance of gender in the conceptualisation of home and in the creditor/occupier context, in Chapter 9, which focuses on child occupiers, and in Chapter 10, which considers these issues within a human rights framework.

Conclusions The home is a site of major importance in people’s lives, whether they share their homes with a partner, children, extended family, friends, or whether it is even with a dog, cat or goldfish. When legal processes are called upon to determine whether or not an occupier will lose that home, any decision making should be carried out with an understanding of the complex interests at stake. The home is a special type of property, to which occupiers may develop strong personal attachments. Occupiers value their homes in a range of ways, not only as a source of shelter but as a particular type of territory where interaction with family and friends takes place, inculcating values such as security, privacy and identity. English law has no explicit scheme to confer special protection on the home, yet the significance of home—or at least the family home—is reflected, to some extent, in the ad hoc policies discussed in this chapter. The desire to protect the family home has clearly influenced various aspects of the property law provisions regulating owneroccupied property in the context of default and/or bankruptcy. The close cultural association between ‘family’ and ‘home’ seems to have placed the ‘family home’ at the centre of debates and policies concerned with the values of home. The emphasis on family home has, however, had significant implications on the nature and effectiveness of policies attempting to safeguard the home, particularly against third parties. The identification of the family home as the unit for protection, rather than the interests of individual occupiers in ‘hanging on to their 225 The argument that children should be ‘counted’ as individual occupiers is in line with current approaches towards children’s rights, which have emphasised the position of children as citizens and ‘rights-bearing individuals’ and as autonomous legal subjects: see, eg, ‘Children, Citizenship and Family Practices’ in C Smart, B Neale and A Wade, The Changing Experience of Childhood: Families and Divorce (Cambridge, Polity Press, 2001). 226 If interests in the home were valued according to the individual’s attachment to the property, it would not be necessary to define the home interest by reference to relationships with other people, thus avoiding both the difficulties associated with exclusionary definitions of family and the presumptions of dependency discussed above.

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homes’, has, however, resulted in policies that are not only ineffective but also vulnerable to criticisms of gender discrimination and paternalism. Other issues raised by the centrality of the family unit in policies regulating home include the difficulties associated with defining a ‘family unit’ and the inherently exclusionary nature of any legal definition of family. There is also a further danger that the interests of some family members, particularly women and children, may be overlooked or even ignored because of the focus on the family unit rather than individual members of the family. Finally, the ‘marriage’ between the concepts of family and home has historic connotations linked with gender, class and race, which could be regarded as undermining the concept of home as a set of meanings that can be experienced, and valued, by all occupiers. These criticisms of the ‘family home’ framework must, however, be balanced against empirical research which indicates that changes in family roles and structures have not diminished the association between family and home. Conversely, it is suggested that, ‘[a]lthough the form of the family is undergoing change, the idea of family remains fundamental. By its association with family, the home . . . hold[s] cultural centrality’.227 The idea of adding value to the meaning of home because of the presence of family is supported by empirical research indicating that for those who live in a ‘family’ home, the ‘family dimension’, and particularly the presence of children, is a significant element of the home experience. Saegert and Winkel captured this view in their description of the home as ‘the place where the cultural values of individualism and achievement can be laid aside for a time. The family and personal relationships become the focus rather than the individual’.228 Nevertheless, the proposition that ‘home equals family home’ provides an incomplete representation of the range of meanings and values that home represents to occupiers. While family may be regarded as ‘adding value’ to the meanings of home, many of the values represented by homes: material shelter; security; control; orientation in space; permanence; continuity; privacy; self-identity; are not dependent on the presence of family. These meanings can also be experienced and valued on an individual level and the absence of family does not relegate home to a meaningless, valueless entity. Furthermore, cross-cultural research on people’s responses to their home environments has shown that while ‘home can symbolize security and warmth or gender roles and domesticity, or even tyranny through domination or abuse . . . Whatever the concept of home, it is an individual meaning, often concerned with family, that is expressed in culturally recognized ways’.229 Although family values are often associated with home meanings, home is also a meaningful site for individual occupiers. When conceptualising home, it is there227

Fitchen, above n 4 at 315. S Saegert and G Winkel, ‘The Home: A Critical Problem for Changing Sex Roles’ in GR Wekerle, R Peterson and D Morley (eds), New Space for Women (Boulder, Colo, Westview Press, 1980) 41. 229 S Kent, ‘Ethnoarchaeology and the Concept of Home: A Cross-Cultural Analysis’, in Benjamin, above n 3, 163, emphasis added. 228

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fore important not to lose sight of the meanings of home for individuals, whether within a family unit or not. The development of a coherent legal concept of home would enable the meanings and values of home to play a role in informing legal decision making. In the context of disputes between creditors and occupiers, the fact that occupiers are attached to their homes may not ultimately be regarded as sufficiently significant to justify exempting the home from repossession, or even successfully swinging the balance away from the creditor’s financial claim in all (or many?) cases. Nevertheless, a clearer understanding of the values represented by the home could justify subjecting certain decisions to stricter scrutiny. Although ‘family’ is a key aspect of these home values, it is not the exclusive source of meaning in the home. Furthermore, a concept of home that is too closely intertwined with family may undervalue the range of meanings that home represents to individual occupiers. On the other hand, a more individualistic approach could still allow for ‘added value’ to be imputed in certain cases, possibly where the individual occupiers include children. The treatment of children in the legal concept of home is the subject matter for Chapter 9. First, however, Chapter 8 will proceed to consider the impact of gender issues—specifically, the position of women—in relation to the concept of home and the weight attributed to individual home interests in the creditor/occupier context.

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8 Re-possessing Women: Gender and the Meaning of Home

Introduction

T

HE SIGNIFICANCE OF gender for the conceptualisation of home, and specifically for the creditor/occupier context, has been an important theme throughout this book. For one thing, as the discussion in Chapter 7 has demonstrated, legal discourse on the subject of home has tended to revolve around the idea of family home. Analysis of these ‘family unit’ perspectives has highlighted some of the gender issues that arise in relation to the creditor/occupier context. These include presumptions of female dependency, for example, in the context of bankruptcy, and the ‘invisibility’ of women and children when the unit of analysis is the family rather than individual family members. Furthermore, the application of the family unit approach in the creditor/occupier context has also led to a tendency to presume that family members have a single, unitary, collective interest in the family home. The discussion of these issues in Chapter 7 was supported by analysis of the fusion of ‘family’ and ‘home’ in policy discourse. Both concepts bear significant socio-cultural meanings, including gender connotations. Furthermore, the association of women with family home has typically been rejected by feminist scholarship as illustrative of the ideological division of life into public and private spheres, with women confined to the private sphere of home/family. Meanwhile, it is argued, the public sphere, which can be identified in terms of ‘the market’, is controlled by men. Since the public sphere is deemed inherently more important than the private, male dominance in the public sphere also supports patriarchy and gives men power to prevail over women in the private sphere.1 Another important theme in this book has been the influence of policy on creditor/occupier disputes—specifically, the way in which the commercial claims of 1 See generally SB Boyd (ed), Challenging the Public/Private Divide: Feminism, Law and Public Policy (Toronto, University of Toronto Press, 1997) 8.

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creditors have been prioritised over and above the home interests of occupiers. The justifications for prioritising the interests of creditors in the property as a capital asset above the claims of occupiers to the property as a home were analysed in Chapter 3. The arguments for preferring the creditors’ claim have included the contractual basis of their remedial rights and the broader economic consequences if creditors were not afforded a high degree of protection—for example, that they would be less willing to lend capital to fund home ownership. Yet, Chapter 3 also considered critical challenges to these arguments, including the proposition that efficiency arguments must be tempered by other considerations to take account of wider ‘justice’ and ‘social values’ considerations. For example, feminist economic theory supports the argument that, in striking the balance between the interests of creditors and those of occupiers, legal discourse should not be confined to considerations of market efficiency but should take account of other values, including the material realities of possession actions. Another issue explored in Chapter 3 was the construction of the creditor’s abstract interest in the capital value of the property as a ‘masculine’ interest, while the occupier’s material home interest was identified as ‘feminine’. While the commercial interests of the creditor are associated with the market, and therefore with the public sphere, home-type interests are associated with the private sphere. Where the creditor’s claim is dominated by the ‘masculine concern with business profits’;2 the occupier’s claim has been marginalised within property law discourse as a subjective, irrational, emotional interest.3 Furthermore, Green has argued that the characterisation of creditors as masculine and occupiers as feminine has facilitated the ‘needs of property owners, self-interested and rational individuals in the market place [in] overrid[ing] the needs of those who are different: weaker, poorer, or in a different way defined as Other’.4 These arguments also support the case for challenging the presumption that creditors must prevail, and for reconsidering—indeed, for conceptualising—the home interest, with explicit reference to the influence of gender on the meanings and values of home. The meanings and values of home have attracted considerable critical attention in recent decades. As the discussion in Chapter 4 has demonstrated, the blossoming of interest in home in the social sciences has stimulated a considerable amount of research, in the form of both empirical studies and theoretical analysis, into the experience of home and the meanings and values which home represents to its occupiers. The proliferation of interest in home also clearly intersects with gender issues, as evidenced not least by special issues of Women’s Studies International

2 R Auchmuty, ‘The Rhetoric of Equality and the Problem of Heterosexuality’ in L Mulcahy and S Wheeler (eds), Feminist Perspectives on Contract Law (London, Glasshouse Press, 2005) 71. 3 See Ch 3, nn 74–97 and associated text. 4 K Green, ‘Being Here—What a Woman Can Say About Land Law’ in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London, Cavendish, 1996) 93–4.

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Forum 5 and Signs: Journal of Women in Culture and Society,6 which have focused on the significance of gender for the conceptualisation of home. In fact, there is tremendously wide scope for analyses into the relationship between gender and the idea of home. From issues pertaining to women’s work in the home—including housework, reproductive labour and home-making—to the dangers of domestic violence; from the difficulty of feeling ‘at home’ as a result of gender inequality or prejudice based on sexual orientation, to the separation of the public activity of enterprise from the private sphere of the household in the interests of rational bureaucracy;7 the intersections between gender and home are both complex and controversial. This chapter focuses primarily on two specific aspects of the discourse surrounding gender and the meaning of home. First, the theoretical framework for the discussion of home in this chapter is rooted in critical feminist analysis of the meaning and value of home. The discussion of ‘family home’ in Chapter 7 highlighted many of the issues that have led feminist scholars to regard the idea of home—and, particularly, the representation of home—as a source of positive attachments. For one thing, while the clusters of meanings and values of home set out in Chapter 4—home as financial investment; home as physical structure; home as territory; home as identity; and home as socio-cultural unit— were generally positive, some feminist analyses have suggested that these meanings are not equally available to women, and may—as a result of gender differences—actually be subverted for women, so that home becomes associated with insecurity, lack of control over financial decision making, dependency and the invisibility and subjection of women within the family unit. In addition, the identification of women with home was also problematic, as a reflection of assumptions about women’s ‘natural role’ in the private sphere of life, carrying out their ‘duties’ within the home and the family.8 The traditional rejection of home by feminist theorists was paralleled by the relative dearth of conceptual and empirical analysis into the meaning and values of home before the 1970s. While the discussion of home meanings in Chapter 4 has drawn upon research across a range of disciplines since then, by the late 1970s home scholarship remained speculative,9 with little empirically-based, scientific evidence to support the proposition that occupiers could have a special attachment to property because it was their home. In fact, it is interesting to bear in mind Peterson’s suggestion that the neglect of home as a subject of analysis was 5 In 1997, the third issue of Women’s Studies International Forum was dedicated to analysis of ‘Concepts of Home’. 6 In 2002, vol 27 of Signs: Journal of Women in Culture and Society was dedicated to analyses of gender and the meanings of home. 7 See M Weber, Economy and Society (Berkeley, Cal, California University Press, 1978). 8 See, eg, M Rosaldo, ‘Women, Culture and Society: A Theoretical Overview’ in M Rosaldo and I Lamphere (eds) Women, Culture and Society (Stanford, Cal, Stanford University Press, 1974). 9 See, eg, J Hayward, ‘Psychological Concepts of Home’ [1977] Challenge 10.

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attributable to the economic and social devaluation of home as a feminine, private space.10 This perspective has been challenged from various quarters. For one thing, the idea that certain areas of legal activity—for example, commercial law— can be classified as ‘masculine’ (and therefore rational), while others—such as family law—are identified as ‘feminine’ (and therefore irrational) has been rejected by critical theorists,11 on the basis that there are elements of rationality and irrationality in every legal discipline, and that the bifurcation of certain types of legal claim on gendered lines is fallacious and misleading. Furthermore, the objective of incorporating women’s experiences into legal theory has led some feminist scholars to re-evaluate the meanings and values of home for women. In fact, as home scholarship has developed in other disciplines, feminist discourse on home has also evolved, from the outright rejection of home as an oppressive institution to a more nuanced account which seeks to balance the negative experiences associated with home for women against recognition of the potential benefits of the home experience. A key aspect of this reconsideration of home by feminist theorists is the importance of seeking a real measure of the home experience for women, which reflects the complexities of the desire for home (including the desire for home ownership) as well as recognising the dangers and disappointments associated with attachments to home. The second theme of this chapter seeks to develop this analysis by focusing on the significance of gender in disputes between creditors and occupiers. Some housing policy commentators have argued that home is gender neutral: that is, that women benefit from the positive meanings and values of home— including the benefits of home ownership—as much as men. Furthermore, it has been argued that the advantages of home ownership, across gender lines, belie the feminist representation of home as an oppressive institution.12 This perspective has been challenged by empirical studies into the differential experiences of home, including the experience of home ownership, for men and for women. It has been suggested that the values of home for occupiers—particularly the relative weight attached to the tangible features of the house as a physical structure and the investment value of the property as capital, on the one hand, and the ‘x factor’ values of home on the other—are influenced by gender differences. This evidence adds weight to the argument that any legal concept of home that seeks to represent the real value of home to occupiers across gender must be capable of recognising the range of different types of values, as set out in the five clusters listed above, and discussed in Chapter 4. Whilst the range of potential gender issues pertaining to the subject of home per se is broad, the most crucial issue for the purposes of this book is the question of 10 R Peterson, ‘Introduction’ in GR Wekerle, R Peterson and D Morley (eds), New Space for Women (Boulder, Colo, Westview Press, 1980). 11 See F Olsen, ‘The Family and the Market’ (1983) 96 Harvard Law Review 7. 12 See, eg, P Saunders, A Nation of Home Owners (London, Unwin-Hyman, 1990).

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gender difference in exposure to, and the experience of, losing one’s home through creditor possession action. The impacts of losing one’s home through repossession for the occupier’s quality of life, social status and identity, personal and family relationships, and for their emotional, psychological and physical health and wellbeing were considered in Chapter 3.13 One of the issues considered in this chapter concerns the question of gender difference in the experience of loss of home. In addition, another question to bear in mind is whether female occupiers—or female-headed households—may be at a higher risk of possession actions than male-headed households. If this were the case, such gender differences in the experience of home ownership might arguably justify a gender-specific approach in the conceptualisation of home. In fact, the focus on gender in this chapter is also representative of the possibility that some categories of occupiers might be regarded as being especially vulnerable as home occupiers, and particularly as home owners. The meanings of home, as they have been mediated through the ideology of home ownership, were analysed in Chapter 5. One central theme of that chapter was the argument that while home ownership has been promoted as a vehicle through which occupiers can achieve enhanced home benefits, in respect of home as financial asset, home as physical structure and the x factor meanings of home, the extent to which the benefits of home ownership are available to individual occupiers and households is determined according to their ability to sustain home ownership, and thus to avoid default and possession actions by the creditor. Furthermore, the research literature considered in Chapter Five suggested that particular groups of home owners are more vulnerable to the costs of home ownership. For example, studies in the US have suggested that low income households, black households, femaleheaded households and older homeowners are at greater risk of possession actions and therefore more exposed to the negative consequences of losing their homes in possession actions.14 Of course, overarching all these issues is another recurrent theme of this book: the danger that increasing the home protection available to occupiers would give rise to a corresponding reduction in the availability of credit. This factor is particularly salient when considering particular groups of occupiers, for example, femaleheaded households. If the law were to provide a ‘special protection’ for the home interests of women vis-à-vis the commercial claims of creditors, there would be major implications both in principle and in practice. In principle, the difficulty lies in whatever assumptions might underpin any special treatment on the ground of gender. The conceptual flaws that exist in relation to the typical grounds for showing ‘special tenderness’ towards women when it comes to property dealings were exposed in Chapter 7. These include the tendency, when conceptualising women’s 13 14

See Ch 3, n 135–153 and associated text. See Ch 5, n 96 and associated text.

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property interests, to focus on either their relationships with men (which is in fact an extension of the presumption of female dependency) or—as has been the case in the context of undue influence—presumptions of female incapacity.15 The potential practical implications of ‘special treatment’ for female occupiers include the danger that creditors would be less willing to advance capital to women for the purposes of enabling them to buy houses if the creditors’ protections were compromised in the event of default. Since, as the discussion in this chapter will demonstrate, the repossession of the concept of home within feminist scholarship depends on equal access to home ownership, any legal policy development that threatened to create a new gender differential in relation to the availability of home ownership would be clearly counter-productive. As the discussion in Chapter 10 will suggest, a difference in the legal protection extended to occupiers in relation to the possession of their homes based on gender would raise issues in respect of discrimination under the Human Rights Act 1998. Finally, this chapter will consider whether, if there is a case for enhancing the legal protection available to certain categories of home occupiers, this goal can be pursued without undermining the current drift towards the re-possession of the concept of home within feminist scholarship.

Feminist Critique of the Values of Home Despite the fact that the discipline of home scholarship is relatively young, the impetus for much home scholarship—and, indeed, for the analysis in this book— was rooted in an instinctive and long-standing sense that home is a positive phenomenon. This is reflected in the following excerpt from Altman and Werner’s ‘Preface’ to a collection of essays on home : homes are more or less a universal . . . in many societies, homes are one of the most important places. Homes offer physical amenities that sustain and support the residents, and they are often essential to the very survival of their occupants. Furthermore, homes are important centres for the development and manifestation of certain psychological meanings. Individuals develop identities and regulate privacy in homes; families establish, grow, and often bond themselves to the larger society through their homes. Thus homes are the repository of central and essential psychological and cultural processes.16

This generally positive perspective on home was also evident in the discussion of home meanings in Chapter 4. From the philosophical foundations of home as a 15

See below, nn 186–192 and associated text. I Altman and CM Werner, ‘Preface’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985) p xix. 16

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dwelling place that enables the occupier to become oriented in the world to the five clusters of contemporary home meanings based on empirical and theoretical research,17 mainstream home discourse has generally presumed that home is a source of positive meanings, attachments and experiences for occupiers. Similarly, as the discussion in Chapter 5 has demonstrated, the expansion of home ownership has been relentlessly pursued on the presumption that it offers considerable and incontrovertible benefits for occupiers. In contrast to this, feminist critique has typically portrayed home as a negative phenomenon. The concept of home has been rejected by feminists as ‘the girl’s prison and the woman’s workhouse’;18 a site of patriarchy and oppression;19 and in extreme cases a place of violence against women.20 Feminist perspectives on home have also highlighted the position of home as the archetype of the private sphere. The association of women with the home has been rejected on bases ranging from the historical exploitation of the notion of ‘women in the home’—for example, one argument against suffrage was the suggestion that the civic responsibilities associated with suffrage would interfere with woman’s ability to perform her natural and proper duties in the home21—to the suggestion that the idea of home as a ‘haven’ for women from the outside world implicitly suggests that the outside world is a place to be feared, leaving women confined to the private sphere of the home, where they are invisible to the law, vulnerable to abuse, and without access to public power.

Home as ‘Women’s Place’ In her critique of home as ‘women’s place’, Burks argued that feminists were compelled to reject home, since, ‘[f]rom its very beginnings, feminism has, in large part, sought to expose the separation of public and private life as a mere fabrication of phallo-centric power structures meant to quell woman’s political identity

17 That is, home as financial asset; home as physical structure; home as territory; home as identity; and home as socio-cultural unit. 18 GB Shaw, Man and Superman: Maxims for Revolutionists (Cambridge, Mass, The University Press, 1903), 143. 19 See, eg, B Martin and C Mohanty, ‘Feminist Politics: What’s Home Got to Do with It?’ in T de Laurentis (ed), Feminist Studies/Critical Studies (Bloomington, Ind, Indiana University Press, 1986); T de Laurentis, ‘Eccentric Subjects: Feminist Theory and Historical Consciousness’ (1990) 16 Feminist Studies 115; B Honig, ‘Difference, Dilemmas, and the Politics of Home’ (1994) 61 Social Research 563. 20 See eg, E Stanko, ‘Fear of Crime and the Myth of the Safe Home: A Feminist Critique of Criminology’ in K Yllo and M Bograd (eds) Feminist Perspectives on Wife Abuse (London, Sage, 1988); E Sarage, ‘Dangerous Places: The Family as a Site of Crime’ in J Muncie and E McLaughlin (eds), The Problem of Crime (London, Sage, 1996); L Moran, ‘The Poetics of Safety: Lesbians, Gay Men and Home’ in A Crawford (ed) Crime, Insecurity, Safety in the New Governance (Cullompton, Willans Publishing, 2001).

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and “keep her at home”’.22 In fact, the role of housing and the built environment in marking off public and private spheres along gendered lines was emphasised in Gardiner’s argument, that: the political and ideological construct [of home] was translated into the built form so that public buildings and spaces associated with citizenship and power were malecentred, and the home was considered the women’s realm.23

The socio-cultural ideologies of home and domesticity were also viewed as tools through which men sought to establish their dominance over women. A classic example can be found in the stereotype of the 1950s housewife. Gardiner claimed that ‘[t]he development of the suburbs, with the associated cult of domesticity which idealised women as the center of home and hearth, is an excellent example of the way in which housing reinforced women’s subordination in society’.24 The idea of home as ‘women’s place’ was also critiqued on the basis that the placement of women within the home functioned to confine women to the private sphere in two ways: for one thing, they were spatially removed from other spheres of activity; furthermore, women’s ability to step outside the home and participate in other spheres was inhibited by the demands that home imposed upon them. Iris Marion Young has described the image of Penelope at the hearth, weaving, saving and preserving the home, while her man roams the earth in daring adventures25 as a classic representation of a (Western) cross-cultural idea about woman’s role in the home—that is, serving the needs of men. The image of Penelope keeping the home fires burning also reflected the restrictions that these obligations placed on woman’s own freedom to leave the home and participate in the public sphere of the world at large. The philosophical foundations of ‘Dwelling, Space, and Sense of Place’ were considered in Chapter 4.26 The relationship between individuals and the place in which they dwell was regarded, in Heideggerian philosophy, as elemental to the human condition. Heidegger’s concept of dwelling has attracted criticism from feminist commentators on the ground that, when Heidegger separated ‘building’ into ‘construction’ and ‘preservation’, he demonstrated an implicit preference for ‘building’. In Building, Dwelling, Thinking,27 Heidegger claimed that: ‘[b]uilding 21

See H Barnett, Introduction to Feminist Jurisprudence (London, Cavendish, 1998) 44. VC Burks, ‘Women’s Place: An Arendtian Critique of Feminism’ (1994) 14 Women and Politics 19. 23 P Gardiner, ‘Housing and Gender: Beyond the Public/Private Dichotomy’ in HC Dandekar (ed), Shelter, Women and Development: First and Third World Perspectives (Ann Arbor, Mich, George Wahr Publishing Co, 1993) 62. 24 Ibid. 25 IM Young, ‘House and Home: Feminist Variations on a Theme’ in D Olkowski (ed), Resistance, Flight, Creation: Feminist Enactments of French Philosophy (Ithaca, NY, Cornell University Press, 2000) 49. 26 See Ch 4, nn 11–55 and associated text. 27 M Heidegger, Bauen, Wohnen, Denken ‘Building Dwelling Thinking’ (1951), translated by A Hofstadter, Poetry, Language, Thought (New York, Harper Colophon Books, 1971). 22

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in the sense of preserving and nurturing is not making anything’; he focused instead on construction, rather than preservation, as the more important activity for building, and therefore for dwelling. Another gender issue that has arisen in this context concerns the tendency for male work in relation to the home—which is constituted in ‘building activities’, such as the construction of the home, paying for the home and adding value to the home by making improvements—to reap dividends in terms of ‘home as a financial asset’ and ‘home as a physical structure’—the more readily quantifiable categories of meaning that tend to dominate in legal discourse on home. Women’s labour in the home, on the other hand, tends to be constituted in the repetitive housework tasks required to preserve the home, but without demonstrably adding anything to the value of the property.28 Young critiqued Heidegger’s philosophy of dwelling as ‘implicitly gendered’, as ‘on the whole, women do not build’.29 Young argued that women are disadvantaged within Heidegger’s analysis on the basis that: If building establishes a world, if building is the means by which a person emerges as a subject who dwells in that world, then not to build is a deprivation. Those excluded from building, who do not think of themselves as builders, perhaps have a more limited relation to the world, which they do not think of themselves as founding. Those who build dwell in the world in a different way from those who occupy the structures already built, and from those who preserve what is constructed. If building establishes a world, then it is still very much a man’s world.30

Thus, Heidegger’s ‘allegedly universal ontology’ of dwelling was exposed as implicitly gendered.31 This was exacerbated by the division of labour on gendered lines, which ensured that: ‘[m]an can build and dwell in the world of patriarchal culture . . . only on the basis of the materiality and nurturance of women’.32 One of the core arguments that has been advanced within feminist critique of ‘home as women’s place’ revolves around this idea: that the ‘benefits’ of home— whether in financial asset, physical structure or x factor meanings—are acquired for men, at woman’s expense. Young argued that: ‘[w]omen serve, nurture, and maintain so that the bodies and souls of men and children gain confidence and expansive subjectivity to make their mark on the world’.33 Furthermore, while they are performing this supporting role for others within the home, women are themselves disadvantaged in the public sphere, since: ‘[t]his homely role deprives women of support for their own identity and projects’.34 This argument raises 28 29 30 31 32 33 34

See B Hooks, Feminist Theory: From Margin to Centre (New York, City University, 2000) 104. Young, above n 25, 51. Ibid, 52. Ibid. Ibid, 50. Ibid, 49. Ibid.

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interesting issues in relation to the discussion of family home in Chapter 7. The demands that are experienced by women in relation to their caretaking work within the home are clearly rooted in the idea that women within the home are labouring under obligations towards other family members (ie men and children). In other words, it is arguable that the feminist target in this context is not the relationship between the woman and the home, but rather the demands associated with her relationships within the family. While home certainly provides the site for the expression of these demands, the source of the matter is rooted in the woman’s role within the family rather than her relationship with her home. The disadvantages of adopting a ‘relational approach’ to the conceptualisation of home were outlined in Chapter 7. When the occupier is viewed primarily in the context of the family unit, her individual needs and interests can tend to be obscured. A further danger associated with focusing on the family unit rather than individual members of the family in relation to property in the home is the prospect that the interests of some family members, particularly women and children, may be overlooked or even ignored in favour of the interests of more dominant members of the family. Finally, as the discussion of the ‘marriage’ between the concepts of family and home in Chapter Seven illustrated, the concept of family home also has historic connotations linked with gender, class and race which could be regarded as undermining the concept of home as a set of meanings that can be experienced, and valued, by all occupiers. Feminist scholarship on the issue of ‘home as women’s place’ is consistent with this analysis. This provides further support for the ‘individual occupier’ approach proposed in Chapter 7— whereby the interests of occupiers in the home, including occupiers living within a family context, are valued individually and cumulatively rather than being clustered together as a collective unit, with a (presumed to be) unitary interest in the property.

Home as a Site for Individual Subjectivity The ‘individual occupier’ approach to the conceptualisation of home (as opposed to the ‘family unit’ approach) provides a means by which to side-step the traditionally negative connotations of home as ‘women’s place’. A major obstacle for feminist scholarship, when it comes to embracing the concept of home, has been the idea that home represents a ‘fixed identity that historically imprisons women’.35 Yet, if it were possible to displace the patriarchal ideology of home, there is some scope for the development of a more positive conception of home which could be embraced within the intellectual domain of feminist scholarship. In fact, the starting point for the re-conceptualisation of home in feminist thought reflects a tendency that has been recognised in other disciplines, for home-analysis 35

Young, above n 25, 56.

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to stem from instinctive responses. The fundamental nature of the relationship between people and their homes was discussed in Chapter 4, while the examination of property theory and law in Chapter 6 highlighted the significance of human responses to property, for example the home, in Hegelian property and Radin’s ‘property for personhood’. Young tapped into the humanity of these responses when she advocated the repossession of home as a feminist project on the ground that ‘[d]espite the oppressions and privileges the idea historically carries, the idea of home also carried critical liberating potential because it expresses uniquely human values’.36 However, a key stage in the re-conceptualisation of home for feminist scholarship is to take a real measure of the benefits and costs of home for women occupiers. The central aim of this book has been to unpack the meanings and values of home, to draw upon research in other disciplines, and to begin to build a framework for the conceptualisation of home in law. The analysis in this book has been centred upon the creditor/occupier dispute because this context provides a paradigmatic illustration of both the benefits and the potential costs of home attachments for occupiers. The object has been to transcend the idealism surrounding home, and to approach a real measure of its value for occupiers. As Honig suggested, [t]he solution lies neither in the consolidation of new and improved homes that claim really to deliver on the dream, nor in the exile of selfalienation . . . [but in] the true measure of the real but relative freedoms we have’.37 This outlook is also reflected in Young’s argument that, ‘[d]espite the real dangers of romanticising home, there are also dangers in turning our backs on home’.38 While she acknowledged that: ‘[i]f house and home mean the confinement of women for the sake of nourishing male projects, then feminists have good reason to reject home as a value’,39 the disadvantages of home-oriented analysis for women should be balanced against the potential benefits associated with attachments to home for women. Young appeared to instinctively recognise the x-factor values of home when she wrote that: ‘. . . it is difficult even for feminists to exorcise a positive valence to the idea of home. We often look forward to going home and invite others to make themselves at home’.40 In fact, there are positive references to the x factor values of home as identity and home as territory in Young’s claim that: ‘[h]ome as the materialisation of identity does not fix identity, but anchors it in physical being that makes a continuity between past and present. Without such anchoring of ourselves in things, we are, literally, lost’.41 In fact, even though she accepted that the 36 37 38 39 40 41

Ibid, 49. B Honig, ‘Difference, Dilemmas, and the Politics of Home’ (1994) 61 Social Research 563 at 588. Young, above n 25, 75. Ibid, 49. Ibid. Ibid, 63.

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work that is required to nurture these x factor meanings for the family tends to fall disproportionately on women, Young drew a distinction between the positive activity of home-making and the drudgery of housework. Young described the activity of ‘[p]reserving the meaningful identity of a household or family by means of the loving care of its mementos [as] simply a different order of activity from washing unhealthy bacteria out of the bathroom’.42 Furthermore, she claimed that home-making activities are important in enabling individuals, families, groups and peoples to establish and preserve their individual and collective subjectivity. The key, for Young, appeared to be the relationship between the benefits of home and the demands imposed on women in order to realise these benefits. Thus, it was argued that: [t]o the extent that it falls to women to perform this [homemaking] work for women and children, just as they perform the work of cooking and washing for them, without men’s reciprocation, then women continue to serve as material for the subjectivities of men without receiving like support for themselves.43

However, as the discussion in Chapter 7 has demonstrated, the model of home conceived in this book is based upon the relationships between individual occupiers and their homes, rather than the relationships between family members. Whilst this model allows for the situation of multiple occupiers living in a family context, whose respective interests may be accumulated to add weight in the balance against a creditor’s commercial claim, the fundamental building block of this analysis is the individual occupier rather than the family unit. One of the questions posed by Young in relation to the re-possession of home for feminist thought was whether it would be ‘possible to retain an idea of home as supporting the individual subjectivity of the person, where the subject is understood as fluid, partial, shifting, and in relations of reciprocal support with others?’44 This book argues that the re-conception of home in terms of the experiences, needs and attachments of individual occupiers, rather than the traditional vision of home as family home, would in fact constitute significant progress towards the feminist goal of home as a site for individual subjectivity.

Home as a Universal Value? The importance of the activity of home-making was also emphasised in bell hooks’ analysis of home as a site of dignity and resistance for black women—as a place where black women created and sustained the environments that enabled black 42 43 44

Young, above n 25, 65. Ibid, 67. Ibid, 56.

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people to develop their resistance to oppression in the world at large. hooks claimed that: Black women resisted by making homes where all black people could strive to be subjects, not objects, where we could be affirmed in our minds and hearts despite poverty, hardship, and deprivation, where we could restore to ourselves the dignity denied us on the outside in the public world.45

It is important to note that this home-making labour was ‘not simply a matter of black women providing service’,46 for example, through the drudgery of housework, but rather that the activity of making a home provided ‘the opportunity to grow and develop, to nurture our spirits’.47 bell hooks’ portrayal of home for black women was as a place where those who were excluded or disadvantaged could recuperate from their struggles in the world at large. hooks’ idea of home as a site of resistance depicted the home as a restorative place, where people who experienced oppression and disadvantage in the world at large could enjoy dignity, satisfaction, safety, privacy and an opportunity to develop their identities. In fact, it was the proposition that home has the potential to offer these benefits that underpinned traditional feminist critique of home. The problem was the fact that, while home was recognised as capable of providing these benefits, the advantages of home were seen to be unequally available on gender grounds. Home was regarded as a site of (male-biased) privilege, and the benefits of home were regarded as accruing to men at the expense of women. Furthermore, as the discussion of family home in Chapter 7 suggested, home was also imbued with values that were predominately white and bourgeois. Consequently, this concept of home was rejected in critical scholarship. Yet, these issues—particularly the idea of privilege in the availability of home meanings— could potentially be addressed if the benefits were extended, as a ‘universal value’. Indeed, while Young acknowledged that, ‘[h]aving the stability and comfort of concrete home is certainly a privilege’,48 she argued that the appropriate response is not to reject home outright, but rather to ‘extent its positive values to everyone’.49 The idea of home as a site of dignity and resistance for people who are economically or socially disadvantaged outside the home has also been linked with home ownership in political discourse. The additional social and economic benefits that, according to political rhetoric, are associated with owning one’s own home were considered in Chapter 5. Government strategies to expand the owner-occupied 45 46 47 48 49

b hooks, Yearning: Race, Gender, and Cultural Politics (Boston, Mass, South End Press, 1990) 42. Ibid. Ibid. Young, above n 25, 72. Ibid, 70–1.

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sector throughout the twentieth century ensured that, by 2004, almost 70 per cent of households in the United Kingdom owned, or were in the process of buying, their own homes.50 Furthermore, the growth of home ownership has been successful across social classes, so that ‘half of the poor’, as well as most of the rich in Britain, are now categorised as ‘owner occupiers’.51 If, as the policy rhetoric suggests, the benefits of home—from the physical state of the property to the x factor values such as security, continuity, privacy and identity—are enhanced by home ownership, the growth of home ownership would appear to suggest that the ‘privilege’ of home is becoming a universal value. The promotion of home ownership could, in this analysis, be regarded as instrumental in the repossession of the concept of home for critical scholarship. One of the overriding themes of this book has been the importance of drawing on empirical evidence relating to the meanings and experiences of home, in order to build a real (rather than ‘ideal’) concept of home for law. When the meanings of home ownership were examined in Chapter 5, it was noted that, alongside the benefits of mass home ownership, a series of costs have resulted in the context of possession actions. The increase in risk and potential costs for home owners has been attributed to the rise in unsustainable home ownership, particularly amongst low income households. This is an important factor to bear in mind when considering the idea of home as a universal value. On the one hand, research has suggested that the meanings and values of home may be particularly salient for certain types of occupiers—for example, low income occupiers, children, the elderly, disabled people or people from racial minorities.52 Indeed, empirical studies have suggested that when a person’s economic and social resources are limited, the home and neighbourhood environment play a critical role in that person’s life chances and identity.53 If, as political rhetoric has suggested, ownership of one’s home inherently enhances the occupier’s ability to experience the positive values of home, then the growth of home ownership would be significant in rendering home a more universal value. Furthermore, since the pursuit of home ownership has been (formally at least) gender neutral, the idea that home has become more universally available could be regarded as indicative of ‘emancipation through capitalism’ for the new home owners. Yet, as the discussion of home ownership and the meanings of home in Chapter 5 indicated, while, for the ‘successful’ home owner, a range of additional ‘benefits’—freedom, continuity, security—are associated with the security of tenure 50

Social Trends 35 (London, Office for National Statistics, 2004), Table 15, Appendix 1. See generally R Burrows and S Wilcox, Half the Poor: Home-owners with Low Incomes (London, Council of Mortgage Lenders, 2000). 52 See Ch 3, nn 107–112 and associated text. 53 S Saegert, ‘The Role of Housing in the Experience of Dwelling’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985) 289–90; see also A Schorr, Slums and Social Insecurity (Washington, DC, US Government Printing Office, 1964). 51

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which is thought to flow from owner occupation, for the occupier who is threatened with the loss of their home through a creditor possession action, the converse applies. Furthermore, when it comes to considering exposure to these potential costs, it is interesting to remember that low income households experience the greatest risk of possession actions. In her discussion of home as ‘privilege’, Young suggested that the ‘privilege’ of home has become less of a gender privilege, and is now more dependent on class and race. This proposition is substantiated by evidence that, as the home ownership sector has expanded to include half of all households living in poverty in the United Kingdom, low income households are more exposed to the risk of losing their homes through repossession.54 Furthermore, Balfour and Smith have argued that the financial and psychological stress, caused by the increased levels of risk experienced by low income home buyers, undermine the social and economic value associated with ownership for families living on the economic margin.55 If the conceptualisation of home in this book is to warrant support from feminism, it is important to consider whether the concept of home, as articulated through the paradigm of the creditor/occupier dispute, is capable of representing a universal value for all occupiers. On the one hand, the analytical neglect of home interests in legal discourse, as well as the persistent tendency for the commercial claims of creditors to prevail in possession actions, conforms to Green’s model of land law as a discipline that favours ‘self-interested and rational individuals in the market place, overrid[ing] the needs of those who are different: weaker or poorer, or in a different way defined as Other’.56 The purpose of the discussion in this book is to reconsider the balance struck between the commercial claims of creditors and the home interests of occupiers. One of the key issues to emerge from feminist theoretical analysis of home is the importance of considering the issue of discrimination in the availability of home for different groups of occupiers. This was reflected in Young’s suggestion that, ‘[a]lthough values of home do indeed signal privilege today, analysis of those values and commitment to their democratic enactment for all can have enormous critical potential in today’s world’.57 The following section considers empirical research on gender difference in the meaning, experience and value of home. This analysis goes largely to the availability of the benefits of home. This will be followed by consideration of the issue of gender difference in respect of the costs of home ownership, particularly in the shape of exposure to possession actions and the risk of loss of home. The object of this 54

See Ch 5, nn 195–199 and associated text. D Balfour and J Smith, ‘Transforming Lease-purchase Housing Programs for Low-income Families: Towards Empowerment and Engagement’ (1996) 18 Journal of Urban Affairs 173; see also L Rainwater, ‘Fear and the House-as-haven in the Lower Class’ (1966) 32 Journal of the American Institute of Planners 23. 56 K Green, ‘Being Here—What a Woman Can Say About Land Law’ in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London, Cavendish, 1996) 93–4. 57 Young, above n 25, 50. 55

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analysis is to ascertain whether the legal concept of home should be sensitive to any gender differences in the experiences of occupiers.

The Universal Value of Home Ownership A significant body of work has been carried out in relation to the meaning of home and the values which home represents to its occupiers. Researchers in many disciplines have carried out studies investigating the affective value of home, that is, the emotional attachment that occupiers feel towards their homes, and a significant body of theory has developed from these studies. As the analysis of home meanings in Chapter 4 has demonstrated, although the meaning of home to an individual occupier is necessarily subjective, a number of qualities have repeatedly and consistently emerged from empirical research into occupiers’ responses to home.58 Home represents a complex and multi-dimensional amalgam of financial, practical, social, psychological, cultural, politico-economic and emotional interests to its occupiers. One means of expressing these values has been the use of the equation home = house + x, thus separating the idea of home into, on the one hand, the physical structure of the house (which provides physical shelter, and a locus for the experience of home) and, on the other hand, the ‘x factor’, which represents the social, psychological and cultural values which a house acquires through use as a home. In Chapter 4, these values were grouped into five main clusters of value type: home as financial investment; home as physical structure offering material shelter; home as a territory offering security and control, a locus in space, permanence and continuity and privacy; home as a centre for self-identity offering a reflection of one’s ideas and values, and acting as a indicator of personal status; and home as a social and cultural unit acting as the locus for relationships with family and friends, and as a centre of activities.59 One of the interesting patterns to have emerged from empirical studies into the values of home is the prevalence of family in occupiers’ responses to the meanings 58 See, eg, C Despres, ‘The Meaning of Home: Literature Review and Directions for Future Research and Theoretical Development’ (1991) 8 Journal of Architectural and Planning Research 96; MW Baker, E Kramer and G Gilbert, ‘The Pier 1 Imports Study of the American Home’, study no 871025 (New York, Louis Harris & Associates, 1987); M Csikszentmihalyi and E Rochberg-Halton, The Meaning of Things: Domestic Symbols and the Self (Cambridge, Cambridge University Press, 1981); J Hayward, ‘Psychological Concepts of Home’ [1977] Challenge 10–13; RM Rakoff, ‘Ideology in Everyday Life: The Meaning of the House’ (1977) 7 Politics and Society 85; R Sebba and A Churchman, ‘The Uniqueness of Home’ (1986) 3 Architecture and Behaviour 7; J Sixsmith, ‘The Meaning of Home: An Exploratory Study of Environmental Experience’ (1986) 6 Journal of Environmental Psychology 281; S Smith, ‘The Essential Qualities of a Home’ (1994) 14 Journal of Environmental Psychology 31; T Wikstrom, ‘The Home and Housing Modernisation’ in D Benjamin (ed), The Home: Words, Interpretations, Meanings and Environments (Aldershot, Ashgate, 1995). 59 See Ch 4, nn 253–257.

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associated with their homes. Family emerged as a significant indicator in most of the main value types. For example, home is regarded as the most appropriate framework for family life; the desire for security within a home territory is enhanced by the presence of family, and particularly of children;60 the right to privacy in the home is realised through association with ‘family life’;61 home as identity has family connotations;62 and family is identified as the most significant socio-cultural facet of home.63 It is clear that family is a major factor in the experience of home, and that the use of a home as a family home boosts the experience of home environments and the desire to create and safeguard a good home. However, as the discussion in Chapter 7 indicated, the concept of family home is problematic on several grounds, ranging from the inherently exclusionary nature of pre-defined family forms to the danger that the needs and interests of individual occupiers, especially women and children, are rendered invisible within a (presumed-to-be coherent) family unit. The ‘family’ dimension in the concept of home also raises issues in relation to access to housing and the pressure for women to conform to traditional family forms in their living arrangements. Typical housing arrangements for women include: women living alone; women living with children; women living with men; and women living with other women. One factor that may influence women’s capacity to develop positive home values is the housing opportunities that are available to them, depending on which type of household they are living in. The availability and sustainability of home ownership for women are considered further below. It is useful to bear in mind, however, that the disadvantages that women experience in access to housing (and consequently to home) are both economic and ideological. Darke has argued that while, on the one hand, ‘[w]omen earn less than men and hold less wealth . . . they are also affected by norms about

60 Evidence from several empirical studies has indicated that ‘a critically important function of the home is the sense of security that it is supposed to offer’, and that the popular perception of home as ‘a place of security and protection’ is heightened when the family home is occupied by children: J Fitchen, ‘When Toxic Chemicals Pollute Residential Environments: The Cultural Meanings of Home and Home Ownership’ (1989) 48 Human Organisation 313 at 316. 61 See Ch 10 for discussion of the right to respect for home under Art 8 of the European Convention on Human Rights. 62 While home represents, on the one hand, a significant symbol of the self- and social-identity of individual occupiers, it has also been suggested that: ‘[h] ome is a projection and basis of identity, not only of an individual but also of the family’: J Pallasmaa, ‘Identity, Intimacy, and Domicile—Notes on the Phenomenology of Home’ in Benjamin, above n 58, 137. 63 Research into modern social and cultural meanings of home has indicated that it is the association with family that gives the cultural centrality to the contemporary home: ‘[a]lthough the form of the family is undergoing change, the idea of family remains fundamental. By its association with family, the home, too, would hold cultural centrality’: Fitchen, above n 60, 315. Fitchen added that, ‘[e]ven when children are not explicitly the focus, the family unit is apparent’: at p316. Rakoff’s study, above n 58, also reflected the popularly held view that ‘it is the presence of children and the activity of family life that makes a house a home’: at 93.

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“proper” living arrangements. The options on how and with whom to live are constrained by the social disapproval that may follow some choices’.64 The problem of access to home for women is also linked to the affordability of home ownership for single women and female-headed households. On the one hand, social and demographic patterns have indicated that the number of singleperson and single-parent households is rising, and that the majority of both types of households are headed by women.65 However, the combination of single rather than double incomes, lower proportions of women in full-time employment compared to men, and the persistent pay differential between women and men led Darke to conclude, in 1996, that ‘home ownership is most affordable for couples or sharers, then single men, and finally single women, with perhaps one in thirteen of them being able to afford to buy in their own right’.66 The discussion of home ownership and the meanings of home in Chapter 5 demonstrated how the meanings of home have been linked—economically, socially and culturally—to home ownership and, further, the importance of financial security for successful and sustainable home ownership. The following section considers the significance of home ownership on the availability of home meanings for women.

Women as Home Owners As the discussion in the previous section has illustrated, one of the central criticisms of the concept of home for feminist scholars was the idea that the benefits of home were available only on the basis of privilege, rather than as a universal value. The privilege of home was denied to many women, especially working class women and women from ethnic minorities, who did not have access to the single family home, because of either low income and/or discrimination. A series of economic, social and employment factors have been identified as barriers to home ownership for women living alone or women living with children. In fact, it was suggested that a woman’s best route into home ownership was through a relationship with a man—through the church or register office door.67 Research in the UK and in the US has suggested that women traditionally entered home ownership by three routes: as separated or divorced women staying on in the matrimonial home; as widows who inherit the home from their husbands; and as spinsters who inherit their parents’ homes.68 When it comes to buying into home ownership, Gilroy 64 J Darke, ‘Househunting’ in C Booth, J Darke and S Yeandle (eds) Changing Places—Women’s Lives in the City (London, Paul Chapman Publishing, 1996), 48–9. 65 Ibid, 49. 66 Ibid, 51. 67 R Gilroy, ‘Women and Owner Occupation in Britain—First the Prince, then the Palace?’ in R Gilroy and R Woods (eds), Housing Women (London, Routledge, 1994). 68 See ibid; and E Card, ‘Women, Housing Access and Mortgage Credit’ (1980) 5 Signs: Journal of Women and Culture in Society S215.

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suggested that women’s lower incomes, lower earning capacities and factors affecting women’s careers, such as child care or caring for dependent adults, meant that women were much less likely to enter the owner-occupied sector compared to men.69 A gender differential in access to home ownership has major implications for the concept of home as a universal value. This is particularly significant in light of the socio-cultural emphasis on ownership for delivery of the benefits of home. Furthermore, it has been noted that, until relatively recently, when women did become home owners, this often resulted from circumstances other than purchase.70 One explanation for the historic exclusion of women from property ownership was the traditional disadvantage created by the ‘patriarchal ideologies of private ownership of property’.71 Sayne described the ideology of private home ownership as ‘an expression of patriarchal relations that have historically rendered women subordinate to and dependent on men for their housing rights’.72 In fact, Sayne’s critique identified a gender bifurcation in modern housing practices, whereby ‘men are the primary producers/owners/controllers of housing and related resources and industries, while women are the users and caretakers’.73 This echoed Young’s analysis of the significance of gender in Heidegger’s concept of dwelling: that ‘building’ was divided into (male-dominated) ‘construction’ and (female-dominated) ‘preservation’. The discussion of home in property theory and law in Chapter 6 drew upon a series of binary distinctions, including ‘property as thing’ and ‘property as wealth’, Radin’s dichotomy of personal property and fungible property, and Tönnies’ theories of social organisation, Gemeinschaft und Gesellschaft, which value property, respectively, according to its use value or its exchange value. Furthermore, the analysis of these approaches in Chapter 6 demonstrated the dominance of exchange values in contemporary property law and policies. Madigan, Munro and Smith’s analysis of gender and home ownership also drew on the dichotomy between use value and exchange value, to describe gender differences in the meaning of home.74 They claimed that the meaning of home for women and for men was permeated by the use value and exchange value of owning one’s own home, across gender lines. For one thing, they argued that ‘female-headed households are likely to be poorer than male-headed households, and thus less likely to be able to afford owner occupation and to gain access to the wealth-accumulating sector of 69

Gilroy, above n 67, 34–5. Ibid; Card, above n 68, 216. 71 PL Sayne, ‘Ideology as Law: Is there Room for Difference in the Right to Housing?’ in HC Dandekar (ed), Shelter, Women and Development: First and Third World Perspectives (Ann Arbor, Mich, George Wahr Publishing Co, 1993) 98. 72 Ibid. 73 Ibid. 74 R Madigan, M Munro and SJ Smith, ‘Gender and the Meaning of Home’ (1990) 14 International Journal of Urban and Regional Renewal 625. 70

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the housing system’.75 Thus, although women were free to enjoy whatever use value could flow from renting, female heads of household were relatively disadvantaged in terms of access to the exchange value benefits of home ownership. Sayne highlighted a similar issue when she argued that the housing system— and particularly the growth of home ownership—have ‘foster[ed] institutional sexism’ and ‘the subordination of women’ by enabling men to receive exchange value from housing, but restricting women to use value. Sayne claimed that while men benefited from ‘autonomous economic power and access to credit’,76 women ‘as the primary users and caretakers of housing, receive little autonomous social or economic security from their activities and do not gain access to credit’.77 Indeed, Smith’s research into the gender dimensions of owner occupation in Australia in the late 1980s reported that many women were reliant on the support of a partner in order to gain access to home ownership.78 Smith claimed that ‘[h]ome ownership is strongly related to taking a partner at some time in the housing career’.79 Thus: women and men conveniently stereotyped by many housing analysts as ‘owneroccupied households’ have, in practice, followed very diverse life paths to attain this outcome. The process of becoming an owner-occupier, as well as the act of sustaining owner-occupation, is gender-differentiated.80

While male dominance in employment and income appeared to offer men an advantage in achieving the goal of home ownership, it appeared that ‘family formation strategies’ were of greater relevance for women.81 Thus, Gilroy concluded that for women, the pathway to home ownership was ‘generally one of ownership and not purchase and that ownership has been arrived at through their relationship with a man’.82 Furthermore, Smith also reported that currently living with a partner was the strongest demographic predictor of home ownership.83 Although both male and 75

This is because ‘[w]omen’s wages are much less than men’s wages on average’: ibid, 633. Sayne, above n 71, 99. 77 Ibid. 78 SJ Smith, Gender Differences in the Attainment and Experience of Owner-Occupation in Australia, (Urban Research Unit Working Paper No 19, Research School of Social Sciences, Australian National University, 1989). 79 Ibid, 17. Smith found that: ‘[o] verall, 77% of men and 76% of women who have entered such a relationship now own, as compared with 23% and 18% of those who have never lived as married’: ibid. 80 Ibid, 22. Smith concluded that ‘men’s and women’s routes to, and experiences of, even the same, owner occupier households may be very different. The picture is one which confirms women’s traditional reliance, for the attainment of owner-occupation, on a partner’s income and wealth . . . but which also highlights the importance of women’s wages in sustaining owner-occupation, and which recognises the role of women’s unpaid labour in maintaining an owner-occupier lifestyle for their partners and children’: ibid, 28–9. 81 Ibid, 23–4. 82 Gilroy, above n 67, 36. 83 Smith, above n 78, 17. 76

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female respondents who had previously been married, but were currently separated, divorced or widowed, were on the whole more likely to have exited from owner occupation and returned to the rental sector,84 women were found to be at a disadvantage here also. Smith claimed that a combination of factors, including lower earning capacity and child care responsibilities, meant that women were less likely than men to remain in owner occupation after relationship breakdown.85 McCarthy and Simpson’s study of post-divorce housing in the United Kingdom also emphasised the particular difficulties experienced by women without children, since they were less likely to retain the family home after divorce. In these circumstances, the research suggested that: the housing aspirations of women without children are realised through new partners, either because they move into the homes of new partners or they move into other circumstances on a temporary basis until they and their new partners are able to make permanent arrangements to set up home together.86

The idea that many women must depend on a relationship with a man for the privilege of home ownership—and thus, in light of the socio-cultural privileging of ownership, for the meanings and values of home—is problematic when it comes to seeking feminist sponsorship for the concept of home. The discussion of family home in Chapter 7 identified a series of difficulties with the assumptions inherent in family unit analysis, including the portrayal of women who live with men as their dependents. If the culturally cherished status of home ownership is differentially available to women so that they are dependent on men for access to home ownership, this further entrenches the traditional feminist argument that home reinforces patriarchal relationships, constructing men as autonomous actors in the market place and women as their dependents. Another gender distinction in the experience of home, identified by Madigan, Munro and Smith, was concerned with two-adult households. The authors identified three elements in the ‘exchange rights’ conferred by home ownership: the right to capital gain; the right to trade the house; and the right to borrow against the value of the house. In fact, they argued that ‘[a]ll these features may be experienced differently by men and women even in the same household’.87 Bearing in mind the fact that this analysis was focused primarily on the benefits of home ownership rather than the costs, the authors concluded that:

84 ‘This suggests that the ending of a relationship (especially through relationship breakdown) may be a significant route out of ownership. Nevertheless, we have already seen that only a small proportion of those who ever attain ownership subsequently leave the tenure, and this is certainly a smaller proportion than those who separate or divorce (let alone become widowed)’: ibid, 18. 85 Ibid, 20. 86 P McCarthy and B Simpson, Issues in Post-Divorce Housing (Aldershot, Avebury, 1991) 39. 87 Madigan, Munro and Smith, above n 74, 633.

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[t]he advantages in owner occupation are so marked for the majority of those who can afford to buy that it would not be possible to argue that either men or women have a monopoly on the desire for the financial (or indeed, ideological) benefits that are seen as being associated with owner occupation.

Yet, while they claimed that both men and women had a rational aspiration towards (successful) home ownership, the degree of control that women and men experienced in relation to the exchange rights associated with home ownership— that is, making the decision to trade the property, deciding whether to borrow against the property, or managing capital gain—were differentiated on gender lines. This theme has been extensively analysed in the context of ‘undue influence’ cases: that is, cases in which a person with an ownership interest in property is unduly influenced to consent to the use of that property as security for a loan.88 The crux of the doctrine of undue influence is that transactions may be avoided at the election of the unduly influenced party, where it can be shown that the principal debtor induced the surety—with whom the principal debtor has a relationship of trust and confidence—to agree to a transaction affecting jointly owned property, for example, the jointly owned home. The issue of undue influence presents conceptual as well as practical problems for feminist critics. These issues are considered further in the conclusions section to this chapter, which examines the implications of ‘special protection’ for women in relation to their interests in the home. In the context of undue influence, the difficulty rests with the fact that, while women may well be negatively affected by structural inequalities in the wider economy, when it comes to control over the exchange value of the property the idea that women should be treated with ‘special tenderness’ has unattractive connotations. Adopting this analysis, there is a danger that, by presenting such women as ‘victims’, legal protections against undue influence could undermine the capacity of women to offer valid consent to surety transactions, and so to participate fully in the ‘public sphere’ activity of exchange. As Lord Browne-Wilkinson stated in Barclay’s Bank plc v O’Brien,89 ‘although the concept of the ignorant wife leaving all financial decisions to the husband is outdated, the practice does not yet coincide with the ideal’.90 Yet, even where it is recognised that gender inequality does exist, the question of how the law can be sensitive to such issues, without 88 See, eg, R Auchmuty, ‘Men Behaving Badly: An Analysis of English Undue Influence Cases’ (2002) 11 Social and Legal Studies 257; B Fehlburg, ‘The Husband, the Bank, the Wife and her Signature—the Sequel’ (1996) 59 Modern Law Review 675; B Fehlburg, Sexually Transmitted Debt (Oxford, Clarendon Press, 1997); K Green and H Lim, ‘Weaving Along the Borders: Public and Private, Women and Banks’ in S Scott-Hunt and H Lim (eds), Feminist Perspectives on Equity and Trusts (London, Cavendish, 2001); D Morris, ‘Don’t Blame the Bank, Sue Your Solicitor’ (1999) 7 Feminist Legal Studies 193. 89 [1994] 1AC 180. 90 Ibid, 188.

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constructing women as victims or as incapable of acting in the public sphere, presents persistent challenges.

Is Income the Key? It is arguable that, despite evidence of a gender differential in the availability of home ownership, the issues unpinning the exclusion of some women from the positive meanings of home would be more suitably characterised in terms of income. Home ownership itself is gender-neutral, in the sense that access is determined according to the ability to pay. However, other socio-economic disadvantages experienced by women have had a knock-on effect on their position as home owners. For one thing, home ownership requires access to mortgage credit, an area in which women traditionally experienced discrimination; in the United Sates of America, the Equal Credit Opportunity Act 1973 prohibited discrimination in the granting of credit on account of sex and marital status, thus theoretically eliminating barriers to home ownership for women. However, a study conducted in 1980 found that economic recession, unemployment and lower incomes had discouraged and prevented many women from taking on mortgages.91 The idea of an enduring gender differential in access to credit for women was reviewed in an empirical study in New Jersey in 1997.92 This research indicated that, while women stood an equal chance of being granted a mortgage, once they had made an application, women were four times less likely than men to be primary mortgage applicants. In the past, the lower proportion of women applicants for mortgage credit was attributed to two factors: economic and psychological. The economic issue derived from the fact that ‘female-headed households . . . [were] likely to be poorer than male-headed households, and thus less likely to gain access to the wealthaccumulating sector of the housing system’.93 Furthermore, Card’s study in 1980 suggested that a range of gender-sensitive socio-cultural factors precluded women from incurring mortgage debts, particularly in an environment of economic insecurity and unsustainable home ownership. Card claimed that: [s]ocio-psychological barriers operated to discourage women who were not trained to think in terms of incurring debt. Mortgages . . . appeared to be awesome responsibilities and were not readily obtainable.94 91

Card, above n 68, S218–19. Report to New Jersey Citizen Action, Women’s Access to Mortgage Lending in New Jersey (New Brunswick, NJ: New Jersey Citizen Action, 1997). This study was prompted, in part, by a dramatic rise in female employment and female-headed households in New Jersey, which was regarded as exemplifying national trends. 93 Madigan, Munro and Smith, above n 74, 633. 94 Card, above n 68, S216. 92

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Nevertheless recent trends in Britain have suggested that, although men continue to outnumber women in respect of home ownership, the gap is beginning to narrow. In the General Household Survey in 2002, 75 per cent of male ‘household reference persons’ were owner occupiers (84 per cent of married male household reference persons; 71 per cent of cohabiting male household reference persons; 53 per cent of single male household reference persons; 63 per cent of widowed male household reference persons and 54 per cent of divorced or separated male household reference persons). Amongst the female household reference persons, 58 per cent overall were owner occupiers. Of these, the gender gap was narrowest in married households: 79 per cent of married female household reference persons were owner occupiers; with larger gaps amongst cohabiting couples (57 per cent of female household reference persons were owner occupiers) and single people (41 per cent of female household reference persons were owner occupiers). The figures were much closer in respect of widowed people (M=63 per cent; F=62 per cent) and divorced or separated people (M=54 per cent; F=54 per cent).95 Of course, since these statistics refer to the ‘household reference person’, they do not give a full picture of women in different living arrangements. For one thing, men are more likely to be returned as the household reference person, with 64 per cent of respondents overall being male. However, the trend towards more women home owners is also supported by data from the UK Census in 2001, which reported that while there is still a higher proportion of single male home owners compared to single female home owners (54 per cent of all single men compared to 40 per cent of all single women),96 women are currently entering the owner occupied sector at higher rates than the total population, with a 52 per cent increase in single female home buyers since 1992. Furthermore, 17 per cent of all new mortgage lending is currently made to single women.97 Yet, these statistics must also be viewed against the general background of gender and class relations in contemporary Britain. While women continue to constitute a large portion of the urban poor, growing affluence amongst women in professional and managerial careers, with their own high earning power, has enabled them to yield greater clout in the home ownership market. In fact, it has been suggested that in Britain a new cleavage has emerged in relation to women’s economic status and—by extension—their positions as home buyers. On the one hand, the increase in female participation in the labour market, including ‘[g]rowing numbers of women with professional and vocational qualifications [who] have 95 National Statistics 2002, Tenure by Sex and Marital Status of Household Reference Person: Living in Britain 2002—Results from the 2002 General Household Survey, available at www.statistics.gov.uk/lib2002/. 96 National Statistics 2001, Focus on Gender: Housing—Results from Census 2001, available at www.statistics.gov.uk/cci/nugget.asp?id=433. 97 Singletons and the Housing Market, Report compiled by Capital Economics Ltd, 28 Oct 2002, unpublished.

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moved into “core” jobs and are advancing up the career ladder particularly in the professions, public administration and management’,98 has suggested that women are in fact enjoying greater financial independence, which would, it would seem, tend towards enhancing women’s access to home ownership. However, Bondi and Christie have claimed that not all women have access to these benefits, and for those who do not, the outlook is very different. Their research indicated that, while: [t]he careers paths and experiences of some of these female workers increasingly resemble those of their male counterparts, and illustrate a certain narrowing of gender divisions and inequalities . . . such opportunities are not uniformly accessible to all women (or to all men). Increasing numbers of women are trapped in poorly paid jobs . . . [m]oreover an increasing number of men find themselves outside of core employment and many of them are subject to the same disadvantageous terms previously associated strongly and specifically with women workers as well as racialised minorities.99

Bondi and Christie identified evidence of a narrowing of gender differences in male and female employment, on the one hand, and a widening of class differences within genders, on the other. When it comes to household wealth, a major gulf has emerged between households with two professional salaries and those with low incomes or no incomes. The importance of income for home ownership was discussed in Chapter 5. While ownership has assumed a key role in the socio-cultural meanings of home, it has also emerged that, not only is the availability of the benefits of home ownership dependent on income levels, but the negative aspects of home are strongly associated with financial insecurity, default and loss of home in mortgage possession actions. When considering the significance of gender in the context of home, it would seem that while higher-earning women enjoy greater access to home ownership, ‘financial autonomy and independence for some is matched by economic insecurity and dependence (within the household or on the state) for others’.100 Although factors such as the gender pay differential, child care and other caring responsibilities continue adversely to affect women’s earning powers, compared to those of men, it is arguable that the more significant distinction is now between well-off households (often two adult households) and low income households (including, but not confined to, female-headed households). This was epitomised by Bondi and Christie as ‘the contrast between the growing economic success and prosperity of some women and the poverty and marginalisation of others’.101 This casts an interesting light on the issue of ‘women as home owners’. In fact, it is suggested that, when evaluating the availability of home as a privilege or a 98 L Bondi and H Christie, ‘The Best of Times for Some and the Worst of Times for Others? Gender and Class Divisions in Urban Britain Today’ (2000) 31 Geoforum 329 at 331. 99 Ibid. 100 Ibid. 101 Ibid, 332.

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universal value, it might be more appropriate to focus on the position of low income households in relation to access to home ownership and the meaning of home, rather than gender per se. The same logic applies to the sustainability of home ownership for women. Research in the 1980s and 1990s suggested that when women did manage to get onto the home ownership ladder, they were at greater risk of default and possession actions compared to men. One context in which the problems associated with the sustainability of home ownership for women have been extensively analysed is in relation to post-divorce housing patterns. Empirical studies have revealed that, although women are more likely to retain the marital home on divorce—so long as they are custodial mothers—the critical issue for sustaining home ownership is income levels following divorce.102 The drop in income levels when households break up means that the partner who obtains the family home on divorce may not, in fact, be able to bear the costs of sustaining home ownership after divorce—that is, meeting mortgage payments and running costs, whilst possibly also paying off a former partner for his or her share.103 Thus, it has been suggested that ‘[o]ccupancy of the matrimonial home at the time of a separation may in fact turn out to be a pyrrhic victory with the departure of one partner from the matrimonial home being shortly followed by the departure of the other’.104 Yet again, the idea that women are more vulnerable to possession actions is linked to income levels. As the discussion in Chapter 5 indicated, low income mortgagors are most likely to experience arrears or have their homes repossessed, since they are already economically disadvantaged.105 The exposure of low income households to the risk of possession actions is relevant to policies that promote access to home ownership for traditionally under-served groups. For example, Gilroy has suggested that ‘[f]or . . . a woman, perhaps coping on low wages, any initiative designed to help her to become a home owner may be misdirected’.106 Gilroy argued that although ‘[w]hile the ideological obsession with tenure contin102 Gilroy, above n 67, 39. On the issue of post-divorce poverty, see generally HR Rodgers, Poor Women, Poor Children—American Poverty in the 1990s (3rd edn, Armonk NY, M E Sharpe, 1996). 103 McCarthy and Simpson, above n 86, 29. 104 Ibid, 127. McCarthy and Simpson also cited evidence indicating that in some low-income cases maintenance claims may have been waived in return for the equity in the matrimonial home (see S Cretney, ‘Divorce and the Low Income Family’ (1990) 20 Family Law 377), thus rendering a lowincome partner even more vulnerable to mortgage arrears and ultimately to repossession. 105 S Nettleton, ‘Losing Homes Through Mortgage Possession: a ‘New’ Public Health Issue’ (1998) 8 Critical Public Health 47 at 50. Research has indicated that lone parents and households headed by someone who is unemployed or from an ethnic minority are at much higher risk of experiencing arrears: ibid; see also J Ford, ‘Mortgage Possession’ (1988) 8 Housing Studies 227. 106 Gilroy, above n 67, 51. Gilroy cited Whitehead’s argument that ‘. . . the ownership of a housing asset is not necessarily the best use of limited resources for low income households. Such households may rather spend what little they have on other, usually consumer goods. Secondly, the benefits of owner occupation remain highly correlated with income and wealth. Those at the bottom of the scale often do not benefit from freedom and security and may in some circumstances even suffer capital losses’: C Whitehead, ‘Low Cost Home Ownership in the Context of Current Government Policies’ in P Booth and T Crook (eds), Low Cost Home Ownership (Aldershot, Gower, 1986) 74.

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ues there must be ways of increasing women’s access to owner occupation’,107 it was also important to consider the possibility that ‘[f]or many women households there are not, and probably never will be, the income levels to support owner occupation adequately’.108 Government housing policies have played a major role in the promotion of home ownership and in the residualisation of public sector housing, and this has left many low income households—including, but not confined to, female-headed households—with little choice but to take their chances with home ownership and to run the risks of default and loss of home through possession actions. Another interesting issue to consider in the context of Gender and the Meaning of Home is the suggestion that women suffer the costs of losing their homes in possession actions more acutely than do men. The idea of a ‘special protection’ for the family home in Chapter 7 was premised, in part, on the assumption that women experience a stronger attachment to their homes than men, and that she will be more severely affected in the event of repossession: she risks not only losing the income from her breadwinner and facing the humiliation that bankruptcy inevitably brings, but she will be penalized in practice more heavily than almost anyone else by losing the matrimonial home.109

On a similar note, Baroness Summerskill, on introducing the Matrimonial Homes Bill in 1966,110 claimed that the debtor’s wife had ‘a vested interest in the home; not a material one, but her whole happiness is bound up in the home. Surely the love of her children, her home, and security are the most potent forces in a woman’s life’.111 The following section considers the idea of gender difference in the meanings and values of home.

Gender Difference in the Meanings of Home When the meanings and values of home were considered in Chapter 4, they were broadly classified into five clusters of value types: home as a financial asset; home as a physical structure; home as territory; home as identity; and home as socio-cultural asset. However, it is important to acknowledge the fact that not all occupiers experience home in a positive way, as a provider of shelter, security, control, privacy and identity. Indeed, one of the prominent themes in feminist analysis of home has been a conflicting portrayal of home as a place of danger and insecurity, where these 107 108 109 110 111

Gilroy, above n 67, 55. Ibid. 78 HC Deb (6th Series) col 176 (30 April 1985) Mr John Fraser, emphasis added. See Ch 7, nn 45–61 and associated text. 275 HL Deb (5th Series) col 640 (28 June 1966) Baroness Summerskill.

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positive associations cannot be trusted. Feminist theorists have highlighted the darker side of home as a site of domestic violence and fear within families;112 as a ‘prison and a place of terror as well as a haven or place of love’.113 Detailed analysis of these aspects of home falls outside the remit of this book. However, this section considers another source of negative responses to home for women: the insecurity associated with vulnerability to losing one’s home through creditor possession actions. Empirical studies on the experience of home have focused considerable attention on the question of gender difference in the meanings and values of home.114 Indeed, while there have been some differences in emphasis between these studies, they appear to support a general consensus that home meanings are broadly comparable across gender. Where differences have been identified by research studies, they have tended to be merely differences in emphasis across value types. For example, in ‘The Essential Qualities of a Home’, Smith identified a high degree of consensus between men and women in the values associated with their home environments.115 Smith claimed that ‘[a] comparison of men’s and women’s responses to a request to describe the present home suggests that both groups are responding in a similar fashion’.116 When talking about their homes in this study, both men and women tended to identify characteristics such as continuity, privacy, self-expression and personal identity, social relationships, warmth and the importance of a suitable physical structure. Yet, while Smith’s findings indicated that male and female respondents drew upon the same bank of home meanings, this study also indicated that some of these values, both positive and negative— security, a sense of belonging, and dissatisfaction with their domestic role— appeared to be more salient for women than men.117 112 The issues raised by this discourse have been extensively discussed elsewhere: see eg, E Stanko, ‘Fear of Crime and the Myth of the Safe Home: A Feminist Critique of Criminology’ in K Yello and M Bograd (eds), Feminist Perspectives on Wife Abuse (London, Cavendish, 1988); E Saraga, ‘Dangerous Places: The Family as a Site of Crime’ in J Muncie and E McLaughlin (eds), The Problem of Crime (London, Sage, 1996); L Moran, ‘The Poetics of Safety: Lesbians, Gay men and Home’ in A Crawford (ed), Crime, Insecurity, Safety in the New Governance (Cullompton, Willans Publishing, 2001). 113 J Moore, ‘Placing Home in Context’ (2000) 20 Journal of Environmental Psychology 207 at 212. 114 See, eg, Smith, above n 58; S Saegert, ‘The Role of Housing in the Experience of Dwelling’ in I Altman and CM Werner (eds), Home Environments (New York, Plenum Press, 1985); M Csikszentmihalyi and E Rochberg-Halton, ‘Home as Symbolic Environment’ in R Gilroy and R Woods (eds) The Meaning of Things—Domestic Symbols and the Self (Cambridge: Cambridge University Press, 1981); Madigan, Munro and Smith, above n 74; M Bulos and W Chaker, ‘Sustaining and Sense of Home and Personal Identity’ in Benjamin (ed) above n 58; Darke, ‘Women and the meaning of home’, in R Gilroy and R Woods (eds), Housing Women (London, Routledge, 1994); P Saunders, A Nation of Home Owners (London, Unwin-Hyman, 1990); C Gurney, ‘“. . . Half of Me was Satisfied”: Making Sense of Home through Episodic Ethnographies’ (1997) 20 Women’s Studies International Forum 373. 115 Smith, above n 114. 116 Ibid, 36. 117 See also R Sebba and A Churchman, ‘The Uniqueness of Home’ (1986) 3 Architecture and Behaviour 7, which supports the proposition that men and women experience the same types of home values, with any difference being in emphasis only.

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Another distinction that emerged in Smith’s study was between emotional and physical reactions to the home environment. Smith claimed that the ‘atmosphere in the home [was] mentioned more frequently by women, and the physical location of the home mentioned more by men’.118 This distinction was also supported by studies by Saegert, and Csikszentmihalyi and Rochberg-Halton, both of which identified broadly similar meanings across gender, but which suggested greater emphasis on the house for men (as a physical structure and as a financial asset), while women tended to highlight the x factor characteristics of home (as territory, as identity and as socio-cultural signifier), within an emotional and relational framework. In fact, in Csikszentmihalyi and Rochberg-Halton’s analysis of feelings about home amongst adults (women and men) and children (girls and boys), they found that ‘children of both sexes start out with a warm emotional attachment to the home. This attachment continues to be strong for women, whereas men essentially cool out in their relationship with the home’.119 The positive aspects identified by the children who participated in this study tended to revolve around the role of the home as a source of ‘physical and emotional security coupled with a sense of freedom that permits them to expand and yet to be private’.120 In relation to men’s responses, the authors claimed that the focus was on home as investment asset and home as physical structure. The authors related this difference to ‘the instrumental roles adult males play in our society’.121 They noted that ‘fathers extensively talk about the work they put into the home. New kitchens, new roofs, and new plumbing take precedence in their descriptions’.122 Yet, although the emphasis in these descriptions was on the physicality of the house, it is interesting to bear in mind the link between physical structure and x factor meanings—for example, identity—for the men in this study. Csikszentmihalyi and Rochberg-Halton suggested that: [t]he house, for men, becomes a concrete embodiment of all the psychic energy they have invested in the form of money. Thus the house represents the accomplishments of the owner’s self.123

This depiction of ‘the house’ in fact suggested that home held symbolic importance for men, although this was more likely to be expressed in terms of money or physical structure than in terms of x factor values. Women, on the other hand, were 118

Smith, above n 114, 36. Csikszentmihalyi and Rochberg-Halton, above n 114, 129. 120 Ibid, 129. 121 Ibid, 130. The authors also considered the possibility that ‘these changes reflect the fact that adult males learn to react to any types of relationship less in terms of feelings; thus their emotional neutrality concerning home is an indication of a more general dulling of affect rather than neutrality specifically about the home’: ibid. 122 Ibid. 123 Ibid. 119

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described as ‘see[ing] the house primarily as a place where people interact with each other; when the home is seen in positive terms, it is because the interaction is harmonious’.124 This ‘relational’ paradigm was also endorsed by Darke, who argued that ‘[t]he home was certainly seen as part of the emotional sphere and, particularly for women, was inseparable from significant life-events that had taken place there, from childbirth to relationship breakdown’.125 The idea that women were more concerned than men with security within the home territory was mentioned in a few studies. Smith claimed that while the positive meanings of home were, on the whole, very similar, ‘[t]he issue of security was addressed by a quarter of the women and none of the men . . . suggesting that for some women at least, feeling secure at home is something they would like to preserve’.126 Saegert also emphasised the territorial meanings of ‘home as an anchor’ for women.127 There is, however, a certain degree of ambiguity surrounding these particular home meanings for women. For one thing, although Smith presented the focus on security by women as a positive value, it could, alternatively be regarded as evidence of the public/private divide—whereby women’s desire for security in the home ‘impl[ies] the world requires being hidden from’.128 By the same token, the (prima facie positive) idea of home as anchor could alternatively be attributed to: ‘assignment to and identification with domestic duties and . . . their [women’s] greater fear of crime and harassment in the world away from home’.129 Smith also noted that, ‘[i]n looking at the personal themes, a great proportion of women expressed dissatisfaction with present levels of freedom and privacy, with themselves, or with their present roles within the home’.130 Yet, she concluded that, despite some evidence of dissatisfaction in women’s home experiences, ‘[t]he greater emphasis on the sense of belonging at home by women lends support for the theory that women identify with the home environment to a greater extent than do men’.131 The idea that home is an ambiguous phenomenon, connoting both positive and negative values, has been a common theme in critical gender analyses of the concept of home. For example, in Moran’s discussion of the role of safety in ideas of home for lesbians and gay men, he emphasised the critical challenges that feminist criminology has posed to the meanings of home. Moran’s study of home feelings amongst lesbian and gay focus groups indicated that: ‘ “home” is comfort and discomfort, safety and danger, ontological security and threats and challenges to the 124 125 126 127 128 129 130 131

Csikszentmihalyi and Rochberg-Halton, above n 114, 132. Darke, above n 114, 13. Smith, above n 114, 38. Saegert, above n 114, 290. Ibid, 290. Ibid. Smith, above n 114, 39. Ibid, 44.

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experience of “being myself”, of insecurity and anxiety. Home is ambivalent’.132 Moran’s analysis of home emphasises the difficulties that respondents in his focus groups experienced with being ‘at home’. However, it is also interesting to consider how the idea that home is ambivalent maps onto analysis of home in the context of creditor/occupier disputes. The discussion of home ownership in Chapter 5 highlighted a complex web of costs and benefits for successful and unsuccessful home buyers. Furthermore, the ambivalence of home is also reflected in the idea that positive meanings of home are privileged rather than universal, inasmuch as they are available only to certain categories of occupiers. The meanings and values of home are clearly ambivalent, depending on the strength or vulnerability of individual occupiers and their ability to sustain home ownership. In this regard, the analysis in this book responds to the argument that ‘[a] key task that lies ahead is not to abandon the idea of home or to reduce it to a new impoverished myth of the unsafe home, but to complicate the issue of “home” ’.133

Gender, Home Ownership and Ontological Security The idea that home meanings, such as safety, autonomy and control, may vary according to gender was a significant theme in Madigan, Munro and Smith’s analysis of home ownership and ontological security.134 This study suggested that housing consumption carries different symbolic values for men and women because of the different weights attached, by women and men, to meanings such as: the display of wealth and status; the organisation of family life; and the quest for safety, security and wellbeing. It is interesting to note that this research associated such differences as might exist in home meanings to gender roles in family life. The authors claimed that: [t]his does not mean that men and women might not equally see their ideal home as a centre of family life, as an arena characterised by love and affection or as a locus of relaxation and comfort. It does, however, suggest that these meanings might well be genderdifferentiated.135

It is interesting to note that where commentators have identified gender differences in home meanings, this has tended to reflect the availability, rather than the desirability, of home meanings for women. For example, several studies have focused on the relationship between home meanings, the availability of home 132 L Moran, ‘The Poetics of Safety: Lesbians, Gay Men and Home’ in A Crawford (ed), Crime, Insecurity, Safety in the New Governance (Cullompton, Willans Publishing, 2002) 283. 133 Ibid, 296. 134 For a more general discussion of home ownership and ontological security, see Ch5, nn 252–277 and associated text. 135 Madigan, Munro and Smith, above n 74, 640.

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ownership for women and the costs of unsustainable home ownership.136 Indeed, it is noteworthy that none of the empirical studies considered in this chapter rejected the positive possibilities of home meanings for women; rather it is the obstacles that lie in the path of achieving that goal that have been identified as potentially subverting the experience of home ownership—and therefore of home—for some women occupiers. The idea that owning (or buying, subject to a mortgage) one’s own home enhances feelings of security, including ontological security, was considered in Chapter 5. Policies promoting home ownership have suggested that owner occupation—as opposed to renting—enables occupiers to develop a stronger sense of autonomy and control in relation to their homes.137 Madigan, Munro and Smith challenged the proposition that ontological security is determined by housing tenure, since they claimed that ‘gender-differentiated household type is a much more powerful predictor of individual fear than is housing tenure’.138 In fact, they claimed that ‘in terms of ontological security, the beneficial effects of owner occupation may be much more noticeable for men than for women’.139 The authors drew upon the Crime Survey series to argue that ‘[w]omen are more fearful than men in every age group and irrespective of actual risk . . . [and] increasingly, it is being recognised that the disproportionate fears of women relate to perceptions of safety at home’.140 Madigan, Munro and Smith also suggested that any boost in ontological security that may arise from home ownership was differentially available to women because they tend to have less power and less control over housing. The discussion of ‘women as home owners’, above, suggested that women who live with men have less control over the household’s finances. Madigan, Munro and Smith suggested that: [f]or men, home ownership may be a means of gaining control over the material conditions of life; and control over social relations within the domestic sphere, occasionally manifest as violence. The higher levels of insecurity associated with home occupancy by women might partly be accounted for by this.141 136

See, eg, Bulos and Chaker, above n 114; Darke, above n 114, and Gurney, above n 114. See eg, RM Rakoff, ‘Ideology in Everyday Life: The Meaning of the House’ (1977) 7 Politics and Society 85; Smith, above n 58; Saunders, above n 12; Bulos and Chaker, above n 114. See, however, arguments to the contrary in P Marcuse, ‘The Ideologies of Ownership and Property Rights’ in R Plunz (ed), Housing Form and Public Policy in the United States (New York, Praeger, 1980); C Gurney, The Meaning of Home in the Decade of Owner Occupation: Towards and Experiential Perspective (Bristol, School of Advanced Urban Studies, University of Bristol, 1990). 138 Madigan, Munro and Smith, above n 74, 641. 139 Ibid. 140 Ibid. It is noteworthy that: ‘[a] lthough part of this might be explained by women’s generally greater propensity to worry about house crimes . . . it seem much more likely, in view of the consistency of the literature between fear and powerlessness, that the ‘safety’ value of housing for women is impaired by factors other than concern about property crime’: ibid. 141 Madigan, Munro and Smith, above n 74, 642. 137

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One of the themes of this chapter has been the availability of the benefits of home as a universal value rather than as a patriarchal privilege. The idea that women have less control than men when it comes to home must also be considered in light of the discussion of home ownership in the previous section, which suggested that as more women—especially single women—buy their own homes, the idea that gender per se represents a barrier to the benefits of home (including control) is undermined. Rather, it appears increasingly evident that access to the benefits of home ownership is determined not by gender but by the ability to pay. This shift from gender to income was reflected in Bulos and Chaker’s study of home meanings,142 which reported that, generally speaking, the values associated with home ‘show a degree of consistency’143 across differences in gender, as well as differences in social class and in age. However, Bulos and Chaker did identify some areas of difference, which they attributed to a range of factors, including tenure, age, gender, employment status and ethnicity. All of these factors were linked to the occupier’s ability to achieve the benefits of home. Darke also highlighted this issue when she discussed the effects of financial pressures, for example, the risk of defaulting on a secured loan, on women’s home meanings.144 Some of the women who participated in her study reported ‘a set of negative feelings associated with the mortgage being a burden and the home being a “millstone” ’.145 On the other hand, there was also evidence that women experienced positive feelings when home ownership was successful. These feelings were ‘associated with pride and a sense of security in attaining a home of one’s own, which appeared to be particularly significant for single women householders’.146 The argument that home ownership provides a means by which to achieve greater ontological security was a central element in Saunders’ analysis of housing policies, and a mainstay of his overwhelming support for the expansion of the owneroccupied sector. The general thrust of Saunders’ approach was considered in Chapter 5. In A Nation of Home Owners,147 he argued that home ownership enhances the positive meanings of home for occupiers; that ‘most people in Britain would prefer to own their homes rather than rent them’;148 that ‘owner-occupation is the preferred tenure of most ordinary people’; and that: ‘[t]he evidence of an overwhelming aspiration to own is, of course, too compelling to deny’.149 Furthermore, 142

Above n 114. Ibid, 232. 144 Darke, above n 114. 145 Ibid, 14. 146 Ibid. Darke concluded that ‘even when the domestic role is experienced as burdensome, a mesh of internalised social constraints make it almost impossible to relinquish: the identification with the home is too great. The socialisation process that gives rise to this leaves an imprint at the psychoanalytic level’: ibid, 21. 147 Saunders, above n 12. 148 Ibid, 3. 149 Ibid, 65. 143

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Saunders claimed that home ownership was gender-neutral; that is, that women experienced the benefits of home ownership just as much as men. Reflecting on traditional feminist critiques of home, Saunders maintained that ‘[e]ither the academic feminists have got their theories wrong or millions of women are too stupid to recognise their own best interests’.150 This argument was based on a survey of home meanings from which Saunders concluded that: [t]he orthodox feminist image of the home as an oppressive institution simply does not square with what women themselves say about it . . . If feminist critics of the home were right, and patriarchal relations were indeed so oppressive as to make the home a place of comfort for men but a place of oppression for women, then we should expect this to show up in people’s comments. The fact is that it does not.151

Saunders’ unmitigated enthusiasm for the benefits of home ownership—including his argument that home ownership is an unqualified success for women as well as men—has attracted considerable criticism,152 not least for its failure to recognise the ambiguities of home, for example, by balancing the benefits of home ownership against the costs for occupiers who are unsuccessful and lose their homes in possession actions. One persistent critic of Saunders’ claim that home ownership is gender-neutral has been Gurney, who argued, based on his own empirical research, that there is a gender difference in the experience of home. For one thing, Gurney argued that ‘[m]en were more likely to offer negative and instrumental meanings of home, rather than positive meanings of emotions and haven at the beginning of their accounts’,153 while ‘[f]or women the situation was reversed. Emotional and positive accounts came first, negative and instrumental ones . . . came later’.154 Gurney claimed that his empirical findings indicated that ‘gender was an important factor in accounting for the way in which women and men felt about, and explained home’.155 An overriding difference was the greater ambivalence and complexity of women’s accounts of home, which reflected the proposition that home is more ambivalent for women. As the discussion of gender and the meaning of home in this chapter has repeatedly recognised, the idea that home meanings include negative as well as positive 150

Saunders, above n 308. Ibid, 309. 152 See, eg, C Gurney, The Meaning of Home in the Decade of Owner Occupation: Towards an Experiential Perspective (Bristol, School of Advanced Urban Studies, University of Bristol, 1990); L Richards, Nobody’s Home: Dreams and Realities in a New Suburb (Melbourne, Oxford University Press, 1990); see also Ch 5, n 260–277 and associated text. 153 Gurney, above nn 114, 374. 154 Ibid. 155 Ibid. 151

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associations does not in any way undermine the critical importance of home values for women. In fact, Somerville illustrated this point using the extreme example of domestic violence in the home. He claimed that ‘[t]here is no contradiction in battered wives having a positive attachment to their home. Indeed, this may be part of the reason why battered wives do not easily give up their homes in order to escape the violence’.156 The ambiguities of home extend to other circumstances also. For example, Gurney’s concern with acknowledging the ambiguities of home for women, including the demands imposed by domestic labour, is also supported by Darke’s claim that, for women, home represents ‘a mixture of affection, reciprocated towards the home as a nurturing environment, and resentment towards the demands of home’.157 The ‘demands of home’ can also take the form of financial worries, particularly for home owners who, as the discussion in Chapter 5 indicated, receive less state-sponsored welfare support than tenants,158 and are more likely to be evicted in the event of default.159 The final section of this chapter considers the gender dimensions of mortgage possession actions and the impact of losing the home. One of the issues that Somerville emphasised in this context was the distribution of resources and responsibilities within two-adult households. He claimed that while ‘men are more likely to control the household’s resources . . . women are more likely to be responsible for managing them’.160 This responsibility comes into sharp relief when a household falls into default. The negative consequences that are more generally associated with creditor possession actions were considered in Chapter 3.161 The next section considers the argument that the experience of default, possession actions and loss of home is actually more burdensome for women, relative to men.

Gender, Default and Repossession Mortgage default and repossession are clearly matters of considerable personal stress and distress for the occupiers of the home. The literature on housing and health has established that ‘the social, social psychological and health related consequences of mortgage possession are both dramatic and overwhelmingly negative’.162 Characteristics of the experience of arrears and repossession, including 156 P Somerville, ‘Homelessness and the Meaning of Home: Rooflessness or Rootlessness?’ (1992) 16 International Journal of Urban and Regional Research 529 at 535. 157 Darke, above n 114, 11. 158 See Ch 5, nn 227–229 and associated text. 159 See Ch 5, nn 281–284 and associated text. 160 Somerville, above n 156, 535. 161 See Ch 3, nn 135–158 and associated text. 162 J Ford, R Burrows and S Nettleton, Home Ownership in a Risk Society: A Social Analysis of Mortgage Arrears and Possessions (Bristol, Policy Press, 2001) 113.

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living with debt, uncertainty and lack of control—‘a stressful life event’—are described as ‘important psychosocial mechanisms which may help to explain the link between problematic homeownership and poor health’.163 In fact, when considered in the context of unsustainable owner occupation, it has been argued that these effects are ‘no longer a “private matter” . . . it has become a “public issue” ’.164 The link between the experience of mortgage arrears, living with debt, and the incipient threat—perhaps ultimately the reality—of repossession on the one hand, and damage to physical and mental health, on the other, were highlighted by Nettleton. She claimed that: stressful life events, and this includes the anticipation of events, are associated with both physical and mental health. Psychosocial factors have a negative impact on health when associated with a sudden and dramatic change or life event and where a high stress environment is endured over the long term. Such changes are made worse when there is a lack of control over events and circumstances. All these features—long term insecurity, lack of control, changed social status and financial stress—are intimately bound up with the social processes of mortgage possession. It therefore seems reasonable to suggest that mortgage possession and mortgage debt constitute a growing public health problem.165

This section considers the impact of mortgage arrears on women’s roles within two-adult households, and the psychological, emotional and health consequences of living with arrears, and of loss of home through repossession for women living in all types of household. There is a considerable body of literature surrounding the mental and physical health implications of living with mortgage arrears and repossession.166 Low income households are most vulnerable to arrears and possession actions, and research has indicated that occupiers living in low income households, who are living with debt, are forced to ‘forego basic necessities such as food and fuel, especially in households with children where parents have been found to prioritise their children’s needs over and above their own’.167 The effects of debt appear to be more severe in households with children, and the demands imposed on occupiers to manage household finances appear to be greater for women. Nettleton reported that, for families living with debt, ‘[s]imply making ends meet becomes 163 S Nettleton, ‘Losing Homes Through Mortgage Possession: a ‘New’ Public Health Issue’ (1998) 8 Critical Public Health 47. 164 Ibid, 49. 165 Ibid, 56. 166 See, eg, Nettleton, above n 163; S Nettleton and R Burrows, ‘When a Capital Investment Becomes an Emotional Loss: The Health Consequences of the Experience of Mortgage Possession in England’ (2000) 15 Housing Studies 463; E Kempson, A Bryson, and K Rowlingson, Hard Times? How Poor Families make Ends Meet (London, Policy Studies Institute, 1994); S Middleton, K Ashworth and R Walker, Family Fortunes: Pressures on Parents and Children in the 1990s (London, CPAG, 1994); E Kempson, Life on a Low Income (York, Joseph Rowntree Foundation, 1996). 167 Nettleton, above n 163, 54; Kempson, above n 166, 28.

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a full time job which preoccupies the minds of people most of the time—and this seems to be especially so for women’.168 Other features of living with debt include social isolation, strain on personal relationships, and feelings of shame and stigma169—all factors associated with poor health. In addition, a further cause of stress for mortgagors facing the prospect of repossession is the uncertainty, insecurity and lack of control which characterise this process, and which feed into the potentially adverse health implications of living with debt. Empirical research has indicated that households living with debt, who faced the risk of losing their homes through creditor possession actions: were rarely able to plan, or exert any control over the nature and location of their post possession housing, and . . . they found it difficult to exert any control over the processes involved in the transition from owner occupation to renting.170

It is significant to note, once again, that the effects of this uncertainty and lack of control appear to be heightened when the household includes children. Christie’s survey of households facing repossession found that the desire to maintain the status quo was particularly strong in households that included children, since they ‘were more likely to want to stay put, regardless of how they now viewed the house and all the associated financial problems’.171 When evaluating the significance of gender in this context, it is also interesting to note that empirical research suggests that, as well as having different attitudes towards being in debt and falling into arrears, women and men adopted different strategies for the management of mortgage arrears.172 Christie’s analysis of the experience of living with arrears and the effect of debt on gender practices within households in arrears indicated that ‘gender relations are renegotiated and redefined in the process of putting together [coping strategies], and that change is not necessarily progressive’.173 This reflects Somerville’s suggestion that in two-adult households, while men tended to control household finances, women were more likely to bear the responsibility for managing the family’s money.174 In fact, there is also evidence to suggest that women are more likely to take over responsibility for household finances when paying bills becomes problematic,175 and this was 168

Ibid. Nettleton, above n 167; Kempson, above n 167, p37. 170 Nettleton, above n 167, at 55. 171 H Christie, ‘Mortgage Arrears and Gender Inequalities’ (2000) 15 Housing Studies 877 at 896. 172 ‘Women and men often devise different—and very unequal—strategies for managing household finances, as well as holding different attitudes towards both debt and home ownership. This points towards the possibility that living with mortgage arrears might lead to a fragmentation of experiences within the household, including a potential widening of gender inequalities’: ibid, 878. 173 Ibid, 879. 174 See above n 160 and associated text. 175 A Lewis, Money in the Contemporary Family (Nestle Family Monitor, IMORI No 12, 2001). 169

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supported in the context of mortgage arrears. Christie’s study indicated that, once a household had fallen into arrears, women living in two-adult households tended to bear the greater burden of coping with arrears. She found that ‘women are more likely to manage the day-to-day finances, to use the income they receive directly on the family and to report higher levels of stress and worry about money’.176 Even more significantly, the responsibility for coping with arrears—that is, for managing the day-to-day finances, as well as bearing the greater burden of worry and stress—tended to fall on women, even in households in which family finances had previously been controlled by the male partner. While Christie’s research found that the experience of living with arrears had a major impact on the whole family, it was noted ‘[o]ne of the most pronounced effects of default was to exacerbate the amount of financial work that had to be done within the home’,177 and that the burden for this extra work fell disproportionately on women. In this study of households living with debt, Christie found that: women were more likely to have complete responsibility for the finances including the overall allocations of financial resources and the larger financial commitments of the household. Women had to balance this expenditure with the particular demands of the household, regardless of who had played the most active role in negotiating settlements or dealing with other creditors. The responsibility of having to manage the household budget, combined with the daily reminder of the implications of mortgage default, placed an additional burden on women.178

The additional burdens imposed on women in these circumstances were both practical and psychological. From a practical perspective, women took responsibility for budgeting, for food shopping and preparation, and for managing the household on reduced family outgoings. Christie claimed that ‘[e]qually, they were the ones who worried about where the next meal was going to come from’.179 The respondents identified all of these tasks as stressful and time-consuming. Furthermore, in carrying out these functions, the women in the survey tended to put their children’s and their husbands’ individual needs before their own. Christie reported that: While the standard of living of the entire household depended on the income women generated, they still risked their own health, and legitimated a notion of material altruism, by refusing to acknowledge their own needs.180 176 Christie, above n 171, at 881. See also J Goode, C Callender and R Lister, Purse or Wallet? Gender Inequalities and Income Distribution Within Families on Benefits (London, Policy Studies Institute, 1998). 177 Christie, above n 171, 898. 178 Ibid. 179 Ibid, 900. 180 Ibid.

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Overall, it was apparent that women tended to take greater responsibility for living with arrears, whilst sacrificing their own individual wellbeing in order to sustain other members of the household. It is interesting to note the correlation between these findings and some of the arguments made, in both the House of Commons and the House of Lords, in support of the ‘special protection’ of the family home in bankruptcy. Section 336 of the Insolvency Act 1986 dealt with the family home by requiring that, when exercising its discretion to order sale, the court consider a range of factors, including the needs and financial resources of the bankrupt’s spouse or former spouse and the needs of any children. In the debates that preceded the enactment of this Act,181 Lord Bruce claimed that he: should think the lot of the spouse of a bankrupt has to be experienced to be truly realized. It comes, and must always come—here we are dealing with the wife—after she has borne the transmitted anxieties of the person going bankrupt over a period of years or perhaps over only a short time—maybe months. She is a person who has borne the anxiety of the continued financial decline of the husband upon whom she has depended, and who has been afraid not only of the financial consequences of a possible failure but also of the social implications that are inherent in the reduced civil status and the reduced status within society of the person who has gone bankrupt. If, added to those anxieties and disabilities, the wife or the family are faced with eviction from the family home as a result of the bankruptcy, then the results can be very hard indeed.182

Although the tone adopted in this passage portrays the bankrupt’s wife as a helpless dependent, the sentiment expressed by Lord Bruce is rooted in truth. There is evidence to support the proposition that, in two-adult households, women remain more likely to assume responsibility for management of the family finances once arrears have accrued, and to experience considerable stress and anxiety as a result of the risk—and sometimes the reality—of losing the home to a creditor. Christie’s research also identified another significant issue in respect of gender difference in the repossession process. Of the participants in her study, several two-adult households experienced relationship breakdown while living with arrears, an event that also ‘contributed to new kinds of gender inequalities’.183 Of the eight cases in which this occurred in Christie’s study, the man left the house in six, leaving the female partner in occupation, and therefore with the ongoing responsibility of continuing to deal with the practical and psychological impact of living with mortgage arrears. Finally, it is noteworthy that ‘[a]t the end of the day, the hardship incurred by these women was not likely to come to an end when the household was repossessed. Moving from one temporary home to another brings 181 182 183

See Ch 7, nn 111–113 and associated text. 462 HL Deb (5th Series) col 161–2 (2 April 1985), Lord Bruce. Christie, above n 171, 901.

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new sets of problems including repeated moves, living in poor estates, downward spiralling health profiles and disruption to children’s schooling’.184 Loss of home at the hands of a creditor is undeniably traumatic for men, women and children. A number of factors combine to heighten the painful nature of possession proceedings. The process of mortgage repossession begins with the accrual of arrears, and this is often associated with some other stressful life event such as relationship breakdown, illness, unemployment, or even the death of a partner. The mortgage possession process itself is ‘a long process characterised by uncertainty’185 and the outcome is influenced by several factors that are outside the occupier’s control.186 Evidence from Christie’s study indicated that ‘[w]orry and stress were intensified by going to court for a repossession hearing, to the extent that the health and well-being of individual household members was affected’.187 It is arguable that these experiences may also be of greater impact on women than men, if they resonate with the existing feelings of insecurity, vulnerability, anxiety, apprehension and fear more generally associated with women’s responses to incurring debt.

Conclusions The aim of this book is to unpack the meanings and values of home to occupiers in the context of creditor/occupier disputes. The consideration of gender and the meaning of home in this chapter raised several important issues in this regard. For one thing, the traditional rejection of home by feminist theorists was reviewed against recent critical scholarship that has emphasised the ambiguities and complexities inherent in home values, particularly for women. While traditional feminist scholarship rejected the portrayal of home as ‘women’s place’, discourses in housing and home scholarship have suggested that home can be a meaningful site for women, and that the growth of home ownership has provided greater opportunities for women and men to acquire positive values—both economic and non-economic—from their homes. Yet, as the discussion throughout this book has recognised, the positive meanings of home (and home ownership) are contingent on the (financial) ability to sustain that ownership by avoiding default on the repayment of debts secured against the property. Research has indicated that 184 Ibid; see also J Connelly and J Brown (eds), Homelessness and Ill Health (London, Royal College of Physicians, 1994); R Edwards, ‘Making Temporary Accommodation Permanent: the Cost for Homeless Families’ (1995) 15 Critical Social Policy 60; J Hopton and S Hunt, ‘The Health Effects of Improvements to Housing: a Longitudinal Study’ (1996) 11 Housing Studies 271. 185 Nettleton, above n 163, at 53; see also Ford et al, above n 162, Ch 6. 186 Nettleton cited as examples the policies and practices of lenders, the attitudes of judges and the resources available to the households themselves: S Nettleton, ‘Losing Homes through Mortgage Possession: a ‘New’ Public Health Issue’ (1998) 8 Critical Public Health 47 at 53. 187 Christie, above n 171, 899.

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many women experience positive attachments to their home environments which they wish to sustain. These positive attachments are recognised in the call for a reconceptualisation of home within feminist scholarship. However, one of the key conceptual issues to have emerged in this context is the question whether home remains a ‘privilege’, in the sense that it is unequally available on grounds of gender, class or race. If the idea of developing the concept of home as a feminist project is to flourish, one of the key conditions has been that home must be a universal value, available to all. Yet, analysis of gender and home ownership has indicated that, while the rate at which women are entering home ownership has increased significantly, gender differences remain in relation to access to home ownership and the ability to sustain home ownership. Furthermore, as the previous section has indicated, there is evidence to suggest that experiences of default and repossession may be particularly severe for women, even women living in two-adult households, as they are more likely to bear responsibility for managing household finances in the event of default. The existence of a gender differential in relation to loss of home is significant for evolving feminist scholarship on the subject of home. It is suggested, however, that these findings should not be viewed as reinforcing the traditional feminist argument that home represents only negative values and experiences for women—fear, anxiety, insecurity, vulnerability, lack of power—and so ought to be rejected out of hand. Rather, the function of this analysis is to build on evidence that women do value home, so long as the circumstances are right, and so to engage with the conceptualisation of home as a universal value. However, it is also important to be aware of the risk that an argument that seeks to re-establish the association between women and home could be misunderstood as suggesting that women ‘belong’ in the home, when, in fact, its purpose is to argue that home can belong to women. Where there is evidence to suggest that women continue to experience lower levels of access to home ownership, or that they may be more vulnerable to the risk and the effects of default and repossession, one response might be to argue that this inequality should be addressed by conferring greater protection on female occupiers in the context of creditor–occupier disputes. Such a proposal would be problematic for a number of reasons. The discussion of family home in Chapter 7, which revealed the implicitly gendered approach adopted by the courts when applying ostensibly gender-neutral property law provisions, illustrated the difficulties associated with adopting a gendered approach to property protections. For one thing, the family-unit approach was rooted in a presumption of female dependency. Furthermore, the idea that the home was a special type of property for women tended to reflect a vision of womanhood whereby ‘her whole happiness is bound up in the home. Surely the love of her children, her home, and security are the most potent forces in a woman’s life’.188 188

275 HL Deb (5th Series) col 640 (28 June 1966) Baroness Summerskill.

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The treatment of women in the context of undue influence cases has emphasised the difficulties associated with ‘special protections’ for women in respect of their homes. It is important to recognise that, when it comes to making explicit provisions for the protection of women in their homes, a gender-specific protection would be discriminatory and unjustifiable. Furthermore, although the undue influence debate was not specifically gendered, it highlighted the problems associated with the (even implicit) idea that women deserve additional protection in relation to property. Although the doctrine itself did not depend on gender, an implicit factor in its development was the fact that many women living in twoadult households were not in a position to control the extent of indebtedness incurred against the equity in their homes. In the past, women often had less control over the management of property in the home—for example, the decision to use the property as security—because women were less likely to own (or co-own) the property. The rise of joint ownership meant that women acquired a greater degree of formal control over indebtedness against the property. However, with this increase in joint formal control, another issue emerged as one co-owner—in practice, often a woman—could find herself subjected to undue pressure by a partner to consent to equity mortgages or line-of-credit advances.189 The legal treatment of undue influence in English law has identified a ‘Catch 22’ for policy makers when they attempt to provide gender-sensitive protections in respect of the owned home. Although the doctrine of undue influence can be invoked in various situations where a ‘relationship of trust and confidence’ is found to exist between a principal debtor and a co-debtor or surety, the law has traditionally displayed a ‘special tenderness’ to married women who act as sureties for their husband’s debts. As recently as 1994, the House of Lords held that: societies’ recognition of the equality of the sexes has led to a rejection of the concept that the wife is subservient to the husband in the management of the family’s finances. A number of the authorities reflect an unwillingness in the court to perpetuate law based on this outmoded concept. Yet . . . although the concept of the ignorant wife leaving all financial decisions to the husband is outdated, the practice does not yet coincide with the ideal . . . In a substantial proportion of marriages it is still the husband who has the business experience and the wife who is willing to follow his advice without bringing a truly independent mind to bear on financial decisions. The number of recent cases in this field shows that in practice many wives are still subjected to, and yield to, undue influence by their husbands. Such wives can reasonably look to the law for some protection when their husbands have abused the trust and confidence reposed in them.190

The doctrine of undue influence presents a conflict for feminist scholarship. On the one hand, the fact that women are often negatively affected by structural socio189 190

See generally B Fehlburg, Sexually Transmitted Debt (Oxford, Clarendon Press, 1997). Barclay’s Bank plc v O’Brien Lord Browne-Wilkinson.

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cultural inequalities in relation to their rights in the home raises an argument for providing some kind of additional, counterbalancing protection.191 However, on the other hand, the suggestion that women should be treated with ‘special tenderness’ in law is difficult, as it bears undesirable connotations of female dependency and incapacity. In order to succeed in establishing that a transaction was procured by undue influence, Fehlburg has suggested that a claimant is required to ‘fit herself within a stereotype of the down-trodden and uninformed housewife’.192 Green and Lim have also rejected this approach. In fact, they argued that: if the only alternative is for all married women automatically to be ‘protected’ by being treated as vulnerable to oppression—and safely confined to their silent towers—we might accept that the woman should not win against the bank.193

Green and Lim claimed that if the price of legal protection was to treat women as being less capable when it comes to participating in the public sphere, for example, by giving a valid consent to contracts for credit, then that price was too high. They concluded that, ‘[i]n the end, we would rather be constructed as a person who can move in and out of private and public roles than as one who inevitably needs the particular tenderness of equity. We do not want always to be victims’.194 Another issue which has been considered in this chapter, and has also been raised in the context of undue influence, is the proposition that home bears greater value for women as compared to men, and that, as a result, women would be more severely affected by losing their homes than men. The conflict that this creates for feminist analysis was described by Auchmuty. She argued, in the context of undue influence, that: It could . . . be contended that putting her home at risk is . . . always manifestly disadvantageous to a woman. This is because of women’s particular relationship to the home, based on their social responsibility for household and child care and the centrality of their social role as homemaker. Since, for many, these roles and responsibilities are not freely chosen—capitalist and patriarchal norms conspire to force them on women— it is a double irony when, in so many of these cases, capitalist needs and patriarchal norms then conspire to snatch away the one reward that goes with the job: the home.195

191 B Fehlburg, ‘The Husband, the Bank, the Wife and her Signature—the Sequel’ (1996) 59 Modern Law Review 675 at 694. 192 Ibid, 679. 193 K Green and H Lim, ‘Weaving Along the Borders: Public and Private, Women and Banks’ in S Scott-Hunt and H Lim (eds), Feminist Perspectives on Equity and Trusts (London, Cavendish, 2001) 98. 194 Ibid. 195 R Auchmuty, ‘Men Behaving Badly: An Analysis of English Undue Influence Cases’ (2002) 11 Social and Legal Studies 257 at 267–8.

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The scope for reconciling these issues in the context of undue influence is limited. On the one hand, the idea that women must be constructed as victims in exchange for protection is necessitated by the doctrinal requirements of undue influence: since it is the surety’s lack of independence that crystallises the claim, a successful claimant must not have brought an independent mind to bear on the transaction. Similarly, the argument that home should be protected as ‘women’s place’ bears undesirable connotations of patriarchy and confinement of women to the private sphere. These themes were also considered in Chapter 7, where it was noted that, when impulses to protect the home have emerged in legislative and judicial policy in England, they have typically been characterised by an ethos of female dependency, or by representing the home as ‘women’s place’, but simultaneously denying her the capacity to deal with her home as an autonomous individual. In the context of undue influence, it is difficult to shift the focus of analysis away from the surety’s relationship with her partner, since this forms the crux of the doctrine. Furthermore, even if a surety is successful in establishing that the creditor is tainted by the undue influence of the principal debtor, this does not provide an effective protection against the loss of the home itself, since the creditor may still proceed by bringing an action against the debtor’s share of the property. Even a successful undue influence claimant must still avoid possession and sale of the property, since the creditor’s rights against the debtor’s share provide locus standi to bring an action for possession and sale over the head of the non-debtor occupier. The discussion in Chapter 7 suggested, for a range of reasons, that when conceptualising home for the purposes of the creditor/occupier contest, it would be more appropriate to analyse the occupier’s home interest through an individuallyoriented concept of home, which reflects each individual’s attachment to the property as a home, rather than by focusing on the collective interests of the ‘family unit’. Indeed, if the idea of adopting a gender-sensitive concept of home were to be approached in the context of the individual occupier’s relationship with the home, the focus of analysis could be shifted away from the relationship between the partners, and onto the occupier’s status as an individual subject, with a meaningful attachment to the property as a home. Within such an ‘individual rights’ model, individual occupiers could advance arguments in support of retaining the home, without being obliged to retreat into dependency arguments or to assume the status of ‘victims’, or even necessarily to establish the home as ‘her place’, but simply by drawing upon the real consequences of losing the home through creditor possession procedures. This approach would be consistent with contemporary feminist perspectives on the concept of home for women. The object is to take a real measure of the experience of home for women, and to recognise that while home may offer positive associations for women, in order for these positive meanings to be realised as universal values, it is also necessary to focus on the negative consequences associated with default and with losing one’s home in a possession action.

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However, another important issue to be considered is whether the issues that have been discussed in this chapter, in relation to access to the financial, psychological and socio-cultural values associated with home ownership and the risks associated with default and repossession, are properly designated as ‘gender’ issues. On the one hand, financially secure and upwardly mobile female home buyers have never had it so good: higher rates of female home ownership and increased financial prosperity suggest that many women are enjoying unprecedented independent access to home, including home ownership. Yet, on the other hand, there is also evidence to suggest that, for many women who live in low income households, the benefits of home, including home ownership, are still not available as a ‘universal value’, but remain a privilege to which they do not enjoy access. In fact, when it comes to loss of home through creditor/occupier disputes, the issue may no longer be primarily a gender issue: Bondi and Christie196 have argued that the divergence between low income women and well-off women has widened; furthermore, a similar gulf has also been identified in relation to men, between those who can afford home ownership and those who are exposed to higher degrees of risk as a result of their lower income level. The benefits and costs of home ownership are not distributed equally; however, the inequality appears to be rooted in income rather than gender. The rise in unsustainable home ownership and the insecurity of tenure created by the prospect of mortgage arrears and repossession present real problems for many women, men and children, particularly those who live in low-income households, where factors ranging from fluctuations in interest rates and house values to job insecurity, illness and relationship breakdown can turn the ‘dream’ of home ownership into a nightmare. It is important to remember that, as the discussion of government housing policies in Chapter 5 demonstrated, the growth of low income home ownership was achieved through explicit government strategies to promote home ownership as the preferred form of tenure in addition, a combination of privatisation and reduced investment in public sector rental property meant that many low income households were left with little choice but to enter owner occupation. In one sense, this presented a significant opportunity for low income households to accumulate wealth, status and security. Yet, as the analysis of costs and benefits in Chapter 5 has shown, the benefits of home ownership depend on the mortgagee’s ability to meet repayments, thus avoiding default and the threat of possession actions. In the event of default, it is important to note that home owners receive relatively little welfare support from the state. While low income households are more vulnerable to default, and half of all households living in poverty in Britain live in the owner-occupied sector, home owners receive only 8 per cent of housing-related welfare benefits,197 with the remainder paid to tenants. 196 197

See above n 98. See Burrows and Wilcox, above n 51.

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Finally, there is considerable evidence to demonstrate the detrimental impact, in terms of mental and physical health and wellbeing, of living with arrears, of losing of one’s home through repossession, and even of the mere threat of repossession for owner-occupiers. This chapter has also considered evidence that suggests that women may be more vulnerable to these negative effects, which could signify a degree of gender difference in relation to the costs of unsustainable home ownership. In any event, it is clear that although laws and policies governing disputes between creditors and occupiers have typically not recognised, and consequently not taken account of, the non-economic values associated with use and occupation of property as a home, or of the impact of loss of home through repossession on the occupiers of the property, that these meanings, values and consequences are undoubtedly real. In fact, although the creditor’s financial claim is generally regarded as pre-eminent, there should at least be some attempt to weigh the occupier’s stake in retaining the home for use and occupation against those financial interests which, in turn, would require a more clearly articulated legal concept of home. One of the factors to bear in mind when developing this concept of home is the possibility that some occupiers may be more in need of protection than others. In Chapter 7, the idea of a family unit approach was rejected in favour of a more individually-oriented concept of home. It was recognised, however, that this does not mean that all occupiers must have the same home interest. Indeed, the conclusion to Chapter 7 suggested that there could be certain cases in which the home interests of some groups of occupiers—for example children, who are considered in Chapter 9—are more worthy of protection than others. Another issue raised in relation to special ‘group’ interests in home was the idea of a gender-sensitive home interest. Yet, based on the analysis in this chapter, it is suggested that, for various reasons, it would be neither necessary nor desirable to confer special status on gender when conceptualising home. For one thing, it is difficult to conceive of a gender-based home protection that is not redolent of dependency, that does not portray women as victims or that does not ‘place’ women firmly within the private sphere of the home. Furthermore, a gender-based home protection could prove counter-productive in relation to women’s access to home ownership. One of the key themes underpinning the policies discussed in this book has been the concern that conferring any greater weight on the home interests of occupiers would adversely affect the availability of credit to buy houses or the ability to secure other credit, for example, business loans, against the home. While the very appropriateness of policies that facilitate or encourage the use of the home as security for non-acquisition debts is questionable, any development on this issue must be gender-neutral. Any gender-specific home protection would run the risk of (re)creating further inequality in terms of access to credit, as creditors would be less willing to lend money to applicants falling within the protected class. Fortunately, this chapter concludes that such a provision is not necessary. Although many female-headed households are more vulnerable to possession

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actions and loss of home, it is not gender per se that gives rise to that vulnerability, but income levels. While many single women and female-headed households are prospering through home ownership, it is increasingly apparent that the real difficulty lies with households that have been encouraged into home ownership despite low incomes, and which are now exposed to the risk of losing their homes through default and possession actions. Furthermore, for low income households, the welfare protection available to home owners is significantly lower than that provided for tenants, while the likelihood that a court will order possession at the request of a creditor is significantly greater. Consequently, it is proposed that any ‘special protection’ that might be accommodated within a legal concept of home would be more appropriately targeted at low income households, rather than at gender differences. The real problem in the context of the creditor/occupier dispute lies with the ability to pay, and the specific trigger factor by which women (and men) are systematically disadvantaged is income-related. As the conclusions to Chapter 1 suggested, there are various ways in which the concept of home could be utilised in order to re-cast the balance struck in the creditor/occupier context. One alternative would be to review the welfare provision for low income owner occupiers, as discussed in Chapter 5. Another alternative approach would be to attach greater weight to the occupier’s interests at the stage of a possession action against the property, thus justifying a delay in the creditor’s right to realise the capital value of the property. It is, of course, important to bear in mind once again that, in such a case, the creditor’s rights would not be defeated, but that they would merely be required to wait longer before the security interest could be executed. This chapter suggests that if, when employing such a principle, any special protection should be given for certain groups in recognition of their structural disadvantage, such protection should be directed towards lower-income groups, rather than on the basis of gender. Another possibility that has emerged in this context is the idea of ‘special protection’ for child occupiers. At present, the home interests of child occupiers carry relatively little weight in the creditor/occupier context. In fact, children are often irrelevant to the legal decision making process, even though the substance of the dispute is their home also. Furthermore, in many of the cases in which women appear to be at a structural disadvantage in relation to housing opportunities, this results from lower incomes linked to part-time employment and child-care responsibilities. It is suggested that another way of addressing these issues—in accordance with the ‘individual occupier’ approach proposed in Chapter 7— would be by considering, cumulatively, the individual interests of both the custodial parent and child occupiers. This would depend, of course, on making children ‘count’ for the purposes of possession actions. The significance of child occupiers for the conceptualisation of home and the account taken of their interests in the creditor/occupier context are the subject of Chapter 9.

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9 Taking Account of Child Occupiers: From Rhetoric to Reality?

Introduction

T

HE CENTRAL PURPOSE of this book has been to unpack the meanings and values of home, and to consider how these values could be conceptualised in law, for the purposes of balancing home interests against other legal claims, for example the commercial claims of a creditor seeking to realise the capital value of the property in the event of default. While Part I (Chapters 1 to 5) considered the values of home, including the value of the owned home, in law and in other disciplines, Part II has endeavoured to locate these meanings within legal frameworks, including property theory and law, the idea of ‘home as family home’ and feminist legal theory. One of the arguments to have emerged from these analyses is the proposition that home interests are rooted in the individual occupier’s relationship with the property, and, therefore, are most appropriately conceptualised by focusing on the interests of the individual occupier (rather than a family unit). However, home meanings are complex, and not all individuals experience home in the same way. For example, it has been suggested that family is a particularly salient factor in home meanings, so that the home may hold greater value for individual occupiers because it is their family home. The discussion in Chapter 4, which considered the range of meanings that home represents to occupiers, identified family as a significant factor in each of the main clusters of value type: that is, home as financial investment, home as physical structure, home as territory, home as identity, and home as socio-cultural unit. Studies have found that the desire for security within the home was enhanced by the presence of family, and particularly of children; the right to privacy in the home was realised through associations with ‘family life’; home as identity had family connotations; and family was identified as a significant socio-cultural facet of home. The value of family in the context of home meanings was evaluated in Chapter 7. This chapter also considered the way in which the idea of family home has been constructed in law and concluded that, although the impulse to prioritise family

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homes over and above other homes is clearly significant in legal policy making, the practical and conceptual implications of the ‘family unit’ approach are problematic. Rather, it was suggested that a more appropriate framework for the legal concept of home would be a model premised on the interests of individual occupiers. As a basic unit of analysis, the ‘individual occupier’ model would be capable of recognising occupiers’ interest in the property as a home, whether they lived within a ‘family’ context or not, and even if they lived alone. However, the discussion in Chapter 7 also suggested that the weight attributed to these individual interests could vary in different contexts, if this was considered desirable on policy grounds. The examples suggested in Chapter 7 were based on two main premises: either that the concept of home could reflect the idea that different groups of individuals might attribute different types or degrees of value to their homes; or that the concept of home could reflect social welfare concerns, by allowing for ‘added value’ to be imputed in certain cases, for example, because the collection of individual occupiers in a particular household included child occupiers. The significance of children for the concept of home was implicit in the analysis of family home in Chapter 7 and is the central focus of this chapter. Starting from the references to children in the empirical studies into home meanings that were considered in Chapter 4, it is noteworthy that the importance of children for the meanings of home was a key element in many of the references to family. For example, the idea of ‘home as a financial investment’ to pass on to your children was regarded as a significant aspect of home meanings for owner occupiers;1 the importance of ‘home as territory’ was heightened by the presence of children, so that ‘[h]ouseholds with children were more likely to want to stay put, regardless of how they now viewed the house and all the associated financial problems’;2 the popular perception of home as a ‘place of security and protection’ was strengthened when the family home was occupied by children, since the home represented a haven where people, especially children, were safe;3 and home has been identified as an important environment within which to convey cultural meanings to children.4 Finally, Rakoff suggested that ‘it is the presence of children and the activity of family life that makes a house into a home’.5 All of these findings reflect the importance of children in home meanings as these meanings have been identified by adults. 1

See Ch 4, nn 92–98 and associated text. H Christie, ‘Mortgage Arrears and Gender Inequalities’ (2000) 15 Housing Studies 877 at 896. 3 J Fitchen, ‘When Toxic Chemicals Pollute Residential Environments: The Cultural Meanings of Home and Home Ownership’ (1989) 48 Human Organisation 313 at 316. 4 A Rapoport, ‘The Environment as an Enculturing Medium’ in S Weidemann and JR Anderson (eds), Priorities for Environmental Design Research: EDRA 8 (Washington, DC, EDRA, 1978). 5 RM Rakoff, ‘Ideology in Everyday Life: The Meaning of the House’ (1977) 7 Politics and Society 85 at 93. 2

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While the importance of children’s home meanings as part of the experience of home for custodial adults is undoubtedly important when it comes to assessing individual home meanings, especially for custodial parents, this chapter also seeks to focus on another issue: the meaning of home for the children themselves, as autonomous legal subjects, and the consequences of losing the home in a creditor possession action for child occupiers. The importance of the home environment as the principal setting for the growth and development of children has been analysed in several studies across the disciplines of psychology, sociology, built environment and housing studies.6 Furthermore, the psychological, social and health consequences for children who experience loss of home—for example, through mortgage possession actions—have been established by empirical research.7 In addition, research has shown that the impact of losing the home on children had repercussions, ranging from the embarrassment that children and young people felt when they had to tell their friends that their homes had been repossessed, and difficulties with changes in their social identity—from ‘owner’ to ‘renter’8—to exposure to a new set of risks including ‘interruption of their school, the loss of their friends, malnutrition and infection’.9 In fact, one commentator has suggested that ‘[t]he loss of a child’s home is nothing less than an invitation to chronic illness’.10 Yet, on the whole, the interests of children as occupiers of the home have not weighed heavily in the scales when courts have balanced the case for allowing the creditor to capitalise the asset represented by the home against the arguments for refusing sale. Within the various legal doctrines and provisions governing creditor/ occupier disputes which were set out in Chapter 2, the interests of children in retaining the property for use and occupation as a home have been largely peripheral. In fact, child occupiers themselves do not have a voice in possession proceedings, and their interests are, in many cases, regarded as irrelevant. This is largely a reflection of the legal structures that govern mortgage possession proceedings. Actions for possession and sale of mortgaged property involve issues of contract 6 See, eg, RD Parke, ‘Children’s Home Environments: Social and Cognitive Effects’ in I Altman and JF Wohlwill (eds), Children and the Environment (New York, Plenum Press, 1978); L Chawla, ‘Childhood Place Attachments’ in I Altman and SM Low (eds), Place Attachments (New York, Plenum Press, 1992); L Chawla, ‘Home is Where You Start From: Childhood Memory in Adult Interpretations of Home’, in EG Arias (ed), The Meaning and Use of Housing (Aldershot, Avebury, 1993); P Christensen and M O’Brien, Children in the City: Home, Neighbourhood and Community (London, RoutledgeFalmer, 2003). 7 See, eg, J Ford, R Burrows and S Nettleton, Home Ownership in a Risk Society: The Social Consequences of Mortgage Possession Actions (Bristol, Policy Press, 2001); S Nettleton, R Burrows, J England and J Seavers, Losing the Family Home: Understanding the Social Consequences of Mortgage Repossession (York, Joseph Rowntree Foundation, 1999). 8 Ford, Burrows and Nettleton,above n 7, 161. 9 Matthew Dumont, psychiatrist, cited in FL Smizik and ME Stone, ‘Single Parent Families and a Right to Housing’ from E Mulroy (ed), Women as Single Parents (Dover, Auburn House Publishing Company, 1988), 229–30. 10 Ibid.

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law and real property law, neither of which is typically predisposed to recognising or valuing the claims of children. Of course, the dearth of reference to children’s perspectives in the context of mortgage possession disputes is also clearly consistent with the overwhelming focus on the rights of creditors and the general disregard of occupiers’ home interests in this context. However, the position of children as occupiers of the home in the creditor/occupier context merits particular attention, for several reasons. First, although the financial interests of creditors clearly weigh heavily in the balancing scales in mortgage possession disputes, the interests of children’s welfare are typically accorded considerable weight in other legal contexts. For example, in the context of family law, whether the dispute arises in a private law context: for example, questions of access or custody between parents; or in a public law forum in relation to issues such as care, when court orders affecting children are made, the child’s welfare is regarded as paramount.11 Similarly, in the United States of America, it has been noted that: an increasing understanding of the emotional and psychological needs of the developing child . . . [meant that] Child development, reflected in the ‘best interests of the child’ standard . . . had become the central focus of children’s law across the states by the midpoint of the twentieth century.12

The ‘paramountcy principle’ has demonstrated the strength of the policy instinct towards protecting children’s interests in other areas of law.13 The chapter considers whether the interests of child occupiers should, at the very least, be taken into account within the legal concept of home. The idea that certain categories of occupiers merit special attention in the creditor/occupier context was considered in Chapter 7, in relation to the family unit, and in relation to gender in Chapter 8. In fact, although the idea that home carried special meaning in these contexts was supported by legal policy discourses—especially in relation to family—and by empirical analysis of home meanings, a major obstacle when it came to the question of conferring extra weight on the occupier’s home interests was the risk of implying female dependency or conferring patriarchal protections. However, when it comes to considering the interests of children, these issues do not arise, as the portrayal of children as vulnerable and as dependents is not problematic. In addition, the idea 11

Children Act 1989, s 1(1). BB Woodhouse, ‘The Status of Children: A Story of Emerging Rights’ in SN Katz, J Eekelaar and M Maclean, Cross Currents: Family Law and Policy in the US and England (Oxford, Oxford University Press, 2000) 425. 13 See, eg, S Choudhry and H Fenwick, ‘Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act’ (2005) 25 Oxford Journal of Legal Studies 453, which discussed the pre-eminence of the paramountcy principle, even in the face of clashing rights under the Human Right Act 1998. 12

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of including child occupiers as ‘individual occupiers’ within the legal concept of home is also attractive by virtue of the fact that it recognises the child’s status as an autonomous legal individual. The idea of child occupiers having independent and individual interests in their home, not as owners but on the basis of their occupation, would enable the child’s voice to be heard in the context of repossession actions, despite the fact that children are typically marginalised in contract and in property law. The argument for taking account of child occupiers is also bolstered by empirical evidence concerning the importance of home to child occupiers and the impact of loss of home through possession proceedings on the children themselves. One issue that has often been raised in debates concerning creditor–occupier disputes concerns the extent to which a non-debtor occupier (often the debtor’s partner) can be regarded as an ‘innocent’ victim of the debtor’s default.14 When weighing the home interests of occupiers against the commercial claims of creditors, creditors have, to a certain extent, had the moral high ground, since the basis of their claim is the debtor’s default, and they are merely enforcing proprietary rights that were given freely by the debtor in exchange for the loan. Furthermore, although the discussion in Chapter 5 highlighted the significance of wider economic factors in giving rise to payment difficulties, it is difficult to avoid the tacit tendency to attribute blame to debtors who default on their obligations. In fact, even beyond debtors themselves, when it comes to considering other adult occupiers the courts have been influenced by the possibility of collusion between debtor and non-debtor, or the suggestion that since other adult occupiers—usually the debtor’s partner—enjoy the benefit of the debtor’s property during the ‘good times’, they should also bear their share of whatever losses befall the debtor.15 However, when it comes to considering child occupiers, it is important to note that the welfare interests of children cannot be so readily dismissed or ‘traded off’, on the basis that the risk was part and parcel of a joint enterprise that they had voluntarily entered into. Instinctive opposition to the idea that ‘the sins of the father’ should be visited on the child, as well as the fact that children’s consent is neither sought nor required when debts are secured against the property, makes it easier to regard children as ‘innocent’ victims of the debtor’s default. Before proceeding to consider the theories, laws and policies pertaining to the treatment of child occupiers in a legal concept of home, one final point should also be noted in relation to the particular context of this book. While the previous paragraph has suggested that children can be regarded as ‘innocent’ of the debtor’s default, in the sense that their conduct should not be regarded as ‘blameworthy’ and thus detract from the weight attributed to their interests, it is significant to bear in mind the role that children often play in exposing households to the risk of 14 15

See Ch 3, nn 18–23 and associated text. M Freeman, ‘Wives, Conveyancers and Justice’ (1980) 43 Modern Law Review 692.

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default. The discussion of gender in relation to housing opportunities in Chapter 8 highlighted the ways in which female-headed households, particularly single custodial parents, may be disadvantaged in relation to home ownership. Home ownership depends on the ability to pay, and the combination of child-care responsibilities and part-time work has been linked to diminished access for single mothers in the owner-occupied sector and, by default, to the higher proportions of single mothers living in social housing.16 In ‘Bankrupt Children’,17 Warren went further when she claimed that although: ‘[c]hildren do not file for bankruptcy . . . the story of bankruptcy is a story about children’.18 For one thing, the presence of dependents, including children, means that household income must be stretched to provide for a greater number of people. Caring for dependents (for example, children, disabled adult family members, grandparents and other extended family) may also simultaneously reduce the earning capacity of adults in the household.19 In fact, Warren’s research indicated that ‘the presence of children in a household—with nothing more—increases the likelihood that the household will be in bankruptcy by three-fold (302%)’.20 The discussion of gender in Chapter 8 alluded to different types of living arrangements for women—whether they live alone, with men, with women, with children—and Warren’s data also indicated a hierarchy of risk based on different female-headed household types. Unmarried mothers with minor children were at the greatest risk, followed by two-adult households with children, while those who did not have children were at the lowest risk of bankruptcy.21 In fact, the link between children and bankruptcy led Warren to consider whether the financial burden of raising children should, as a matter of public policy, be shouldered by the wider society—and the ‘risks spread amongst the larger population’—rather than falling on the shoulders of individual households and families.22 This line of analysis reverberated strongly with the discussion in this book concerning the balance struck between the commercial claims of creditors and the home interests of occupiers. The factors that have been brought to bear in the formulation of legal responses to the creditor/occupier context have, to date, been dominated by the concerns of the creditor. In fact, the argument for favouring the interests of creditors in English law has been justified by reference to the opposite goal: to avoid spreading the costs of default. Rather than protecting the home 16 See J Darke, ‘Househunting’ in C Booth, J Darke and S Yeandle (eds), Changing Places—Women’s Lives in the City (London, Paul Chapman Publishing, 1996), 53. On the other side of the coin, Darke also suggested that the financial demands of home ownership were a cause of involuntary childlessness for some households: ibid, 51. 17 E Warren, ‘Bankrupt Children’ (2002) 86 Minnesota Law Review 1003. 18 Ibid, 1004. 19 Ibid, 1006. 20 Ibid, 1013. 21 Ibid, 1006. 22 Ibid, 1005.

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interests of occupiers in the event of default and allowing the costs to be spread amongst other housing consumers, the policy adopted in English law has been to protect the creditors and—it is argued—the other consumers by concentrating the losses on the defaulting debtor (and other occupiers sharing the debtor’s home). Although children are not party to creditor possession actions, the potential impact of the court’s decision on child occupiers is obvious. In a practical sense, a child’s occupation of property can be regarded as ‘wrapped up’ with the continuing occupation of at least one of the child’s carers. This raises another issue underpinning legal policy in this context. The decision to refuse an order for sale at the suit of a creditor in the interests of the children could be regarded as providing a ‘back-door’ route by which adult occupiers could seek to avoid sale.23 This chapter argues that, for one thing, there may, in fact, be a case for adding value to the home interests of adult occupiers who are custodial parents. Furthermore, even if this were not the case, the prospect of children’s occupation being ‘used’ in this way does not justify ignoring or undermining their interests when balancing the interests of occupiers against those of creditors. This chapter draws on a range of studies that have explored the nature of a child’s ‘home’ interest, and the potential impact of losing their home on children. The chapter seeks to argue that children should be regarded as individual occupiers of the home for the purposes of balancing creditors’ interests with those of occupiers. This approach would be consistent with current analysis of the child as an autonomous legal subject,24 as well as the approach advanced in this book towards the conceptualisation of home in law. Finally, when considering the interests of child occupiers, including the prospect that minors may be rendered homeless by an order for sale, it is important to recognise that arguments impacting on child welfare can be made to significant rhetorical effect.25 This is particularly significant since, as the discussion throughout this book has demonstrated, any argument capable of outweighing the economic claims of creditors against the capital locked up in the property must be highly persuasive. The rhetorical value of child-based arguments in policy debates was also highlighted by Warren, who wrote that:

23 Consider the argument, raised in the context of co-owners, where possession is ordered against one but not the other: ‘[t]o order possession against one or some only out of two or more co-owners is generally inexpedient even where they are all before the court’: Judd v Brown [1999] 1 FLR 1191 at 1197, per Walker LJ; see also Albany Home Loans Ltd v Massey [1997] 2 FLR 305. 24 As Hale J pointed out in relation to a minor’s right to succeed to a statutory tenancy under the Housing Act 1985: ‘[t]he modern tendency of the law was to recognize that children were indeed people’: Kingston upon Thames Borough Council v Prince [1999] L&TR 175 at 189. 25 See C Smart, B Neale and A Wade, The Changing Experience of Childhood: Families and Divorce (Cambridge, Polity, 2001) on the power of political rhetoric invoking arguments based on the welfare of children.

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If I showed you photographs of these children, you might come to understand bankruptcy differently. You might be more sympathetic to families in financial trouble. You might have a newfound appreciation for the impact of legal policies that affect whether these babies’ mothers will compete with credit-card companies when they try to collect child support from their ex-husbands or whether third graders will have to change schools because their daddies did not see the traps in a mortgage refinancing.26

While it would clearly be inappropriate to manipulate the interests of children for rhetorical effect, this chapter will argue that the case for developing a child welfare perspective in mortgage repossession actions is not a mere instrumental use of rhetoric. Rather, the arguments for taking account of child occupiers within the legal concept of home are rooted in sound legal and social policy considerations.

The Home Interests of Child Occupiers in Legal Discourse In the context of creditor/occupier disputes, the interests of the children who occupy the property as their home have, by and large, either not been considered by the court, or, if taken into account, have not generally been decisive in determining the outcome of the dispute. In fact, in Re Citro,27 a decision which, as recognised in Chapter 2, set the tone for judicial policy in the context of applications for the sale of co-owned land,28 the court explicitly recognised the impact of an order for sale on dispossessed child occupiers. Nevertheless, the court’s response was that: it is not uncommon for a wife with young children to be faced with eviction in circumstances where the realisation of a beneficial interest will not produce enough to buy a comparable home in the same neighbourhood, or indeed elsewhere. And, if she has to move elsewhere, there may be problems over schooling and so forth. Such circumstances, while engendering a natural sympathy in all who hear them, cannot be described as exceptional. They are the melancholy consequences of debt and improvidence with which every civilised society has been familiar.29

The decision in Re Citro concerned an application for the sale of co-owned land— one of the two co-owners was bankrupt—under section 30 of the Law of Property Act 1925. In this case—which provides an archetypal example of judicial policy 26 27 28 29

Warren, above n 17, 1004. [1991] Ch 142. See Ch 2, nn 164–172 and associated text. Re Citro [1991] Ch 142, at 157, per Nourse LJ.

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under section 30 and of the 1925 legislation more generally—the court was not swayed by the impact of the decision to order sale on the bankrupt’s family, including the impact on his children. This can be contrasted, however, with the more recent decision in Edwards v Lloyd’s TSB Bank plc,30 which has suggested a shift in the court’s approach towards the interests of child occupiers in the context of orders for sale. In Edwards, Parks J refused to grant an order for immediate sale under sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 (TLA) on the ground that it ‘would be unacceptably severe in its consequences upon Mrs Edwards and her children’.31 The court held that sale of the property should be postponed for a period of at least five years, when the younger child would have reached the age of majority, and when ‘it seems possible that . . . it will no longer be in practice incumbent on Mrs Edwards to provide a home at her expense for her son and daughter’.32 The decision in Edwards provided a relatively rare example of a case in which the outcome of an application for the sale of property that had been used as security against a debt was not ordered according to the wishes of the creditor. First, it is important to recognise that this shift in judicial policy followed the policy adopted in the governing legislation, the Trusts of Land and Appointment of Trustees Act 1996. The court’s reasoning in Edwards was framed by sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 (TLA). As earlier discussions of the 1996 Act in Chapter 233 and Chapter 634 have noted, section 14 of the TLA conferred a jurisdiction on the court to order the sale of property held on a trust of land (in place of the earlier jurisdiction to order sale under section 30 of the Law of Property Act 1925) and section 15 set out various criteria to be taken into account by the court when considering whether to make an order for sale under section 14. In fact, one of the factors enumerated in section 15 was ‘the welfare of any minor occupiers’ (section 15(1)(c)). However, prior to the decision in Edwards, there was little evidence that the interests of children carried sufficient weight to persuade the court to refuse an application for sale, particularly when balanced against the interests of creditors in recouping their capital.35 This chapter argues that the decision in Edwards should be welcomed on a number of grounds. First, by explicitly considering of all of the relevant section 15 factors, and conducting a balancing exercise without any apparent presumption in favour of sale, the court has given effect to the objects of the Trusts of Land and 30

[2004] EWHC 1745. Ibid, para 33. 32 Ibid, para 33(iii). 33 See Ch 2, nn 174–197 and associated text. 34 See Ch 6, nn 82–106 and associated text. 35 See, eg, Bank of Ireland Ltd v Bell [2001] 1 All ER (Comm) 920; First National Bank plc v Achampong [2003] EWCA Civ 487; and, in the bankruptcy context, Trustee of the Estate of Eric Bowe (A Bankrupt) v Bowe [1998] 2 FLR 439. 31

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Appointment of Trustees Act 1996. Since the commencement of the 1996 Act, there has been some ambiguity surrounding the question of how section 15 has affected the court’s jurisdiction to order sale, with some decisions declaring that the 1996 Act required a change in approach in relation to orders for sale,36 and others emphasising the continuing relevance of the section 30 case law.37 Nevertheless, as Neuberger J commented in Mortgage Corporation v Shaire,38 it is difficult to see why Parliament replaced the trust for sale with a trust of land and, in section 15, set out a list of specific factors to be taken into account when exercising the discretion to order sale, if there was no intention to change the law. The idea that the interests of minor occupiers can carry weight as an independent factor to be taken into account when balancing the arguments for and against the sale of the land is also attractive on various other grounds. For one thing, by setting out the welfare interests of minor occupiers as a separate factor to be considered by the court, the guidelines in section 15 represented a new departure in the legal representation of children’s interests in creditor–occupier disputes. Possession actions are concerned with issues of contract and property law, and, as was noted above, children’s interests tend to be marginalised in both contexts.39 Since a minor cannot be the legal owner of land, and, in the absence of express declaration, is unlikely to acquire an equitable interest in the property,40 child occupiers are not generally parties to repossession actions as they have no property claims against the property. Even following the decision in Williams and Glyns’ Bank Ltd v Boland,41 when creditors became alerted to the necessity of obtaining consent from persons in actual occupation of property in order to ensure the priority of their charge, it became routine to seek consent from adult occupiers only.42 Perhaps most crucially, children are unlikely to be in a position 36 Bankers Trust Company v Namdar (CA), 14 Feb 1997; Mortgage Corporation v Silkin; Mortgage Corporation v Shaire [2000] 2 FCR 222. 37 A v B, 23 May 1997, unreported, Transcript: Lexis; TSB Bank plc v Marshall [1998] 39 EG 208; Bank of Ireland Home Mortgages Ltd v Bell [2001] 1 All ER (Comm) 920; First National Bank plc v Achampong [2003] EWCA Civ 487. 38 Ibid. 39 In contract law, a minor cannot execute a valid contract, and any attempt to do so will result in a voidable transaction; a minor cannot hold a legal estate in land (Law of Property Act 1925, s 1(6)), and any disposition by a minor of an interest in land is voidable on majority at the option of the minor; on the marginalisation of children’s interests in housing law, see generally D Cowan and N Dearden, ‘The Minor as (a) Subject: The Case of Housing Law’ in J Fionda (ed), Legal Concepts of Childhood (Oxford, Hart Publishing, 2001). 40 The principles of resulting and constructive trust, rooted as they are in the requirements of financial contribution or an express agreement, arrangement or understanding that ownership of the property will be shared (Lloyd’s Bank plc v Rosset [1991] 1 AC 107), are unlikely to give rise to interests in favour of children. 41 [1981] AC 487. 42 As the Court of Appeal confirmed in Hypo-Mortgage Services Ltd v Robinson [1997] 2 FLR 71, even children who have a beneficial interest following a declaration of trust are not regarded as being in ‘actual occupation’ for the purposes of overriding status under s 70(1)(g) of the Land Registration Act 1925.

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to make payments towards arrears and mortgage or other loan instalments, and are therefore largely irrelevant to the decision making process in light of the focus in actions concerning proprietary security on the ability to pay. Although this is wholly consistent with the principles and policies that dominate the discourse of land law,43 the disregard of children’s perspectives flies in the face of the prevailing approaches in other areas of law impacting on child welfare. The rise of child-centred analysis,44 the recognition of children as people in their own right, but with a particular set of needs in the context of a set of relationships,45 and the argument that children should have a voice of their own in legal proceedings that have implications on their lives46 all add weight to the argument that the interests of child occupiers should be taken into account in repossession proceedings concerning their homes. The following sections consider the extent to which current laws and policies in the creditor/possession context have taken account of the interests of child occupiers. Finally for this chapter, the implications of loss of home for children will be considered.

Sole Owned Property The first important point to recognise when considering the treatment of children in the legal principles and policies that govern disputes concerning the home is that the extent to which children’s interests are taken into account in creditor possession actions depends on whether the property is solely owned or co-owned. The legal provisions that determine the outcome of creditor/occupier disputes were set out in detail in Chapter 2. When land is held in sole ownership and mortgagees are seeking to realize the capital value of their security, they may either conduct an out-of-court sale,47 so long as the mortgage was made by deed, or may apply to the 43 In Hypo-Mortgage Services v Robinson, Nourse LJ stated that he ‘regard[ed] it as axiomatic that minor children of the legal owner are not in actual occupation within section 70(1)(g) . . . The minor children are there because the parent is there. They have no right of occupation of their own . . . .they are only there as shadows of their parent . . . No inquiry can be made of minor children or consent obtained from them in the manner contemplated by that provision, especially when they are, as here, of tender years at the material date. If the second defendant was right, lenders would never be protected. Their security could always be frustrated by simple devices’: ibid, at 72. 44 See, eg, J Qvortrup, ‘A Voice for Children in Statistical and Social Accounting: A Plea for Children’s Right to be Heard’ in A James and A Prout (eds), Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood (London, Falmer, 1997); P Christensen and M O’Brien, ‘Children in the City—Introducing New Perspectives’ in P Christensen and M O’Brien, Children in the City: Home, Neighbourhood and Community (London, Routledge Falmer, 2003). 45 Smart, Neale and Wade, above n 25. 46 The principle of participation is set out in Art 12 of the United Nations Convention on the Rights of the Child, to which the United Kingdom is a signatory. Art 12 provides that children have the right to express their views in all matters affecting them; requires that those views be heard and given due weight in accordance with the child’s age and maturity; and recognises the potential of children to enrich decision making processes, to share perspectives and to participate as citizens and actors of change. 47 Ss 101–103 of the Law of Property Act 1925.

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court for an order for sale. For an out-of-court sale, the mortgagee’s power of sale must have arisen and become actionable. The power of sale arises once the legal date of redemption (as stated in the mortgage) has passed; the power then becomes exercisable when one of the following three criteria is satisfied: when notice requiring payment of the mortgage money has been served on the mortgagor and default has been made for a period of three months; when interest due under the mortgage has been in arrears and unpaid for two months after becoming due; or when there has been a breach of some other provision of the mortgage deed. No other criteria are relevant. In the context of an out-of-court sale there is no legal mechanism requiring that the interests of any occupiers, never mind child occupiers, should be taken into account. Any prospect of avoiding sale will depend on the willingness of the creditor to re-negotiate the repayment schedule, or on a successful action to delay possession under section 36 of the Administration of Justice Act 1970, as outlined below. If an out-of-court sale is not possible—for example, because the mortgage was not made by deed or because the criteria are not satisfied, the creditor may, alternatively, seek a judicial order for sale of the property.48 When the creditor is required to seek a judicial order in support of sale, the discretion to order the sale of mortgaged property is wide, and the court has taken account of both financial and non-financial factors. For example, in Polonski v Lloyd’s Bank Mortgages Ltd,49 the court acceded to the request of a single mother with two small children to sell the property—against the wishes of the bank, which wanted to avoid a shortfall caused by negative equity by waiting until the property market had recovered—so that she could move from a rough and undesirable area to one where schooling would be better for her children and she would have a better chance of obtaining employment. The court in this instance took account of social factors pertaining to the mortgagor and her children, and ordered the sale. Nevertheless, it may be significant that, in this case, the interests of Mrs Polonski’s children were taken into account as part of the argument in support of sale. There is no basis in authority to suggest that social factors, including the effect of the court’s decision on children, would be taken into account under section 91 in the converse situation, that is, if a creditor wanted an order for sale and the custodial parent resisted on the basis of the impact on child occupiers. For sole owner-occupiers who wish to hang on to their homes, an alterative line of defence is section 36 of the Administration of Justice Act 1970, which allows the court to delay possession proceedings in the exercise of its discretion, but only so long as: ‘it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage’.50 The conditions for the exercise of the discretion are, how48 49 50

Law of Property Act 1925, s 91. [1998] 1 FCR 282. Administration of Justice Act 1970, s 36(1).

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ever, strict. A successful application under section 36 depends on the occupier’s ability to persuade the court that he or she has the financial capacity to make good on the arrears within a reasonable time. The critical relevance of financial criteria is confirmed by the requirement in recent years that applicants under section 36 furnish the court with a detailed budget setting out their ability to make appropriate payments.51 The court has no scope to consider non-financial factors, such as the presence of children or the impact of any repossession on their welfare. In fact, this issue was explicitly considered in Barclays Bank plc v Kirby.52 Morritt LJ noted that ‘[t]he fact of the matter is that Mr and Mrs Kirby have three children’. However, the key factor for the exercise of the court’s discretion was the fact that ‘[t]heir joint earnings . . . [are] only £2,700 per month’. Morritt LJ held that: Whilst I have the greatest possible sympathy for Mr and Mrs Kirby, I cannot see any basis upon which it could be arguable that this court should interfere with the exercise of the Judge’s discretion. On those figures he concluded that it had not been made out to his satisfaction that within a reasonable time Mr and Mrs Kirby could not only pay off the arrears but maintain the current instalments due in respect of the debts secured by the mortgage. I have the greatest sympathy for Mr and Mrs Kirby, but that does not entitle this court to grant the application they make.53

The Court of Appeal concluded that, in exercising the section 36 discretion, the court was not entitled, even if it was so inclined, to take account of the welfare interests of child occupiers when ordering the repossession of property.

Jointly Owned Property The enactment of section 15 of the Trusts of Land and Appointment of Trustees Act 1996, which governs jointly owned property, was a significant new development in the law concerning possession actions and the welfare of child occupiers. Prior to the enactment of the 1996 Act, applications for the sale of co-owned property were brought under section 30 of the Law of Property Act 1925. Section 30 conferred a discretion on the court to make orders for the sale of property, but although the provision itself did not provide any guidelines on the exercise of that discretion, judicial policy took heed of the context of the applications: under the Law of Property Act 1925, co-owned property was held on a trust for sale and, throughout the life of the trust, the trustees were under a duty of sale;54 thus the 51 52 53 54

Cheltenham and Gloucester Building Society v Norgan [1996] 1 All ER 449. Court of Appeal, 25 Apr 1997; Transcript: Lexis. Ibid. Law of Property Act 1925, s 35.

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court tended to make the order unless there was a sufficiently strong argument against sale.55 One such argument against sale was the ‘collateral purpose’ principle—usually raised in respect of the joint matrimonial home—whereby it was suggested that the court: should allow the trust to continue—and there should be no sale—so long as the purpose of the trust continues—that the house should be used as a home for the two of them. But when the purpose of the trust comes to an end the house should be sold.56

The impact of the collateral purpose in respect of the family home was considered in Chapter 7. Although the collateral purpose argument ultimately proved unhelpful in relation to actions against the joint matrimonial home, particularly when the action for sale was brought by a secured creditor,57 it is interesting to consider the extent to which the interests of child occupiers have been taken into account within the ‘collateral purpose’ doctrine. Early case law on the significance of the collateral purpose doctrine for children’s interests presented mixed signals. For example, in Rawlings v Rawlings,58 an obiter comment by Salmon LJ suggested that the court might be willing to take account of the fact that the property had been bought for the purpose of providing a home for children, in the context of section 30. Although the court had ordered sale, Salmon LJ added that: [i]f there were young children the position would be different. One of the purposes of the trust would no doubt have been to provide a home for them, and whilst that purpose still existed, a sale would not generally be ordered.59

This appeared to suggest that the interests of child occupiers could be taken into account when creditors applied to the court for the sale of co-owned land under section 30 of the Law of Property Act 1925. However, when the court was subsequently asked, in Burke v Burke,60 to consider such an application in relation to such a property, the interests of the occupying children were described as: ‘interests which are only incidentally to be taken into consideration’.61 55 ‘The statutory trust is one which must be exercised and was intended by the legislature to be exercised subject to the power of the court to enforce it. That appears in section 30’: In re BuchananWollaston’s Conveyance [1939] Ch 738 at 746, per Sir Wilfred Greene MR. 56 Stott v Radcliffe (CA), 19 Feb 1982; Transcript: Lexis. 57 Jones v Challenger [1960] 2 WLR 695; Re Soloman, a Bankrupt [1967] Ch 573; Re Citro, above n 29. 58 [1964] 2 All ER 804. 59 Ibid, 814. 60 [1974] 2 All ER 944 61 Ibid, 947, per Buckley LJ.

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Nevertheless, the discussion of family home in Chapter 7 identified the instinctive tendency towards conferring additional status on property because it was a family home, and it is clear that the presence of children was central to that. In fact, following the court’s attempt to marginalise the interests of child occupiers in Burke v Burke, the Court of Appeal actually did go on to allow the interests of child occupiers to be taken into account under section 30 in some subsequent decisions. For example, in Williams v Williams,62 Mr and Mrs Williams had four sons aged from 13 to 23. Following the breakdown of their relationship they separated and Mr Williams moved out of the family home. In an action brought by Mr Williams, the Court of Appeal refused sale on the ground that the property had been purchased for the purpose of providing a home in which the family was to be brought up. Lord Denning MR held that: the modern view . . . is to have regard to the needs of the family as a whole before a sale is ordered. We have here the wife and the four sons still in the house. The youngest son is only 13 years of age and still at school. It would not be proper at this stage to order the sale of the house, unless it were shown that alternative accommodation could be provided at a cheaper rate and some capital released.63

Similarly, in Re Evers’s Trust,64 the Court of Appeal was once again sympathetic to the presence of children in the property and the goal of retaining the property for the purpose of future occupation by the children as their home. The court held that: in exercising its discretion to execute a trust for sale of property in ‘family’ cases under section 30 of the 1925 Act the court had to consider both the primary purpose of the trust (ie that of a sale) and its underlying purpose (ie that of providing a home not only for the parents but also for the children).65

In fact, in Re Evers’s Trust, the Court of Appeal dismissed the application for sale, on the basis that the interests of children were a circumstance to be considered in the exercise of the court’s discretion under section 30, and the court was satisfied that the property in question had been purchased to provide a home for both the partners and their children. It is noteworthy, however, that in each of these cases the parties to the dispute were the original co-owners themselves—that is, the estranged partners. These disputes could therefore be regarded as being within the family unit. A dispute between a creditor and an occupier would obviously raise a different set of issues. 62 63 64 65

[1976] Ch 278. Ibid, 285. [1980] 3 All ER 399. Ibid, 399.

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The question whether the court could take account of children’s interests in a case involving a creditor’s application for sale was considered, obiter dicta, in Thames Guaranty Ltd v Campbell.66 This case did not, ultimately, require the court to exercise its discretion under section 30, as the ratio of the decision concerned the discretion to order specific performance of an equitable charge against Mr Campbell’s half share in the property. However, one of the factors that the court took account of was the likely outcome of any section 30 application, should the chargee proceed to apply for sale once specific performance had been ordered. Slade LJ relied on the comments of Buckley LJ in Re Holliday,67 when he claimed that, in considering an application under section 30: [t]he discretion of the court is a real one and, in considering whether or not to order a sale, it must weigh the conflicting legal and moral claims of the creditors on the one hand, and those of the wife on the other, taking all relevant facts, including the existence of children, into account.68

Nevertheless, although the interests of children appeared to rank among the factors that the court would take into account in exercising its discretion, the lack of weight attached to such interests, compared to the commercial claims of occupiers, was evident in the discussion of section 30 of the Law of Property Act, in Chapter 2. For example, the decision in Re Citro69 established the overwhelming priority accorded to the interests of creditors in the bankruptcy context, notwithstanding the presence of child occupiers. The decisions in Lloyd’s Bank Ltd v Byrne,70 and Barclay’s Bank plc v Hendricks71 extended this approach to other proceedings involving secured creditors. Indeed, the decision in Re Citro established two significant principles in relation to the section 30 discretion: first, that when exercising the section 30 discretion the sale of the property should be ordered unless the circumstances were exceptional; and, secondly, that neither the presence of children nor the potentially adverse impact of sale on their welfare would be regarded as exceptional circumstances.72 Even outside the context of bankruptcy, the interests of children did not carry weight. In Barclays Bank plc v Hendricks,73 Mrs Hendricks appealed against an order for sale, granted at the request of a bank which had obtained a charging order against her husband’s share of the property. Mrs Hendricks asked the court 66

[1985] 1 QB 210. [1980] 3 All ER 385. 68 Ibid, 395, per Buckley LJ; cited by Slade LJ in Thames Guaranty Ltd v Campbell (CA), above n 66, emphasis added. 69 [1991] Ch 142. 70 [1993] 1 FLR 369. 71 [1996] 1 FLR 258. 72 Re Citro, above n 29, at 157, per Nourse LJ. 73 Above n 71. 67

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to exercise its discretion to defer the sale of the house until all of the children of the family had reached the age of 18 or completed full-time education. However, her appeal was dismissed and the order confirmed. The issue of child occupiers was raised yet again in Bankers Trust Company v Namdar,74 when counsel for Mrs Namdar attempted to persuade the court to exercise its section 30 discretion to refuse sale in the interests of child occupiers. In an apparent attempt to revive the collateral purpose doctrine, the argument against sale drew attention to the purpose for which the property had been purchased—that is, to provide a matrimonial home ‘for Mr and Mrs Namdar and a home for their children until they became grown up and independent’. The court did accept that the property had been purchased for the purpose of providing a home for the couple and their children, and while that purpose subsisted neither Mr nor Mrs Namdar could demand a sale of the property against the opposition of the other. However, in a judgment that was subsequently affirmed by the Court of Appeal, the arguments against sale were rejected on the basis that the subsistence of that purpose depended on continuing joint ownership of the property. In fact, the court held that, even though both parties wanted to continue owning and occupying the property together, the purpose of their joint ownership had been brought to an end by Mr Namdar, by the act of granting a charge to the bank. Furthermore, the court also suggested that the purpose of providing a home for the couple and their children could, alternatively, have been brought to an end, even if a third party creditor had not been involved, simply by Mr Namdar leaving the property and leaving his wife in circumstances in which it was plain that their marriage was at an end. The decision in Namdar clearly regarded the interests of child occupiers as being incapable of existing independently of the relationship between Mr and Mrs Namdar. In fact, the court openly acknowledged that this approach was inconsistent with the decisions in Williams v Williams,75 Re Evers Trust76 and Thames Guaranty Ltd v Campbell,77 which had accepted ‘that there can exist a separate overriding collateral purpose to provide a home for the children of the marriage’. Sir Peter Gibson explicitly rejected this approach, and opted to follow the reasoning in Re Citro instead. The idea that the presence of child occupiers might be taken into account was therefore rejected, on the basis that ‘[t]he children have no separate property right to occupy the property’. Although section 30 conferred an unfettered discretion on the court when considering applications for sale, the court identified the fact that the children did not have a ‘separate property right’ as a basis for excluding their interests as occupiers from consideration. This line of reasoning effectively excluded children from consideration in any other case, since 74 75 76 77

14 Feb 1997 (CA); Transcript: Lexis. Above n 62. Above n 64. Above n 66.

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it would be extremely unlikely that minor occupiers would be able to establish a separate property right. Another interesting point to note relates to the similarity of this approach with the subsequent decision of the House of Lords in London Borough of Harrow v Qazi.78 The decision in Qazi concerned Mr Qazi’s attempts to remain in occupation of his rented home, after his wife had terminated their joint secure tenancy. Mr Qazi argued his case on the basis of Article 8 of the European Convention on Human Rights, which included the right to respect for home. A more detailed discussion of the court’s response to this claim, and of the significance of the reference to home in Article 8 more generally, can be found in Chapter 10. However, one noteworthy point, in relation to the decision in Namdar, relates to the suggestion that home interests must be supported by a ‘separate property interest’. In Qazi, the crux of the court’s decision was that, since Mr Qazi had no contractual right or proprietary interest in the property, there had been no interference with his right to respect for home under Article 8. The idea, in both contexts, that claimants must establish a contractual or proprietary claim against the property, before the court can consider their claim to the property as a home imposed a major restriction on the court’s ability to take account of child occupiers. In fact, it took legislative reform to get the interests of child occupiers back onto the agenda in the creditor/occupier context.

Putting Children’s Interests on the Agenda: Trusts of Land and Appointment of Trustees Act 1996 In a postscript to the decision in Namdar, Gibson LJ claimed that it was ‘unfortunate for Mrs Namdar that the very recent Trusts of Land and Appointment of Trustees Act 1996 was not in force at the relevant time as the result might have been different’. Certainly, in relation to the court’s obligation to take account of child occupiers, the 1996 Act appeared to indicate a change in the law. Prior to 1996, there was no explicit provision for taking account of children’s interests in actions for possession or sale of their homes. However, in section 15 of the Trusts of Land and Appointment of Trustees Act 1996, which set out a list of factors to be taken into account by the court when considering whether to make any orders in relation to property held on a trust of land, the court was directed to take account of the welfare of child occupiers. Section 15 stated that:

78

[2003] UKHL 43.

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(1) The matters to which the court is to have regard in determining an application for an order under section 14 include— (a) the intentions of the person or persons (if any) who created the trust, (b) the purposes for which the property subject to the trust is held, (c) the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and (d) the interests of any secured creditor of any beneficiary. Nevertheless, the court’s power to make orders in relation to property that was held on a trust of land remained discretionary. In fact, notwithstanding the explicit reference to the welfare of minor occupiers in section 15, it was some time before there was any indication of how much—if any—weight the court would attach to paragraph (c) when balancing the various matters to be taken into account when considering whether to order sale. For one thing, in a string of cases following the commencement of the 1996 Act, it was clear that the courts were generally resistant to any change in their pre-1996 approach to applications for the sale of co-owned property.79 Furthermore, even when the guidelines set out in section 15 were explicitly considered by the court and when the facts of the case included the presence of a minor occupier, the court still managed not to address the relative weight to be attributed to section 15(1)(c). For example, in Wilkinson v Chief Adjudication Officer,80 the court was required to consider the value of Mrs Wilkinson’s share in a jointly owned property for social security purposes. The Court of Appeal held that, in assessing the market value of the property, it would be presumed that Mrs Wilkinson could readily have obtained an order for sale with vacant possession under section 14, notwithstanding the fact that her co-owning brother lived there with his son Marc. Although the appellant argued that Mrs Wilkinson would not, in fact, have been able to force a sale of the property due to the existence of a collateral purpose and the welfare issues pertaining to the occupation of Marc (a minor) Mummery LJ claimed that he was ‘unconvinced’. In a dissenting judgment, Evans LJ adopted a different view as to the likely outcome if Mrs Wilkinson made an application for sale under sections 14 and 15 of the TLA. Evans LJ reviewed the ‘collateral purpose’ case law, and explicitly considered the criteria set out in section 15(a)–(d). It is interesting to note, however, that in this (albeit notional) application of the section 15 criteria, Evans LJ suggested that ‘[s]ubsections (a) to (b) . . . were relevant to an application by Mrs Wilkinson under s 14, and sub-s (d) presented no bar to it’. Notwithstanding 79 A v B, 23 May 1997, Unreported, Transcript: Lexis; TSB Bank plc v Marshall [1998] 39 EG 208; Bank of Ireland Home Mortgages Ltd v Bell [2001] 1 All ER (Comm) 920; First National Bank plc v Achampong [2003] EWCA Civ 487. 80 [2000] 2 FCR 82 (CA).

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the fact that Marc, a minor, was in occupation, and despite Evans LJ’s comment that ‘the ages of the children’ was a circumstance to be taken into account under the 1996 Act, the dissenting judgment was based on the existence of a collateral purpose under section 15(1)(b). The reference to minor occupiers in section 15(1)(c) was not even mentioned in this judgment.81 It therefore appeared that, even in a judgment that sought to engage with the guidelines set out in section 15; even when the court appeared open to considering the possibility of refusing sale; even though section 15(1)(c) explicitly identified the welfare interests of minor occupiers; and even though there was, in fact, a minor occupier in the property; the court was blind to the interests of child occupiers when considering the exercise of its section 14 discretion. Yet, just eight days earlier, on 16 March 2000, Neuberger J, sitting in the High Court (Chancery Division), had signalled the beginning of a new judicial policy towards child occupiers under sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996, when he suggested, obiter dicta, that the welfare of minor occupiers should be taken into account by the court and weighed against the claims of creditors when the court was exercising its discretion to order sale, and, even more significantly, that the weight attributed to factors such as the interests of child occupiers might be sufficient to displace the priority that had been conferred upon the interests of creditors under section 30. These comments were obiter since, in Mortgage Corporation v Shaire,82 the defendant’s son was, in fact, over the age of 18. However, Neuberger J noted that ‘while the interest of a chargee is one of the four specified factors to be taken into account in s15(1)(d), there is no suggestion that it is to be given any more importance than the interests of the children residing in the house’. The judge was clearly suggesting that the claims of the creditor should not, as a matter of course, carry more weight than any of the other factors set out in section 15. Although the court recognised that a shift away from the previous pro-creditor presumption ‘would appear to represent a change in the law’; both the legislature’s intention that section 15 would change the law and the explicit reference to child occupiers were clear on the terms of the provision itself, and from the Law Commission reports that preceded the 1996 Act. In fact, when considering the impact of (what ultimately became) the section 15 guidelines, the Law Commission clearly anticipated that the court’s policy would have to change in favour of child occupiers, in light of the new provision. The Law Commission stated that: [c]learly, the terms of these guidelines may influence the exercise of the discretion in some way. For example, it may be that the courts’ approach to creditors’ interests will be altered by the framing of the guideline as to the welfare of children. If the welfare of chil81 82

See also White v White [2003] EWCA Civ 924. [2000] 2 FCR 222.

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dren is seen as a factor to be considered independently of the beneficiaries’ holdings, the court may be less ready to order the sale of the home than they are at present.83

Yet, for several years after the commencement of the 1996 Act, there was still no direct authority on how much weight would (or should) be conferred on the welfare interests of minor occupiers when balanced against the claims of secured creditors. It is important to recognise the connection between the sluggish impact of the section 15 guidelines and the fact that the claims of secured creditors have typically weighed heavily in the balancing scale in the exercise of the discretion to order sale. In fact, despite several obiter references to the new legislation, the decisions of the Court of Appeal in Bank of Ireland v Bell 84 and First National Bank plc v Achampong 85 appeared to suggest that, notwithstanding the introduction of the trust of land and the guidelines set out in section 15, the pro-creditor policy continued to prevail. Although both cases involved minor occupiers, section 15(1)(c) was overlooked once again, and the creditors’ requests for sale were granted. In Bank of Ireland v Bell,86 the High Court had exercised its discretion to refuse sale on the basis of Mrs Bell’s occupation of the property, her son’s occupation of the property and Mrs Bell’s poor health. However, the Court of Appeal did grant the bank’s appeal against this decision. In disposing of the arguments against sale, Peter Gibson LJ claimed that the fact that the debt amounted to a large portion of the value of the property, so that: ‘[i]n effect . . . the bank would take all the proceeds on a sale . . . is a most material consideration’.87 Although the court also considered the purpose for which the property had been bought in accordance with section 15(1)(b), Gibson LJ held that the relevant purpose—to use the property as a family home—had ceased to be operative since Mr Bell had left the family. Consequently ‘that purpose is not a matter to which the judge could properly have regard’.88 This reflects the limits of the ‘collateral purpose’ approach when linked to a family unit, as discussed in Chapter 7.89 By focusing on the collective family unit, the interests of individual occupiers were overlooked, and a single family member—in this case, Mr Bell—was capable of unilaterally demolishing the ‘family home’. The court in Bell did also consider the fact that Mrs Bell’s son was in occupation of the property, but Gibson LJ concluded that ‘the son at the time of trial was not far short of 18 and therefore that should only have been a very slight consideration’.90 83 84 85 86 87 88 89 90

Transfer of Land: Trusts of Land, Law Com No 181 (London, HMSO, 1989), note 143. [2001] 1 All ER (Comm) 920. [2003] EWCA Civ 487. Above n 84. Ibid, [26]. Ibid, [27]. See Ch 7, nn 96–105 and associated text. Ibid, [28].

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Mrs Bell’s poor health was also accepted as a relevant criterion, but was regarded as a reason for postponing, rather than refusing, sale. In fact, the court’s response to these factors was clearly informed by the general pro-creditor approach that has dominated judicial policy in relation to applications for sale. Gibson LJ reiterated the policy adopted under section 30, whereby: the courts . . . would order the sale of a matrimonial home at the request of the trustee in bankruptcy of a spouse or at the request of a creditor of a spouse, considering that the creditor’s interest should prevail over that of the other spouse and the spouse’s family save in exceptional circumstances.91

Although the court recognised that the factors set out in section 15 ‘have given scope for some change in the court’s practice’,92 Gibson LJ claimed that ‘a powerful consideration is and ought to be whether the creditor is receiving proper recompense for being kept out of his money, repayment of which is overdue’.93 In fact, the decision in Bell was ultimately determined by financial criteria—specifically, the financial costs to the creditor if sale was refused—thus ‘condemn[ing] the bank to go on waiting for its money with no prospect of recovery from Mr and Mrs Bell and with the debt increasing all the time, that debt already exceeding what could be realised on a sale’.94 This outcome was described as being: ‘very unfair to the bank’.95 The Bell approach was also applied by the Court of Appeal in First National Bank plc v Achampong.96 The creditor’s application for sale in this case concerned a property which had been the Achampong matrimonial home prior to the breakdown of their relationship, and in which Mrs Achampong continued to live with her children and grandchildren. Mrs Achampong argued that the property had been purchased for the purpose of use as a family home, and that that purpose continued to subsist, since she continued to live there with two of the three children of the marriage, and with the three infant children of her elder daughter Rosemary, an adult suffering from a mental disability. Blackburn LJ followed the approach adopted in Bell, by focusing on the impact that refusing sale would have on the financial interests of the bank. The decisive factor in this case was that: [t]he effect of refusing sale is to condemn the bank to wait—possibly for many years— until Mrs Achampong should choose to sell before the bank can recover anything. In the meantime its debt continues to increase.97 91 92 93 94 95 96 97

See Ch 7, nn 96–105, [31]. Ibid. Ibid. Ibid. Ibid. Above n 85. Ibid, [62].

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Although the property was occupied by minors, Blackburn LJ did not think, in the absence of specific evidence, that their welfare was a factor to which he could attach any weight. Blackburn LJ claimed that: ‘[i]t is for the person who resists an order for sale in reliance on section 15(1)(c) to adduce the relevant evidence’.98 This reference to ‘evidence’ of the impact of forced sale of the home on minor occupiers raised a number of interesting issues for the purposes of this chapter. For one thing, it suggested that the decision of the Court of Appeal in Achampong might have been influenced by arguments relating to child occupiers if counsel on behalf of Mrs Achampong had adduced appropriate evidence of the impact of sale on the children’s welfare. Yet, another question that instantly springs from this statement relates to the means by which such evidence should, or could, be adduced. Since section 15(1)(c) identified the ‘welfare’ of minor occupiers, relevant evidence would surely relate to the impact of sale on the welfare of children who were living in the property. The task of identifying such evidence clearly dovetails with the overarching purpose of this book: to develop a framework within which the impact of losing one’s home on occupiers can be represented in law. Furthermore, in weighing the interests of minor occupiers under section 15(1)(c) against the claims of creditors under section 15(1)(d) the court was clearly called upon to strike a balance between the commercial claims of creditors and the home interests of occupiers. This book has attempted to meet the challenge of conceptualising home for law by drawing upon theoretical and empirical research in other disciplines, to unpack the meanings and values of home. A central aspect of this exercise has been a focus on how occupiers are affected by loss of home through creditor possession actions. It is suggested that this type of analysis could have been usefully applied in a case such as Achampong. In fact, it is suggested that the reference to evidence of the effects of ordering sale on the welfare of the child occupier in this case highlighted the importance of bridging the conceptual gaps in the legal concept of home. One of the reasons for developing the legal concept of home is better to inform the legal decision making process when the court is called upon to weigh home interests against other claims. In the case of child occupiers, there is, in fact, a wealth of evidence on the impact of losing their homes. These data are considered in the next section. Firstly, however, this section shall conclude by considering the significance of the decision in Edwards v Lloyd’s TSB Bank 99 in shifting legal discourse on child occupiers from rhetoric to reality.

98 99

Ibid. [2004] EWHC 1745.

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Edwards v Lloyd’s TSB Bank Although section 15(1)(c) specifically referred to the welfare of minor occupiers and the courts had made obiter references to the presence of children when considering whether to order sale, the decision in Edwards v Lloyd’s TSB Bank was the first reported case under the trusts of land legislation in which the outcome turned on an explicit balancing of the welfare interests of minor occupiers against the claims of a secured creditor. In considering the bank’s application for the sale of the property in Edwards, Park J considered a range of factors under section 15, including the welfare of any minor occupying the house as his home under section 15(1)(c). In fact, the decisive factor in the court’s decision to refuse the bank’s application for the sale of the property was the welfare interests of the claimant’s minor children. Since the youngest child would reach the age of 18 in five years’ time, the court ordered the sale of the property, but postponed the execution of that order for an initial period of five years.100 Another interesting facet of the decision in Edwards was Park J’s treatment of the ‘collateral purpose’ argument in relation to minor occupiers. As the discussion of the collateral purpose doctrine in Chapter 7 and in this chapter above have demonstrated, the argument that the property should be retained for use and occupation as a home because that was the purpose for which it was purchased had been circumscribed in two ways: for one thing, the tendency to focus on the ‘family unit’ rendered the presumed purpose of occupation as a ‘family home’ vulnerable to defeat if any single individual left the family home; and, secondly, the court held that the collateral purpose of use and occupation as a home could not survive the act of using the property as security for a debt. Consequently, under the section 30 discretion, the prospect of making a successful collateral purpose argument against creditors had effectively been abandoned. For example, in Bankers Trust Company v Namdar,101 the Court of Appeal affirmed a decision in which the court held that the collateral purpose of providing a home for Mr and Mrs Namdar and their children was defeated when Mr Namdar charged his interest to the bank. Following the commencement of the 1996 Act, this restrictive approach towards the collateral purpose argument also prevailed in Bank of Ireland Home Mortgages Ltd v Bell,102 when Gibson LJ reasoned that, since Mr Bell had left the family home, the purpose of the purchase—to use the property as a family home—had ceased to be operative, and so was ‘not a matter to which the judge 100 Subject to certain provisions, including the prospect that the period of postponement might be extended if, eg, either or both of the children were still in full time education and in practice dependent on their mother to provide a home. 101 Above n 74. 102 Above n 84.

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could properly have regard’.103 It is therefore interesting to note that, in Edwards, the court held that the original purpose of the purchase ‘no doubt to provide a matrimonial home for the husband, Mrs Edwards and their children’,104 remained extant, notwithstanding the existence of the charge or Mr Edwards’ departure from the family home. Crucially, the court held that it was the presence of their children which kept the original purpose alive. Although Parks J acknowledged that Mr Edwards had left the property, the court concluded that ‘[i]n part that purpose has gone, because the marriage is over, but in part the purpose still survives because the house is still the home for Mrs Edwards and the two children of the former marriage’.105 Finally, it is important to emphasise the significance of the fact that not only did the court in Edwards accept that the factors arising under section 15(1)(a)–(c), including the welfare of the children, were relevant to the exercise of its discretion—as well as the wishes of Mrs Edwards that the property would not be sold, under section 15(3)106—but sufficient weight was attached to these factors to counterbalance the creditor’s claim. Park J appeared to eschew the usual judicial predisposition towards the creditor and in favour of sale, stating, ‘I must weigh up the various factors which are relevant and do the best I can to reach a balanced conclusion’.107 In fact, Park J also considered some additional factors—as the guidelines set out in section 15 are not exhaustive—including the difficulty that Mrs Edwards would be likely to face in attempting to find another, less expensive, property with the equity she would receive after the creditor was paid;108 and the fact that the debt owed to the bank did not exceed the value of the interest over which the bank had an equitable charge, so that ‘now and for some time to come the security will be sufficient to cover the increasing amount of the debt’.109 Weighing all of these factors in the balance, Park J concluded that an immediate sale would be ‘unacceptably severe in its consequences upon Mrs Edwards and her children’.110

103

Ibid, [27]. Edwards, above n 99, [29]. 105 Ibid. 106 S 15(3) of the Trusts of Land and Appointment of Trustees Act 1996 stated that ‘ the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust’. 107 Edwards, above n 99, [31]. 108 ‘[T]he house is a two-bedroom house in which Mrs Edwards already has to share a bedroom with her daughter. The house is obviously at the lower end of the range of prices for houses in the area where she lives. If there was a sale and the husband’s debt to the bank was taken out of half of the net proceeds before the balance was available to Mrs Edwards, I very much doubt that she would be able to find another house which she could afford to buy and which would be adequate to accommodate her and her children’: ibid, [31]. 109 Ibid, [32]. 110 Ibid, [33]. 104

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The impact of sale on the welfare of the children was clearly at the centre of the court’s decision to postpone sale in Edwards v Lloyd’s TSB Bank. Although this approach has not yet been endorsed by the Court of Appeal, the following section argues that the approach taken in Edwards represents a significant and welcome turning point in the case law concerning child occupiers. While the courts have long made references to the welfare of children, before proceeding to order the sale of their homes in the interests of creditors, the application of section 15(1)(c) in Edwards to delay the sale of the property until the youngest child reached the age of 18—or perhaps beyond this date, if she was still in full time education and dependent on her mother for accommodation—suggests that judicial rhetoric relating to child occupiers may be starting to yield some real results. Yet, although there is reason to believe that the home interests of child occupiers have achieved a place on the agenda of judicial policy and the decision in Edwards may suggest that the courts are beginning to countenance the prospect of attributing weight to such interests, it is important to emphasise that this is merely one High Court decision. Analysis of the home interests of children and the impact of losing their home on children’s welfare remains under-developed from a conceptual perspective. The following section seeks to develop the concept of home for child occupiers by considering some evidence concerning the consequences of loss of home on children’s welfare.

Child Welfare and Loss of Home: Assessing the Implications The court’s approach to sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 in Edwards v Lloyd’s TSB Bank can be welcomed on several grounds. For one thing, the decision gives effect to the legislative objectives of the 1996 Act, with regard to both the consideration of the welfare of child occupiers and, more generally, the court’s consideration of the whole range of factors set out in section 15 to reach a balanced conclusion, rather than always acceding to the creditor’s request for sale. Furthermore, by taking account of—effectively giving voice to—the welfare interests of children as an independent factor in a dispute with direct implications for the children, this approach dovetails with modern legal discourses concerning children and the law,111 as exemplified in the Children 111 Note that ‘[d]uring the later twentieth century, children and youths began to figure as agents rather than objects of law, and emerged as legal persons with rights and interests of their own’: BB Woodhouse, ‘The Status of Children: A Story of Emerging Rights’ in SN Katz, J Eekelaar and M Maclean, Cross Currents: Family Law and Policy in the US and England (Oxford, Oxford University Press, 2000) 425.

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Act 1989112 and the UN Convention on the Rights of the Child.113 As Freeman has noted, ‘[t]he child is now at the centre of family law . . . We have come to accept the personality of the child and to recognise the importance of his/her autonomy’.114 The proposition that the interests of child occupiers could be ‘counted’ alongside the interests of other individual occupiers and the interests of the creditors reflects this view of the child as an autonomous individual. Meanwhile, the importance of drawing upon research into the experiences of children as autonomous individuals and as a group, and incorporating children’s perspectives into our discourses has also been emphasised in other disciplines. Furthermore, Christensen and O’Brien have argued that the incorporation of children’s perspectives has been greatly facilitated by the increase in child-centred analysis. They claimed that: [s]tudies of children’s lives, circumstances and welfare in contemporary societies have provided empirical evidence for children’s agency, experiences and conceptual understandings in a range of different social contexts. This work has produced so much original insight that children have been acknowledged as active social and cultural actors and as informants and participants in research.115

This section seeks to apply this approach to the conceptualisation of home by considering child-centred research in relation to the meanings and values of home, and the experience of losing one’s home from children’s perspectives.

Considering the Claims of Child Occupiers One of the issues that has arisen in judicial discussion of the welfare interests of child occupiers has been the question of how the court could go about weighing the implications of ordering sale. In First National Bank plc v Achampong, Blackburn LJ held:

112 One of the objects of the Children Act 1989 was to make it ‘more difficult for the court and welfare professional to regard the child as essentially an object of welfare. Children must be allowed to make an independent input to decisions concerning them although their views may be superseded by the views of others and/or overtaken by other considerations’: C Lyon and N Parton, ‘Children’s Rights and the Children Act 1989’, in B Franklin (ed) The Handbook of Children’s Rights (London, Routledge, 1995) 42. 113 The proposition that children’s views should be represented in legal proceedings affecting their lives is one of the guiding principles of the Convention: see, eg, Art 12. 114 M Freeman, ‘The Child in Family Law’ in J Fionda (ed), Legal Concepts of Childhood (Oxford, Hart Publishing, 2001) 200. 115 P Christensen and M O’Brien, Children in the City: Home, Neighbourhood and Community (London, Routledge Falmer, 2003) 2.

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[w]hile it is relevant to consider the interests of the infant grandchildren in occupation of the property, it is difficult to attach much if any weight to their position in the absence of any evidence as to how their welfare may be adversely affected if an order for sale is now made.116

On the one hand, this statement could be interpreted as simply referring to the fact that the section 15(1)(c) argument had not been adequately made before the court in this particular case. However, Blackburn LJ’s allusion to the difficulties of determining how much weight to attach to the interests of the child occupiers goes to the heart of the project in this book. As the analysis throughout this book has recognised, a major obstacle to overcome in the task of conceptualising home for law is the very nature of home-type interests. ‘Home’ is an essentially intangible and subjective phenomenon. It is not easily quantifiable, and the value of a home to its occupiers is not readily susceptible to legal proof. This is in sharp contrast to the nature of the creditor’s interest in the property as a capital asset, which is readily comprehensible and quantifiable in money terms. The principal tasks of this book have been to unpack the meanings and values of home to occupiers; to consider the case for drawing upon these meanings and values to develop a legal concept of home; and, finally, to negotiate these ideas concerning home through existing legal frameworks. While the home interests of occupiers have typically been dismissed as a mere chimera in legal discourse, and either trivialised or ignored in legal decision making, a legal concept of home that is rooted in empirical and theoretical knowledge of the occupier’s experience of home, including loss of home, would provide a stronger basis on which to weigh home interests against other claims. Practically speaking, a question remains as to how evidence demonstrating the nature of the occupier’s home interest and the potential impact that loss of home might have could be brought in any given case. There are a few alternatives available for consideration. One possible approach would be to hear evidence relating to the effect of repossession on the welfare of the individual children concerned in each case before the court. On the one hand, this approach would reflect the fact that home meanings are individual and subjective. However, the idea of adopting a case-by-case approach has several disadvantages. An individual case-by-case approach would require the court to evaluate the likely effects of losing the home on the specific (child) occupier in the specific circumstances of the case. For one thing, this approach would have major resource implications. It would also be impracticable since, even presuming that the types of costs incurred in these cases could be quantitatively measured, the actual costs of losing the home in any given case would not be evident until after the event. Finally, the scrutiny of individual

116

Above n 85, [65]–[66].

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children in the context of legal proceedings would create additional trauma for child occupiers at an already stressful time. Consequently, it is suggested that a more practical approach would be to adopt a group approach to the general welfare interests of children in the context of possession actions. This approach would also be theoretically sound. Advocates of children’s agency have argued that the welfare interests of children are better analysed from a collective, rather than individual, perspective. Smart, Neale and Wade have suggested that, when considering welfare-based principles: what is more important than rights is the ability for people to be able to voice their diverse needs and for these to become formulated into collective claims rather than individual demands . . . These ideas are particularly important where children are concerned. Thus what needs to be heard is not only the expression of the rights of individual children so much as the kind of things that children in general have to say . . . [then] the terms of policy debates concerning children can begin to be influenced. No longer need it only be experts and judges whose views frame or influence policies or guidelines.117

When seeking to identify the basis on which to attribute weight to the welfare interests of child occupiers, it would therefore be useful to work from empirical evidence and theoretical analysis relating to the meanings and values of home for children themselves, and their experiences of losing their homes in creditor possession actions.

The Meaning of Home for Children Although the subject of children and home did not attract a great deal of attention in the social sciences until relatively recently,118 a combination of factors, including a growing recognition of the importance of home in child development,119 the upsurge of interest in research from the perspectives of children120 and the rise in 117

Smart, Neale and Wade, above n 25, 123. ‘It is one of the ironies of the history of psychology that so little attention has been paid to one of the most important settings for the developing child—the home. In fact, until recently more was known about orphanages, institutions, hospital wards, preschools, and playgrounds than home environments’: RD Parke, ‘Children’s Home Environments: Social and Cognitive Effects’ in I Altman and JF Wohlwill, Children and the Environment (New York, Plenum Press, 1978) 34. See also L Chawla, ‘Childhood Place Attachments’ in I Altman and SM Low (eds), Place Attachments (New York, Plenum Press, 1992), which highlighted the relative neglect of the idea that children form attachments to places. Chawla suggested that this had resulted from the concentration of research interest, on the subject of childhood attachments, on relational bonds. 119 See generally CS Weinstein and TG David (eds), Spaces for Children: The Built Environment and Child Development (New York, Plenum Press, 1987). 120 See P Christensen and M O’Brien, ‘Children in the City—Introducing New Perspectives’ in Christensen and O’Brien, above n 44. The interrelationships between the rise of child-centred research and the importance of place, including the home, for children are evidenced by Hallden’s observation that ‘[r]ecent discussion on children’s agency and childhood from a social perspective has emphasised 118

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mortgage repossessions in Britain since the 1990s have prompted a number of recent studies investigating the experience of mortgage arrears, the threat of repossession and the consequences of forced sale from the perspectives of child occupiers.121 Social and psychological research into home meanings for children has established the importance of the home environment for several key aspects of child development. The home has been identified as a key setting in children’s development of place-identity: ‘[i]n terms of a child’s physical world socialization, the home is undoubtedly an environment of primary importance’.122 The immediate home environment is most significant for younger children, while, as children grow older, other settings beyond the home—for example, the child’s school or outdoor play areas in the neighbourhood123—assume more importance in the formation of place-identity. Yet, while the immediate location of the home itself may be less significant for older children, it is also important to note that these other significant places are linked to living in the neighbourhood of the home.124 Thus, loss of the home itself will often result in loss of other attachments in the neighbourhood of the home: for example, following loss of home in possession actions, children may have to move to different schools, and move into different neighbourhoods, thus losing these other important, and home-dependent, place attachments. When focusing on children’s place attachments within the home itself, considerable emphasis has been laid upon the importance of the child’s bedroom. Proshansky and Fabian’s study of the development of place identity in children found that: a child’s room, replete with all its belongings and its ability to provide sanctuary from the control of parents, is a place of disproportionate significance in the child’s development of place identity and therefore in self-identity.125

the importance of place’: G Hallden, ‘Children’s Views of Family, Home and House’ in Christensen and O’Brien, above n 44; see also SL Holloway and G Valentine (eds) Children’s Geographies: Playing, Living, Learning (London, Routledge, 2000). 121 See, eg, S Nettleton, ‘Losing a Home through Mortgage Repossession: the Views of Children’ (2001) 15 Children and Society 82; S Nettleton, R Burrows, J England and J Seavers, Losing the Family Home: Understanding the Social Consequences of Mortgage Repossession (York, Joseph Rowntree Foundation, 1999); J Ford, R Burrows and S Nettleton, Home Ownership in a Risk Society: A Social Analysis of Mortgage Arrears and Repossessions (Bristol, Policy Press, 2001). 122 HM Proshansky and AK Fabian, ‘The Development of Place Identity in the Child’ in CS Weinstein and TG David (eds), Spaces for Children: The Built Environment and Child Development (New York, Plenum Press, 1987) 24. 123 ‘These three overlapping physical and social realms are probably the most influential settings in the life of the child’: ibid, 24. 124 ‘[C]onstrained by family rules and schedules and their own limited independence, children are literally “attached” to a succession of expanding local places, with their home at the centre’: Chawla, above n 118, 66. 125 Proshansky and Fabian, above n 122, 28.

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This is also supported by another study by Czikszentmihalyi and RochbergHalton, which indicated that children and adolescents considered their own room to be the place where they felt most ‘at home’ and where they were most likely to keep special objects.126 This is also important in relation to possession proceedings, as children who lose thier homes will not only lose their own bedroom, but it is likely that, when the family secures alternative accommodation, there may not be as much space for children to continue having their own bedrooms. Other commentators have emphasised the importance of home as a site in which children can develop their sense of belongingness,127 and as an important place for the development of relationships with others,128 for shelter129 and for family life. Hallden’s study of children’s views on home suggested that ‘[t]he house creates opportunities for everyday life and is a key site for “belonging” and for creating and maintaining social ties and relationships, a shelter for children and the families’.130 It is interesting to note that these meanings of home for children— identity, territory, shelter, belonging, privacy, security, a site for relationships with others and a locus for family life—echo the types of values that have also emerged from research into adult meanings of home.131 It is interesting to note that Hallden’s research, which drew on a set of children’s narratives, also highlighted a close association between home and family. This study revealed that: [w]hen children write about a future family . . . the strongest link is between children and the home . . . when it comes to relating children to family the important place seems to be the home.132

This finding echoed the links between home and family that were identified in Chapter 4, and considered in Chapter 7. Yet, despite these similarities between the meanings and values of home for adults and for children, it is still important not to conflate children’s home interests with those of adults, particularly when considering the impact of possession proceedings on the children’s welfare.

Children’s Experience of Losing their Homes Smart, Neale and Wade have highlighted the importance of harnessing children’s experiences from their own standpoints, rather than merely employing ‘children’s 126 M Czikszentmihalyi and E Rochberg-Halton, The Meaning of Things: Domestic Symbols and the Self (Cambridge, Cambridge University Press, 1981). 127 J Brannen and M O’Brien (eds), Children in Families: Research and Policy (London, Falmer Press, 1996). 128 Proshansky and Fabian, above n 122; P Christensen and A James (eds), Research with Children: Perspectives and Practices (London, Falmer Press, 2000). 129 Hallden, above n 120. 130 Ibid, 34. 131 See generally Ch 4. 132 Hallden, above n 120, 33.

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welfare’ arguments as rhetoric in the pursuit of adult agendas.133 Although it may be tempting to employ children’s welfare arguments, which may be emotive, highly persuasive and therefore weigh heavily in the balancing scale, this not only risks under-serving the interests of children themselves, but could potentially undermine the legitimacy of child-welfare arguments. It is important to note that the successful avoidance of sale on the ground of the child’s occupier’s welfare can, in fact, also benefit the adult occupier(s), since one of the consequences of avoiding sale (albeit incidental) is the preservation of the home for the benefit of the child’s principal caregiver. Thus, in Edwards v Lloyd’s TSB Bank plc,134 the postponement of sale meant that Mrs Edwards could also continue to live in the property until the child welfare considerations under section 15(1)(c) had ceased to be relevant.135 The relationship between care-taking responsibilities for dependent children and financial hardship leading to default, possession actions or bankruptcy was recognised in the introduction to this chapter. In fact, it is arguable that custodial parents and other individuals who undertake financial and other responsibilities for dependents—thus simultaneously decreasing their earning power and increasing their outgoings—should be given additional protection in the creditor/ occupier context. If such a view were to be adopted, it is important to note that the added financial burden of being a custodial parent or care-giver would be relevant to the weight attributed the adult care-giver’s own individual interest as an occupier, and should be distinguished from the child occupier’s own independent interest as an individual occupier. In order to represent the impact of loss of home on child occupiers without falling into the trap of pursuing adult agendas the focus must be on the children’s experiences of home and loss of home. Starting at the most extreme end of the spectrum, repossession can be a factor leading to homelessness.136 However, research has indicated that the effects of 133

Smart, Neale and Wade, above n 25. Above n 99. 135 See, by analogy, the decision in Albany Home Loans Ltd v Massey [1997] 2 All ER 609, where the court held that, although it had power to order possession against one of two joint mortgagors, it would not, in general, be appropriate to do so where it would be of no benefit to the creditor, since there were no grounds for possession against the debtor’s co-owning co-occupier. Schiemann LJ added that ‘[t]his must particularly be the case when the two mortgagees share the home as husband and wife’. This argument would carry even greater weight when considering the shared occupation of an adult caregiver and a minor occupier. 136 It is noteworthy, however, that the proportion of households rendered homeless because of mortgage arrears (based on those households accepted as homeless by local authorities) in 2001 had fallen to 3%; in 1991 mortgage arrears accounted for 11% of the households accepted as homeless: Social Trends 33 (London, TSO, 2003), fig 10.14, available online at: http://www.statistics.gov.uk/ STATBASE/Expodata/Spreadsheets/D6410.xls; for discussion of the impact of homelessness on children see, eg, PA Sullivan and SP Damrosch, ‘Homeless Women and Children’, in RD Bingham, RE Green and SB White, The Homeless in Contemporary Society (Newbury Park, Sage, 1987); Y Rafferty and M Shinn, ‘The Impact of Homelessness on Children’ (1991) 46 American Psychologist 1170; AS Masten, D Miliotis, SA Graham-Bermann, M Ramirez and J Neemann, ‘Children in Homeless Families: Risks to Mental Health and Development’ (1993) 61 Journal of Consulting and Clinical 134

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mortgage arrears and the threat of repossession begin to take their toll on children long before the children actually become homeless. The social consequences of possession actions for child occupiers include both the impact of the possession proceedings on the children themselves and the stress that is caused to children through being anxious on their parents’ behalf. Studies have shown that children who experience the threat of possession actions yield a range of responses,137 including: —sadness at the ‘loss of home’;138 —concerns about changing schools; —for those in temporary accommodation, worries about repeated moves; —embarrassment and shame in front of their friends; —uncertainty as to the future; —a lack of control over what was happening to them;139 —stigma at the loss of status—from owner to renter; —family tensions consequent on repossession; —loss of existing friendships; and —loss of their own space. In addition to these direct impacts, Nettleton, Burrows, England and Seavers also drew attention to the fact that possession actions often coincide with other traumatic events for children, which exacerbated these negative responses. The study found that: losing a home through repossession invariably occurs due to, or alongside, other major life changes so children were often having to cope with not just a loss of home but also the loss of a parent through marital separation, a parent’s ill-health or job loss. In some instances, other life events, such as the death of a close relative, were occurring concurrently.140

The findings of this research indicated that ‘the loss of the mortgaged home has a significant impact upon the lives of the dependent children living in the household; Psychology 335; JC Buckner, EL Bassuk, LF Weinreb and MG Brooks, ‘Homelessness and its Relation to the Mental Health and Behaviour of Low-Income School-Age Children’ (1999) 35 Developmental Psychology 246. 137 Nettleton, Burrows, England and Seavers, above n 7; see also Ford, Burrows and Nettleton, above n 7. 138 ‘Like their parents, some of the children had felt “sad” to be leaving their home. A number pointed out that the mortgaged home was the one that they had lived in since they were born, or at least, it was the only one they could remember’: Nettleton, Burrows, England and Seavers, above n 7, 46. 139 The feeling of lack of control was exacerbated for children since, in a situation that was already uncontrollable, they were also denied control as dependents within the household: ibid, 48. 140 Ibid, 50–1.

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it constitutes a major disruption to their everyday life and can be very disturbing both socially and psychologically’.141 Another finding to emerge from these studies into the impact of mortgage possession actions on minor occupiers was the children’s concerns, not only for themselves, but for their parents’ well being.142 In fact, the evidence that children themselves were directly affected by the impact of possession actions on their parents casts an interesting light on the argument that the law should avoid allowing children’s welfare arguments to be used as a ‘back-door’ route for adult occupiers to avoid sale. It was suggested above that the possibility that the reference to minor occupiers in section 15(1)(c) could be employed as an instrumental ploy to avoid sale could detract from its persuasive effect, if this was perceived as a cynical strategy to safeguard adult occupiers. Yet, when the interests of the children themselves are unpacked, there are a number of legitimate justifications for considering the relationships between parent and child, and regarding the impact of possession proceedings on adult occupiers as part and parcel of the impact on the children’s welfare interests. First, since children actually stated their concerns about the wellbeing of parents as part of their own general worry and anxiety when they lost their homes through repossession, the effect of forced sale on the adult occupiers clearly forms part of the experience of repossession for children. Equally, concerns expressed by parents included the worry that loss of the home would adversely impact on their children’s happiness, education and future; parents worried about whether to tell the children about the possession proceedings; they also worried about their parenting decisions; about the children’s schools; that the children would lose friendships; that the children would end up mixing with the ‘wrong’ friends; that the children would suffer from loss of lifestyle; that their behaviour would be adversely effected; that their physical health would suffer; and that they would have less space.143 These concerns reflected the issues raised by the children themselves. Furthermore, the symbiotic relationship between the welfare of child occupiers and their adult care-givers may be sufficiently strong to outweigh any concern about ‘using’ children as a ‘back-door’ defence against sale. While the impact of possession proceedings on adults appears to exacerbate the adverse consequences for children—thus adding weight to the individual interests of the children—it was also apparent that the potential consequences for their children were significant in the experience of possession proceedings for care-giving adults, thus also adding weight to their individual home interests.

141

Nettleton, Burrows, England and Seavers, above n 7, 51. Ibid, 46; Ford, Burrows and Nettleton, above n 7, 142. 143 See Nettleton et al, ibid, above n 7, 42ff. See also Christie, above n 2, for discussion of the added reluctance of custodial parents to succumb to forced sale and move to another location when the consequences included disturbing their children. 142

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Home Ownership and Child Occupiers The final part of this section on child welfare and loss of home addresses one particular aspect of the experience of possession proceedings for children: the shift from owner to renter that often follows possession proceedings. The stigma of losing status by becoming a renter was one of the factors mentioned by children who were interviewed about the experience of losing their homes.144 However, there is also a broader issue at stake for children in relation to the loss of home owner status. Research has also indicated that children who live in the owner-occupied sector are more successful; stay in school longer; are less likely to become teenage parents; and generally behave in more ‘socially desirable’ ways.145 In addition to these general advantages, the beneficial effects of home ownership are also thought to be greatest for children living in low income households.146 The costs and benefits of home ownership were outlined in Chapter 5. One of the issues that emerged from this discussion was the question whether the costs of promoting home ownership (sometimes as the ‘no-choice’ tenure) for low income households outweigh its potential benefits. The costs of home ownership include exposure to the risks associated with unsustainable home ownership and the costs of losing the home in a creditor possession action. One of the issues identified in Chapter 5, and developed in Chapter 8 was the idea that a higher degree of home protection should be conferred on low income home owners, as they are at the greatest risk of default and of suffering the negative consequences of possession actions. Political discourse promoting home ownership in Britain has emphasised the benefits of home ownership as the best context for ‘family life’; it is said to ‘satisfy a deep natural desire on the part of the householder to have independent control of the home that shelters him and his family’.147 This has been reflected in empirical studies into home meanings amongst occupiers. For example, Richards’ Australian study identified two principal themes in the home ownership ideology: that it was ‘natural’ to own, and that it was necessary for family life. Richards reported her finding that ‘family life is entered via home ownership’;148 and she claimed that when you: ‘[l]isten to people . . . there are few meanings put on owning a home that are not tangled with ideas of family life’.149 Although the importance of home as a place of safety and security for children has been a prominent feature of the ‘x factor’ meanings of home,150 when it comes to the specific importance of home ownership for children, the focus has tended to 144

See above, n 137 and associated text. RK Green, ‘Measuring the Benefits of Homeowning: Effects on Children’ (1997) 41 Journal of Urban Economics 441. 146 Ibid. 147 Department of the Environment, Fair Deal for Housing (Cmnd 6851) (London, HMSO, 1971) 4. 148 Ibid, 117. 149 Ibid, 119. 150 See above nn 2–5. 145

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be upon the benefits of accruing a financial asset to pass on to one’s children.151 However, in a recent study published by the Joint Centre for Housing Studies at Harvard University, Haurin, Parcel and Haurin found that, even after controlling for economic, social and demographic variables, the children of home owners experienced a range of other benefits. This study indicated that: The independent impact of homeownership combined with its positive impact on the home environment results in the children of owners achieving math scores up to nine percent higher, reading scores up to seven percent higher, and reductions in children’s behaviour problems of up to three percent.152

Where children lived in an owned home, rather than a rented home, this was found to have a substantial, measurable impact on their cognitive and behavioural outcomes. Furthermore, the authors highlighted the links between these child outcomes and occupational and earning attainment in adulthood, and analogous positive adult behaviours. The consequences of losing one’s home in a possession action were considered in Chapter 3. This discussion looked beyond the immediate consequences for the creditor and the occupiers, to include the impact of loss of home on other external agencies, for example, on central and local government, the labour market, insurers, health service providers and the housing market. Haurin, Parcel and Haurin considered the externalities of housing outcomes from the opposite direction: they focused on the positive effects of successful home ownership for children as a means of reducing later deviant behaviour amongst adults. In fact, they claimed that ‘[i]mproved child cognition yields not only increased future earnings for the child, but also generates the externalities associated with a higher achieving population’.153 The authors applied these findings to argue that government home ownership support programmes in the US—for example, tax subsidies—should be targeted at households with young children. The decline in state-sponsored subsidies for home owners in Britain was discussed in Chapter 5. However, in addition to its relevance for welfare policy, the demonstration in this study of a link between home ownership and children’s educational and behavioural outcomes adds weight to the argument for taking account of child occupiers within the legal concept of home. Whether the issue is viewed from a welfare-policy perspective—that is, by focusing on government welfare spending—or a legal policy perspective— by arguing for greater weight to be ascribed to the home interests of child occupiers—there is certainly a strong case for ‘counting’ children as occupiers when conceptualising home. 151

See Ch 4 nn 92–98. DR Haurin, TL Parcel and RJ Haurin, The Impact of Homeownership on Child Outcomes (Joint Centre for Housing Studies, Harvard University, Low-Income Homeownership Working Paper Series, LIHO-01.14, 2001), Abstract. 153 Ibid, 1. 152

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Conclusions In ‘The Minor as (a) Subject: The Case of Housing Law’,154 Cowan and Dearden identified a range of obstacles linked to the construction of children as subjects of housing law. Housing provision is dominated by the disciplines of property law and contract, and children are marginalised by the fact that their contracts are voidable, they cannot hold a legal estate in land and, perhaps most significantly for the creditor/occupier context in which the ability to pay is key, they do not generally have access to capital or income. Yet, as the discussion in this chapter has demonstrated, while child occupiers are not in a position to assume responsibility for housing, children are clearly vulnerable to the risks associated with creditor possession actions. Indeed, Warren described children as ‘the great uncounted constituency of bankruptcy’.155 On the one hand, the costs of caring for dependent children—both direct costs and lower earning capacity—have been identified as a causal factor in bankruptcy petitions. Furthermore, the experience of bankruptcy, including the loss of the child’s home, has a clearly detrimental impact on both the children themselves and their adult carers. The scope of these detrimental impacts is extensive. Issues considered in this chapter have included the practical, social, psychological, educational, behavioural and emotional consequences of loss of home for child occupiers. It is also interesting to note that the fact that the property is a home for children can also affect the responses of the adult occupiers to the threat of possession. For example, while the rational argument suggests that, in the event of default, debtors should negotiate with lenders to mitigate their losses, for example, by downsizing to a cheaper property, the fact that the property is a home for children makes downward economic adjustment more difficult.156 Warren has suggested that there are practical reasons for clinging on to the home, even after default, since ‘[m]oving out of a home entails high transaction costs, and families with deteriorating credit know they are unlikely to qualify for another home loan’.157 In addition, the psychological barriers to giving up the home are also exacerbated when there are child occupiers. Warren claimed that: To face economic reversals for oneself may be very much easier than imposing those reversals on someone else, especially a much-loved child. To give up an expensive home may be hard enough for an adult, but when it means that a child may be forced to change schools and leave friends, resistance may deepen.158 154 D Cowan and N Dearden, ‘The Minor as (a) Subject: The Case of Housing Law’ in J Fionda (ed), Legal Concepts of Childhood (Oxford, Hart, 2001). 155 Warren, above n 17, 1014. 156 Ibid, 1022. 157 Ibid, 1023. 158 Warren, above n 17, 1023.

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This contention adds further weight to the argument that the way in which adults respond to the threat of creditor possession actions may be influenced by the fact that the other occupiers of the home include dependent children. Another issue underpinning this chapter has been the importance of recognising children and young people as legal persons, with rights and interests of their own. Indeed, much of the analysis in this chapter was premised on the idea that child occupiers should be counted as individual occupiers when it comes to striking a balance between the commercial interests of creditors and the home interests of occupiers. Empirical research has demonstrated the importance of home for child development and the detrimental impact of losing a home in possession proceedings for child occupiers. With the exception of section 15(1)(c) of the Trusts of Land and Appointment of Trustees Act 1996, the structure of creditor/occupier disputes is not generally designed to accommodate the interests of minors. Furthermore, with the exception of Edwards v Lloyd’s TSB Bank plc, there has been little indication to date that a child occupier’s status as an occupier (but not an owner) of the property is capable of outweighing the commercial interests of creditors in the context of section 15. Yet, it is just this type of context in which a legal concept of home could be usefully applied. One of the purposes of developing a concept of home is to enable the occupier’s interests in the property as a home to be distinguished from ownership interests in the property. Since children are rarely represented in terms of ownership, the prospect that their home interests could be represented in law would provide a valuable opportunity to take account of children in the context of possession actions. As the conclusions to Chapter 1 indicated, the argument that this book makes in support of the development of a legal concept of home in the context of creditor/occupier disputes does not seek to dispute the legitimacy of the creditors’ claims to the capital value of the property. Rather, it has sought to highlight the fact that, while there is little difficulty—either conceptually or in policy terms—in comprehending the commercial interests of creditors within the legal domain, the concept of home in law has been under-developed and this has meant that, when the court is called upon to balance their respective interests, the creditor’s claim is balanced against an unknown quantity. In order to establish a legitimate framework within which to strike a balance between these interests, it is necessary to develop a clearer understanding of the home interest. However, it is important to remember that, when considering the question of striking a different balance from that currently adopted in the creditor/occupier contest, there can be no question of creditors losing their proprietary rights in the property. Nevertheless, having identified the occupier’s home interests, it may be considered appropriate to restrike the balance by requiring that the creditor is, in certain circumstances, required to suffer a delay in the enforcement of its legal rights over the property. In Edwards v Lloyd’s TSB Bank, the court refused the creditor’s application for immediate sale and ordered that the sale should be delayed, at least until the

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youngest child had reached the age of 18. As the first decision explicitly to balance the welfare interests of minor occupiers against the claims of secured creditors, the decision in Edwards v Lloyd’s TSB Bank is of considerable interest both within the context of sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 and in relation to the extent to which the law takes account, more generally, of child occupiers. The decision is to be welcomed on several grounds, not least for highlighting the position of children in the context of mortgage possession actions. However, a number of limitations must be noted. First, the facts in Edwards are, to a certain extent, distinguishable from some of the earlier cases in which the court disregarded the welfare of minor occupiers: the Edwards children were younger than the children in Bank of Ireland v Bell 159 or Swain v Foster,160 and the court was also clearly influenced by the fact that it was unlikely that Mrs Edwards would be able to afford to re-house her children in the same area if an immediate sale was ordered. Although these factors were not sufficiently persuasive in Re Citro,161 the ‘Citro philosophy’—that is, the argument that the eviction of a wife with young children in circumstances where she would be unable to buy a comparable home in the same neighbourhood or elsewhere, and the disruption of the children’s schooling, were not ‘exceptional circumstances’ so as to justify any delay in the forced sale of the property—was developed in the context of actions by trustees in bankruptcy,162 rather than in accordance with the guidelines set out in section 15 of TLA. However, even if the Edwards approach were to be extended and applied in the Court of Appeal, the prospect of bankruptcy proceedings could continue to limit its practical effects.163 When an application for sale is made by a trustee in bankruptcy, section 15 of the Trusts of Land and Appointment of Trustees Act 1996 does not apply, but the application is governed by section 335A of the Insolvency Act 1986.164 159

See above nn 84–95 and associated text. 14 Oct 1998 (CA); Transcript: Lexis. 161 See above n 29 and associated text. 162 This approach was later extended to applications by secured creditors: Lloyd’s Bank Ltd v Byrne, above n 70 and Barclay’s Bank Ltd v Hendricks, above n 71. 163 The court’s refusal to order sale in one context does not preclude the creditor from seeking other remedies, which could include the instigation of bankruptcy proceedings against the debtor: Alliance and Leicester Building Society v Slayford [2001] 1 All ER (Comm) 1. 164 As amended by the Trusts of Land and Appointment of Trustees Act 1996, Sched 3, para 23. S 335A provides that: ‘On such an application the court shall make such order as it thinks just and reasonable having regard to— (a) the interests of the bankrupt’s creditors; (b) where the application is made in respect of land which includes a dwelling-house which is or has been the home of the bankrupt or the bankrupt’s spouse or former spouse— (i) the conduct of the spouse or former spouse, so far as contributing to the bankruptcy, (ii) the needs and financial resources of the spouse or former spouse, and (iii) the needs of any children; and all the circumstances of the case other than the needs of the bankrupt.’ 160

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The needs of children is also one of the factors to which the court is directed to have regard in the context of bankruptcy under section 335A(2)(b)(iii). The flexibility of the criteria set out in that part of the provision was tempered by requirement in section 335A(3) that: Where such an application is made after the end of the period of one year beginning with the first vesting . . . of the bankrupt’s estate in a trustee, the court shall assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt’s creditors outweigh all other considerations.

Occupiers seeking to avoid sale at the hands of a trustee in bankruptcy must therefore establish that their circumstances are exceptional. To date, the court has adopted a conservative view of ‘exceptional circumstances’—while a sudden severe attack of cancer has been accepted by the court as being exceptional,165 the fact that there were children living in the property and the impact of sale on their welfare were not regarded as sufficiently exceptional. In Trustee of the Estate of Eric Bowe (A Bankrupt) v Bowe,166 Mrs Bowe, the bankrupt’s wife, lived in the former matrimonial home with their five children, aged 10, 11, 12, 18 and 20. Even though ‘the needs of any children’ was set out as a criterion to be considered in section 335A(2)(b)(iii), the court focused on the requirement of exceptional circumstances in section 335A(3), and concluded that there was: [no] basis upon which it could be said that the consequences of an order for sale, involving, no doubt, disruption, unhappiness and possibly extreme inconvenience to the family, can be regarded as exceptional. It has been consistently stated in the authorities that such unfortunate and unhappy consequences of an order for sale are not to be treated for this purpose as being exceptional.

Through the focus on the need for exceptional circumstances and the court’s conclusion that the impact of losing the home on child occupiers was not exceptional the ‘Citro philosophy’ continued to prevail. The decision in Hosking v Michaelides167 provided a further illustration of the way in which the factors to be considered in the context of bankruptcy, including the needs of children, are balanced. Although the court accepted that the circumstances of the bankrupt’s wife—particularly Mrs Michaelides’ mental and physical ill-health—were, in fact, exceptional, Paul Morgan QC, sitting as a Deputy Judge of the High Court, also considered the interests of the bankrupt’s creditors; the amount of the indebtedness, the value of the property and the equity of redemp165 Judd v Brown [1999] 1 FLR 1191 (CA); see also Re RD Raval (a bankrupt) [1998] 2 FLR 718; Claughton v Charalamabous [1998] BPIR 558. 166 [1998] 2 FLR 439 167 [2004] All ER (D) 147 (Ch D).

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tion and the fact that the house was the sole asset of any value belonging to the trustee; Mrs Michaelides needs and financial resources, including her need for a home; and the fact that it would not be a straightforward matter for Mr and Mrs Michaelides to acquire a suitable alternative home. The needs of their children were also discussed, and the Judge noted that: some or possibly all of these children need a home with their parents. This raises the same question as considered above as to the prospects of Mr and Mrs Michaelides being able to provide themselves with a suitable alternative home if an order for sale is made.168

The court was not prepared to dismiss the application for sale, since there was no real likelihood of a change in circumstances in the future. The court did grant a delay in the enforcement of the order for a period of six months, so that: Mrs Michaelides and her children should be given more time than would normally be justified for her to adapt to the making of an order for sale and to explore the possibility of alternative accommodation.169

Nevertheless, it was clear that even when the interests of young children (along with a collection of additional exceptional factors) are at stake, in the context of bankruptcy the interests of the trustee in bankruptcy continue to carry considerable weight when the court is balancing competing claims. Finally, it should be noted that it would be premature to conclude that the decision in Edwards is indicative of a more general change of approach in favour of occupiers in disputes against creditors involving children and the family home. The fact that the creditor can still pursue a bankruptcy action against the defaulting debtor, and the persistent reluctance of the courts to refuse sale at the request of a trustee in bankruptcy notwithstanding the impact on child occupiers, ensures that the balance will not swing too far against the creditor. It is also interesting to consider whether the court’s willingness in Edwards to refuse to order sale until the youngest child had reached majority was eased by the natural limitation on such an approach: by focusing on children and reaching the age of majority, any delay on sale is clearly limited to a specific period and, consequently, the bank retains the prospect of recovering the capital within a foreseeable time frame. The particular position of child occupiers will also be considered in Chapter 10, which considers the concept of home in a human rights framework. In fact, in Barca v Mears170 the court considered the policy of ordering sale at the request of a trustee in bankruptcy unless the circumstances were exceptional in the context of Article 8 of the European Convention on Human Rights, which includes the 168 169 170

Ibid, [76]. Ibid, [78]. [2004] EWHC 2170.

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right to respect for home. The Human Rights Act 1998, which gave effect to Article 8 in domestic law in the United Kingdom, has provided another possible avenue for exploration in the conceptual development of home in law. The idea of home in a human rights context, including the Article 8 implications of sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 in relation to child occupiers, will be the subject of Chapter 10.

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10 The Concept of Home in a Human Rights Framework

Introduction

T

HE CONCEPTUALISATION OF home in this book has focused on the treatment of home interests in the context of disputes between secured creditors and occupiers in the event of the debtor defaulting on repayment. This model provided a useful lens through which to view the task of conceptualising home. The conflict between home interests and commercial claims brings the importance of developing a coherent concept of home and the obstacles that stand in the way of that process within legal discourse into particularly sharp relief. While home interests can be readily recognised in legal contexts where the objective of legislative and/or judicial policy is to give effect to a prohome agenda, the task of weighing the value of home interests is much more challenging when these interests clash with other, competing claims. In the case of the creditor/occupier dispute, the commercial claims of creditors to the capital value of property that has been used as security carry considerable weight in policy discourse. Although the value of the property for the occupiers as their home is frequently acknowledged by the courts, the interests of occupiers in retaining the property for use and occupation as a home are routinely outweighed by the creditors’ claims. This book has suggested that one of the reasons for this trend has been the absence of conceptual foundations on which to establish the legitimacy of the home interest. Within a clear conceptual basis for the establishment of interests in the property as a home, the argument in support of protecting the property’s function as a home has often been overlooked. Although home scholarship has flourished in other disciplines, the subject of meanings and values of home has attracted relatively little attention in legal discourse. For one thing, the nature of the home interest does not sit easily within the framework of legal discourse, and particularly within the discipline of land law, which dominates in creditor/ occupier disputes. The analysis in Part I of this book established an argument in

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support of developing the idea of home in law. In Chapter 3, it was argued that, while the arguments in support of the creditor weigh heavily in the balancing scale, this does not justify disregarding the home interests of occupiers. In Chapter 4, the authenticity of home meanings was established by reference to empirical studies in other disciplines. Finally in Chapter 5, the significance of government intervention in the growth of home ownership, especially low income home ownership; the impact of political ideology in socio-cultural associations between ownership and home; the effects of wider economic policies in the rise in possession actions; the decline in safety-net welfare support for home owners in financial difficulty, and, particularly, the relative disadvantage of owners compared to tenants in welfare provision; and evidence that owners in default are relatively more likely to lose their homes in possession actions than tenants in default; were identified as powerful arguments for re-assessing the weight attached to the home interests of the owner occupier in creditor possession actions. In Part II, the prospects for developing a legal concept of home were evaluated within the frameworks of different legal discourses. Chapter 6, which examined property theory, laws and policies, suggested that Radin’s theory of ‘property for personhood’ would provide the most appropriate vehicle through which to develop a legal concept of home. Chapter 7, which considered the home interest within the context of ‘family home’, concluded that it would be preferable for the legal concept of home to be rooted in an individual occupier approach, rather than linked to the family unit. Although the family context remains significant, it was concluded that the relationship between the occupier and the property was a better basis for attaching weight to the home interest. In Chapter 8, the idea of a legal concept of home was viewed through a lens of feminist theory. That chapter suggested that, in light of the benefits that home potentially offers to women and to men—as a site for individual subjectivity and a universal value—it is important to look beyond the traditional rejection of home in feminist theory to a new approach of reclaiming home as a feminist project. Chapter 8 also examined the vulnerability of home-owning households to creditor possession actions/occupier disputes along gender lines. It was noted that female-headed households have traditionally been more exposed to creditor/occupier actions, and that there is some evidence that women bear the brunt of living with debt and the threat of possession actions. However, Chapter 8 concluded by suggesting that specific home protection for women would be problematic for various reasons. Rather, since inequality in this area of law is directly linked to income, it was suggested that a more appropriate way of developing the concept of home to be sensitive to the structural disadvantages experienced by some occupiers would be to focus on low income households, instead of gender per se. Finally, Chapter 9, which focused on the treatment of child occupiers in creditor/occupier disputes and on empirical evidence concerning the impact of possession actions on child occupiers, concluded that children should be ‘counted’ as ‘individual occupiers’ in the legal

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concept of home, and, further, that there are arguments for conferring particular weight on the interests of child occupiers.

The Framework of the Human Rights Act 1998 This chapter concludes the analysis of home in this book by considering the significance of the right to respect for home in Article 8 of the European Convention on Human Rights, which was given effect in domestic UK law by the Human Rights Act 1998. Article 8(1) of the Convention, which states that: ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’, provides a relatively rare example of an explicit reference to ‘home’ in a legal provision. At first glance, Article 8, and its incorporation through the Human Rights Act 1998, appears to provide a basis for advancing home-type arguments in domestic courts. Where actions fall within the remit of Article 8 it may be necessary to consider whether the claimant’s Convention rights have been breached. It is important to note that the rights conferred in Article 8 are not absolute, but qualified. This means that even when an interference with the right has been established, it can sometimes be justified under Article 8(2) if it is shown to be ‘in accordance with law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’. Before the enactment of the Human Rights Act 1998, complainants asserting that their rights under the European Convention on Human Rights had been infringed, and who had exhausted all available domestic remedies, could seek to enforce their rights against the government by bringing a case before the European Court of Human Rights. A finding against the government compelled the state in question to take positive steps to amend its domestic law so as to comply with the terms of the Convention as a matter of international law. Following the commencement of the Human Rights Act 1998 on 2 October 2000, various Convention rights were given effect in English law. One of the principal effects of incorporation was that Convention rights became directly enforceable in English courts. Claimants who wish to bring an action for an alleged infringement of their rights under the Convention can now bring their case to a domestic court and, if the court finds that there has been an infringement of a Convention right, then it must order an appropriate remedy. Section 6(1) of the Human Rights Act 1998 provides that ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’. The court, as a ‘public authority’ (under section 6(3)(a)), must apply the law in a way that is compatible with the Convention, if possible.1 Although this does not 1

Unless primary legislation will not allow this.

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give rise to a free-standing cause of action based on Convention rights,2 the Convention applies indirectly through existing causes of action.3 Section 3(1) of the Human Rights Act provides that: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Section 3(1) compels the court to read—or reinterpret—the existing law to make it compatible with the Convention. In Re S and W (Care Orders),4 Lord Nicholls described the provision as: a powerful tool whose use is obligatory. It is not an optional canon of construction. Nor is its use dependent on the existence of ambiguity. Further, the section applies retrospectively. So far as it is possible to do so, primary legislation ‘must be read and given effect’ to in a way which is compatible with Convention rights. This is forthright, uncompromising language.5

Section 3 imposed an interpretative duty on the court; however, there may be some cases in which it is not possible to re-interpret the existing law to be compatible with the Convention. In such cases, the court may make a declaration of incompatibility under section 4 of the Human Rights Act; following such declaration by the court, the Executive may invoke a ‘fast-track’ Parliamentary procedure under section 10 to amend the legislation, thus rendering it compatible with the Convention.

The Creditor/Occupier Context The framework of human rights discourse provides a useful model to reconsider the balance struck between the interests of creditors and the home interests of occupiers, and the legal concept of home more broadly. For one thing, as the discussion throughout this book has recognised, when faced with a creditor possession action against the occupied home, the court must strike a balance between the interests of the occupier(s) in retaining the property for use and occupation as a home and the commercial claims of the creditor to the capital asset represented by the property. The ‘qualified’ nature of Article 8 requires a similar approach. In 2

See, eg, Venables v News Group Newspapers [2001] 1 All ER 908 at 917, per Butler-Sloss P. In A v B plc [2002] 3 WLR 542 the court noted that: ‘[u] nder section 6 of the [HRA], the court, as a public authority, is required not to act “in a way which is incompatible with a Convention right”. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the longestablished action for breach of confidence’: ibid, 546. 4 [2002] UKHL 10. 5 Ibid, [37]. 3

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considering whether there has been a breach of Article 8, the court must consider whether Article 8 is ‘engaged’; whether there has been an ‘interference’ with the occupier’s right to respect for home; and, if so, whether that interference was justified under Article 8(2). The qualifications set out in Article 8(2) include references to ‘the economic well-being of the country’ and the ‘protection of rights and freedoms of others’. It would therefore appear that, transposing the creditor/occupier contest to this context, the court would be required to consider whether any interference with the occupier’s right to respect for home (ie, losing the home in a possession action) was justified by the need to protect the rights of the creditor, or—re-iterating a familiar theme from legal discourse in the creditor/occupier context—necessary for the economic wellbeing of the country. When it comes to applying the Convention, courts in the United Kingdom are aided, to some extent, by ‘Convention jurisprudence’—that is, decisions of the European Court of Human Rights in Strasbourg.6 However, in matters concerning social and economic policy—for example, rights under Article 8—States enjoy a wide margin of discretion when it comes to applying the provisions of the Convention.7 Thus, Article 8 provides a basis for considering the competing claims of creditor and occupier within a human rights framework and, as this chapter will demonstrate, the human rights framework provides some useful tools for balancing competing claims. However, it is important to bear in mind that when it comes to conducting any balancing exercise, the court must still determine the nature and the content of the complainant’s interest, to assess how the interest at stake weighs in the balance. In the human rights context, the court must ascertain the ambit of Article 8 to determine whether an ‘interference’ with the right has taken place. The court must also assess the impact of any interference with Convention rights in order to determine whether it was justified within the terms of the qualification, including whether the interference was ‘proportionate’ to the end pursued. Although the principle of ‘proportionality’ is not explicitly set out in the Convention, the need to strike a balance between the protection of the individual rights under consideration and the needs of the community at large is a prominent feature in analysis relating to the qualified rights. An interference with the right to respect for home can be justified under Article 8(2) if it is ‘in accordance with the law and is necessary in a democratic society in the interests of . . . the economic well-being of the country . . . or for the protection of the rights and freedoms of others’. The court must consider, first, whether the interference is ‘necessary’, in as much as it answers a legitimate need; and, 6 S 2 of the Human Rights Act 1998 provides that domestic courts, when considering a matter falling under the Convention, must take account of decisions of the European Court of Human Rights, the Committee of Ministers and the European Commission of Human Rights, where relevant. 7 James and Others v UK (1986) 8 EHRR 123; Buckley v UK (1997) 23 EHRR 101.

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secondly, whether the interference is ‘proportionate’, in that it does not go any further than is necessary in order to pursue the legitimate aim. In order for the balance struck to be fair, any interference with Convention rights will be justified only so long as it is proportionate to the legitimate aim it pursues: ‘[i]n other words, even where it is clear that there is a legitimate purpose for restricting a Convention right, the authorities must still show that the actual restriction employed does not go beyond what is strictly necessary to achieve that purpose’.8 The proportionality principle provides a mechanism to ‘enable the Court to balance all the relevant interests and factual circumstances, and also to take into account the intensity of the infringement as well as the question whether the essence of the right has been infringed’.9 The more serious the infringement of the right in question, the more justification is needed in order to avoid a breach of the claimant’s rights. The crucial importance of Conceptualising Home for human rights discourse is that, in order to judge the ‘intensity of the infringement’ or to determine whether ‘the essence of the right has been infringed’ it is necessary to establish a coherent concept of the interest at stake in any given claim. Part I of this book identified a range of issues in relation to the balancing exercise carried out by the courts between creditors’ claims and home interests in domestic law. For one thing, it was noted that, while law is readily capable of giving effect to home-type interests in pursuit of an explicit policy objective, once legal decision makers are required to balance the interests of occupiers in their homes against other interests, the underconceptualisation of home in law gives rise to theoretical and practical difficulties. For example, when the court is required to balance the commercial claims of creditors against the home interests of occupiers, it is important to recognise that, while the creditor’s interest is readily comprehensible, the occupier’s home interest is less easily identifiable, not to mention less easily quantifiable. These issues are equally cogent in the context of Article 8 of the Convention since, in order to address the questions of interference, justification or proportionality, it is necessary to ascertain the content of the rights at stake and the impact of infringing those rights. Another issue considered in Part I of this book was the impact of the procreditor policy—that has typically prevailed in domestic law—on the relative lack of attention paid to home interests, both in legal practice and in academic legal analysis. This also has particular relevance for the meaning of home in a human rights framework. The tendency to confer priority on the commercial claims of creditors has cultivated a circuitous form of reasoning: creditors generally win, so the home interest is dismissed in legal practice; and the seeming irrelevance of the 8 K Starmer, European Human Rights Law: The Human Rights Act 1998 and the European Convention on Human Rights (London, Legal Action Group, 1999) 170. See H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (Oxford, Oxford University Press, 2006), chs 2 and 16. 9 P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights (3rd edn, The Hague, Kluwer, 1998), [8.8.1].

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home interest in practice does not encourage legal academic interest in the subject of home. Yet, without a coherent concept of home in law—a framework of recognisable values against which specific home interests can be delineated—home interests will continue to be overlooked in legal analysis. This chapter suggests that, despite the obvious potential—based on Article 8—for developing a legal context of home in the framework of human rights discourse, a similar form of reasoning has led the courts to reject arguments that are rooted in the value of the property as a home within the human rights context. Judicial interpretation of the meaning of home in Article 8 has also been determined by the courts’ overarching concern with the consequences of diminishing the protections afforded to contractual and proprietary rights, of landlords and of secured creditors, on housing policy or on the availability of credit. In order to carry out the balancing exercise that is required under the Human Rights Act when an interference with a Convention right takes place, the court must proceed from a proper understanding of the nature of the interests at stake. When it comes to weighing the right to respect for home on the side of the occupier, it is still necessary to conceptualise the home interest. One of the key arguments of this book is the proposition that, if the claims of creditors are to be genuinely and objectively balanced against the interests of occupiers, policy makers must have a clear conception of the nature of each of the interests being measured. While the Human Rights Act 1998 provided a structure and a set of principles for analysing competing claims in domestic courts through the lens of the Convention, the analysis in this book could usefully contribute to the court’s task of carrying out that balancing exercise, by illuminating the nature of the home interest and by identifying a basis for attaching weight to the ‘right to respect for home’ when this right is balanced against other, competing claims. The following sections consider the conceptualisation of home in law through the lens of human rights protections. This chapter draws upon the interpretation of the ‘right to respect for home’ in Article 8 in the context of mortgage possession actions, bankruptcy actions, and in relation to possession actions against tenants, in order to assess the potential scope for developing the concept of home within human rights discourse. The following sections consider the relevant case law and evaluate the prospects for developing home-type arguments within the framework of the Human Rights Act 1998. Of course, if a case is unsuccessful in the domestic courts, a claimant can still take it to the European Court of Human Rights in Strasbourg, if, having exhausted all remedies in domestic law, they still believe that the domestic authorities have violated their rights under the convention.10 The final section of this chapter will consider the decision in London Borough of Harrow v Qazi,11—when the majority of the House of Lords appeared to demolish the 10 11

See Starmer, above n 8, [30.1] ff. [2003] UKHL 43.

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argument that Article 8 could be prayed in aid in support of an interest in home, when the home interest clashes with enforceable proprietary and contractual rights, such as the rights of a secured creditor, as well as the cases that have followed it, to consider the scope for developing the legal concept of home, for creditor/occupier disputes, in the context of a human rights framework.

The Creditor/Occupier Context in a Human Rights Framework The analysis of home through legal frameworks in Part II of this book began by considering the meaning of home in property theory and law since, when it comes to resolving conflicts between the commercial interests of creditors and the home interests of occupiers, legal analysis has been dominated by the principles of property law. The basis of the secured creditor’s claim lies in proprietary rights acquired in the property by virtue of the credit agreement. When a debtor defaults on repayments, the creditor may seek to realise the capital value of a security interest against the debtor’s home by bringing an action for possession and/or sale of the property, and these actions are generally governed by principles of property law. The significance of the secured creditor’s proprietary rights within the legal framework governing possession actions rendered property theories, laws and policies as the most obvious starting point for conceptualisating home in a creditor/occupier context. Indeed, the fact that the creditor/occupier dispute is, first and foremost, a matter of property law also has significant implications for the conceptualisation of home in human rights discourse. For one thing, property lawyers were relatively slow to engage with the possibilities of human rights discourse, compared to other areas of legal scholarship. Howell attributed this initial reluctance to the instinctive view that property law issues are not the concern of human rights analyses: ‘Human rights’ are seen as being concerned with matters at the heart of the human condition, such as liberty, freedom of speech, a right to privacy; protection for private property rights does not have the same emotive appeal.12

In fact, Howell also attributed the fact that: ‘[h]istorically, property lawyers have tended to ignore any possible human rights aspects to their work’13 to land law’s

12 J Howell, ‘The Protection of Rights of Property in Land under the Human Rights Act’ in L Betten (ed), The Human Rights Act 1998—What it Means (The Hague, Kluwer Law International, 1999) 167. 13 J Howell, ‘Land and Human Rights’ (1999) 63 Conveyancer and Property Lawyer 287.

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self-identity as a rational discipline, governed by its own internal logic.14 Indeed, Howell described it as ‘axiomatic’ that ‘anything as home grown as English land law could not be affected by foreign codes’.15 Yet, following the incorporation of the European Convention on Human Rights through the Human Rights Act 1998, there is clear and increasing evidence of the importance of human rights analyses for English land law.16 In the context of the creditor/occupier dispute, various Convention rights could potentially be brought to bear on the side of the creditor—who has ‘property’ by virtue of his or her proprietary security in the disputed property—and for the occupier—who occupies the property as a home.17 This section considers the main Convention rights that are potentially relevant to the context of creditor/occupier disputes, in respect of both the home itself and the commercial enterprise of secured lending. The relevant provisions include Article 8 of the Convention, which includes reference to the ‘right to respect for home’ and Article 1 of the First Protocol to the Convention (P1-1), which protects property rights through the ‘right to peaceful enjoyment of possessions’.

Article 8—the Right to Respect For the Home The primary focus of this chapter will be on Article 8, which contains the most direct reference to ‘home’ in the Convention, as well as one of the very few explicit references to home in English law. In addition, there has been a considerable body of recent case law concerning the scope of the home interest protected under Article 8, which is of particular relevance to the creditor/occupier context. Article 8 of the European Convention on Human Rights states:

14

See Ch 3, nn 84–97 and associated text. Howell, above n 13, 287. 16 See, eg, the recent decision of the European Court of Human Rights in JA Pye (Oxford) Ltd v UK (App no 44302/02), in which the Court found that losing title to registered land to a squatter under the provisions of the Land Registration Act 1925 concerning adverse possession, amounted to a violation of Art 1of Prot 1; and that the State should attempt to reach an agreement with the complainant regarding compensation. 17 In fact, Howell referred to both types of interest when she suggested that human rights analyses were important to land lawyers, since ‘in a society which admits of private property rights in land, protection from interference with those rights is an important principle. For most people, their home is the most important possession they have, almost certainly in economic terms and also in social terms: many have a strong emotional attachment to their home. Even if a citizen has no rights to private property, he must have some sort of right, however loosely defined, to a place to live: there is no human activity that does not require, at the very least, access to land. Equally, property rights, whether in the form of freehold or leasehold ownership, or of options to acquire property at a future date are a vital aspect of any commercial enterprise. Protection of property rights is thus of paramount importance’; Howell: above n 12, 168. 15

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(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The first important point of note in relation to Article 8 is that it is directed at protecting citizens against interferences with their established home; Article 8 does not provide for a right to a home. This was clearly established shortly after the Convention was adopted, in the decision of the European Commission on Human Rights in X v Germany.18 The Commission, which then ruled on the admissibility of claims brought under the Convention, rejected the argument that Article 8(1) imposed a duty on the State to provide citizens with a home.19 In a number of recent decisions, the European Court of Human Rights has confirmed that Article 8 does not give the right to be provided with a home, nor does it give a right to have one’s housing problem solved by the authorities.20 Rather, Article 8 is concerned with protecting citizens against interferences with their existing homes (as well as protecting against interference with private and family life and with correspondence). It is also important to note that the right to respect for the home in Article 8 is clearly embedded in the overall context of Article 8, which is strongly associated with privacy.21 The references in Article 8 to the right to respect for family life, for home and for correspondence are often viewed conjunctively, as aspects of the right to private life.22 This focus on privacy can be clearly located within the meanings and values of home set out in Chapter 4.23 Empirical research has repeatedly established the importance of the home territory as a site of privacy and autonomy for occupiers.24 Indeed, in Marckx v 18

(1956) 1 Yearbook ECtHR 202. The Commission held that the right to an adequate standard of living and the right to suitable accommodation were not in principle among the rights and freedoms safeguarded by the Convention. See, eg, AH Robertson (ed), Privacy and Human Rights (Manchester, Manchester University Press, 1973), [79]. 20 Chapman v United Kingdom (2001) 33 EHRR 399 at 427 [99]; Marzari v Italy (1999) 28 EHRR CD 175 at 179; O’Rourke v United Kingdom, App No 39022/97, 26 June 2001. 21 For a recent illustration of this approach see London Borough of Harrow v Qazi [2003] UKHL 43, when Lord Hope noted that ‘[m]ost international human rights instruments recognise a right to privacy. That is the concept which underlies Article 8 of the Convention’: [49], per Lord Hope. 22 van Dijk and van Hoof have noted that ‘[a]s a collection noun designating the rights involved in Article 8, the “right to privacy” is often used nowadays’: above n 9, 489, [8.1]. 23 Ch 4, nn 132–200 and associated text. 24 See, eg, JD Porteous, ‘Home: the Territorial Core’ (1976) 66 Geographical Review 383. Porteous described home as a ‘haven for everyone in a public world where we are valued less for ourselves than for the roles we play. In essence, the possession of a home confers certain valuable rights of privacy and autonomy on the occupant’: ibid, 386. 19

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Belgium,25 Sir Gerald Fitzmaurice stated that ‘the main, if not indeed the sole, object and intended sphere of application of Article 8 was that of what I will call the ‘domiciliary protection’ of the individual’.26 It is important to note, however, that this ‘domiciliary protection’ was primarily conceived of as a protection against state intrusion in the home.27 It is also interesting to note that, if the reference to ‘home’ in Article 8 is concerned with ‘privacy at home’, it is clearly much narrower than the concept of home set out in Chapter 4. While privacy has been recognised as a sub-set of the cluster of values concerned with ‘home as territory’—including safety, security, continuity, a sense of belonging and a sense of ‘rootedness’ for the occupier— empirical studies have also identified a range of other meanings associated with home for occupiers, including home as a financial asset, home as a physical structure, home as identity and home as a socio-cultural unit. Although these other types of ‘home’ meanings are not, prima facie, recognised in relation to respect for the home in Article 8, it is interesting to bear in mind the importance of ‘family’ in relation to each of these clusters of value types. The empirical evidence considered in Chapter 4 indicated that the desire for security within the home was enhanced by the presence of family, and particularly of children; the right to privacy in the home was often linked to views concerning ‘family life’; home as identity included not just individual identities, but the identity of the family unit; the desire for a good quality house and the impetus to make improvements (especially amongst fathers) were linked to associations with family life; the meaning of the home as a financial asset was heightened by the desire to have an asset to pass on to one’s children; and family was identified as a significant socio-cultural facet of home.

‘Family Home’ in the Human Rights Framework The significance of these associations between ‘family’ and ‘home’ in the context of creditor/occupier disputes was considered further in Chapter 7. Although the analysis in Chapter 7 identified some practical and ideological difficulties in 25

(1979) 2 EHRR 330. Ibid, [7]. 27 Fitzmaurice went on to state that, in light of the right to respect for ‘private and family life, home and correspondence’ in Art 8: ‘[the citizen] and his family were no longer to be subjected to the four o’clock in the morning rat-a-tat on the door; to domestic intrusions, searches and questionings; to examinations, delayings and confiscation of correspondence; to the planting of listening devices (bugging); to restrictions on the use of radio and television; to telephone-tapping or disconnection; to measures of coercion such as cutting off the electricity or water supply; to such abominations as children being required to report upon the activities of their parents, and even sometimes the same for one spouse against another—in short, the whole gamut of fascist and communist inquisitorial practices such as had scarcely been known, at least in Western Europe, since the eras of religious intolerance and oppression, until (ideology replacing religion) they became prevalent in many countries between the two world wars and subsequently’: ibid. 26

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relation to adopting a ‘family unit’ approach in creditor/occupier disputes, it was also suggested that the context of family life is a sufficiently important element of home meanings for occupiers to be taken into account in the legal concept of home, within an ‘individual occupier’ approach. Furthermore, it was noted that while the English courts and the legislature have been reluctant to recognise and value the occupier’s interest in home per se, there is clear evidence of legislative and judicial policy leanings towards protecting ‘family home’. When the question of ‘home’ and ‘family’ is raised within the human rights context, it is useful to note that, since the rights that are protected in Article 8 are generally considered conjunctively, the relationship between the right to respect for home and the right to respect for family life is pertinent because it potentially broadens the scope of rights pertaining to ‘home’ beyond the idea of privacy simpliciter. One of the difficult issues to emerge in the analysis of family home in Chapter 7 related to the idea that any home protection would be restricted to a defined ‘family unit’ and the potentially exclusionary implications this could have for some ‘non-qualifying’ occupiers, as well as for single occupiers. On the one hand, it is worth noting that, following the decision in Ghaidan v Godin-Mendoza,28 these concerns have been alleviated at least to some extent. The decision in Mendoza confirmed the robust nature of the equal treatment protection set out in Article 14 of the Convention—so long as the discrimination can be brought within the remit of another Convention right. Article 14 provides that: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.

In Mendoza, the House of Lords considered a provision in the Rent Act 1977, which provided for rights of succession in relation to a statutory tenancy for the spouse of a protected tenant. Mr Mendoza was the same-sex partner of the deceased tenant, and he applied to the court to succeed to the tenancy as the tenant’s spouse. The House of Lords held that the relevant provisions of the Rent Act 1977 should be read to include same-sex couples within the definition of ‘spouse’. This decision was based on the court’s view that the right to succeed to a tenancy fell within the ambit of Article 8, since ‘Article 8 guarantees, among other matters, the right to respect for a person’s home’.29 Applying Article 14 in conjunction with Article 8, the House of Lords held that where a provision, such as that set out in the Rent Act, provides a protection for spouses, it must be read as also applying to same-sex couples. Although the right itself—to succeed to the 28 29

[2004] UKHL 30. Ibid, [8], per Lord Nicholls.

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tenancy of a shared home—was not provided for under the Convention, Lord Nicholls held that: if the state makes legislative provision it must not be discriminatory. The provision must not draw a distinction on grounds such as sex or sexual orientation without good reason. Unless justified, a distinction founded on such grounds infringes the Convention right embodied in Article 14, as read with Article 8.30

Since the right to succeed to a tenancy—although not necessarily protected as a free-standing right—fell within the ‘ambit’ of Article 8, any legislative provision pertaining to this right must not be discriminatory. The decision in Mendoza is relevant to several of the issues raised in this book. It goes some way to quelling concerns that any protection for the home interest of occupiers that was based on the family home approach would be discriminatory between different types of relationship: for example, the relationship between spouses, opposite-sex cohabitees, same-sex cohabitees. Yet, even if the ambit of ‘family home’ was widened to include conjugal cohabiting relationships, there would still be some outstanding issues with regard to qualifying status. Cooccupiers in non-conjugal relationships could still be excluded, as could single custodial parents. While there was no justification for the difference in treatment in Mendoza, it is likely that the courts would be reluctant to adopt the same degree of flexibility outside the context of conjugal relationships between cohabitants.31

Private Life, ‘Home’ and Article 8 In addition to the links between ‘home’ and ‘family life’ in Article 8, another interesting issue in relation to the scope of Article 8 is the link between the right to respect for ‘home’ and ‘private life’. The reference to ‘private life’ in Article 8 also resonates with the meanings and values of home considered in this book, including the importance of the family context, and the meaning of ‘home as identity’. The Convention institutions have stressed that the right to a private life:

30 Ibid [6]. Although discrimination on the grounds of marital status or sexual orientation was not explicitly set out in Art 14, the court took the view that any ‘difference in treatment’ between equivalent groups of people would have to be justified and that ‘one looks in vain to find justification for the difference in treatment of homosexual and heterosexual couples. Such a difference in treatment can be justified only if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised’: ibid, [18]. 31 The prospect that the decision in Mendoza may also open the gate to other types of equal treatment claim in relation to Art 8, eg, in relation to child occupiers, is considered further below: see nn 185–195 and associated text.

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comprises not only the right to live, as far as one wishes, protected from publicity, but also to a certain degree the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s personality.32

The role of home in the ‘development and fulfilment of one’s personality’ also clearly resonates with the discussion of ‘property and personhood’ in Chapter 6, which identified the significance of home as a specific type of property that can be constitutive of one’s ‘personhood’. Considered conjunctively, Article 8 offers a broad basis on which to recognise the meaning of home in the context of private life and family life. In fact, when Feldman claimed that, ‘[l]inks with autonomy and self-fulfilment have likewise brought freedom of action and life-style within Article 8’,33 he added that ‘[t]his has been facilitated by the fact that the Article demands respect of private and family life, etc, rather than giving a simple right to privacy’.34 The potential significance of the human rights context for the idea of privacy in the context of home is demonstrated in the breadth of case law on Article 8 of the Convention. Almost a decade ago, Professor David Feldman described Article 8 of the European Convention on Human Rights as ‘one of the most dynamically interpreted provisions of the Convention’.35 Feldman claimed that, while ‘[p]eople disagree about the values which privacy-related rights protect this offers opportunities for creative advocacy to bring within Article 8 a range of interests which are otherwise inadequately protected’.36 Indeed, Article 8 has been interpreted broadly, and analysis of the rights protected has highlighted values ranging from privacy and personal autonomy to dignity and moral integrity.37 On the one hand, it has been noted that: [p]rivacy-related rights have extended beyond their original concern—threats to private space, particularly the home—to encompass personal security, self-fulfilment, and identity, including the organisation of family life and relationships, sexual mores, and some business activities.38

When it comes to considering the relationship between Article 8 and creditor possession actions, it is interesting to bear in mind both the importance of home as a place in which privacy can be experienced and the argument that ‘domestic 32

B v France (1992) 16 EHRR 1, 17 (Commission’s opinion). D Feldman, ‘The Developing Scope of Article 8 of the European Convention on Human Rights’ (1997) 3 European Human Rights Law Review 265 at 267. 34 Ibid. 35 Ibid, 265. 36 Ibid. 37 Ibid. 38 Ibid, 266. 33

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privacy is a virtual commodity purchased by the middle class and the well-to-do. Privacy is bought and sold in the form of single family houses on privately owned land’.39 Allen argued that the poor do not enjoy the luxury of privacy at home, and the same can be said of occupiers facing loss of their homes in creditor possession actions. As the following sections will indicate, when it comes to protecting all— or indeed any—of the home values considered in this book, in the creditor/occupier context, the meaning of ‘home’ for Article 8 has been cast in relatively narrow terms.

Article 8 and the Problem of Horizontal Effect The portrayal of Article 8 as a protection for citizens against excessive state intrusion in the home emphasised the ‘vertical’ effect of the Convention—that is, its impact in protecting the human rights of citizens against violations by the state, rather than its ‘horizontal’ effect—that is, the idea that the state will intervene to protect the violation of Convention rights by one private citizen against another. The question of horizontal and vertical effect is important for the application of human rights arguments in the context of the creditor/occupier dispute, since creditor possession actions are generally brought by one private citizen (the creditor40) against another private citizen (the occupier). The ‘horizontal effect’ of Convention rights after the Human Rights Act has been described as ‘perhaps its most problematic aspect . . . [and] also of course an issue of potentially great importance’.41 However, if the right to respect for home in Article 8 is to have any relevance in the creditor/occupier context, a preliminary hurdle to overcome is the question of horizontal effect. One of the issues that has been raised in relation to horizontal effect is the prospect that, if Convention rights were directly enforceable between private individuals, then ‘whole areas of settled private law would have to be re-opened’.42 Evidence of this view can be seen in the creditor/occupier context, for example, in National Westminster Bank plc v Malhan.43 The defendant occupier argued that the impact of a charge against her home, which was executed in 1994, should be reviewed in the wake of the Human Rights Act. Her claim was dismissed, however, with the comment that: 39 AL Allen, ‘Privacy at Home: The Twofold Problem’ in NJ Hirschmann and C Di Stefano (eds), Revisioning the Political: Feminist Reconstructions of Traditional Concepts in Western Political Theory (Boulder, Colo, Westview Press, 1996) 197. 40 The Convention also protects the rights of ‘legal persons’, such as companies; this presumably reflects the fact that the property owned by the company is ultimately owned by natural persons in the form of shareholders: see D Rook, Property Law and Human Rights (London, Blackstone, 2001), [4.8]. 41 G Phillipson, ‘The Human Rights Act, “Horizontal Effect” and the Common Law: a Bang or a Whimper?’ (1999) 62 Modern Law Review 824. 42 Ibid. 43 [2004] UKHC 847.

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[i]t would create havoc in the mortgage lending field as well as substantial injustice to both borrowers and lenders if priorities clearly settled before the Human Rights Act 1998 came into force could be altered by its application thereafter.44

The Act was not in force when the charge was created and the priorities of the competing claims—on which the case turned—were established, and it is not retrospective.45 Yet, if the Human Rights Act has horizontal effect, cases concerning acts or events that took place after its commencement on 2 October 2000 could be affected by the direct applicability of Convention rights between private individuals such as creditors and occupiers. The Human Rights Act does not contain any provision to impose direct horizontal effect of the Convention rights on private individuals acting against other private individuals. However Section 3(1) requires domestic courts to interpret legislation, where possible, in a way that is compatible with the Convention rights, and this obligation applies regardless of whether the legislation under consideration is concerned with matters of ‘public law’—which involve the state—or ‘private law’—actions between private individuals46—while section 6(1) imposes vertical effect on public authorities. Furthermore, the incorporation of Convention rights in domestic law in the Human Rights Act is recognised as having indirect horizontal effect in relation to disputes between private individuals on the basis that the reference to ‘public authorities’ in section 6(1) includes ‘courts’,47 and that the courts’ duty to act compatibly with Convention rights (as a public authority) requires that they interpret or develop the common law— including the common law governing cases between private individuals—taking account of the rights that were given effect to in the Human Rights Act.48 Although Convention rights have not become part of domestic law, in the sense that a plaintiff could bring an action for breach directly against a private body, Phillipson claimed that ‘to argue that there is no role for the Convention at all in private common law cases . . . would run contrary to the clear intention of the Act’s sponsors’.49 The main issue of interest for the purposes of this book is with the nature of the protection that is afforded to home interests under the Convention rights against other private individuals such as creditors. This book has considered the meanings and values of the competing claims of creditors and occupiers in legal and other discourses. The proposition that the Human Rights Act has an indirect horizontal effect has opened up the possibility for bringing human rights discourse to bear in 44

[2004] UKHC 847, [52], per Sir Andrew Morritt V-C. Human Rights Act 1998, s 22(4). 46 See Phillipson, above n 41, 825; I Leigh, ‘Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?’ (1999) 48 International & Comparative Law Quarterly 57 at 75–6. 47 Human Rights Act 1998, s 6(3)(a). 48 Phillipson, above n 41, 829. 49 Ibid, 836. 45

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the context of private law actions for possession and sale of land. It is important to bear in mind, however, that: The duty to act compatibly with Convention rights in section 6 is put in general and simple terms and without reference to public or private spheres . . . it is manifestly dependent on what the rights become in the private sphere.50

The meaning of home in the framework of the Human Rights Act will largely depend on the interpretation of the ‘right to respect for home’ in the context of Article 8. From the outset, this did not augur well for the home-oriented claim. Indeed, a decade ago, Feldman warned of the danger of a ‘lowest-commondenominator’ approach under Article 8,51 and, as the discussion in the following sections will demonstrate, this is nowhere as clearly evident as in the creditor/ occupier context.

Article 1 of the First Protocol Before proceeding to consider the application of Article 8 in the creditor/occupier context, it is also important to recognise the potential applicability of another Convention right: the right to property under Article 1 of the First Protocol to the Convention (P1-1). The article states that: 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. 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.

P1-1, which is often the primary focus for human rights analyses of property law,52 comprises three distinct rules.53 The first states the principle of peaceful enjoyment of property; the second rule covers deprivation of possessions and provides that deprivations can occur only subject to certain conditions; and the third rule 50 Ibid (emphasis in original). In fact, Phillipson claimed that ‘even if a court were to agree that the HRA laid upon it an absolute “duty” to make all private common law compatible with Convention rights, the substantive content of that formal duty would in many cases turn out to be almost wholly within the court’s discretion’: ibid, 843. 51 Feldman, above n 33, at 274. 52 See, eg, Howell, above n 12; Howell, above n 13; P Halstead, ‘Human Property Rights’ (2002) 66 Conveyancer and Property Lawyer 153; for a general discussion of the scope of P1-1, see Council of Europe, The European Convention on Human Rights and Property Rights (Strasbourg, Council of Europe, 1992); D Rook, Property Law and Human Rights (London, Blackstone, 2001) Ch 4. 53 Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35 (ECtHR).

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recognises that states are entitled to control the use of property in accordance with the general interest, by enforcing such laws as they may deem necessary for that purpose. Despite the reference to ‘possessions’ in P1-1, it has been clearly established that this provision is concerned with existing property rights, rather than the de facto possession of an occupier. In the Council of Europe’s publication, The European Convention on Human Rights and Property Rights,54 it was noted that: ‘[c]ourts have tended to accept the broad definition used in international law, in which “possession” is equated with a “vested right”’.55 Convention law has been expansive when it comes to recognising rights in rem, both movable and immovable;56 property rights in personan and intangible property rights—for example, an economic interest;57 however, it is clear that the mere fact of possession (or occupation) does not suffice without some proprietary basis for that possession. Indeed, the focus of this provision on contractual and proprietary rights is evident from the fact that, while de facto possession without a vested right is not protected under P1-1, the meaning of ‘possessions’ has been held to include a landlord’s interest in rented property58 and ‘acquired rights with economic interest’.59 It is clear that the proprietary rights enjoyed by a secured creditor would qualify as ‘possessions’ under P1-1, yet a mere occupier, whose de facto possession and the desire to ‘hang on to the home’ is not supported by proprietary rights, would not appear to fall within the ambit of this provision. Analyses of the rights set out in P1-1 have tended to emphasise its role in relation to interferences with property by the state, as opposed to actions between private individuals. The second rule is relevant when there has been a deprivation of possessions, in the sense of a formal taking or expropriation—for example, through compulsory purchase—while the third rule applies when the interference in question is intended to control the use of property—for example, through planning controls. These Convention rights have, to some extent, been applied horizontally through the indirect effect of designating courts to be ‘public authorities’. For example, in Beaulane Properties Ltd v Palmer,60 a case concerning adverse possession under the Land Registration Act 1925, the High Court held that Article 1 of the First Protocol was engaged; that the plaintiff’s right to reasonable enjoyment of his property had been breached; and that the relevant statutory provision should be interpreted so as to be compatible with the Convention. The court identified a breach of P1-1, on the basis that the practical effect of the 54

Above n 52. Ibid, 11. 56 This includes, eg, the benefit of restrictive covenants over land. 57 See, eg, H v Belgium (ECtHR), 30 Nov 1987 (Series A No 127, [47]). 58 James v UK, above n 7. 59 Association of General Practitioners v Denmark (1989) 62 DR 226; Gasus Dosier- und Fordertechnik GmbH v Netherlands (1995) 20 EHRR 403. 60 [2005] EWHC 1460 (Ch). 55

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relevant provision was to deprive the owner of land of all his rights to it, and of any means, through direct action or through law, of recovering his possession of it. The court held that a legal provision which caused an owner of land to lose his title through mere inadvertence without compensation was a disproportionate interference which could not be justified in any public or general interest. The deprivation in Beaulane Properties Ltd v Palmer provided a relatively rare example of a situation in which a domestic court intervened, in the basis of P1-1, in a private law action between private individuals.61 In fact, when it comes to matters of private law, domestic provisions in relation to property have enjoyed a wide margin of appreciation, since ‘private law restrictions are deemed to be defining of, rather than interferences with, property/possessions’.62 If P1-1 has any potential applicability in relation to the creditor/occupier context it is in relation to the protection of the creditor’s right to property. Although it would not amount to a taking and is not intended to control the use of property, if the court refused to enforce the creditor’s proprietary security rights this could arguably be regarded as an ‘interference’ with the use or enjoyment of property under the first rule of P1-1. Since the right to property—like Article 8—is a ‘qualified’ right, the next question to be considered would be whether the interference was justified on the basis of ‘the public interest’. In addition: Measures which interfere with property rights must have a legitimate aim, and must be proportionate. They must also strike a fair balance between the rights of the individual and the general interest of the community.63

It is also interesting to note that, in James v UK, the European Court of Human Rights held that ‘a taking of property effected in pursuance of legitimate social, economic or other policies may be “in the public interest” even if the community at large has no direct use or enjoyment of the property taken’.64 The ‘public interest’ in this case referred to the interests of specific individuals, and did not depend on demonstrating benefit for the wider community. In the creditor/occupier context, while the occupier’s home interest could potentially be protected within the right to ‘respect for home’ in Article 8, the creditor’s proprietary claim could, alternatively, form the basis for a claim under Article 1 of Protocol 1 which protects property rights (including proprietary security rights). In fact, when considering the relevance of P1-1 in the creditor/occupier context, a pertinent issue for consideration would be whether, if 61 A finding of interference with the ‘right to peaceful enjoyment of possessions’ under Art 1 of the First Prot is usually made when the state interferes directly to expropriate or control the use of property: see Starmer, above n 8, 636 ff. 62 Ibid, 641. See also X v UK (1978) 14 DR 234. 63 J Coppel, The Human Rights Act 1998: Enforcing the European Convention in the Domestic Courts (Chichester, Wiley, 1999), [14.8]. 64 James v UK, above n 7, [45].

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the law did provide a greater protection for the home interests of occupiers, this would this contravene Article 1 of the First Protocol as an ‘interference’ with the creditor’s proprietary rights. As the discussion above has indicated, there are different levels of interference under P1-1. Beaulane Properties v Palmer 65 is authority for the proposition that a deprivation of property without compensation will usually constitute an ‘interference’ under P1-1. However, it is important to recognise that, even if the balance struck between creditors and occupiers shifted towards the occupier’s home interest, it would be unlikely to result in a ‘deprivation’ for the creditor—in the sense that the creditor’s proprietary security would be quashed. One of the issues considered in the conclusions to Chapter 1 of this book was the fact that, when considering the question of striking a different balance from that currently adopted in creditor/occupier contest, there should be no question of creditors losing their proprietary rights in the property. Indeed, a more likely practical implication of conferring greater weight on the home interests of occupiers would relate to the issue of whether the creditor should be entitled to enforce its proprietary security against the home ‘on demand’ or whether the occupier’s home interest should be taken into account to justify a delay in the enforcement of the creditor’s security interest. Delaying the enforcement of an order for possession or sale does not eliminate the creditor’s proprietary security, but compels creditors to wait a period of time before those rights are enforced by the court. The advantages of a delay for the occupiers include the possibility of giving home occupiers more time to organise their financial affairs, to make adequate arrangements regarding another property or to ensure that the occupiers are not evicted from their home until some other specific date—for example, the date at which any children living in the property reach the age of majority, or are ready to leave full-time education. Furthermore, viewing the issue within a human rights context, a delay in the enforcement of a possession order or an order for sale would present less difficulty in respect of an interference with the creditor’s ‘right to property’ under Article 1 of the First Protocol. For example, in the context of a dispute between landlord and tenant, the European Court of Human Rights held that the suspension of an eviction order did not necessarily breach the landlord’s rights under Article 1 of Protocol 1,66 where the eviction orders were suspended as part of a government programme to ease a housing crisis and prevent homelessness. Similarly, the court has held that restrictions on a landlord’s rights of repossession can be justified as being in the ‘public interest’ where they are designed to protect the wellbeing of tenants.67 As P1-1 sets out a qualified right, interferences with the claimant’s right to property can be justified if they are in ‘the public interest’: that is, (1) that the inter65 66 67

See above n 60. Spadea and Scalabrine v Italy (1995) 21 EHRR 482. Starmer, above n 8, [22.29]; Velosa Bareto v Portugal A/334 [1996] EHRLR 212.

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ference is in pursuit of a legitimate purpose; and (2) that the achievement of that purpose strikes a ‘fair’ balance between the demands of the general interest of the community and the need to protect individual rights. Thus, any measure that interfered with the creditor’s right to property by seeking to control the exercise of his proprietary remedies would have to be justified by reference to a legitimate aim, and there must be a reasonable relationship of proportionality between the means employed and the achievement of that aim.68 In the creditor/occupier context, this question would turn upon whether the ‘interference’ with the creditor’s right to realise its proprietary security was justified by reference to the ‘public interest’—which, as noted above, can include the interests of specified individual occupiers rather than the public at large. The meanings and values of home for occupiers and the impact of losing an ‘owned’ home in a mortgage possession action on the occupier’s ‘wellbeing’ were considered in Part I of this book. One of the central themes in these chapters was the idea that the under-conceptualisation of home in legal analysis has inhibited the ability to take account of these issues in legal decision making. Although the outcomes of creditor/occupier disputes are heavily influenced by the strength of the pro-creditor policy, it was also suggested that, so long as the occupier’s home interest remained an ‘unknowable’ quantity, the tendency in law to dismiss such interests as chimerical would persist. This book has sought to demonstrate how the authenticity of home meanings, as demonstrated in other disciplines, and the detrimental consequences of mortgage possession actions on the health and wellbeing of occupiers and on others could be weighed in the balance when the interests of creditors come into conflict with the home interests of occupiers. Although this may not result in a different outcome in all or many cases, a more coherent legal concept of home should, at the very least, ensure that analysis dismissing home interests is more explicitly reasoned, and that a real measure can be taken of the complex interests at stake in the creditor/occupier context. This section has considered the prospect that a decision to confer greater weight on occupiers’ interests raises potential issues in relation to the creditors’ rights under P1-1. However, it is suggested that any ‘interference’ with the creditor’s proprietary rights would be, at most, likely to constitute a delay—and therefore amount to ‘control’ of the creditor’s property rights rather than a ‘deprivation’. Furthermore, since P1-1 is a qualified right, the interference could arguably be justified under the ‘public interest’ criteria of the second paragraph of the provision. This would depend, of course, on the court’s ability to recognise the occupier’s home interest as a public interest matter. Indeed, it would depend on a coherent legal concept of home, capable of conveying meaning and carrying value in the context of legal analysis.

68

Wasa Liv Omsesidigt, Forsakringbolaget valands Persionsstiftelse v Sweden (1988) 58 DR 163.

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The Conflict Between Article 8 and P1-1 The previous sections have considered how, in a principled approach, the commercial interests of creditors and the home interests of occupiers could be brought to bear within a human rights framework. Stated simply, the home interests of occupiers could fall within the remit of Article 8, while the proprietary rights of creditor could be protected under Article 1 of the First Protocol. In each case, the right in question is qualified: an ‘interference’ with the right to respect for home under Article 8 can be justified on various grounds, including that it is necessary for the economic wellbeing of the country or for the protection of the rights and freedoms of others; an ‘interference’ with the right to property can be justified if it is in ‘the public interest’—which has been broadly interpreted as including the interests of a small part of the population or of specified individuals.69 When a court is called upon to decide which interest will prevail—between the creditor and the occupier—both Articles are potentially ‘engaged’. In fact, the creditor/ occupier context can be regarded as an example of a situation in which the court may need to resolve the dispute between competing private parties by considering conflicting Convention rights. The analysis of the idea of home in law in this book has focused on the creditor/occupier conflict because, while there is little need for recourse to a legal concept of home in order to protect home interests where such protection is a clear policy objective, the lack of conceptual understanding of home comes into sharp relief when home interests come into conflict with other, competing claims. This is particularly the case in contests involving creditors, since the commercial claims of creditors weigh heavily in the balancing scale. Shifting the creditor/occupier contest into the human rights forum, it is interesting to note that these competing claims can also be represented in terms of competing Convention rights. The task of balancing competing claims has often arisen in the context of human rights discourse. When considering the creditor/occupier dispute within the framework of the Human Rights Act, it is interesting to consider what tools are available to the courts to deal with cases involving ‘clashing rights’ under the Convention.70 One of the key issues to have emerged from cases involving competing Convention rights is the importance of balancing the competing rights without giving automatic or presumptive priority to one over the other. For example, in Campbell v MGN Ltd,71 a case involving the publication of information concern69

See, eg, James v UK, above n 7; Lithgow v UK (1986) 8 EHRR 329. See, eg, I Leigh, ‘Clashing Rights, Exemptions and Opt-Outs: Religious Liberty and “Homophobia”’ (2001) 4 Current Legal Issues 247; G Phillipson, ‘Transforming Breach of Confidence: Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66 Modern Law Review 726; H Fenwick, ‘Clashing Rights, the Welfare of the Child and the Human Rights Act’ (2004) 67 Modern Law Review 889. 71 [2004] UKHL 22. 70

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ing Naomi Campbell’s drug treatment, the House of Lords was required to balance two competing Convention rights: Ms Campbell’s right to privacy under Article 8 and the newspaper’s right to freedom of expression under Article 10. The House of Lords considered the case from both perspectives: first, the court considered whether the interference with the newspaper’s Article 10 right was justified and proportionate; it then proceeded to consider whether the interference with Campbell’s Article 8 right was justified and proportionate; finally, the court had to consider how to strike the balance between the competing rights.72 Lord Hoffman stated that ‘[t]here is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other’.73 The approach of UK domestic courts when dealing with cases concerning clashing Convention rights since the commencement of the Human Rights Act 1998 was analysed by Fenwick in ‘Clashing Rights, the Welfare of the Child and the Human Rights Act’.74 This analysis focused on the balance struck between the welfare of the child and the media’s right to free speech in cases involving the publication of material relating to child welfare matters and disputes concerning children. Fenwick criticised the presumptive priority afforded to child welfare considerations in domestic law which has skewed the court’s analysis when it comes to considering the Convention rights.75 The parallel with creditor/occupier disputes is patent. The discussion of domestic legal provisions in the creditor/occupier context in Chapter 2 of this book highlighted the strength of the pro-creditor policy that has dominated judicial decision making in creditor possession actions. One of the side-effects of this policy has been a lack of analysis of the individual values of the competing interests at stake in the creditor/occupier context, especially the occupier’s home interest. The process of analysis has been truncated by the presumptive priority given to the creditor’s commercial claim. However, in order to conduct a legitimate balancing exercise, it is necessary to establish the value of the occupier’s interest, and—once that interest has been 72 The House of Lords based its approach on that adopted by the Court of Appeal in Re S [2003] 3 WLR 1425 at 1451–2, [54]–[60]. Baroness Hale noted that: ‘[t]he application of the proportionality test is more straightforward when only one Convention right is in play: the question then is whether the private right claimed offers sufficient justification for the degree of interference with the fundamental right. It is much less straightforward when two Convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other. As each is a fundamental right, there is evidently a “pressing social need” to protect it. The Convention jurisprudence offers us little help with this’: Campbell, ibid, [140], per Baroness Hale. 73 Ibid, [55], per Lord Hoffmann. 74 H Fenwick, ‘Clashing Rights, the Welfare of the Child and the Human Rights Act’ (2004) 67 Modern Law Review 889. 75 Fenwick argued that the ‘paramountcy principle’ set out in s 1(1) of the Children Act 1989—a domestic law provision which provides that the child’s welfare automatically prevails over any other rights—has operated to: ‘pre-empt a principled resolution of the conflict by ensuring that one side automatically wins out’: ibid, 891.

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understood—to weigh this interest against the claims of the creditor. In the context of child welfare matters, the presumptive priority conferred by the ‘paramountcy principle’ has precluded debate ‘as to what the welfare of the child genuinely requires’.76 Similarly, this book has argued that the pro-creditor policy adopted in creditor possession actions has precluded proper consideration of what the home interest genuinely represents. In the context of human rights discourse, as in domestic law, the courts have avoided engagement with the clash of Convention rights in the creditor/occupier conflict, through the interpretation of the content of the right to ‘respect for home’ in Article 8.77 In the event of a clash between the competing claims of the creditor (under Article 1 of Protocol 1) and the occupier (under Article 8) the court could begin by considering the occupier’s right to respect for home under Article 8(1), and the justifications for ‘interfering’ with that right (in the interests of the creditors) under Article 8(2); then consider the creditor’s right to property under Article 1 of the First Protocol and the justifications for ‘interfering’ with that right under the second paragraph in view of the ‘public interest’ of the occupier; and finally, assess the extent to which each right would be damaged by the interference in question. This approach takes as its starting point the equal weighting of Convention rights. It also requires a more complete analysis of the competing rights and interests at stake in cases involving clashing rights. Yet, when the home interests of occupiers—in mortgaged or rented property—have been considered with reference to the Human Rights Act, the domestic courts of the UK have minimised the meaning of ‘respect for home’ under Article 8. This has had the effect of curtailing the analytical process at the early stage of considering whether there has been an ‘interference’ with the occupier’s rights under Article 8(1). As a result, the potential for exploring the meaning and values of home in law within the framework set out in the Convention and the Human Rights Act 1998 has been stifled. The following section outlines the approach adopted in the domestic courts to date, and considers the remaining prospects of utilising human rights discourse in the development of a legal concept of law.

Article 8 and the Right to ‘Respect for Home’ in the Creditor/Occupier Context The right to ‘respect for home’ under Article 8 appears to offer some scope for conceptualising the occupier’s home interest within the framework of the Human 76 77

Fenwick above n 74, 891. See discussion of the restrictive interpretation of Art 8 in Qazi, nn 109–172 and associated text.

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Rights Act. The right has been described as ‘a right to occupy an existing home without interference and to enjoy its comforts’,78 and this focus on ‘a right to occupy’, rather than ownership per se, has significant potential when it comes to representing the ‘x factor’ meanings of home. The discussion of ‘home’ meanings in Chapter 4 considered five clusters of meanings associated with home: home as a financial investment, home as a physical structure, home as territory, home as identity and home as a socio-cultural unit. The first two clusters of meanings—the capital value of the property and the physical structure of the house itself—are readily comprehensible in legal analysis. However, the remaining three clusters (the ‘x factor’ meanings of home, if home = house + x) are more difficult to establish in legal discourse. The following sections consider the interpretation of ‘home’ for the purposes of Article 8, from identifying that the property qualifies as the applicant’s ‘home’, thus requiring ‘respect’ under Article 8(1), to establishing an ‘interference’ with the right to respect for home and considering whether such interference is justified under Article 8(2). While the meaning of ‘home’ for Article 8 offered considerable opportunity for developing the legal concept of home in the human rights framework, it is suggested that policy considerations in relation to the property rights of others, for example creditors and landlords, have led the domestic courts to empty Article 8 of much of its meaning, at least as far as the conceptualisation of home for the creditor/occupier context is concerned.

The Meaning of ‘Home’ for Article 8 The discussion of home in this book has focused on the contest between creditors and occupiers—rather than creditors and debtors, or creditors and owners—in recognition of the fact that occupiers may acquire an interest in a property as a home by virtue of the simple fact that they live in the property as their home. This home interest arises as a matter of empirical fact, and is not dependent on contractual or ownership rights in the property. The empirical studies discussed in Chapter 4 have established that the fact of occupation in a property as a home may give rise to an ‘x factor’ attachment to the property that gives the property meaning and value above and beyond its value as a capital asset or a physical structure. The idea that these additional meanings could be reflected through Article 8 was encouraged by the European Court of Human Rights’ reference, in Gillow v UK,79 to the applicant’s right to respect for home as ‘pertinent to their own personal security and well-being’.80 In fact, the idea that ‘home’ is a broader concept was also implicit in the Court’s rejection of the argument that: ‘only a “home” legally

78 79 80

Starmer, above n 8, [3.117]. [1986] ECHR 14. Ibid, [55].

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established could attract the protection of that provision (article 8)’.81 A ‘home’ for the purposes of Article 8 has thus been identified as a property in which the complainant lived as a continuous residence, with no intention to establish home elsewhere. It is important to note that the court adopted a pragmatic approach that emphasised the factual situation: the key criteria in establishing that a particular property was a ‘home’ for the purposes of Article 8 were occupation of the property and the intention to continue living there as a home. In Buckley v UK, the Commission held: ‘Home’ is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a ‘home’ which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links.82

This pragmatic approach has also been followed in UK domestic courts. For example, in Uratemp Ventures Ltd v Collins,83 the House of Lords described a person’s home as ‘the place where he lives and to which he returns and which forms the centre of his existence’,84 while in London Borough of Harrow v Qazi 85 Lord Bingham noted that ‘the general approach of the Strasbourg institutions has . . . been to apply a simple, factual and untechnical test, taking full account of the factual circumstances but very little of legal niceties’.86

An ‘Interference’ with the Right to Respect for Home by a Public Authority These accounts of the meaning of home for the purposes of Article 8 appear to suggest that the home that an occupier lives in as a matter of fact, and which is lost through a mortgage possession action, would fall within the scope of Article 8, whether or not that occupier was the legal or equitable title holder of the property. 81

Buckley v UK, above n 7, [52]. (1996) 23 EHRR 101 at 115, [63]. The ‘sufficient continuing links’ test was based on the decision in Gillow v UK, in which the ECtHR accepted that a property which the claimants had owned for 18 years, although they did not live there, could qualify as their ‘home’ for the purposes of Art 8, since they intended to establish a home there. The Commission reiterated this pragmatic and de facto approach towards the meaning of home within Art 8 in Mabey v UK, when the Commission held that ‘whether or not a particular habitation constitutes a “home” for the purposes of Article 8(1) will depend on the factual circumstances of the particular links, namely the existence of sufficient and continuous links. It is not limited necessarily to those homes which have been lawfully occupied or lawfully established’: (1996) 22 EHRR CD 123. 83 [2001] UKHL 43. 84 Ibid, [31], per Lord Millett. 85 Above n 7. 86 Ibid, [10]. 82

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The next step to consider would be whether an order for possession would constitute an ‘interference’ with the right to respect for home. As the discussion above has noted, in the context of Article 8, ‘home’ has primarily been constructed as a private sanctuary against state intrusion.87 However, ‘the European Court and Commission have interpreted it broadly so as to give effect to more specific housing rights such as the right of individuals to access to, occupation and peaceful enjoyment of their homes’.88 Article 8(2) provides that, ‘[t]here shall be no interference by a public authority with the exercise of this right’, unless one of the justifications is satisfied, and acts which have been recognised as constituting ‘interferences’ have included orders for the compulsory purchase of the applicant’s home,89 as well as several acts which fall a long way short of depriving occupiers of their home, but which interfere with the enjoyment of the home. For example, the loss of enjoyment of the amenities of home due to intense and persistent aircraft noise has been regarded as an ‘interference’ for the purposes of Article 8,90 as have severe dust contamination to the home91 and severe environmental pollution.92 On these authorities, it would seem evident that the loss of home in a creditor possession action would constitute a sufficient ‘interference’ for the purposes of Article 8. Indeed, in Wood v UK, the Commission appeared to accept that a mortgage possession action was an interference with the applicant’s right to respect for home, and the issue of violation of Article 8 turned on whether or not that interference was justified.

The Qualified Nature of Article 8 The individual’s right to respect for his or her home under Article 8(1) is qualified by the second paragraph of the provision, which permits interference with the exercise of the right so long as it is ‘in accordance with the law and is necessary in a democratic society in the interests of . . . the economic well-being of the country . . . or for the protection of the rights and freedoms of others’. An example of such circumstances can be found in the decision of the European Human Rights Commission in Wood v UK.93 The applicant in Wood argued that the events which led to the repossession of her house breached Article 8 of the Convention and Article 1 of the First Protocol. The property was repossessed because the debtor had defaulted on repayments due under a secured loan. The Commission found that: 87 DJ Harris, M O’Boyle and C Warbrick, The Law of the European Convention on Human Rights (London, Butterworths, 1995), 319. 88 Starmer, above n 8, [22.11]. 89 Howard v UK (1987) 9 EHRR 91. 90 Powell and Rayner v UK (1990) 12 EHRR 355. 91 Khatun and 180 others v UK (1998) 26 EHRR CD 212. 92 Lopez Ostra v Spain (1994) 20 EHRR 277; Guerra and others v Italy (1998) 26 EHRR 357. 93 (1997) 24 EHRR CD 69.

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In so far as the repossession constituted an interference with the applicant’s home . . . this was in accordance with the terms of the loan and the domestic law and was necessary for the protection of the rights and freedoms of others, namely the lender.94

In fact, Wood v UK was merely the first in a line of decisions in which the court dismissed attempts to invoke the Article 8 protection in the context of disputes between creditors and home occupiers. In Karia v Franses,95 the applicant’s contention that the proposed sale of his home by a trustee in bankruptcy would breach his rights under Article 8 was described by the court as ‘greatly exaggerated’ while, in Birmingham Midshires Mortgage Services Ltd v Sabherwal,96 the Court of Appeal rejected the occupier’s claim under Article 8 on the basis that the creditor was not a public authority. Although the Article 8 claim was primarily rejected on the basis that the Human Rights Act 1998 was not yet in force, Walker LJ added that: I do not see that it gives Mr Beaumont any assistance in this case . . . [the creditor] is not a public authority. The judge’s order was made in accordance with law and it was necessary for the protection of BMMS’s rights as a secured lender.97

The consistent rejection of Article 8 claims in the creditor/occupier context is interesting, considering that, prior to the enactment of the Human Rights Act, there had been some indication that the courts would be receptive to the argument that the right to respect for home in Article 8 was relevant in the context of possession actions. For example, in Albany Home Loans v Massey,98 the Court of Appeal appeared to acknowledge the potential relevance of Article 8 in the creditor/occupier context. The decision in Massey involved a married couple, who were joint mortgagors of the family home. Following default on the mortgage, the mortgagee creditor applied for a possession order against their home. Mrs Massey raised a successful defence of undue influence, which invalidated the creditor’s security over her share of the property. As a consequence, the creditor’s proprietary security extended over Mr Massey’s share only. The Court of Appeal was required to decide whether the creditor’s application for possession should be granted notwithstanding Mrs Massey’s continuing interest in the property. In considering this question, Schiemann LJ referred to Article 8 of the Convention and suggested that ‘[t]his, as it seems to me, whilst not enacted as part of our 94 (1997) 24 EHRR CD 70–1. On the claim under Art 1 of the First Prot, the Commission held that ‘[t]o the extent that the applicant is deprived of her possessions by the repossession, the Commission considers that this deprivation is in the public interest, that is the public interest in ensuring payment of contractual debts, and is also in accordance with the rules provided for by law. It follows that this part of the application must be dismissed as manifestly ill-founded’: ibid. 95 12 Nov 2001 (ChD), Unreported (Transcript: Lexis). 96 (1999) 80 P&CR 256. 97 Ibid, [34], per Walker LJ. 98 [1997] 2 All ER 609.

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domestic law, provides a clue to the solution to the problems posed by this case’.99 It certainly seemed that, following the incorporation of the Convention rights into domestic law through the Human Rights Act 1998, the right to respect for home in Article 8 could have some relevance to the treatment of occupiers’ home interests in disputes with creditors, and to the conceptualisation of home within a human rights framework. Yet, post-incorporation, attempts to invoke the Article 8 protection for home against a creditor have not been fruitful. In Ebert v Venvil,100 Mrs Ebert sought to appeal against an order for the sale of her home, granted to her husband’s trustee in bankruptcy. Although Aldous LJ acknowledged that ‘[i]t is always traumatic to be evicted from the family house . . . and one cannot but have very great sympathy for her’, the suggestion that Article 8 might provide a grounds for refusing sale was dismissed with the following reasoning: Mr Ebert has been adjudicated bankrupt. The case has been finally settled. He owned half the house. The only way his creditors could get recompense was by the house being sold. In those circumstances the European Convention has no application at all. The European Convention is not a charter which allows bankrupts to avoid paying the money which the courts have held to be owing to creditors . . . It is a Convention protecting people from encroachment into their basic rights. It is not a document which allows people to avoid paying their debts.101

The overwhelming weight attributed to the creditor’s interests in recovering the debt dominated the court’s decision that the loss of the occupier’s home could not be prevented by recourse to Article 8. This decision did not appear to be rooted in a failure to recognise an ‘interference’ with the right to respect for home, but by the need to protect the creditor’s right to proceed against the property, based on his proprietary security. It appeared that the key issue for the court to determine when considering the creditor/occupier contest under Article 8 was the need to strike a proportionate balance between the competing interests: the occupier’s right to respect for home and the ‘legitimate aim’ protected by permitting an interference with that right. Since any interference with the right to respect for home must be justified under Article 8(2), and the extent of the interference must be proportionate to the legitimate aim pursued, it follows that: even where it is clear that there is a legitimate purpose for restricting a Convention right, the authorities must still show that the actual restriction employed does not go beyond what is strictly necessary to achieve that purpose.102 99 100 101 102

Ibid, at 612, per Schiemann LJ. 19 Dec 2000 (CA), Unreported, Transcript: Lexis. Ibid, [16]–[18]. Starmer, above n 8, [4.38].

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Applying this structured approach to reasoning in relation to Convention rights, it is not sufficient simply to conclude, in the interests of policy, that ‘creditors must always win’. Article 8(2) provides a basis for allowing an interference with the occupier’s right to respect for home, but only so long as the interference with the occupier’s right is proportionate to the legitimate aim pursued. The court must consider factors such as whether there was a less restrictive alternative—for example, the court might have considered whether a delay in the enforcement of the creditor’s rights, as an alternative measure to immediate sale, would adequately protect the creditor’s interests—or whether the restriction adopted destroys the ‘very essence’ of the right in issue.103 In fact, there is some—albeit limited—evidence of the court employing ‘proportionality-style’ reasoning to creditor/occupier contests outside the context of human rights analysis. In Edwards v Lloyd’s TSB Bank plc,104 the court was required to balance a range of factors before considering whether to grant an order for possession and sale of co-owned land under sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996. The factors considered by the court included the fact that the debt owed to the creditor did not exceed the value of the interest over which the bank had an equitable charge, so that ‘now and for some time to come the security will be sufficient to cover the increasing amount of the debt’.105 The court held that it would be reasonable, on balance, to require creditors to wait for payment, safe in the knowledge that their proprietary security continued to subsist and that the debt would be repaid eventually. These factors were weighed against the fact that there were child occupiers who would be affected by the loss of their home. As a result, the court ordered that the possession order should be stayed for at least five years, until the youngest child reached 18. This type of approach indicates what may be expected from a proportionality analysis under Article 8, and demonstrates the court’s ability to adopt a compromise position: the creditor was not deprived of his rights, but the enforcement of those rights was controlled by delaying the sale of the property for a specified period of time. To date, in cases considering the creditor/occupier contest in the context of Article 8, the court has accepted that protection of the creditor’s rights is a legitimate aim. However, the issue of proportionality between the right to respect for home and the measures imposed to protect the legitimate rights of creditors has not been explicitly worked out in judgments on this question, and the idea that a delay in the enforcement of the creditor’s rights could provide a more proportionate response than immediate possession and sale has not been considered in the context of Article 8. It is also significant to note that, in the decisions to date 103

Starmer, above n 8, [4.42]. [2004] EWHC 1745. This decision, which concerned the interests of child occupiers, was considered in Ch 9. 105 Ibid, [32]. 104

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considering creditor/occupier disputes under Article 8, the court has not given any explicit consideration to the issue of whether the creditor’s actions against the property would destroy the ‘very essence’ of the occupier’s right to respect for home. This is particularly interesting in relation to the analysis in this book because, in order to consider whether the ‘very essence’ of the right is destroyed, it is necessary to have some conception of what the very essence of the right comprises. The court must consider the content of the right to respect for home, and ascertain the extent of the damage that will be done to the occupier’s right to respect for home if the court accedes to the creditor’s application. This argument is as salient in the context of Article 8 as it is in relation to the domestic provisions considered throughout this book. In fact, a qualified provision such as Article 8—with the right to respect for home in Article 8(1), the rights and interests of secured creditors represented in Article 8(2), under the remit of a ‘legitimate aim’ to protect the rights of others, and the principle of proportionality to guide the court in striking the necessary balance—provides an ideal framework within which to balance the competing claims of creditor and occupier. It is in carrying out this analysis that a familiar obstacle emerges: in order to conduct the necessary balancing act, the court requires a more clearly articulated conception of the values that home holds for occupiers than legal analysis currently offers. Indeed, the need to work out the content of the ‘right to respect for home’ under Article 8(1), and to weigh this right against the justifications permitted by Article 8(2), reinforces the argument for a more fully worked-out legal concept of home. Yet, as the analysis of the decision in London Borough of Harrow v Qazi106 in the following section will indicate, the trend of judicial policy in relation to Article 8 appears to be moving away from this approach in favour of a summary approach to the rights protected under Article 8, which obviates the need for justification under Article 8(2), or for considerations of proportionality.

The Impact of the Decision in London Borough of Harrow v Qazi In applying the qualified right provided under Article 8 in the creditor/occupier context, the court’s interpretative duty under section 3, to read or re-interpret existing law so as to render it compatible with the Convention if it is possible to do so, would appear to require the court to consider, in the context of possession actions, the balance struck between the right to respect for home in Article 8(1) and the qualifying factors set out in Article 8(2), including the need for any 106

Above n 7.

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interference and the proportionality of the interference with the occupier’s right to respect for home. In fact, it might also be thought necessary to consider how Article 8 (which includes the occupier’s prima facie right to respect for home) should be balanced against Article 1 of the First Protocol (which includes within its scope the protection of the creditor’s proprietary rights). However, the interpretation of Article 8 in the House of Lords has not only obviated the need to balance the Articles against one another, but appears to have dealt a severe blow to the prospect of developing the proportionality principle in relation to justification under Article 8. In fact, the decision of the House of Lords in London Borough of Harrow v Qazi107 has appeared to remove the possibility that occupiers could make Article 8 arguments in relation to possession actions against their home in the future. The House of Lords held, by a majority of three to two, that the reference to ‘respect for home’ in Article 8 was effectively limited to actions concerning privacy and intrusion by the state. Article 8 provided no basis for defending possession proceedings brought by third parties (landlords or mortgagees),108 when the party seeking possession was entitled to take possession under domestic law based on contractual and proprietary rights. One preliminary point to note regarding the decision in Qazi was the fact that the House of Lords resolved the balancing exercise between the competing claims of an occupier (in this case, a tenant) and the party seeking possession (the landlord) exclusively within the context of Article 8, and without reference to the landlord’s right to property (and the protection of that proprietary right) under Article 1 of the First Protocol. The court relied wholly on the internal mechanism of Article 8 as a ‘qualified right’ to balance the competing claims. Thus, the landlord was granted the possession order it was seeking without needing to invoke Article 1 of the First Protocol. In fact, the major impact of the decision in Qazi for this chapter lies with the truncation of the reasoning process adopted in relation to the occupier’s right to respect for home under Article 8. Not only did the court avoid the need to reconcile competing Convention rights, but the interpretation applied to Article 8 also circumvented the need to justify the possession action under Article 8(2) or to analyse the proportionality of the measure sought. In London Borough of Harrow v Qazi, the majority of the House of Lords held that, in cases where the party seeking to obtain possession of the claimant’s home was merely enforcing existing proprietary and contractual rights against the property in accordance with domestic law, there was no interference with the right to respect for the occupier’s home under Article 8.

107

Above n 7. Although the decision in Qazi itself concerned a public authority tenancy, the House of Lords claimed that its reasoning on the scope of Art 8 also applied by analogy to mortgage possession actions. 108

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The Decision in London Borough of Harrow v Qazi The decision of the House of Lords in London Borough of Harrow v Qazi 109 concerned Mr Qazi’s attempt to defend a possession action against his home following termination of his tenancy. Mr and Mrs Qazi had been joint tenants of a secure tenancy under the Housing Act 1980. Following the breakdown of their relationship and the departure of Mrs Qazi and their daughter from the property, Mrs Qazi served a notice to quit on the housing authority. This notice to quit was, in accordance with domestic law, effective to terminate their joint tenancy. Mr Qazi, who wished to continue living in the property, applied for a sole tenancy, but his application was rejected on the basis that the property provided family-sized accommodation and so, in accordance with the authority’s allocation policy, could not be (re-)granted to a single individual. When Mr Qazi appealed this decision, he revealed that he was, by this stage, living in the property with his new wife and her son, and that the second Mrs Qazi was pregnant with another child. The Court of Appeal held that Mr Qazi was entitled to remain in the property by virtue of his right to respect for his home under Article 8. The Council appealed this decision to the House of Lords, which reversed the Court of Appeal judgment, and awarded a possession order against Mr Qazi. The reasoning of the House of Lords in Qazi is of considerable interest with regard to the status of home in law. The majority of the House of Lords supported an interpretation of Article 8 that effectively stripped the right to ‘respect for home’ of any content so far as the defence of possession actions was concerned. In addition, the decision in Qazi highlighted the persistent difficulties associated with advancing a juridical meaning of home. In the course of their discussion on Article 8, the House of Lords stated that ‘home’ does not carry any special meaning in law. This highlights, once again, one of the central issues considered in this book. If home has no special meaning in law, this leaves home advocates with little content to draw upon when attempting to construct an argument for the protection of home-oriented values and interests in law. This book has argued that the absence of a coherent legal concept of home has facilitated the subjugation of occupiers’ interests in their homes to the objectively measurable proprietary and financial claims of secured creditors. The preceding sections of this chapter have considered the possibilities of developing a concept of home within a human rights framework; however, the decision in Qazi has suggested that, where a dispute requires the court to resolve a clash of interests between the occupier’s home interest and the contractual and proprietary interests of creditors within the framework of Article 8, it will not even be necessary to balance the competing claims. Rather, the home interest is automatically defeated on the basis that ‘the proposition that 109

Above n 7.

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there was a violation of Article 8 was unarguable’,110 that ‘no such balancing exercise need be conducted when its outcome is a foregone conclusion’,111 and that ‘Article 8 was not, in these circumstances, applicable’.112 The first hurdle for Mr Qazi was to establish that the disputed property was his ‘home’ for the purposes of Article 8. It is interesting to note that, on this question, all five judges were satisfied that the property was Mr Qazi’s ‘home’, even though he did not, by the time the possession order was sought, have any proprietary or contractual rights in the property. Lord Bingham stated that: On a straightforward reading of the Convention, its use of the expression ‘home’ appears to invite a down-to-earth and pragmatic consideration whether the place in question is that where a person ‘lives and to which he returns and which forms the centre of his existence’, since ‘home’ is not a legal term of art and article 8 is not directed to the protection of property interests or contractual rights.113

Lord Bingham explicitly acknowledged the affective significance of ‘home’—as set out in Chapter 4 of this book—when he commented that, ‘[n]ot surprisingly, the need for some protection of the home was recognised in the Convention, since few things are more central to the enjoyment of human life than having somewhere to live’.114 This definition of ‘home’ was ‘non-technical’ in the sense that it did not depend on demonstrating that the occupier had any legal or equitable ownership interest in the property. The court recognised the property as Mr Qazi’s ‘home’ on the basis of his de facto relationship with the property, due to occupation as a home. Lord Bingham concluded that, ‘[w]hen the possession proceedings were issued Mr Qazi had lived at 31 Hutton Lane continuously for eight years. The house had been his home and he had no other’.115 On the matter of his right to occupy the property as a home, His Lordship concluded that ‘[t]he expiry of his wife’s notice to quit brought his right to occupy the house as a tenant to an end, but it did not bring his occupation to an end. The house continued to be the place where he lived and so his home’.116 In fact, all five members of the House of Lords in this case agreed that the property was Mr Qazi’s ‘home’ within the meaning of Article 8 at the time that the possession proceedings were issued. Lord Hope claimed that, ‘[w]here an individual’s right to respect for his private and family life is in issue, the application of a narrow or technical test as to what this part of his life comprises would plainly be inappropriate. The same

110 111 112 113 114 115 116

Qazi, above n 11, [77], per Lord Hope. Ibid, [103], per Lord Millett. Ibid, [149], per Lord Scott. Ibid, [8], per Lord Bingham. Ibid. Ibid, [11], per Lord Bingham. Ibid.

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is true of the word ‘home’ when it is used in the same context’.117 Lord Millett agreed that: Considered as a question of fact, the premises were Mr Qazi’s home at all material times. They were his home when he lived there with his former wife, and they continued to be his home after she left him. They did not cease to be his home when his tenancy came to an end. The most that can be said is that he no longer had a legal right to remain in occupation which he could maintain against the council, though he could maintain it against anyone else. He was liable to be evicted at the suit of the council; but while he lived there it was still his home. It was his home when the council brought proceedings against him, and it was still his home when the recorder made a possession order against him. It would not have ceased to be his home until he left possession or was evicted by the bailiffs. This has not happened. He lives there to this day, now with his second wife and two children. It is still his home.118

Lord Scott agreed that the property was Mr Qazi’s ‘home’ within the meaning of Article 8, since the decision of the Commission in Buckley v UK 119 had ‘eliminated the unlawfulness of the occupation as a relevant factor, let alone a determinative factor, in deciding whether the occupation was of a “home” ’.120 In one sense, this approach facilitated a broad and flexible interpretation of home: it was not necessary for the claimant to fall within a strictly defined legal category of ‘home’ in order for Article 8 to be relevant. In fact, if Article 8 had been applied in Qazi to confer a meaningful protection on occupiers in relation to the occupation of their homes, then a broadly defined idea of home would have enabled more potential claimants to enjoy that protection. From another perspective, however, it may be regarded as regrettable that, by reducing the idea of ‘home’ in Article 8 to the property in which the claimant lives as a matter of fact, the judgments in Qazi avoided the opportunity of engaging with conceptual analyses of the idea of home in law. The conclusion that ‘[home] does not . . . bear a special legal meaning . . . as does the expression “civil rights” for example. It bears its natural and ordinary meaning as popularly understood throughout the contracting states’,121 ensured that the legal concept of home applied in Qazi was not developed beyond the property in which a person lives as a matter of fact. Since the court accepted that the property in question was Mr Qazi’s ‘home’ for the purposes of Article 8, the next issue to be considered was whether, by taking possession of the property, the Council had interfered with Mr Qazi’s right to ‘respect for home’ under Article 8(1). It was at this hurdle that the majority of the House of Lords found that Mr Qazi’s case failed. As the Law Lords each gave 117 118 119 120 121

Qazi, above n 11, [67], per Lord Hope. Ibid, [96], per Lord Millett. Above n 7. Ibid [133], per Lord Scott. Ibid, [95], per Lord Millett.

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different reasons for their positions on this issue, the following sections shall outline briefly the approach adopted by each judge. The speeches can be grouped, broadly, into two clusters: Lord Hope, Lord Millett and Lord Scott were of the view that the council had not interfered with Mr Qazi’s right to respect for his home, and so there was no need to identify a justification under Article 8(2), while Lord Bingham and Lord Steyn argued that the granting of a possession order against the property constituted a prima facie interference with home under Article 8(1), and proposed that the question whether the interference could be justified within the terms of Article 8(2) should be remitted to the county court. Finally, although this case concerned a former tenant seeking to avoid a possession order in favour of the local authority landlord, the majority made it clear that they anticipated that the approach which they adopted in this case would apply equally in the case of a creditor/occupier dispute. This is evidenced, for example, in the court’s reliance on the authority of Wood v UK 122—a case involving a mortgage possession action—in support of the propositions that they sought to establish.

Lord Bingham When Lord Bingham came to consider the question whether there had been any ‘interference’ with Mr Qazi’s right to respect for home, he claimed that since: ‘[t]he simple, untechnical test of “home” which I have described . . . is easily understood and easily applied to facts arising in the different member states. I would expect a similarly simple and untechnical test to be applied to “respect” and “interference” ’.123 Lord Bingham considered the fact that the tenancy had been terminated according to the terms of the contract, but he concluded that this was not relevant to the issue of ‘interference’. While: [d]etails of the bargain made between owner and occupier, and the provisions of national law governing that bargain, are likely to be crucial in deciding the issue of justification under article 8(2) if that stage is reached, but it would seem to me to undermine the broad international application at which the Convention aims if matters of this kind are treated as determinative when considering whether there has been interference or a lack of respect.124

Although Lord Bingham described this approach as his ‘instinctive’ reaction, it was also supported by reference to a range of cases in which the Commission and the Court appeared to accept that an eviction from one’s home amounted to an ‘interference’ with the applicant’s right under Article 8(1). Although the inter122 123 124

(1997) 24 EHRR CD 69. Ibid, [12]. Ibid.

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ferences identified in these cases were generally justified under Article 8(2),125 it was assumed that eviction per se amounted to an ‘interference’ under Article 8(1).126 Lord Bingham noted that although, in each of the cases to which he had referred, the claimants had no legal right to remain in the property, neither the European Court nor the Commission had ever based its decision on that fact. Rather, they had consistently treated the eviction or possession action as an ‘interference’, which then fell to be justified under Article 8(2). Lord Bingham also referred to three Court of Appeal decisions which had also treated eviction orders and possession proceedings as an ‘interference’ with the occupier’s right to respect for home under Article 8(1), but which had found that the interference was justified under Article 8(2).127 In McLellan, the Court of Appeal held that: [i]t is not a preliminary question whether the tenancy has been properly terminated in accordance with its terms. It is under article 8(2) that the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others.128

Similarly, in Sheffield City Council v Smart,129 Laws LJ held that, in cases concerning possession actions, it was ‘inescapable that those orders amounted to an interference with the appellants’ right of respect of their homes. I have said that the case is all about Article 8; more precisely, it is all about Article 8(2)’.130 Lord Bingham also referred to the decision in Sheffield City Council v Smart, when Laws LJ adopted a purposive interpretation of Article 8. Laws LJ claimed that: [t]he court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation’s words mean. The first choice . . . would entail a judgment that the Convention requirement was met at the Article 8(1) stage . . . [and that] there was no want of respect for the appellants’ homes. The second choice (accepting a prima facie violation of Article 8(1)), which I prefer, entails a 125 Di Palma v UK (1986) 10 EHRR 159; P v UK, App No 14751/89, 12 Dec 1990; Ure v UK, (App No 28027/95, 27 Nov 1996); Wood v UK (1997) 24 EHRR CD 69; Marzari v Italy (1999) 28 EHRR CD 175. 126 ‘[t]hese authorities . . . give somewhat more help to Mr Qazi than to the council. They reveal a tendency to assume an interference or a lack of respect and then to consider justification, an issue decided against the applicant in all the cases except Larkos, where the complaint was of discrimination in conjunction with article 8’: Qazi, above n 11, [20], per Lord Bingham. 127 Lord Bingham referred to the decisions in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595; R (McLellan) v Bracknell Forest Borough Council; Reigate and Banstead Borough Council v Benfield [2001] EWCA Civ 1510; Sheffield City Council v Smart; Central Sunderland Housing Company Ltd v Wilson [2002] EWCA Civ 04. 128 McLellan, above n 127 [42]. 129 Above n 127. 130 Ibid, [26].

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judgment that the more rigorous and specific standards set out in Article 8(2) have to be met if the court is to hold that the evictions are compatible with the appellants’ Convention rights.131

Laws LJ continued by indicating that ‘[t]he Convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken’.132 Lord Bingham followed this approach to find that an action for possession of residential property would ordinarily involve an interference with the occupier’s right to respect for home, so long as the property was occupied by the defendant as a home under the factual test accepted by their Lordships. Two final points are noteworthy in relation to Lord Bingham’s judgment. First, his Lordship restricted his comments to cases in which the landlord was a ‘public authority’: although Lord Bingham did not express any view as to what principles should be adopted in respect of ‘any landlord or owner which is not a public authority’, he was very clear in indicating that his comments were restricted to actions by public authorities against public sector rented properties.133 Secondly, it is interesting to note that Lord Bingham considered the potential practical implications raised by his view of Article 8, especially in relation to the litigious burden and the ‘expense and delay’ that housing authorities would be subjected to as a result of his conclusion that a possession order was a prima facie interference with an occupier’s home. Lord Bingham indicated that, at the end of the day, the circumstances in which the court would decline to order possession at the request of a housing authority (that is, the circumstances in which the interference with the occupier’s rights would not be justified within Article 8(2)) would be ‘very highly exceptional’. Indeed, although Lord Bingham expressed his view that the case should be remitted to the County Court for consideration of the justification under Article 8(2), he did not seem to anticipate that Mr Qazi would ultimately be successful; rather, his concern was with the structure that the court’s reasoning should follow when applying Article 8 in the context of possession orders.

Lord Steyn Lord Steyn was broadly in agreement with Lord Bingham’s proposed approach. It is interesting to note some of the reasons he advanced in support of this approach, 131

Above n 127, [27]. Ibid. Finally, it was suggested that: ‘the vindication and fulfilment of the Convention rights, for which purpose HRA was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the Article 8(2) standards. Such a process is demanded by the fullness of our municipal law of human rights’: ibid. 133 Qazi, above n 11, [23], per Lord Bingham. 132

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particularly the comment that ‘[i]t would be surprising if the views of the majority on the interpretation and application of article 8 . . . withstood European scrutiny’.134 Indeed, the idea that a possession order was not an interference under Article 8(1), so that it was not necessary to consider the question of justification under Article 8(2), was described as: contrary to a purposive interpretation and application of article 8 read against the structure of the Convention. It is inconsistent with the general thrust of the decisions of the European Court of Human Rights, and of the Commission. It is contrary to the position adopted by the United Kingdom Government on more than one occasion before the European Court of Human Rights. It does not accord to individuals the full measure of the [protection] referred to . . . On the contrary, it empties article 8(1) of virtually any meaningful content.135

While the majority (Lord Hope, Lord Millett and Lord Scott) held that the fact that Mr Qazi had no arguable legal right to remain in the property meant that a possession order did not constitute an ‘interference’ with his right to respect for home, Lord Steyn agreed with Lord Bingham, on the ground that, ‘[i]f it had been sufficient to say that when an applicant has no arguable legal right to remain in a property article 8(1) is not engaged, such an obvious ground would inevitably have formed part of European exposition and reasoning’.136 Lord Steyn, like Lord Bingham, regarded the loss of possession to be an interference under Article 8(1), and considered it necessary for the court to evaluate the justification for such an interference, including the proportionality of that justification, under Article 8(2).

Lord Hope The majority of the House of Lords—Lord Hope, Lord Millett and Lord Scott— adopted a more restrictive approach. They held that, save in wholly exceptional circumstances, the grant of a possession order in favour of a landlord (or, they suggested, a mortgagee) who was entitled to possession of the property under domestic law by virtue of contractual or proprietary rights, would not constitute an infringement of Article 8(1). One of the key factors in Lord Hope’s judgment was the potential impact of a decision in favour of Mr Qazi on housing policies and procedures. Lord Hope was concerned that, if the court accepted that possession proceedings amounted to a prima facie ‘interference’ with the occupier’s right to respect for the home, so that the court was required to consider the justifications for evicting occupiers under Article 8(2)—including whether the interference was 134 135 136

Ibid, [27], per Lord Steyn. Ibid. Ibid, [30].

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proportionate—that this would have detrimental implications for landlords. His Lordship claimed that: The point of automatic possession proceedings is generally to provide a quick and reliable way of evicting tenants whose leases have by the operation of law been terminated. A procedure which gives a discretion to the court by requiring it to consider whether having regard to article 8(2) the making of the order would be proportionate is inimical to that purpose.137

It was clear that, as a matter of policy, Lord Hope was disinclined to require the court—in this case or as a matter of precedent—to justify the grant of a possession order under Article 8(2). Consequently, it was asserted that possession proceedings would not, per se, be regarded as an ‘interference’ under Article 8(1), so that it would not be necessary to justify the action under Article 8(2). Lord Hope focused on the emphasis on privacy in analyses of Article 8. As the discussion above has noted, it is interesting to consider this emphasis on privacy at home in the broader context of the range of meanings and values of home examined in Chapter 4. Empirical evidence has indicated that homes are meaningful to occupiers as a financial investment; as a physical structure for shelter; as valued territory; to satisfy various social and psychological needs; as an area of control; as a place of self-expression; as a secure environment; as the territory in which they can achieve privacy; as an aspect of identity; and as a socio-cultural unit.138 Out of this multiplicity of home meanings, Lord Hope, in his interpretation of the right to respect for home in Article 8, focused on privacy within the home. Lord Hope reasoned that, since the other limbs of Article 8—the right to respect for private and family life and correspondence—were concerned with privacy, the reference to respect for home in Article 8 was simply another aspect of the more general right to privacy afforded by Article 8.139 Article 8 was delineated as a provision conferring rights with respect to privacy in the home, but not with any of the other aspects associated with occupying the property as a home. In addressing the question whether Article 8(1) was ‘engaged’, Lord Hope recognised that, for the occupier ‘his removal from his home is bound to interfere with his enjoyment of that right at least to some extent’.140 Lord Hope accepted that Article 8 was ‘applicable’; that ‘[i]t is not irrelevant to [Mr Qazi’s] case’; and that ‘[i]n that sense the article is “engaged” ’.141 However, for Lord Hope, the case turned on the fact that under domestic law Mr Qazi’s tenancy had been term137

Qazi, above n 11, [38], per Lord Hope. See generally Ch 4. 139 ‘The emphasis is on a person’s home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person’s right to peaceful enjoyment of his home as a possession or as a property right’. Qazi, above n 11, [50]. 140 Ibid, [70], per Lord Hope. 141 Ibid, [71]. 138

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inated—as a result of Mrs Qazi’s notice to quit and the terms of the lease—and that ‘[i]n domestic law the making of an order for possession follows automatically’.142 Lord Hope emphasised the importance of the position under domestic law: ‘in view of the fundamentally subsidiary role of the Convention, which gives special weight to the domestic policy maker’.143 He claimed that he: would expect the European Court to attach much importance to the fact that it was clear from the outset of the respondent’s joint tenancy that it could be terminated by a notice to quit by one of the joint tenants, that the appellants’ right to immediate possession is in these circumstances unqualified in domestic law and that the premises, once recovered, will be available for letting to others who are in need of housing in their area.144

It is interesting to note that there were two elements to Lord Hope’s conclusion that ‘on these facts the proposition that there was a violation of article 8 was unarguable’.145 On the one hand, His Lordship based his decision on the fact that the council had an unqualified right to possession in domestic law; yet, at the same time, it was also clear that the exigencies of housing policy weighed heavily on his mind. Lord Hope accepted that Article 8(1) was engaged, but concluded that, in cases in which domestic law afforded an unqualified right to possession, Article 8(2) was met on proof that the tenancy had been terminated. Lord Hope accepted that a tenant might have an arguable case for justification under Article 8(2) in ‘wholly exceptional’ circumstances. He concluded, however—in agreement with Lord Millett and Lord Scott—that: ‘contractual and proprietary rights to possession cannot be defeated by a defence based on article 8’.146

Lord Millett Lord Millett agreed with the majority decision, that is, that there was no need to consider the issue of justification under Article 8(2) when the party applying for a possession order had contractual and proprietary rights giving rise to an entitlement to possession of the property. Lord Millett also emphasised the idea that Article 8 was directed towards privacy at home rather than protection of home. His Lordship described a person’s ‘home’ for the purposes of Article 8 as: the place where he and his family are entitled to be left in peace free from interference by the state or agents of the state. It is an important aspect of his dignity as a human being, and is protected as such and not as an item of property.147 142 143 144 145 146 147

Ibid, [74], per Lord Hope. Ibid. Ibid, [77], per Lord Hope. Ibid. Ibid, [84], per Lord Hope. Ibid, [89], per Lord Millett.

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Lord Millett agreed that the property was still Mr Qazi’s ‘home’; furthermore, he rejected the proposition, asserted by Lord Steyn, that the views of the majority that no Article 8(2) justification was necessary where the party seeking possession was entitled to possession under domestic law based on their contractual and proprietary rights ‘emptied Article 8 of virtually any meaningful content’. Lord Millett claimed that, even though the occupier had no proprietary right to remain in the property, he was still protected against interferences by the state in respect of privacy issues, for example, an unlawful search of his premises without a warrant. Lord Millett accepted that Article 8 was ‘applicable’; he added, however, that ‘it does not follow that it was even arguably infringed’.148 Lord Millett claimed that, ‘[i]n my opinion article 8 is not ordinarily infringed by enforcing the terms on which the applicant occupies premises as his home’.149 It is interesting to note, however, that, although Lord Millett expressed himself as in agreement with Lord Hope and Lord Scott, he did adopt a slightly different approach to the question of Article 8(2): Lord Millett appeared to allow greater scope for the court to consider Article 8(2) justifications under cases of this nature. He claimed that Article 8(1) could not be understood in isolation, but must be considered alongside Article 8(2), since ‘article 8(2) gives meaning to that concept and limited the scope of the article’.150 Lord Millett considered the fact that ‘interferences’ with the right to respect for home must not be arbitrary and must be in accordance with law; he also noted that ‘the interference must also be justified’.151 A key feature of Lord Millett’s speech, however, was his claim that: In most cases article 8(2) calls for a balance to be struck between the applicant’s right to ‘respect’ for his home and some competing public interest, such as national security, public safety, the prevention of disorder or crime, the protection of health and morals, and so on . . . article 8(2) also permits interference with the right where it is necessary ‘for the protection of the rights and freedoms of others’. Those others include but are not limited to private citizens. They include land owners whether they are private citizens or public authorities.152

A crucial element in Lord Millett’s discussion of Article 8(2) was his view that ‘[c]onsideration of the question whether interference with the right is “necessary for the protection of the rights and freedoms of others” may also call for a balance to be struck, but it need not do so’.153 Lord Millett claimed that in some circumstances the balancing exercise under Article 8(2) is already carried out by the court in the domestic law. In such cases, 148 149 150 151 152 153

Qazi, above n 11, [100], per Lord Millett. Ibid. Ibid. Ibid, [101], per Lord Millett. Ibid, emphasis added. Ibid, [102], per Lord Millett.

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His Lordship claimed that, ‘[p]rovided that [the court] carries out the exercise properly and in accordance with the ordinary law, there is no need to give separate consideration to article 8’.154 This is particularly interesting in light of the overarching argument advanced in this book: that the subject of home has been relatively under-conceptualised in legal analysis and, as a result, the content of the home interest—that is, the meanings and values that the home represents to occupiers and the impact of losing the home in a creditor possession action—has tended to be trivialised or overlooked within domestic law and policy making. The purpose of considering the human rights framework imposed by the European Convention on Human Rights and its incorporation through the Human Rights Act 1998 was to assess the scope for developing a more coherent legal concept of home within the context of Article 8. One of the advantages, it has been suggested, of analysing the creditor/occupier contest within the framework of Convention rights is the fact that, when it comes to ‘qualified rights’ or to balancing competing Convention rights, the principle of proportionality provides a means by which the impact of any ‘interference’ can be taken into account. However, Lord Millett’s judgment in Qazi demonstrated judicial reluctance to employ the framework of Article 8 to this end. Although Lord Millett recognised the court’s role in conducting a balancing exercise in the context of the qualified rights, he claimed that ‘no such balancing exercise need be conducted where its outcome is a foregone conclusion’.155 Since the housing authority was entitled to possession as a matter of domestic law, Lord Millett claimed that ‘there was simply no balance to be struck’.156 Finally, it is important to note that, while Lord Millett’s conclusions relied on the fact that the housing authority was entitled to possession as a matter of domestic law,157 His Lordship also made it clear that he did not confine his comments to cases in which the landlord was entitled to possession without a court order. This is important in relation to creditor possession actions: one of the key distinctions that can be drawn between Mr Qazi’s case and a creditor possession action is that, while Mrs Qazi’s notice to quit had brought the tenancy to an end, leaving Mr Qazi with no property right and the landlord entitled absolutely to possession, in the case of creditor possession actions, the debtor retains some property right until the land is sold.158 The range of actions that may be brought against property that has been used as security for a debt was considered in Chapter 2. A key issue to bear in mind when considering entitlement to possession of the property is that a mortgagee is 154

Ibid. Ibid, [103], per Lord Millett. 156 Ibid. 157 ‘[S]ave in wholly exceptional circumstances . . . there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law’: ibid, [107], per Lord Millett. 158 The doctrine of the ‘equity of redemption’ provides that the mortgagor must be able to recover unencumbered title in the mortgaged property once the debt is discharged and the mortgage redeemed. 155

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entitled to take possession of it ‘as soon as the ink is dry on the mortgage’.159 This right to possession is usually excluded in the contract until there is a default; however, once the debtor defaults, a legal mortgagee is entitled to possession. Although an equitable mortgagee does not enjoy this automatic right to possession unless there is an express provision in the mortgage deed, the consent of the mortgagor is given, a receiver is appointed or a court order is made granting possession, an equitable mortgagee who is concerned about enforcing possession is entitled to call for a legal mortgage or for specific performance of the mortgage contract, which would make available appropriate remedies, including an order for possession. However, since these remedies are discretionary, they are not ‘as of right’. Furthermore, in cases in which the creditor’s proprietary security extends over only part of the property—for example, the share of one co-owner—the creditor is not entitled to possession, but must apply to the court for the right to take possession of the property.160 Lord Millett did not distinguish between cases in which the party applying for possession was entitled to possession without a court order and those in which the court would order possession under the ordinary domestic law. He concluded by stating that: The fact that a person cannot be evicted without a court order does not mean that the court, as a public authority, is bound in each case to consider whether an order for possession would be disproportionate and infringe article 8 rights.161

According to Lord Millett, the court was required only to consider whether the party seeking possession would be granted a possession order under domestic law; once the court concluded that the landlord would be granted an order for possession, there was ‘nothing further to investigate’.162 This effectively closed off any consideration of the nature of any justification (that is, the interests operating against the home interest), as well as avoiding any evaluation of the proportionality of the balance struck between the competing interests. The Article 8 argument was dismissed at the first hurdle. The prospect that the balance struck between the right to ‘respect for home’ and the competing interest, and the proportionality of any justifiable interference would be explicitly worked out in the court—taking account of the nature of the competing interests and the degree of harm that any interference would do to the right at stake—was denied.

159

Four-Maids Ltd v Dudley Marshall Ltd [1957] Ch 317. See, eg, Williams & Glyn’s Bank Ltd v Boland [1981] AC 487; Albany Home Loans Ltd v Massey [1997] 2 All ER 609; in cases involving co-owned land, such applications must now be made under s 14 of the Trusts of Land and Appointment of Trustees Act 1996. 161 Qazi, above n 11, [108], per Lord Millett. 162 Ibid. 160

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Lord Scott The fifth speech was delivered by Lord Scott, who broadly agreed with the views of Lord Hope and Lord Millett: that is, that it was not necessary to consider the justifications under Article 8(2) before granting a possession order against Mr Qazi. Lord Scott followed a similar reasoning process to that adopted by Lord Millett, and his speech relied on the decision of the European Commission in Wood v UK,163 as authority for the proposition that ‘a mortgagor cannot invoke article 8 in order to diminish the contractual and proprietary rights of the mortgagee under the mortgage. Article 8 is simply not applicable’.164 He rejected the idea that ‘article 8 diminishes the contractual and proprietary rights of the mortgagee in the case of a mortgage of residential property’.165 In fact, he did not appear to accept the relevance of Article 8 to this type of case at all. He reasoned that: [i]f article 8 does not vest in the home-occupier any contractual or proprietary right that he would not otherwise have, and does not diminish or detract from the contractual or proprietary rights of the owner who is seeking possession . . . [t]he fate of every possession application will be determined by the respective contractual and proprietary rights of the parties. Article 8 can never constitute an answer.166

The tenancy had been terminated ‘in a manner consistent with its contractual and proprietary incidents’; therefore, the possession action did not show a lack of ‘respect for home’.

The Impact of the Decision in London Borough of Harrow v Qazi for Creditor/Occupier Disputes The major significance of the decision in Qazi was the majority’s conclusion that, although both the application of qualified provisions and the resolution of disputes involving conflicting convention rights usually require the court to balance the competing interests at stake with due regard to the principle of proportionality, this was unnecessary when the relevant interests were the landlord’s property right and the occupier’s home right, and the landlord was entitled to possession under the domestic law. As Lord Scott concluded, ‘an article 8 defence can never prevail against an owner entitled under the ordinary law to possession’.167 The landlord thus enjoyed automatic priority in domestic law, and, based on these 163 164 165 166 167

Above n 125. Qazi, above n 11, [135], per Lord Scott. Ibid, [136]. Ibid, [144], per Lord Scott. Ibid, [152], per Lord Scott.

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findings, the incorporation of Article 8 into domestic law has not brought any greater weight to bear on the side of the occupier’s home interest. Although the weight attached to the contractual and proprietary claims of the landlord was influenced by several factors, including the obligation to protect property rights and the housing policy context, the lack of weight conferred on the home interest was also a key factor in the outcome of this decision. While the landlord’s claim was rooted in the conceptually solid terrain of contractual and proprietary rights, the tenant’s home argument appeared insubstantial and incoherent by comparison. Lord Scott’s closing comments provide a useful summary of the difficulties associated with the idea of home in law, which are explored in this book. Since, it was argued, Mr Qazi would not have had the opportunity to establish a home in the property had it not been for the contractual tenancy granted by the landlord, Lord Scott asked: [h]ow could the termination of that tenancy in a manner consistent with its contractual and proprietary incidents be held to constitute a lack of respect for the home that had been thus established? The home was always subject to those contractual and proprietary incidents. The contrary view seems to me to treat a ‘home’ as something ethereal, floating in the air, unconnected to bricks and mortar and land.168

Lord Scott suggested that, once the contractual and proprietary rights associated with Mr Qazi’s occupation of the property were terminated, nothing tangible remained on which to found a ‘home’ interest. This captures quite neatly a major obstacle in judicial thinking in relation to the concept of home. In law, home is most readily understood as the house, which exists as both a physical structure and a representative of an economic asset; rights can exist in respect of ‘bricks and mortar and land’, and interests are recognised in the capital asset represented by the home; however, when it comes to the other meanings of home—the ‘x factor’ meanings—it remains difficult for lawyers to comprehend that type of claim. Despite early indications that suggested some scope for the protection of occupiers in possession proceedings through the right to respect for home in Article 8, the decision of the House of Lords in Qazi negated this possibility by prioritising the proprietary and contractual interests of landlords and, by analogy, mortgagees, rather than the home interests of occupiers. Furthermore, Qazi is authority for the principle that, in cases where the party applying for possession has a contractual and proprietary right to possession, there is no need to consider whether the order was justified under Article 8(2), or whether it is a proportionate measure. Although the House of Lords emphasised that, so far as the definition of ‘home’ was concerned, it was ‘an autonomous concept which does not depend on classification under domestic law’.169 the relevance of existing domestic law so far as the 168 169

Qazi, above n 11, [145], per Lord Scott. Ibid, [9], per Lord Bingham.

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parties’ rights were concerned was patent. When considering whether Mr Qazi had suffered an Article 8(1) interference with his home, Lord Millett emphasised that the court ‘would, of course, have to consider whether the landlord was entitled to possession as a matter of ordinary domestic law (ie apart from the Human Rights Act 1998), taking into account the various statutory provisions which operate in this field’.170 Having concluded that the council was, in the circumstances, entitled to exercise its contractual and proprietary right to possession, Lord Scott described the failure of the Article 8 argument as ‘inevitable’, since ‘an Article 8 defence can never prevail against an owner entitled under the ordinary law to possession’.171 The supremacy of the domestic position was emphatically brought home by Lord Millett’s claim that, ‘once [the court] concludes that the landlord is entitled to an order for possession, there is nothing further to investigate’.172 The significance of the principles set out in Qazi for creditor/occupier disputes has been emphasised by subsequent decisions in which courts have relied on the Qazi approach to justify decisions that there is no Article 8 protection for occupiers so long as the requirements of domestic law have been complied with.173 For example, in Hosking v Michaelides,174 the Qazi approach was applied by the court to avoid an Article 8 argument in relation to a possession action affecting an owner-occupied family home in the context of bankruptcy.175 Similarly, in Barca v Mears,176 Mr Nicholas Strauss QC, sitting as a Deputy Judge of the High Court, considered the compatibility of the court’s practice—that is, to order sale of the home in cases involving bankruptcy unless the circumstances were exceptional— with Article 8 of the Convention. Counsel for Mr Barca invoked Article 8 on the ground that ‘insolvency legislation in this area is particularly brutal and contrary to the average concept of fundamental freedoms and rights’.177 Yet, while the court concluded that the property should be sold in the interests of the creditors, it is interesting to note that the High Court—in a case heard one year after the

170

Ibid, [97], per Lord Millett. Ibid, [152], per Lord Scott. 172 Ibid, [108], per Lord Millett. 173 The decision of the House of Lords in Qazi has subsequently been applied in several Court of Appeal decisions involving landlord/tenant disputes: see Newham London Borough Council v Kibata [2003] EWCA Civ 1785; Birmingham City Council v Bradney, Birmingham City Council v McCann [2003] EWCA Civ 1783; Lough and others v First Secretary of State [2004] EWCA Civ 905. Furthermore, as Auld LJ noted in Lambeth Borough Council v Kay [2004] EWCA Civ 926, on 11 Mar 2004 ECtHR has ruled that Mr Qazi’s application to it did not disclose any appearance of a violation of the Convention or its protocols and declared it inadmissible. 174 [2004] All ER (D) 147. 175 ‘I would not have been prepared to hold that section 336 of the Insolvency Act 1986, construed in accordance with the approach in Re Citro was incompatible with Article 8 of the Convention on Human Rights having regard to the way in which Article 8 was construed by the majority of the House of Lords in Harrow London Borough Council v Qazi’: ibid, [70], per Paul Morgan QC. 176 [2004] EWHC 2170. 177 Ibid, [33]. 171

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decision of the House of Lords in Qazi—did not mention this decision in its discussion of Article 8 and eviction from the family home. In Barca v Mears, the court did express some concern that the approach adopted towards forced sale of the family home in circumstances of bankruptcy was incompatible with Article 8. It is interesting to note that the court considered the compatibility of the court’s policy of ordering the sale of a bankrupt’s family home once a year had passed (unless the circumstances were ‘exceptional’) within the framework of Article 8(2), and in accordance with the principle of proportionality. In fact, Mr Strauss accepted that: ‘[t]he state must have regard “to the fair balance that has to be struck between the general interests of the community and the interests of the individual, the search for which balance is inherent in the whole Convention”’;178 and that ‘interferences’ must be justified by reference to: whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, [and] whether the reasons given by the national authorities to justify it are relevant and sufficient.179

The proportionality test also includes consideration of whether the objective pursued is sufficiently important to justify the limitation on the fundamental right; whether the measures designed to meet the rational objective are rationally connected with it; and whether the means used to impair the right or freedom are no more than is necessary to accomplish the legitimate objective.180 Although the judge accepted that the sale of the bankrupt’s family home would be justifiable ‘in many or perhaps most cases’, it is important to recognise that the court did question the ‘narrow approach’ of prioritising the claims of creditors unless the circumstances were ‘exceptional’. Mr Strauss noted that this practice: requires the court to adopt an almost universal rule, which prefers the property rights of the bankrupt’s creditors to the property and/or personal rights of third parties, members of his family, who owe the creditors nothing.181

The presumptive priority attributed to the collective interests of the creditors in a bankruptcy action clearly caused the judge to question the compatibility of the provision with Article 8. This case was resolved, however, by distinguishing between presumptive priority and absolute priority. The judge went on to state that:

178 179 180 181

[2004] EWHC 2170, [38]; quoted from Cossey v UK (1990) 13 EHRR 622, [37]. Sunday Times v UK (1979) 2 EHRR 245 at 277–8. Barca v Mears, above n 176, [38]. Ibid, [39].

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The eviction of the family from their home, an event that naturally ensues from the operation of the presumption of sale in s335A, could be considered to be an infringement of the right to respect for home and family life under Article 8 if the presumption is given absolute priority without sufficient consideration being given to the Convention rights of the affected family.182

Another interesting aspect of this decision was the court’s emphasis on the impact of the possession action on the family rather than the impact of loss of home. As the discussion of Article 8 above has noted, the court has some scope to consider the right to respect for ‘home’ conjunctively with the right to respect for private life and family life. Bearing this possibility in mind, it is arguable that the judicial tendency to prefer family home over home per se—as discussed in Chapter 7— might encourage the courts to consider adapting their policy approach under Article 8, thus leading to greater recognition for the right to respect for family home. Although the judge agreed, on the facts of this case, that the order should be granted, he did suggest that a principle that treats the loss of home as part of the ‘usual melancholy consequences’ of bankruptcy, so as to automatically prioritise the interests of creditors no matter how severe those consequences were,183 was potentially incompatible with Article 8. Such an approach would preclude any consideration of proportionality. Indeed, the idea of striking a proportionate balance, taking account of the extent of any interference, the justificatory factors and the degree of harm done to the right by allowing the order for sale, was evident in the court’s reasoning in this case. The court noted that sale was likely to produce a substantial surplus—presumably thus enabling Mr Barca to purchase another property. Mr Barca was not a custodial parent, but his son, who had special educational needs, made regular visits to his home. Mr Barca requested a postponement for at least three years—until his son’s educational needs would no longer be relevant. However, the court concluded that this would amount to substantial prejudice for his creditors. The court took account of the fact that the child’s educational problems were not extreme; that there was no question of the child having to move school, since Mr Barca was not the custodial parent; and, finally, the court was not persuaded of the impact that the forced sale of the house would have on Mr Barca’s ability to help his son. Although the court concluded that the order should be granted, the approach adopted in Barca v Mears provides a clear example of how the structure of Article 8 could be given effect to through the court’s reasoning process. Following the general approach set out in Article 8, the court could consider the interference with the occupier’s right to respect for home constituted by a possession order and 182

Ibid. So long as the consequences were of the usual nature; the consequences would qualify as ‘exceptional’ only if they were of an unusual type—eg, a terminal illness: ibid [40]–[41]. 183

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eviction from the home; consider the legitimate aim pursued in a possession action—that is, enforcing the creditor’s rights; and consider whether the interference is proportionate, by assessing whether it is the minimum necessary to achieve the legitimate aim, and balancing the harm that would be done by allowing the creditor to repossess the property against the harm that would be done to the creditor’s rights by either refusing—or, more likely, delaying—the proceedings.184 This approach would require an assessment of the interests on both sides, and a fuller analysis of the nature of the competing interests, as well as the impact of the possession proceedings, compared to the approach taken by the House of Lords in Qazi. The decision in Barca v Mears is of limited weight as a matter of authority: the judge’s suggestion that the requirement of ‘exceptional circumstances’ to justify refusing an order for the sale of the family home in the context of bankruptcy should be re-interpreted in light of Article 8 was an obiter suggestion in a High Court case. While it is interesting to note that the court did not appear to feel constrained in its application of Article 8 by the decision of the House of Lords in London Borough of Harrow v Qazi, the judge in Barca v Mears appeared to be swimming against a strong tide in relation to the House of Lords’ interpretation of Article 8 in the context of actions for possession and sale. Nevertheless, there are two outstanding issues to be considered in relation to the prospect for further development of the court’s approach in Barca v Mears: first, the next section considers whether there may, in certain circumstances, be some scope for bringing an Article 8 claim in conjunction with a claim for discrimination under Article 14 of the Convention; secondly, the Qazi approach can be reviewed in light of subsequent decisions of the European Court of Human Rights, the English Court of Appeal and the decisions of the House of Lords in Kay v London Borough of Lambeth and Leeds City Council v Price.

Article 14 in Conjunction with Article 8 Even accepting the authority of the decision in Qazi, it is appropriate to consider whether there is any scope for developing the ‘right to respect for home’ in the context of creditor possession actions by combining an Article 8 argument with a claim under Article 14 in respect of unlawful discrimination in relation to the right to respect for home. In Qazi, each of the five speeches in the House of Lords referred approvingly to the decision in Larkos v Cyprus,185 which involved a successful claim to a breach of the right to protection against discrimination in Article 14, in conjunction with the right to respect for home in Article 8, based on 184 185

See Fenwick and Phillipson, above n 8, Chs 2 and 16. (1999) 30 EHRR 597.

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a difference in treatment which adversely affected the enjoyment of the right to respect for home. The key issue in Larkos v Cyprus was the fact that the government had discriminated against the applicant in relation to his right to respect for home because the law protected some tenants from eviction after the termination of their tenancies, but not others, and there was no legitimate reason for the difference in treatment. The European Commission reasoned that, ‘[s]ince this law regulated the right to respect for one’s home under article 8 of the Convention, it must apply in a non-discriminatory manner in accordance with article 14 thereof’.186 The applicability and effect of Article 14 in conjunction with Article 8 was also considered by the House of Lords in Ghaidan v Godin-Mendoza,187 discussed above. It is important to note that to bring an action for breach of Article 14 in conjunction with Article 8 it is not necessary to demonstrate a prima facie breach of Article 8 itself, but merely to show that the case fell ‘within the ambit of article 8’.188 In Ghaidan v Godin-Mendoza, the House of Lords held that: Article 8 does not require the state to provide security of tenure for members of a deceased tenant’s family. Article 8 does not in terms give a right to be provided with a home . . . It does not ‘guarantee the right to have one’s housing problem solved by the authorities‘. . . But if the state makes legislative provision it must not be discriminatory.189

If the principles or provisions of domestic law do disclose a difference in treatment in a matter falling with the ambit of a Convention right, it is necessary to consider whether the difference in treatment pursues a legitimate aim, and whether there is a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.190 There is, it is suggested, some scope for considering whether the provisions of domestic law concerning the interests of child occupiers disclose a case of discrimination under Article 14 in conjunction with Article 8. The treatment of child occupiers in creditor/occupier disputes was considered in Chapter 9. One of the issues highlighted in that chapter was the fact that the question whether or not children’s interests are taken into account in creditor possession actions depends on whether the property is solely owned or co-owned. When property is solely owned, a mortgagee may, so long as the mortgage was made by deed, be able to conduct an out-of-court sale if certain requirements are satisfied; alternatively, a secured creditor may apply for an order for the sale of the property 186 187 188 189 190

Ibid, 605, [32]. Above n 28. Larkos v Cyprus, above n 180, [28]; see also Rasmussen v Denmark A/87 (1984) 7 EHRR 371. Above n 28, [6], per Lord Nicholls. Ibid, [18].

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under section 91 of the Law of Property Act 1925, and the court can order a sale at its discretion.191 In addition, when property is solely owned by the debtor, any defence to possession proceedings must be brought under section 36 of the Administration of Justice Act 1970. The court has a discretion to postpone possession proceedings, but only if it is satisfied that the debtor is likely to be able to pay ‘any sums due’ within a reasonable period.192 When property is jointly owned, actions for possession and sale are brought under section 14 of the Trusts of Land and Appointment of Trustees Act 1996. A crucial distinction in relation to child occupiers is that applications brought under section 14 are determined with reference to guidelines set out in section 15, directing the court to take account of various factors when exercising its discretion to order possession and/or sale. These factors include, under section 15(1)(c), the welfare of any minor occupiers.193 Furthermore, as the discussion in Chapter 9 indicated, it was consideration of the interests of child occupiers that persuaded the court to refuse immediate sale in Edwards v Lloyd’s TSB Bank.194 This difference in treatment for child occupiers—whose interests are one of the factors taken into account in actions for possession and sale of a co-owned home, but are irrelevant in actions against solely owned property—may give rise to an arguable case for unfair discrimination under Article 14. The question for the court would be whether the difference in treatment pursued a legitimate aim and was proportionate. While the fact that actions for possession and sale are brought under these different statutory frameworks stems from the fact that, in the case of co-owned land, the creditor may have an action against part of the ownership interest, rather than the whole of the property, the difference in treatment for a child occupier will depend on whether the adult owner(s) are in partnership with another or not. In practice, this discriminates against the children of sole owners, including the children of single parents, since the court is not directed to take account of the interests of child occupiers under section 91 of the Law of Property Act 1925, and has no scope to take account of their welfare when the creditor proceeds by way of an out-of-court sale under sections 101–103 of the Law of Property Act 1925. In cases involving out-of-court sale, the only possible defence for an occupier—including child occupiers—lies with section 36 of the Administration of Justice Act 1970; however the court’s discretion under section 36 is strictly constrained by consideration of financial factors, and the welfare interests of child occupiers is not relevant. The issue for a court to consider if an action was brought under Article 14 in conjunction with Article 8 would be whether this difference in treatment pursues a legitimate aim and is proportionate to that aim. In weighing this balance, it is important to bear in mind the weight that has been attached to child welfare argu191 192 193 194

See Ch 9, nn 47–49 and associated text. See Ch 9, nn 50–53 and associated text. See Ch 9, nn 79–99 and associated text. [2004] EWHC 1745; see Ch 9, nn 100–110 and associated text.

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ments in Convention case law, especially in the context of Article 14.195 When it comes to taking account of child welfare arguments in domestic law, Fortin has argued that: To date, the notion that children have rights and that these must be fully acknowledged and promoted has been regarded with some suspicion in the United Kingdom. Even the government’s ratification (in 1991) of the UN Convention on the Rights of the Child failed to ensure that legislators took full account of the rights of this minority group . . . The Human Rights Act demands a more sympathetic government response to calls to fulfil children’s rights . . . Above all, when considering children’s claims, the courts must adopt a far more rights-oriented approach.196

At present, the English law provides different treatment for child occupiers in the context of creditor/occupier disputes depending on whether the property is owned solely or jointly. The welfare of minor occupiers is a relevant factor for consideration in actions concerning co-owned land, but the interests of children are not specifically identified in the context of the judicial discretion to order the sale of solely owned land under section 91 of the LPA 1925. Furthermore, the interests of child occupiers are clearly irrelevant to the procedures for out-of-court sale of solely owned land or the discretion to delay possession proceedings under section 36 of the Administration of Justice Act 1970, which is likely to be the principal defence against loss of the solely owned home. Unless it could be shown that this difference in treatment pursued a legitimate aim and was proportionate to that aim, there might be an arguable case to answer on this issue under Article 14 in conjunction with Article 8.

After Qazi: Conflicting Convention Case Law Finally, it is interesting to note that the decision of the House of Lords in Qazi, which appeared, by and large, to eliminate the possibility of bringing home meanings to bear in creditor/occupier disputes under the remit of the proportionality principle, has been rejected by the European Court of Human Rights, and its standing in domestic law has been questioned by the Court of Appeal and reconsidered in the House of Lords. In Connors v UK,197 a judgment given by the European Court of Human Rights after the House of Lords judgment in Qazi, the Court applied Article 8—in a case in which the occupier had no proprietary or contractual right and the claimant was entitled to possession—by considering 195 See Elsholz v Germany, App no 25735/94; Hoppe v Germany, App no 28422/95; Hansen v Turkey, App No 36141/97. 196 J Fortin, ‘The Human Rights Act 1998: Human Rights for Children too’ in B Franklin, The New Handbook of Children’s Rights: Comparative Policy and Practice (London, Routledge, 2001) 121–2. 197 App No 66746; judgment, 27 May 2004.

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whether the eviction was justified as ‘necessary in the interests of a democratic society’. The parties had agreed that the eviction of the claimant—a gypsy living on a local authority site—disclosed an interference with his right to respect for his private life, family life and home; and they also agreed that the interference was in accordance with law, and pursued a legitimate aim. The main question considered by the Court was whether the interference was ‘necessary in a democratic society’ in pursuit of that aim. In Connors v UK, the European Court of Human Rights described Article 8 as being concerned with ‘rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community’.198 These factors clearly echo the types of value identified in Chapter 4 as comprising the meanings and values of home. It is also interesting to note that the European Court applied a proportionality test to the interference which eviction constituted with Mr Connors’ right to respect for home. It was stated that: Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant.199

Indeed, the importance of the proportionality analysis was emphasised even further in the next paragraph, when the court indicated that: The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.200

The European Court of Human Rights clearly emphasised the need for the decision-making process to be considered from a proportionality perspective. This approach reflects the views of the minority in Qazi, and would allow greater scope for consideration of the meanings and values encompassed within the home interest, and for allowing these interests to be weighed in a genuine balancing exercise with the competing claims of the party seeking possession. The incompatibility of the decisions in Connors v UK and London Borough of Harrow v Qazi was considered by the Court of Appeal in Price v Leeds City Council.201 Lord Phillips, MR, gave the judgment of the Court, which held that: 198 199 200 201

App No 66746; judgment, 27 May 2004, [82]. Ibid. Ibid, [83], emphasis added. [2005] EWCA Civ 289.

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[t]he decision in Connors is unquestionably incompatible with the proposition that the exercise by a public authority of an unqualified proprietary right under domestic law to repossess its land will never constitute an interference with the occupier’s right to respect for his home, or will always be justified under Article 8(2).202

Furthermore, although it was argued, in Price that the decision in Connors could be distinguished as being confined to the treatment of gypsies, the Court of Appeal held that the approach adopted by the European Court of Human Rights was not so restricted; rather, Lord Phillips held that Connors was authority for the fact that the issues of justification and proportionality must be considered under Article 8(2), even where the party seeking a possession order has an absolute right to possession under domestic law. Lord Phillips claimed that ‘[s]tatutory regimes that govern obtaining possession of land must be open to scrutiny’.203 The Court of Appeal held that, while ‘[t]he decision in Connors does not exclude the possibility that a particularly statutory regime may itself achieve the balance required by Article 8(2), so that, if the judge complies with it, the requirements of Article 8(2) will be satisfied’,204 that: Equally, however, the decision in Connors does not exclude the possibility that, if a statutory regime is to comply with the Convention, it must require a public authority to weigh in the balance the impact of its actions on the individual affected and permit the individual affected to challenge in the courts the conclusion reached by the public authority.205

Faced with conflicting decisions of the European Court of Human Rights and the House of Lords, the Court of Appeal decided to follow the House of Lords decision in Qazi, but to give leave for the applicant to appeal to the House of Lords. This gave the House of Lords another opportunity to reconsider the law in the light of the decision in Connors and, if it so wished, to overrule itself.

Kay v London Borough of Lambeth and Leeds City Council v Price Finally, this chapter considers the decision of the House of Lords in the conjoined appeals of Kay v London Borough of Lambeth and Leeds City Council v Price.206 The decision in Kay and Price is important for the discussion in this chapter because the House of Lords reviewed its earlier decision in London Borough of Harrow v Qazi,207 202 203 204 205 206 207

Ibid, [26]. Ibid, [29]. Ibid. Ibid. [2006] UKHL 10. The House of Lords delivered its judgment in this case on 8 Mar 2006. Above n 7.

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concerning the impact of Article 8 in possession proceedings against a person’s home, in light of the apparently conflicting approach adopted by the European Court of Human Rights in Connors v United Kingdom.208 The facts of the two cases raised some discrete issues: in Kay, the defendant was lawfully in possession of property belonging to the local authority before his rights of occupation were terminated and a possession order was sought, while in Price the defendants were gypsies who had entered the local authority’s property unlawfully, and had remained there for only two days before the local authority issued proceedings for possession of the property. The House of Lords accepted, however, that both cases raised an important common issue concerning the scope and application of the right to respect for the home provided by Article 8 of the European Convention on Human Rights and the Human Rights Act 1998.209 The House of Lords, sitting as an Appellate Committee of seven, handed down six substantive opinions (Lord Walker, in a brief speech, agreed with Lord Bingham and Lord Nicholls). The majority view on the implications of Article 8 for possession proceedings can be found in the speeches of Lord Hope, Lord Scott, Baroness Hale and Lord Brown. The relevance of this case for creditor possession actions concerning the occupied home was alluded to in Lord Hope’s leading judgment, when he stated that the questions set out in the appeal ‘are important questions, as the answers to them will affect all cases in which the owner of land seeks to recover possession from someone who has no right under domestic law to remain there’.210 Nevertheless, it is perhaps noteworthy that, while the House of Lords in Qazi explicitly referred to the circumstances of mortgage possession actions as being analogous to possession actions brought by a landlord, in Kay and Price the House of Lords did not highlight this particular analogy. In fact, although their Lordships’ discussion on Article 8 was to some extent generic, much emphasis was laid on a specific issue at stake in these two cases: namely, the effects of interfering with local authority housing policies in light of their role in managing public sector housing pursuant to the democratic will of Parliament, as expressed in the housing legislation. Indeed, although the House of Lords ‘clarified’ the ratio of Qazi 211 to recognise that the eviction of an occupier could constitute an ‘interference’ with the occupier’s right to respect for his or her home under Article 8, the majority agreed that, in making such an order, the court was entitled to assume for the purposes of Article 8(2) that the domestic law had struck the right balance between the competing interests at stake—in these cases, between the occupiers and the local authority landlords.

208

Above n 197. Lord Bingham’s judgment also addressed the important issue of precedent between decisions of the House of Lords and the ECtHR following the Human Rights Act 1998: see especially [40]–[45]. 210 Above n 206, [64]. 211 Ibid, [113]. 209

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The main point of departure for Lord Bingham and Lord Nicholls—with whom Lord Walker agreed—concerned the opportunities afforded to an occupier to argue that the Article 8(2) justifications were not met in any given case. All of the judges agreed that in the vast majority of cases the fact that the landlord was entitled to possession as a matter of domestic law would automatically supply the justification required under Article 8(2). All of the judges agreed that the public authority landlord could not be required, from the outset, to plead and prove that the possession order was justified, as ‘[t]hat would, in the overwhelming majority of cases, be burdensome and futile’.212 However, Lord Bingham argued that: where a public authority seeks to evict a person from premises which he occupies as his home, that person must be given a fair opportunity to contend that the excepting conditions in article 8(2) have not been met on the facts of his case . . . If the occupier wishes to raise an article 8 defence to prevent or defer the making of a possession order it is for him to do so and the public authority must rebut the claim if, and to the extent that, it is called upon to do so.213

Lord Bingham added that ‘[i]n the overwhelming majority of cases this will be in no way burdensome. In rare and exceptional cases it will not be futile’.214 The majority position, in contrast, was that it was not necessary to afford such opportunity to individual occupiers in individual cases; rather, while it was important to ensure that, where there was a ‘live question’ in relation to a Convention right there would be some means in place for the question to be dealt with appropriately, Lord Hope claimed that ‘a system which provides for all other cases where possession is sought to be dealt with simply and summarily will not be objectionable’.215 The important distinction between the two positions was that the majority did not consider a ‘merits review’—or even the opportunity of conducting such an analysis—to be necessary in every case. Lord Hope alluded to the underlying systemic issues at stake when he reasoned that: if it were to be open to a defendant to raise this issue in the county court in every case where the premises are occupied as his home, this would have serious consequences for the system which Parliament has chosen for dealing with possession cases.216

In fact, Lord Hope’s position was closest to that of the majority in Qazi, since he claimed that the position adopted in Qazi was not so extreme as to have stated that the exercise of an unqualified right to possession would never constitute an 212 213 214 215 216

Ibid, [29], per Lord Bingham. Ibid. Ibid. Ibid, [70]. Ibid, [85].

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interference, or that it would always be justified.217 However, Lord Hope emphasised the importance of going no further than the Strasbourg case law went (‘no more and no less’), and concluded that this obviated any defence based on the occupier’s personal circumstances which did not challenge the law under which the possession order was being sought as being incompatible. Lord Hope concluded that if domestic law allowed personal circumstances to be taken into account, then a fair opportunity must be given for the arguments in favour of the occupier to be presented; however, if the right to recover possession under domestic law was unqualified, the only cause for argument would be that the law was incompatible with Article 8 or that the public authority has exercised its powers improperly, on the ground that no reasonable person could consider it justifiable.218 Although this approach broadly represented the majority position, it is important to note that, as was the case in Qazi, each speech adopted a slightly different emphasis. On the issue of whether or not the personal circumstances of the individual occupier could be taken into account, Lord Scott acknowledged that there were some inconsistencies in the Strasbourg case law with regard to the relevance of personal circumstances in landlord and tenant disputes: in Ure v United Kindgom219 and Marzani v Italy,220 the European Commission and the European Court of Human Rights had taken account of the personal circumstances of the individual occupiers—for example, medical conditions—when determining whether the eviction was ‘necessary in a democratic society’ for the purposes of Article 8(2).221 However, Lord Scott was satisfied that the broad thrust of the Strasbourg case law— before and after Connors—was consistent with the approach adopted by Lord Hope and with the decision in Qazi.222 Lord Scott concluded that, in a case in which the home occupier had no contractual or proprietary right to remain in possession as against the owner of the property, an Article 8 defence which was based on no more than the personal circumstances of the occupier could not succeed.223 Indeed, even though Lord Bingham was more liberal on the importance of affording the opportunity to occupiers to bring a claim under Article 8, he was also adamant that it was only in highly exceptional circumstances that Article 8 was likely to avail an occupier defending possession proceedings. Lord Bingham also claimed that he: [did] not, however, consider that problems and afflictions of a personal nature should avail the occupier where there are public services available to address and alleviate those problems.224 217 218 219 220 221 222 223 224

Above n 206, [98], per Lord Hope. Ibid, [110]. App No 28027/95. (1999) 28 EHRR CD 175. Kay and Price, above n 206, [156]. Ibid, [167], per Lord Scott. Ibid, [172]. Ibid, [38].

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Furthermore, Lord Bingham indicated that: ‘. . . if under the relevant social legislation the occupier is specifically disentitled from eligibility for relief it will be necessary to consider the democratic judgment reflected in that provision’.225 The treatment of this question—whether the personal circumstances of the occupier are relevant to the application of Article 8 in possession actions brought by local authority landlords—raises some interesting issues concerning the applicability of the reasoning in Kay and Price to cases involving creditor possession actions. It is perhaps useful, at this stage, to recall the arguments considered in Chapter 3 of this book in relation to the balance struck between the claims of secured creditors and the interests of occupiers. The discussion in Chapter 3 identified a range of grounds on which to base the argument for a more coherent legal concept of home, including the personal impact of loss of home in possession proceedings on individual occupiers. However, it was also noted that creditor possession proceedings have been shown to have an additional, wider impact on a range of interests, from insurers, central government and local government to housing market institutions, labour market institutions and health services.226 The potential range of costs associated with mortgage arrears and possessions demonstrates the extent to which the impact of creditor possession actions is embedded in society. It is therefore important to bear in mind that, although the balancing exercise in creditor possession actions is often portrayed as involving a relatively clear contest between the commercial interests of the creditor and the personal circumstances of the occupier(s), there is evidence to suggest that there is a wider, much more complex array of issues at stake. It would therefore be premature to presume that, once ‘problems and afflictions of a personal nature’ are excluded from the analysis this denudes the arguments against repossession of merit and weight. It is important to note that, even if the individual circumstances of the occupier could not be taken into account, the views of the majority in Kay and Price permitted that the overall balance struck by a legal provision or, indeed, a common law doctrine could—at least in principle—be called into account under Article 8.227 In addition, it was clear that in the case before the House of Lords, the context of public authority housing provision weighed heavily on the agenda. Much of the discussion in Kay and Price—in both the majority and the dissenting judgments—was concerned with the justifiability of granting possession to the local authority landlords in both cases. Not only were the specific facts of the two cases before the House of Lords regarded as particularly weak,228 but more general 225

Ibid, [38]. See Ch 3, nn 135–153 and associated text. 227 Kay and Price, above n 206, [110], per Lord Hope; [185], per Baroness Hale; [198], per Lord Brown. 228 Baroness Hale claimed that ‘[e]ach of the cases before us is a classic example of one in which a defence based upon article 8 would have no real prospect of success’: [193]; while Lord Scott, although suggesting that ‘Lambeth . . . seems to me a very good test case’ [130], claimed that ‘[i]n my 226

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issues concerning the importance of respecting the balance that had already been struck by Parliament in enacting housing legislation were also emphasised. A key issue for the purposes of this chapter is the likely impact of the decision in Kay and Price on the scope and applicability of the right to respect for the home in Article 8 beyond its immediate context of public authority housing, and the discussion of the special case of public authority housing has some interesting ramifications for the analogous context of creditor possession actions. One starting point for analysis of the potential implications of the House of Lords’ decision when it comes to creditor possession actions would be to note that, although the Article 8 claims failed in both Kay and Price, the modifications (albeit limited) to the framework of reasoning set out by the House of Lords in Qazi have, to some extent, opened up the possibilities for developing the legal concept of home through human rights discourse. In Qazi, discussed above, the majority of the House of Lords appeared to suggest that they did not accept that a possession action, brought against a person who had no contractual or proprietary right to remain in the property, constituted an ‘interference’, and therefore that it was not necessary to consider, even theoretically, the matter of justification under Article 8(2). While there was broad agreement in Kay and Price that, in the vast majority of cases, the public authority landlord’s right to possession in domestic law would automatically supply the justification required by Article 8(2), the House of Lords did admit the possibility that in certain (albeit exceptional) circumstances, the law governing possession actions could be found to be incompatible with Article 8: that the possession action itself could be recognised to be an ‘interference’ and, in certain exceptional cases, such an ‘interference’ might not be justified under Article 8(2). Lord Brown articulated the ‘modest qualification which Connors now requires to be made to the Qazi principle [as] that a defence to possession proceedings based upon the contention that our domestic law is incompatible with the occupier’s article 8 right is theoretically available to him’,229 while Lord Nicholls (in the minority) claimed that ‘[t]he starting point is clear enough. A possession order made by a court in respect of a defendant’s home will be, at least ordinarily, an interference with the defendant’s right to respect for his home within the meaning of article 8’.230 If losing one’s home can, in principle, amount to an Article 8 ‘interference’, the focus of attention naturally shifts—as it did in this case—to the question of opinion, the Leeds case was a very bad one to choose for the purpose of revisiting the correctness of Qazi since, whether the appellants’ arguments be right or wrong, it is grotesque to suppose that the Maloneys could claim that the commencement by Leeds of possession proceedings to recover its recreation ground was an interference with their right to respect for a “home” that they had established on Leeds’ land’: [130]. Lord Scott claimed that ‘[w]hen the article 8(2) balance is struck in a case with facts like those in the Leeds case the balance must at once come down with a resounding clank in favour of the local authority’: [173]. 229 Ibid, [200]. 230 Ibid, [53].

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justifying that interference, in accordance with the qualifications set out in Article 8(2). When it came to analysing the Article 8(2) justifications, Lord Hope delineated a three-pronged test: (1) that the interference must be ‘in accordance with law’; (2) that it was in pursuit of a legitimate aim; and (3) that it was ‘necessary in a democratic society’.231 It was readily recognised that the first limb would be satisfied whenever the possession proceedings complied with domestic law. Such compliance ensured, at least, that the proceedings were not arbitrary. Regarding the second element of justification, it was also accepted without demur that the: ‘[s]atisfaction of the housing needs of others is regarded as a legitimate aim . . . because it was intended to promote “the economic well-being of the country” and “the protection of the rights of . . . others” ’.232 In fact, it was the third limb of Article 8(2)—that the ‘interference’ was ‘necessary in a democratic society’— which prompted more detailed analysis. Lord Hope expanded on this requirement by noting that the notion of ‘necessity’ ‘implies a pressing social need, and the measure employed must be proportionate to the legitimate aim pursued’. Indeed, as the discussion in this chapter has emphasised, the issues concerning competing social needs and the question of proportionality provide an impetus to re-examine the prospects for developing a more coherent concept of home within a human rights framework. The function of a legal concept of home in this type of analysis would, of course, be to enable the interests of occupiers to be more clearly articulated and rationally understood, and so inform the balancing exercise when such interests are weighed against the claims of others—such as landlords and mortgagees. One of the key themes of this book has been the importance of developing a framework within which home interests can be more coherently and comprehensively represented in law, with a particular emphasis on the usefulness of a legal concept of home in contexts in which the home interest comes into conflict with other legitimate interests. Indeed, the creditor/occupier contest has been identified as a paradigmatic illustration of the difficulties associated with balancing home interests against competing claims, in light of the stark contrast between the types of interest at stake on both sides, as well as the fact that the commercial interests of secured creditors weigh heavily in the balancing scale. The task of balancing competing claims where—as the court has often accepted in the creditor/ occupier context—both parties have legitimate, albeit irreconcilable, interests is always problematic, as it clearly requires the court to make a value judgement. Yet, this type of judicial activity is inherent in human rights discourse. As Lord Bingham recognised in Kay and Price:

231 232

Ibid, [66]. Ibid.

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inherent to the whole Convention is the search for balance between the rights of the individual and the wider rights of the society to which he belongs, neither enjoying any absolute right to prevail over the other.233

The analysis set out in this book has indicated that, to date, the commercial claims of creditors, although not enjoying absolute priority, have weighed very heavily in the balancing scales in creditor/occupier disputes. The human rights framework offers a useful lens through which to view the balance struck by domestic law between these competing interests, particularly in light of the mechanisms which have been developed to enable competing rights to be balanced under the European Convention on Human Rights. When it comes to considering the creditor/occupier dispute within a human rights framework, the discussion in this chapter has highlighted the importance of the doctrine of proportionality in assessing whether an appropriate balance has been struck between the protection of the individual rights under consideration and the needs of the community at large. When conducting a proportionality analysis, it is necessary to weigh the interests at stake on both sides, taking account of the extent of any interference, the justificatory factors and the degree of harm done to the right (in this case, the right to respect for home) by allowing the landlord (or mortgagee) to repossess the property. In addition, a proportionality analysis requires the court to assess whether the proposed interference is the minimum necessary to achieve the legitimate aim pursued. As the discussion above has indicated, in the case of creditor possession actions, this would include balancing the harm that would be done by allowing the creditor to repossess the property against the harm that would be done to the creditor’s rights by either refusing—or delaying the proceedings. In the creditor/occupier context, the creditor’s interest is readily comprehensible; however, when it comes to assessing and balancing the interests at stake on both sides, for the purposes of conducting a proportionality analysis, a more coherent legal concept of home could usefully inform analysis of the occupier’s home interests, thus enabling the court to conduct a fuller analysis of the nature of the competing interests, including recognising the impact of the possession proceedings on the occupier. Another important point to bear in mind is that one of the issues emphasised by Lord Hope in his treatment of Article 8(2) was the importance of the margin of appreciation afforded to Convention states when assessing whether an ‘interference’ was ‘necessary in a democratic society’. Indeed, Lord Hope suggested that there was some scope for considering the impact of the proposed order on individual occupiers when he described the scope of the margin of appreciation in relation to the notion of ‘necessity’ as ‘depend[ing] not only on the aim of the 233 Kay and Price, above n 206, [32]. Indeed, Lord Bingham even went so far as to assert that ‘[i]t is unnecessary to cite authority for propositions so well established and understood’: ibid.

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interference but also, where the right to respect for home is involved, the importance of that right to the individual’.234 In fact, Lord Hope indicated the importance for the court of examining the question whether an interference could be designated to be ‘necessary in a democratic society’ when he described this issue as ‘the only area for legitimate debate in cases where the other requirements have been satisfied’.235 It is interesting to see how the House of Lords went about considering this question when their Lordships weighed the competing interests at stake in Kay and Price. The analysis in Kay and Price is relevant to the creditor/occupier context for two reasons: first, because of the common features between different types of possession actions; and, secondly, because of the differences between the creditor/ occupier context and a case between a local authority landlord and tenant. The differences between these contexts are potentially significant in light of the strong emphasis placed by their Lordships on the special role of the local authority landlord. Across the speeches, there was broad support for the proposition that the implications of the decision on public authority housing policies and practices were an important factor to bear in mind when considering whether the possession orders were ‘necessary in a democratic society’. In some respects, the issues considered in the landlord/tenant context are pertinent to the creditor/occupier context: for example, concerns were expressed regarding the effects of any decision on the scope and applicability of Article 8 on the conduct of cases in the county courts, with particular regard to the risk of increasing workloads and delays. Lord Bingham claimed that the practical effects of their decision on ‘the conduct of housing claims in the county court’, on ‘local authority housing policies and budgets’ and on the ‘important compromises inherent in our property law and housing legislation’236 were ‘an important aspect of these appeals, and one that has caused the House much concern’.237 In this vein, there are obvious parallels with creditor possession actions, where both the efficient use of resources and the wider policy impact of judicial decision-making have often carried weight in the overall balancing exercise between the competing interests. The Law Lords referred at length to the complexity of the housing legislation that regulates public housing. It is interesting to note that their Lordships were, by and large, willing to accept that the legislature had already made every effort to strike a fair and appropriate balance between the competing interests at stake. Thus, the majority held that where there was a statutory scheme in place to govern the relevant dispute, if that scheme prescribed conditions for the grant of a possession order, and where such conditions were granted, the occupier could make no further Article 8 claim unless the Convention-compatibility of the scheme itself 234 235 236 237

Ibid, [66], per Lord Hope. Ibid. Ibid, [31]. Ibid.

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was challenged. Furthermore, even if there was no statutory scheme, but all the requirements for making a possession order under domestic property law were satisfied and the domestic property law was not itself challenged as being Convention-incompatible, then the court must simply apply that law to the facts of the case.238 Baroness Hale, agreeing with the majority view, laid great emphasis on the political context of the housing legislation and the competing demands on resources which characterise public housing disputes: This is an area of the law much trampled over by the legislature as it has tried to respond to shifting and conflicting social and economic pressures. If there were enough suitable and affordable housing to share amongst those who needed it there would be no problem. But there is not, so priorities have to be established, either by Parliament or by the public sector landlord, who has to allocate this scarce resource in accordance with the priorities set by Parliament.239

Similarly, Lord Nicholls argued that ‘elaborate steps [had been] taken by Parliament to strike an appropriate balance between the competing interests of all those who are in need of homes. The country’s housing stock is finite’, and that ‘Parliament’s decisions on this extremely difficult and intricate social problem are to be respected’.240 On the one hand, it is not difficult to see how this type of reasoning might be echoed in the context of creditor possession actions: familiar arguments in relation to the balance struck between creditors and occupiers have included the importance of protecting creditors’ rights in order to ensure that they remain willing to lend money to people to buy houses, or even to fund other ventures by lending non-acquisition capital secured against the borrower’s home, and the suggestion that, if creditors’ rights are not adequately protected, ‘at the end of the day, it is the borrower who pays’.241 However, it is important to recognise that, while there are certain analogies to be drawn between the situation of a public authority landlord who brings a possession action against an occupier and the position of a secured creditor bringing a similar action, there are also important differences between the two scenarios. One such distinction rests with the fact that, while the local authority landlord is a ‘public authority’ and so is obliged by section 6 of the Human Rights Act 1998 to act compatibly with Convention rights, the question whether a private creditor would be bound in a similar fashion would depend on the ‘horizontal effect’ of Convention rights under the Human Rights Act.242 Although the minority judges in Kay and Price (Lord Nicholls and Lord Bingham, with whom Lord Walker 238 239 240 241 242

Kay and Price, above n 206, [65], per Lord Hope. Ibid, [185], per Baroness Hale. Ibid, [53], per Lord Nicholls. 437 HL Deb (5th Series) col 650 (15 December 1982) Lord Templeman. See above, nn 40–51, and associated text.

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concurred) adopted a slightly more generous construction of Article 8 than the majority, they also distinguished the facts of this case as bearing only upon disputes involving public authorities. The minority speeches claimed that the decision in this case was concerned with a local authority landlord, and said nothing about private landlords or other private owners (such as mortgagees) who do not have the status of public authorities.243 Both Lord Bingham and Lord Nicholls indicated that the question of horizontal effect between a private citizen and an occupier did not arise for decision in these appeals and was ‘best left for consideration in a case where it arises’.244 Nevertheless, although Lord Nicholls recognised that private landlords (and presumably private creditors) were not public authorities, and so were outside the scope of section 6, he also noted that ‘[t]he court of course is itself a public authority. Courts are bound to conduct their affairs in a way which is compatible with Convention rights. The court’s own practice and procedures must be Conventioncompliant’.245 Lord Nicholls concluded, however, that: Whether, and in what circumstances, the court’s section 6 obligation extends more widely than this, and affects the substantive law to be applied by the court when adjudicating upon disputes between private parties, still awaits authoritative decision. The point does not call for a decision in the present appeals, nor was the point argued.246

In contrast to this, the majority judges were much more willing to include cases involving private individuals within the scope of their analysis. Although Lord Hope agreed that the issue of private landlords did not stand to be addressed in the present case, his Lordship claimed that he ‘[did] not think that it can be left out of account as we explore the wider implications of the argument’.247 Lord Hope was more robust in his observations concerning the court’s standing as a public authority, and the indirect horizontal effect of the Human Rights Act. He indicated that: The article 8(1) right to respect for the home does not distinguish between public authorities and private landlords and landowners. Private landlords and landowners too must obtain an order from the court, and the court itself is a public authority.248

243 ‘[N]othing in this opinion should be understood as applying to any landlord or owner which is not a public authority’: Kay and Price, above n 206, [28], per Lord Bingham; ‘[t]hese brief observations on section 6 are directed solely at local authorities and other landlords which are public authorities within the meaning of section 6. I say nothing about private landlords’: [61], per Lord Nicholls. 244 Ibid, [28], per Lord Bingham. 245 Ibid, [61], per Lord Nicholls. 246 Ibid. 247 Ibid, [64], per Lord Hope. 248 Ibid.

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Yet, even aside from the question of horizontal or vertical effect, the status of the local authority landlord as a public authority weighed heavily in the court’s deliberations on the qualifying factors set out in Article 8(2), especially on the question whether the ‘interference’ occasioned by a possession order was ‘necessary in a democratic society’. Many of the specific arguments made in respect of the local authority landlord would not, in fact, be relevant to the creditor/occupier context. For example, the House of Lords laid considerable emphasis on the prospect that, by allowing an occupier of local authority property to remain in posession, the court was obliging the landlord to continue providing a home for that occupier, when it was not required to do so under domestic law, and, significantly, denying another prospective (and possibly more deserving, according to the criteria set out in the domestic legislation) tenant of that property as a consequence. Baroness Hale commented that: To the extent that a court insists that a public authority does not rely upon its right to evict an occupier, it is obliging that public authority to continue to supply that person with a home in circumstances where Parliament has not obliged (and may not even have empowered) it to do so.249

Similarly, Lord Brown reasoned that: ‘[t]he rights and interests of others too, however, are at stake—and not merely landlords but the many others who also require homes—and the law as a whole has been developed to give effect to these as well’.250 It is interesting to consider the distinction between this type of case and a dispute between a secured creditor and a defaulting owner occupier. While the refusal of a possession order compels the public authority to continue providing a home for the occupier from its limited housing stock, it is important to remember that refusing the same request brought by a secured creditor merely compels the creditor to suffer a delay in recovering the money owed. It is the house itself that belongs to the landlord and which forms the direct subject matter of the claim, being the property the landlord seeks to recover. On the other hand, although creditor possession actions are also brought against real property, the primary interest of a secured creditor is to recover money—the house itself is merely representative of that money. Although there is a potential argument to be made in relation to the prospect of a knock-on effect on the mortgage lending market which could affect the ability of other consumers to buy houses, the impact of refusing the possession order on other potential occupiers is much more remote. Similarly, on the other side, the House of Lords in Kay and Price emphasised the 249 250

Kay and Price, above n 206, [187], per Baroness Hale. Ibid, [205], per Lord Brown.

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‘limited’ nature of the tenant’s interest in the property; Lord Scott, for example, claimed that in Kay ‘the occupier acquired only a limited right to occupy and . . . on due determination of that right, a claim by the owner must ordinarily succeed’.251 It is, perhaps, arguable that an owner occupier’s interest might be regarded as giving rise to a more substantial claim on the part of the occupier. A home-buyer—albeit subject to a mortgage—might be regarded, ideologically at least, as having rights in the property that are less ‘limited’ than the tenant’s interest. Furthermore, the freehold purchaser’s rights were not always subject to termination but have been rendered vulnerable only by default on repayments. Another pertinent factor to bear in mind when considering the applicability of the House of Lords’ reasoning in Kay and Price to the creditor/occupier contest is the likelihood that a public authority landlord will have already shown considerable forbearance towards a defendant occupier. While Lord Brown supported the position of the majority by suggesting that he ‘doubt[ed] whether the legal regimes of many contracting states are more sensitive than ours to the rights of residential occupiers’,252 this statement was clearly concerned with the position of residential tenants. One of the issues considered in Chapter 5 was the relative position of tenants as opposed to owner occupiers when it comes to possession proceedings in English courts. Even before possession proceedings are instigated, owner occupiers who are experiencing financial difficulties receive less welfare support for housing costs.253 Furthermore, research by Hunter and Nixon comparing the processes and outcomes of judicial possession actions against borrowers and tenants has shown that owner occupiers are relatively disadvantaged at various stages,254 including the final stage of the possession hearing. This study indicated that the long-term risks of being evicted are much higher for borrowers than for tenants. The authors suggested that judges are much more likely to order possession against owner occupiers than against tenants, for three principal reasons: (1) because borrowers typically accrue higher levels of arrears before possession proceedings are instigated; (2) because lenders are more likely to act to protect their investments, while local authority landlords are more concerned with maintaining the tenant in the property and recovering something from the arrears; and (3) because the structural and legal frameworks that have historically governed landlord/tenant disputes and creditor/occupier disputes tend to favour tenants over borrowers.255 The suggestion that the existing legal and procedural framework is less favourable to debtors than it is towards tenants may have some 251

Ibid, [169], per Lord Scott. Ibid, [206], per Lord Brown. 253 See Ch 5, nn 210–231 and associated text. 254 C Hunter and J Nixon, ‘The Discourse of Housing Debt: The Social Construction of Landlords, Lenders, Borrowers and Tenants’ (1999) 16 Housing, Theory and Society 165. 255 See, further, Ch 5, nn 283-286 and associated text. 252

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implications when it comes to applying the reasoning in Kay and Price to a creditor/occupier context. Although the House of Lords was willing to assume that the appropriate balance had already been struck by public sector housing legislation, it would presumably be necessary to reconsider the validity of such an assumption in the context of creditor/occupier disputes, by considering the legislation that governs creditor possession actions. A final distinction to consider in this regard harks back to the earlier discussion of local authority landlords as public authorities, as compared to secured creditors as private entities. In the context of horizontal effect, this difference in status appears to favour the tenant, since—in light of the obligation set out in section 6 of the Human Rights Act 1998—there is a clear ground on which to bring a complaint based on an alleged breach of a Convention right against a public authority, as opposed to a private creditor. It is interesting, however, that the local authority’s status as a ‘public authority’ was also considered relevant in the context of the substantive consideration of Article 8(2). In Kay and Price, much was made of the fact that the local authority had been entrusted by Parliament with the responsibility of managing public sector housing.256 Secured creditors, on the other hand, have not been entrusted with their role by Parliament but, rather, operate within the free economic market. Yet, in light of the distinctions outlined above, it would be ironic if the fact that creditors are private individuals or organisations who do not operate within a complex web of housing legislation; who have not been entrusted by Parliament to carry out housing allocations; and who are not seeking possession in order to recover the property for re-letting to another household; led the court to conclude that there was less scope for occupiers to rely on Article 8 in the context of possession proceedings. Rather, one would think, these distinctions raise a stronger case in support of a ‘merits review’ of the existing domestic law governing creditor possession actions.

Conclusions The decision in London Borough of Harrow v Qazi emphasised the difficulties currently faced by home advocates in English courts. Not only do the commercial interests of landlords and creditors outweigh the home interests of occupiers, but in Qazi the House of Lords maintained that it was not necessary even to weigh ‘home’ interests in the balance when applying Article 8 to possession proceedings. The reluctance of the House of Lords in Qazi even to allow Article 8 onto the agenda in the context of possession actions was particularly interesting in light of 256 See, further, Ch 5, nn 283-286 and associated text, [33], per Lord Bingham; [185], [187], per Baroness Hale.

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the strong probability that, even if the eviction of occupiers from their homes was recognised as amounting to an ‘interference’ with their right to respect for home, the Article 8(2) justifications would provide a sufficient basis to grant possession to the landlord (or the creditor) if that was considered to be the appropriate outcome. There are obvious arguments to be advanced in support of landlords’ (or creditors’) claims that the interference would be justified as being necessary to give effect to their rights in domestic law. In fact, it was the court’s determination in Qazi to preclude arguments under Article 8(2)—although there were undoubtedly strong arguments to be made in favour of the outcome they favoured—that is intriguing, as the House of Lords apparently sought to avoid a full engagement with Article 8 in the context of possession proceedings. Yet, the unwillingness of the House of Lords in Qazi to open up the possibility of exploring the home interests of occupiers or the impact of possession proceedings on those who would lose their homes within the human rights framework also reflected, in many respects, the approach adopted by domestic provisions in the creditor/occupier context. The pro-creditor approach that has characterised judicial decision-making in the creditor/occupier context has ensured that the commercial interests of creditors have been given presumptive, if not automatic, priority over the home interests of occupiers. This position has, in turn, been facilitated by a combination of factors, including the under-conceptualisation of home in law and the tendency in property theory and law to treat the home as a mere capital asset. The decision in Qazi, with its emphasis on the contractual and proprietary rights of the landlord to the exclusion of the home interests of the tenant—so that the home interest need not even be weighed in the balance—reinforced this pattern of legal reasoning. The recent decision in Kay v London Borough of Lambeth and Leeds City Council v Price 257 has opened up the possibility—in principle at least—for greater consideration of the home interests of occupiers in the context of the Article 8(2) justifications. The crucial consequence of this decision is that, once it is accepted, in principle at least, that a possession order can—even in certain limited circumstances—constitute an interference with the occupier’s right to respect for home, even though it is brought in accordance with the landlord’s—or the creditor’s— rights in domestic law, this paves an avenue for further analysis in the future. Once it is accepted that the court may, in some cases, be called upon to evaluate the Convention-compatibility of domestic law when it comes to striking a balance between an ‘interference’, in the form of a possession order, and the justificatory factors set out in Article 8(2), then the scope for developing a legal concept of home in the context of a human rights framework becomes clear. Further consideration of the meaning of ‘home’ within Article 8, particularly the harm that is visited upon the right to respect for home when the home is lost in a creditor 257

Above n 206.

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possession action, should be weighed in the balance when the court is seeking to ascertain whether any interference is proportionate to the legitimate aim pursued—that is, the protection of the secured creditor’s rights. It is suggested that if this process of reasoning were to be adopted, it would be apposite for the courts to take account of the meanings and values of the occupied home, as well as the impact of possession proceedings on occupiers. A full-scale ‘merits review’ of the balance struck between secured creditors and home occupiers within the context of Article 8(2) should also take account of the wider implications of possession actions on other interests. Empirical analysis has shown that the costs associated with possession actions are experienced by a range of actors, including borrowers and lenders, but also extending to include insurers, central government, local government, housing market institutions, labour market institutions and health services.258 These costs should be weighed in the balance when the court is considering the question whether the legitimate aim of protecting creditors’ rights justifies the interference with the occupier’s home interest under Article 8, and is ‘necessary in a democratic society’. The decisions in Qazi and in Kay and Price disclosed the court’s willingness to take account of ‘external factors’—that is, matters outside the immediate scope of the competing individual’s Convention rights—in their analysis of the Convention-compatibility of domestic law. The external considerations which weighed most heavily in these judgments supported the landlords’ arguments that possession should be granted: the approach adopted by the House of Lords in both cases was underpinned by concerns about the implications of their Lordships’ decisions on housing policy and procedures. Indeed, this was explicit in Lord Hope’s judgment in Qazi, and in several of the judgments in Kay and Price, perhaps most extensively in Baroness Hale’s speech. Indeed, there is evidence that wider considerations, or ‘externalities’, have also been recognised and weighed in the balance, in the context of the qualified Convention rights, in the European Court of Human Rights. In Sporrong and Lönnroth v Sweden,259 the Court identified its role as ‘determining whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’.260 Although this particular case was concerned with the qualified right to property under Article 1 of the First Protocol, the Court went on to say that ‘[t]he search for this balance is inherent in the whole of the Convention’.261 It is suggested that, since wider considerations are taken into account when considering the reasons for allowing an interference on the part of the creditor, there is no logical reason why the wider costs of 258 259 260 261

See Ch 3, nn 135–153. Above n 53. Ibid, [69]. Ibid.

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possession actions should not also be weighed in the balance when conducting a proportionality analysis under Article 8. This book has endeavoured to identify the arguments in support of taking fuller account of the interests at stake on both sides of creditor possession actions, rather than according automatic priority to the commercial claims of creditors. The framework provided by the European Convention on Human Rights and the Human Rights Act 1998 provides a forum in which the balancing exercise between the competing claims of creditors and occupiers could be conducted. The decision in Qazi suggested that the House of Lords was not willing to engage in such an exercise. The decision in Kay and Price, placed in context with the decision in Qazi, has opened up some possibilities for developing academic discourse in relation to the meaning of home in the framework of the European Convention on Human Rights and the Human Rights Act 1998. The decision in Qazi threatened to close down the prospect of further development by suggesting that possession proceedings did not amount to an ‘interference’ with the right to respect for home when they were brought—by a landlord or a mortgagee—against an occupier who had no proprietary or contractual right to remain in the property. This approach tended to head the issue off at the pass: if the possession action was not an ‘interference’ then the court could avoid engaging with the question of justification under Article 8(2), including such issues as proportionality and whether the proposed order is the minimum necessary to achieve whatever legitimate aim is being pursued. It is, of course, important to recognise the strong judicial policy that currently characterises the House of Lords’ decisions in respect of possession proceedings and Article 8. Although the decision in Kay and Price permits the possibility of further analysis in this context in the future, it is also appropriate to note that, for the time being at least, it seems likely that when—as will inevitably be the case—a test case is brought through the Court of Appeal and, ultimately, the House of Lords, on the scope and applicability of Article 8 in the context of creditor possession actions, it remains doubtful whether Article 8 will provide a robust defence for the occupier. The House of Lords has clearly hammered home the message that, in practice, the cases in which Article 8 will avail an occupier will be rare. Nevertheless, it is arguable that, the House of Lords having conceded that the court may, albeit rarely, be called upon to reassess the balance struck between home interests and other legitimate claims within the framework of Article 8, the meaning of home within a human rights framework has, at the very least, become embedded in the academic agenda. The foundations are now in place for further home-oriented analysis in human rights discourse, and for arguments to be brought before the court, based not only on the impact of loss of home on individual occupiers, but on the wider social and economic implications of the prevailing pro-creditor approach. The House of Lords has attributed considerable weight to the housing policy implications of its decisions on Article 8 to date; by the same logic, in a

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creditor/occupier context, some account could be taken of the broader consequences of decisions on the balance struck between the competing claims. However, this willingness to take account of the consequences of any decision made by the court should not be restricted to the consequences for commercial, non-home interests. Ultimately, the prospects for future development of the meaning of home in a human rights framework highlight, once again, the central argument of this book. To date, the relative lack of analysis directed towards the content of the home interest in legal scholarship has tended to diminish the weight attributed to such interests. Although the court has often acknowledged, in passing, the occupier’s personal or sentimental attachment to his or her home, the complexity of the occupier’s home interest—for example, the degree of harm that results from loss of home, not only on the individual occupier, but on other interests and agencies—has not been fully articulated in the legal context. This book has highlighted the range of issues at stake in creditor/occupier disputes. This analysis might usefully be brought to bear when constructing an argument on the side of the occupier, either in the realm of domestic legal policy or in relation to the scope and applicability of the right to respect for home under Article 8.

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Conclusion

This book has sought to re-evaluate law’s tendency to dismiss the occupier’s home interest when it comes into conflict with the commercial claims of the creditor. Drawing on empirical and theoretical analysis in law and other disciplines, this book has sought to unpack the meanings and values encapsulated in the home interest. Part I of the book also reconsidered the policy arguments that have justified the marginalisation of home interests in the creditor/occupier context. Although the commercial claims of creditors undoubtedly weigh heavily in the balancing scale, and there are strong policy reasons for protecting creditors’ interests, there are also policy considerations to be brought to bear on the side of the occupier which have not yet been considered in legal discourse. One obstacle in the path of this approach has been the suggestion that home interests are not ‘real’, beyond the capital value and physical structure of the house, and therefore that they cannot be represented in legal discourse. This book has sought to establish the possibilities for developing the legal concept of home, by drawing on research in other disciplines and mapping the meanings and values of home within existing legal discourses. Although law is not inherently unable to accommodate a coherent concept of home, developments in other disciplines have yet to make any significant impact on legal reasoning and, if anything, the historical shift has been away from home-oriented thinking in law. It is, of course, important to bear in mind the commercial and practical constraints within which the law regulates possession proceedings between home interests and commercial actors. However, this book has also considered some strong policy arguments on the side of the occupiers. It has not argued that, in light of these home-type interests, occupiers should prevail in all cases, but rather has asserted the importance of taking account of occupiers’ interests and striking an appropriate balance between the competing claims, based on a coherent understanding of the nature of the interests at stake, rather than conferring automatic or presumptive priority on the commercial claims of creditors, to the exclusion of other considerations. Furthermore, it has been argued that law does not lack a suitable doctrinal framework to support a legal concept of home. Finally, this book considered the scope for positioning home analysis in law in relation to property theory and law; family law and policy; gender and law; children and the law and human rights discourses. Analyses of the meanings and values of home through the lenses of these legal frameworks have yielded a range

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of proposals when it comes to the content of the legal concept of home. The extent to which these analyses are taken into account will undoubtedly be determined by policy considerations. However, it is important to recognise that law can—and, it has been argued, should—take account of home interests. Indeed, it is only by taking a measure of the occupier’s interest in the property as a home and weighing this interest in the balance with the commercial claims of creditors that the judicial balancing exercise can be properly carried out.

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Page 543

INDEX Acquisition creditors protection of, 55–6 Archimedes place, on, 134 Balancing creditors’ claims against home interests, 79–130 absence of conceptual framework, and, 129 alternative perspectives, 96–108 case for reconsidering pro-creditor presumption, 122–8 child occupiers, and, 125–6 complexity of issues, 123 ‘exceptional’ circumstances, 125 human rights, and, 126–8 ontological insecurity, and, 124 prevailing issues of contemporary legal disclosure, 123–4 treatment of home interests by legal academics, and, 123 commercial claims, and, 79–80 concept of home ‘real’, whether, 129–30 constraints of narrowly framed economic analysis, 96 credit, availability of, 88–92. See also Credit, availability of economics cost-benefit analysis, 108 economic policy, and, 80 enforcing the contract, 81–96. See also Contract, enforcing feminist economics. See Feminist economics impact of losing home, 109–22. See also Impact of losing home law and market economy, 97–8. See also, Law and market economy Malloy, RP on, 128 re-evaluation of contract approaches, 128 widening participation in home ownership market, 92–6. See also Widening participation in home ownership market. Bankruptcy, 68–70 family home, and. See Family home homelessness, and, 68–69 human rights, and, See Human rights judicial policy, and, 69–70 presumption in favour of sale, and, 69 section 30 applications, and, 68

secured creditors, and, 70 Bentham, Jeremy property, on, 245 Bureaucratisation land law, and, 139–40 Casey, ES territoriality, on, 130 Charging orders, 46–8 effect, 46–7 enforcement of contract, and, 83–4 family home, and See Family home implications, 47–8 Law Commission, and, 47 Child occupiers, 30, 409–450 avoidance of sale, and, 415 bankruptcy, and, 414, 448 child welfare and loss of home, 434–44. See also Child welfare and loss of home creditors’ claims, and, 125–6 detrimental impacts, scope of, 445 Edwards v Lloyd’s TSB Bank, 432–4 collateral purpose argument, 432–4 factors arising under Act of 1996, 433–4 enforcement of contract, and, 87–8 ‘exceptional circumstances’, 448 family, and, 409 family home, and, 337–8 home interests in legal disclosure, 416–26 interests of children not decisive, 416–17 shift of judicial policy, 417–18 welfare interests, 418 home ownership, and, 443–4 housing provision, and, 445 importance of home environment, 411–12 ‘innocent’ victim, 413 jointly owned property, 421–6 collateral purpose, 422 discretion of court, 424–5 dispute within family unit, 423 human rights, and, 426 trust for sale, 421–2 legitimacy of creditors’ claims, and, 446–8 paramountcy principle, 412 recognition of children as legal persons, 446 rhetorical value of child-based arguments, 415–16 significance, 450

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Page 544

Index

Child occupiers (cont.): sole owned property, 419–21 delaying possession proceedings, 420–21 judicial order for sale, 420 non-financial factors, 421 Trusts of Land and Appointment of Trustees Act 1996, 426–34 attitude of courts, 427–9 claims of secured creditors, and, 429 evidence, 431 financial interests of banks, and, 430–31 welfare of minors, 427 Child welfare and loss of home, 434–44 assessing implications, 434–44 children’s experiences, 439–42 concern for parent’s well-being, 442 concerns of parents, 442 homelessness, and, 440–41 responses, 441 considering claims of child occupiers, 435–7 evidence, 436–7 meaning of home for children, 437–9 child’s bedroom, 438–9 key setting in development of place identity, 438 nature of home- type interests, 436 research, importance of, 435 Commoditisation of home, 272–4 property in land as a capital asset, 273–4 Constructive notice, 50–53 effect, 50–51 interests of occupiers, and, 52 land registration, and, 51–2 ‘reasonable inspections and inquiries’, 51 Contract, enforcing, 81–96 acquisition and non-acquisition credit, and, 87 charging order, and, 83–4 child occupiers, 87–8 collusion, and, 84–5 consequences, 82 contract, meaning, 81 co-owned property, 86 ‘moral’ argument, 81–2 non-debtor occupier, and, 82–3, 84–8 presumption in favour of creditors, and, 85–6 public policy, and, 81 Conversion, doctrine of. See Valuing property in land Credit, availability of, 88–92 capitalising on equity in home, 89 expansion of owner occupation, 88–9 Karl Llewellyn on, 90 link between legal policies and economic efficiency, 91–2 low-income consumers, 90–91 Posner, RA on, 91–2 priority of, 91

Creditor actions for sale of co-owned land, 61–74 balance weighed towards creditors and sale,73 bankruptcy, 68–70 challenges to pro-creditor policy, 74 factors to be considered by court, 73–4 judicial policy after 1996, 72 Law of Property Act 1925, 64–6 policy of 1925, 63–8 presumption of sale, 63–8 statutory frameworks, 62 trust for sale, 64–8 Trust of Land and Appointment of Trustees Act 1996, 71–2 Creditor, concerns of, 14–23 acquisition finance, 16–20 availability of credit, 17 delay in enforcement of rights, 29 evaluating, 21–3 functioning of proprietary remedies, 15–16 Judicial Committee of House of Lords, 17–18 Lord Denning on, 21 loss of proprietary interests, and, 28 mortgage providers, and, 22–3 non-acquisition finance, 16–20 policy formulation, and, 15 practicalities of house purchases, 20–21 public interest, and, 18–19 reasonable time for payment, 29–30 securing credit supplies, 16–20 security for business loans, 19–20 Creditor/occupier context, 33–77 absence of single coherent policy approach, 35 analytical implications, 36 commercial claims of creditors, and, 36 creditor’s remedies, 41–77. See also Creditors’ remedies default on secured loans, 34 delineation of idea of home interest, 76 discretion of court, 37 elevation of interests of creditors, 35 Enterprise Act 2002, 75 judicial principles, 34–5 lack of attention directed by lawyers, 34 legislative provisions, 34–5 ‘low value homes’, 75 overall consequences of current ad hoc regime, 35–6 proceedings, form of, 34–5 socio-legal academic research, and, 36 Creditors’ remedies, 41–77 charging orders, 46–8 equitable interests, and, 48–9 establishing priority, 49–61 constructive notice 50–53 See also Constructive notice unregistered land, 50 implied trust, where, 48–9

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Page 545

Index occupiers, and, 49–61 power of sale, 41–2 priority between creditors and occupiers, 61 property held on joint title, 46–8 sole ownership, and, 41–6 taking possession, 43–6 arrears made good within a reasonable time, 44–5 discretion of court, 43–4 financial credibility, and, 44–6 home considerations, and, 43–4 trusts of the family home, and, 48–9 two trustees rule, and, 56–60 Williams and Glyn’s Bank Ltd v Boland, 53–5 Deserted wife’s equity, 314–19 constructive notice, and, 317–18 creditors, and, 316 criticism of, 318–19 demise of doctrine, 317 flexible nature of, 318 origin of doctrine, 314–15 right to occupy, 315 Domestic violence, 162–3 Dwelling, 134–42 philosophical foundations, 134–42 Heidegger on, 135 Enterprise Act 2002 protection of home, and, 75 Equitable interests creditors’ remedies, and, 48–9 Estoppel, 60–61 protection of equitable owners, and, 60–61 European Convention on Human Rights. See Human rights Family home, 307–59 alternative models for protecting, 310–13 benefits of individual- oriented approach, 313 broad brush approach, 312 cultural idealisation, and, 312–13 legislative and judicial impulse, 310–11 limitations of criteria, 311 bankruptcy, and, 329–32 discretion of court to order sale, 331 presumption of adult female dependency, and, 330–31 threshold requirements for protection, 332 charging orders, 332–4 gender and marriage, significance of, 333 child occupiers, 337–338 collateral purpose doctrine, and, 327–9, 335 concept in English law, 314–40 creditors, and, 307–8 creditors and the burden of inquiry, 321–25 occupation of deserted wife, 323

545

occupation of stranger, 323 policy, and, 324 standard required of reasonable inspections and inquiries, 322–3 criticisms of framework, 358 decision in Boland, and, 325–7 ‘actual occupation’, 325–6 Law Commission proposals, 326–7 dependency arguments, prevalence of, 334–5 deserted wife’s Equity. See Deserted wife’s equity emphasis on, 357–58 etymology, 341 family, meaning of, 343–4 family, role of, 347–8 gender roles, and, 341–4 ‘home equals family home’, 358–9 home per se, and, 336–40 evaluating options, and, 353–7 family context, 356 individualism, and, 355–6 systematic approach, development of, 354 Texas homestead protection, 353 human rights, and. See Human rights importance of, 357 individual occupier approach, 345–8 contributions, 346–7 exclusions of single people, 347, 348 Law Commission, and, 346 issues, 334–6 ‘marriage’ of family and home, 340–48 matrimonial homes, and, 334 matrimonial homes legislation, 319-,21 presumed collective interest, 335–6 public-private dichotomy, 342 redressing balance of social and economic equality, 335 section 30, Law of Property Act 1925, and, 327–9 solely owned property, and, 339 special category, as, 309 themes, 334–6 third parties, and, 344 valuing family in, 307-,9 white middle-class values, 343 Feminist critique of values of home, 366-,76 benefits and costs for women occupiers, 371–2 demands imposed upon women, and, 372 Heidegger, and, 368–9 home as negative phenomenon, 367 home as site for individual subjectivity, 370–72 home as universal value, 372–6 home as site of resistance, 373–4 importance of empirical evidence, and, 374–5 home as ‘women’s place’, 367–70

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Page 546

Index

Feminist critique of values of home (cont.): positive perspective on home, and, 366–7 Feminist economics, 99–108 aim of analysis, 99 Green, K on, 102 home as private sphere, 105 home as subjective phenomenon, 99 Land Registration Act 2002, 103–4 legislation, and, 103–4 masculinity of commercial interests of creditor, 105 masculinity of land law, and, 99–108 Nelson, JA on, 100–01 possession, and,103–4 priority of creditors, and, 106–8 rationality of land law, and, 101–2 title registration, and, 104 traditional economic analysis, and, 99–100 Gender and the meaning of home, 361–407 ability to sustain home ownership, 401 access to home ownership, 401 family home, and, 404 gender issues, 405 gender-specific home protection, 406–7 home gender-neutral, whether, 364–5 home interest as ‘feminine’, 362 inequality of vulnerability, 401 influence of policy, and, 361–2 low-income households, 405 positive attachments to home, and, 400–1 reduction in availability of credit, and, 365–6 significance of, 361 special treatment for female occupiers, and, 366 traditional rejection of home by feminist theories, 363–4 undue influence, and, 402–3 vulnerability, and, 365 Gender, default and repossession, 395–400 additional burdens imposed on women, 398 bankruptcy, and, 399 mental and physical health implications, 396–7 relationship breakdown, and, 399 women’s responsibility for managing family’s money, 397–8 Gender difference in meanings of home, 387–95 availability of home meanings for women, 391–2 differences of emphasis, 388 emotional and physical reactions, 389 gender, home ownership and ontological security, 391–5 home as ambiguous phenomenon, 390–91 negative associations, 394–5 ontological security, 392–3, 394 security, and, 390

shift from gender to income, 393 Green, K feminist economics, on, 102 Hegel property, on, 289–92 Heidegger ‘dwelling’, on, 135 Home compulsory purchase,and, 8 conceptualisation in law, 6–7 creditor, concerns of, 14–23. See also Creditor, concerns of creditor/occupier context 11–14, 33–77 See also Creditor/ occupier context absence of legal concept, 12–13 centrality of, 13 clash of interests, 11 commercial interest, 11–12 priority accorded to interests of creditors, 12 difficulty of concept, 27 disputes between secured creditors and home occupiers, 10–11 family law, and, 7–8 five aspects of meaning, 33 idea in law, 7–11 importance, 3–4 lack of coherent concept, 523 land law, and, 8–9 legal concept, 4 legal theoretical frameworks, 6 meaning in legal analysis, 33–77 occupier, concerns of, 23–27. See also Occupier, concerns of property law disputes, 3 social science discipline, 5 strict settlement, and, 9 subjective phenomenon, as, 4 tax law, and, 7 trust for sale, and, 9–10 value of, 5–6 Home as a financial investment, 146–55 capital appreciation, 147 departure of partner, and,153–4 home as commodity, 148–9 ideologies of home ownership, and, 148 inheritance, and,149–53 attitudes of beneficiaries and testators, 152–3 Marxist analysis, 148 non-financial meanings, and, 154–5 owner- occupation, and, 146–8 passing asset to children,149–53 relationship breakdown, and, 154 significance of 146–7 store of wealth, as, 149 Home as a physical structure, 155–7

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Page 547

Index ‘bricks and mortar’, 155–6 experience of home, and,157 homelessness,and, 156–7 physical shelter, 155 rooflessness, and, 156–7 Home as identity, 167–73 constituent elements, 170 emotional connotations, and, 167–8 ideologies of home ownership, and, 173 philosophical foundations, 168 ‘property for personhood’, and, 169–70 re-possessed occupiers, and, 171–5 emotional reaction, 172–3 social identity, and, 171 Home as social and cultural unit, 173–7 contexts, 175 home as place of refuge, 175–6 household groups, and, 176 possession actions, and, 176–7 Home as territory, 157–67 association between home and family, 164 ‘bargaining in the shadow of the law’, 161 control, and, 159–60 defensiveness, 160 domestic violence, and, 162–3 fear of outside world, and, 163 home territory as private space, 164–5 human rights, and, 165–6 mortgage possession, and,160–61 occupied home as ‘primary territory’, 158–9 privacy, and, 159–60, 165–7 status, and, 159–60 symbolic qualities of site, and,161–2 territorial behavioural, 158 unsuitable home ownership, and, 160 women, and, 163–4 Home, meaning of,131–180. See also Dwelling bureaucratisation of land, and, 139–40 Casey, ES on, 138 centrality for human experience, 138–9 complexity of concept, 145 conceptual springboard, 131–80 construction of legal concept of house, 178–9 emotional response, 144–5 empirical variable, whether, 145 etymology, 143–4 Home Cultures, 131 identity shell, 136 inherent intangibility of home interest, 178 lack of coherent concept, 132 Malpas JE on, 137 nature of home interest, 133 occupier’s self-identity, and, 137 philosophical foundations, 134–42 physical structure of house, 145–6 policy concerning creditor/occupier disputes, and, 132

psychological significance, 144 registered land, and, 141 scholarship in disciplines other than law, 134 significance of intangible meanings, 139 social scientists, and, 143 symbolism, 142 territoriality, and,138 unpacking meanings, 142–77 valuation for legal purposes, 179–80 Home ownership, 181–241 advantages, 209–10 assessment of citizen benefits, 200–01 conceptualisation, 186 creditors as debt counsellors, 240–41 decision to rent, and, 185 economic benefits, 201–06 enhancement of home meanings, on, 209 extreme costs government policy, and, 203 ‘externalities’, 202 government policies, and, 183–4 growth of political ideology, 187 home owners better citizens, whether, 197–201 ambivalence of empirical evidence, 198–9 popular benefit as to, 199–200 ‘property-owning democracy’, 200 US surveys, 197–8 Westminster City Council scandal, and,199–200 household wealth, and, 213–28. See also Household wealth. ideology, 231–2 ideology, creation of, 190–93 economic conditions, 192–3 factors affecting, 191 financial incentives, 192 political support, 190–91 social kudos, 192 impact of loss of home, 238 individual rewards, 206–12 financial, 207 personal, 207 political ideology, and, 207 Kemeny, J on, 208–9 macroeconomic returns, 201–6 default rates, and, 205–6 efficiency losses, 206 geographic stability, and, 205 national economy, and, 203–4 trade-off between costs and benefits, 204 market intervention, and, 202 meanings of home across tenures, 208–12 national employment, and 204 non-financial implications, 228–37

547

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Page 548

548 Home ownership (cont.): ontological security, and, 232–7 control, 233–4 independence, 233–4 personal freedoms, 237 possession actions, and, 235–6 random events, and, 234–5 renting, and, 236 Saunders, P, on, 232–4 social status, 237 policies resulting in growth of, 238–9 policy debates, 211 political ideology, 188–93 growth of lending volume, 188–9 Labour governments, and, 190 popularity, 183 powerful role of creditors, and, 185 priority of creditor’s claim, and, 181–2 pro-creditor bias of legal response, and, 240 promotion of, 212 ‘right to buy’ policy, 202–3 Saunders, P, on, 209–10 social advantages, 193–206 ‘bulwark against Bolshevism’, 193–4 Homestead Act, 194–5 Levellers, and, 194 New Deal, and, 195–6 protecting owner-occupied home, 195–7 ‘stake in the system’,193–201 social and cultural significance, 186–7 socio-cultural and political rhetoric, 231 socio-cultural significance, 184–5 statistics, 183 tenures, and, 210–11 unsuccessful, costs of, 211–12 ‘unsuitability’, 189 ‘x factor’ meanings of home, and, 228–37 Home-type values in legal framework, 37–44 Housing Act 1988, 38–9 property law, 40 Rent Acts, 38–9 security of tenure, 38 Homestead Act, 194–5 Homestead legislation, 348–53 aim, 349 Canada, 349–50 Ireland, 350 New Zealand, 350 Texas, 350–53 USA, 350–53 House purchase practicalities of, 20–21 Household wealth, 213–28 access to sources of credit, and, 214 accumulation of family assets, and 216 economic benefits, 213 economic ‘stake in the system’, 215 inheritance, and, 215–16

Index low income households, 217–20 consequences of creditor possession actions, and, 219 costs, 217 creditor/occupier dispute, and, 227 gate-keeping approach, 225–6 ISMI, 223–4 lack of state support, 221–2 legal policy, and, 225–6 links between housing policies and legal context, 222–3 MPPI, 224–5 private market approach, 224 raising capital, 218–19 right to buy, 220–28. See also Right to buy risk, and 218–20 social assistance benefits, 223 statistics, 227–8 unsafe safety refs, 220–28 social interest, and, 215 Housing Act 1988 legislative policy, 38–9 Human rights, 451–522 Article 1 of first Protocol to European Convention, 467–471 conflict with Article 8, 42–7 creditor’s rights, and, 471 interference by the state, 468–9 interferences justified in public interest, 470–71 occupier’s home interest, and, 469–70 possession, and, 468 private individuals, and, 469 right to property, 467–71 Article 8 European Convention on Human Rights, 454–5, 459–61 Article 14, and, 500–03 conflict with Article 1 of First Protocol, 472–4 family home, and, 462–3 home, meaning, 475–6 horizontal effect, 465–7 ‘interference’ by public authority, 476–7 interferences with existing homes, 460–61 justification for interference with right to respect for home, 455–6 London Borough of Harrow v Qazi, 481–500 nature of right, 475 privacy in the context of home, 464–5 private life, 463–5 ‘proportionality-style’ reasoning, 480–81 qualified nature of, 477–81 rejection of claims in creditor/occupier context, 478–9 ‘respect for home’, 474–81 right to respect for the home, 459–61 Article 14, European Convention on Human Rights, 500–03

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Page 549

Index Article 8, and, 500–03 child occupiers, and, 501–02 discrimination, 500–3 balancing of competing rights, and, 472–3 clashing right UK domestic courts, approach of, 473–4 coherent concept of interest at stake, 456 conflicting case law, 503–18 creditor/ occupier context, 454–74 creditor’s claims, and, 126–8 evaluation of Convention- compatibility of domestic law, 519–20 ‘external factors’, 520–1 family home, and, 461–3 discrimination, and, 462 Article 8, 462–3 forum for balancing exercise, 521 framework of Human Rights Act 1998, 453–4 home as territory, and, 165–6 horizontal effect, problem of, 465–7 impact of pro-creditor policy, 456–7 judicial policy, 521–22 Kay and Price, 505 balance between rights of individual and rights of society, 512 complexity of housing legislation, and, 513–14 defaulting owner occupier, and, 516–17 justification for interference with home, 510–11 local authority housing policies, and, 506 personal circumstances of individual occupier, 508–9 potential implications for creditor possession actions, 510 private landlords, 514–15 public authorities, and, 514–15, 517, 518 tenants and owner occupiers, 517–18 London Borough of Harrow v Qazi, 481–500 Article 8 as a ‘qualified right’, 482 automatic defeat of home interest, 483–84 bankruptcy, and, 498–9 decision, 483–6 domestic law, and, 493–4 ‘exceptional circumstances’, and, 500 facts, 483 impact of decision, 481–500 impact of decision for creditor/occupier disputes, 495–500 infringement of Article 8, 492 lack of weight conferred on home interest, 496 Lord Bingham, 486–8 Lord Hope, 489–91 Lord Millett, 491–4 Lord Scott, 495 Lord Steyn, 488–9

549 potential impact on housing policies and procedures, 489–90 prioritising interests of landlords and mortgages, 496–7 privacy, and, 490, 491–2 purposive interpretation of Article 8, and, 487–8 right to occupy property as home, 484–5 right to respect for home, 485- 6 significance, 495–500 status of home in law, and, 483 subsequent decisions, 497–8 nature of, 458–9 nature of interests at stake, 457 ‘necessary in the interests of a democratic society’, 504 private life, 463–5 pro-creditor approach, 518–19 property law, and, 458–59 proportionality analysis, 504–5

Impact of losing home, 109–22 creditor possession actions, 118–22 Ford, Burrows and Nettleton on, 112–13, 115–16 health implications, 115–18 living with mortgage arrears, 115–16 ‘domicile’, 111 extreme responses, 109–10 grief, 110–11 increase of risk with mortgage debt, 111–12 intangible elements of home, and, 117 law and the emotions, 118–22. See also Law and the emotions mental health, and, 110 tangible elements of home, and, 117 ‘unsustainable home ownership’, 116–17 ‘x-factor’ values, 118 Kemeny, J The Myth of Home Ownership, 208–9 Land law bureaucratisation of, 139–40 Land registration constructive notice, and, 51–2 Land Registration Act 2002, feminist economics, and, 103–4 Gray and Gray on, 103–4 Law and market economy, 97–8 Malloy, RP on, 97–8 non-economic preferences of occupiers, and, 97 Law and the emotions, 118–22 emotional impact of negative experiences, 121 ‘loss of emotional capital’, 120–21 presumed rationality of legal system, and, 119–20

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550 Law and the emotions (cont.): psychology, and, 119 ‘situational’ events, and, 121–2 Law Commission charging orders, and, 47 two trustees rule, and, 59–60 Llewellyn, Karl availability of credit, on, 90 Malloy, RP incompleteness of economic theory, on, 128 law and market economy, on, 97–8 Malpas, JE significance of home, on, 137 Marx, Karl value, on, 251 Matrimonial home legislation, 319–21 aim of, 320–21 Royal Commission, and, 319–20 Nelson, JA, feminist economics, on, 100–01 New Deal home ownership, and, 195–6 Non-debtor occupiers acquisition and non-acquisition credit, 87 adult occupiers, 87–8 child occupiers, 87–8 contract, enforcing, 82–3, 84–8. See also Contract, enforcing creditors, and, 35, 37, 56, 82, 84 impact of possession actions, 112–14 interests in property, 312–13 protection as ‘victims’, 355 Occupier, concerns of, 23–37 asset value of owned housing, 25 home as financial asset, 25–6 legal concepts, and, 24 nature of legal reasoning, and, 26 value of home, 25–7 value-types, 23–4 Overreaching, 56–60 basis of doctrine, 56–7 effect, 56–7 Posner RA, availability of credit, on, 91–2 Possession, 274–86 basis for protection of occupiers, as, 275–6 creditor/occupier disputes, and, 275 decline in status of possessor, 277 doctrine of seisin, and, 278–81 endowment effect, 281–4 desire to maintain status quo, and, 282 rational choice theory, and, 283–4 historical role, 278 Land Registration Act 2002, and, 284–6 shift of emphasis, 285–6

Index preservation of status quo, and, 280–81 reasons for significance of, 274–81 section 36, Administration of Justice Act 1970, and, 277 security of tenant, and, 276–7 significance of, 103–4, 274–5 title, and, 284–286 Power of sale, 41–2 conditions for, 41 home considerations, and, 42 judicial order, 42 power of court to order, 42 Privacy. See Human rights Private life, meaning, 463–4 Property and personhood, 169–70, 287–303 balance struck between creditors and occupiers, and, 298 Bentham on, 295 claims of secured creditor, and, 294 clash of interests between personal and tangible property, 300–01, 302 collateral purpose doctrine, and, 292–3 forms of property located on continuum, 288 Hegel on, 289–92 home as, 300–03 human rights, and, 302 idea of sanctity of home, and, 301 identification, and, 294–5 loss of home, and, 293–4 philosophical foundations, 288–96 property, meaning, 289 Radin, MJ on, 287–8, 296–300 Property law, 245–305 home interest, and, 245–305 possession, 274–286 See Also Possession property and personhood. See Property and personhood rationality of, 246 valuing property in land. See Valuing property in land Property theory, 245–305 home interest, and, 245–305 possession, 274–86. See also Possession property and personhood. See Property and personhood valuing property in land. See Valuing property in land. Radin, MJ property and personhood, on, 287–8, 296–300 Rent Acts, 38–9 history, 39–40 interpretation of policy, 38 motivation, 38 Right to buy policy, 202–3

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Index low income households, and, 220–28 significance, 220–21 Saunders, P home ownership,on, 209–10 ontological security, on, 232–4 Secured creditors, categories, 40 Seisin. See Possession Sole ownership creditor’s remedies, and. See Creditor’s remedies Tenures home ownership, and, 210–11 Territoriality meaning, 157–8 Trust for sale, 64–68 ‘collateral purpose’ argument, and, 67–8 co-owned property, and, 64–8 equitable co-owner’s interest, and, 64 home interests of occupiers, and 65–6 impact of, 64–5 purpose of co-ownership, and, 66–7 Trust of land, 265–9 Act of 1996, 265–9 Law Commission proposals, 266–7 power of sale, 268–9 purpose of, 266–7 Trusts of family home, creditors’ remedies, and, 48–9 Trusts of Land and Appointment of Trustees Act 1996, 71–2 objects of, 71 sale of co-owned land, 72 ‘trust of land’, 71 Two trustees rule, protection of creditors, and, 56–60 Undue influence, 402–3 feminist scholarship and, 402–3 women as home owners, and, 382 Universal value of home ownership, 376–87 family, prevalence of, 376–7 home as amalgam of interests, 376 income, significance of, 383–7 higher-earning women, and, 385 statistics, 384 women’s vulnerability to possession actions, 386–7 women, and, 377–8 women as home owners 378–83. See also Women as home owners Unregistered land priorities, and, 50 Usury, laws of, 258 Valuing property in land, 249–74

551 agrarian security, and, 256–7 binary sets of values, 252 conversion, doctrine of, 263–5 application of, 265 object of, 264–5 statutory trust for sale, 264 creditor/ occupier dispute, and, 251–2 evolution of property in land, 255–6 exchange value, 250–53, 55–60 rise of, 259–60 home as financial asset, and, 271 impact of structural and legal frameworks on creditor/ occupier disputes, 269–72 industrial revolution, and, 259 land as ‘thing’, 254 legislation of 1925 impact on home ownership, 261–2 intention of, 262–3 key treatment, 260–61 section 30, Law of Property Act, 261 logic and rationality, ethos of, 249–50 Marx on, 251 perception of court, 270–71 policy goals, and, 253–4 shift from feudal tenure to modern system, 257–8 things as things, 253–5 things as wealth, 253–5 trust of land, 265–9. See also Trust of land use value, 250–53, 255–60 usury, laws of, 258 value, meaning of, 250–253

Widening participation in home ownership market, 92–6 economic considerations, 95–6 low income households, and, 93–5 usability of home as financial asset, and, 93–4 Williams and Glyn’s Bank Ltd v Boland, 53–5 backlash: acquisition mortages, 55–6 backlash: estoppel, 60–61 backlash: two trustees rule, 56–60 Law Commission, and, 59–60 loss of home, and, 59 policy debate, and, 58 commercial claims of creditors, and, 54 concerns of conveyancers, 54–5 overreaching, and, 56–60 policy implications, 53–4 Women as house owners, 378–83 binary distributions, and, 379–80 implications of gender differential, 379 male dominance, and, 380–81 routes of entry, 378–9 two-adult households, and, 381–2 undue influence, 382

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