People and Buildings: Comparative Housing Law [1 ed.] 9789462747869, 9789462368026

Citation preview

2

Studies in housing law

PEOPLE AND BUILDINGS Comparative Housing Law

Edited by: Michel Vols • Julian Sidoli

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Studies in housing law

Housing law has emerged as a distinct field in both academic legal studies and legal practice. This volume aims to unravel some common threads in the contemporary study of housing law and housing rights. Another objective is to provide a comparative perspective on housing law, the right to housing, and housing policies. The book draws on the work of scholars from various jurisdictions, such as Israel, Portugal, Australia, Switzerland, Indonesia, Sweden, the United Kingdom, as well as the Netherlands. Consequently, a wide range of prominent issues in housing law are explored, including the concept of home in law, abandoned housing, strata title, the protection against eviction, and the right to choose one’s residence. People and Buildings: Comparative Housing Law is the second volume in the Studies in Housing Law series that seeks to examine the many facets of housing law from a variety of academic and professional perspectives.

ISBN 978-94-6236-802-6

9 789462 368026

People and Buildings: Comparative Housing Law

People and Buildings: Comparative Housing Law

M i c h e l Vo l s a n d J u l i a n S i d o l i ( E d s . )

Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel.: 1-800-944-6190 (toll-free) Fax: +1 503 280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag.

ISBN 978-94-6236-802-6 ISBN 978-94-6274-786-9 (e-book) © 2018 The authors | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

Table of Contents Acknowledgements

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Note on Contributors

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Common Threads in Housing Law Research: A Systematic and Thematic Analysis of the Field Michel Vols & Julian Sidoli The Changing Vision of the Home: Rethinking Housing and Intimacy Shelly Kreiczer-Levy

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Empty Homes and Needy People: Time for a New Housing Policy in Portugal and Elsewhere? Dulce Lopes

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4 Strata Title: The New Feudalism Cathy Sherry

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Planning Contracts under Swiss Law: A Tool for Special Housing Needs and the Problem of Breach of Contract Nathalie F. Adank The Recurring Dream of Affordable Housing in Indonesia: A Human Rights Perspective Erna Dyah Kusumawati

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Tenant’s Right to Respect for Home: A Challenge for Swedish Tenancy Courts? Haymanot Baheru

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The Right to Housing and the Right to a Second Chance – How Dutch Landlords and Local Authorities Facilitate and Frustrate the Successful Reintegration of Ex-Offenders Stefan van Tongeren & Michel Vols

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Acknowledgements The Editors would like to express their thanks to Roely Postma, Research Assistant at the Faculty of Law, University of Groningen, for her considerable skill and assistance in the preparation of this volume and also the Centre for Public Order, Anti-social Behaviour and Security (University of Groningen) for its generous financial assistance.

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Note on Contributors Nathalie F. Adank has a PhD from the University of Fribourg and is an Advocate at the Swiss Bar. Haymanot Baheru is a Doctoral Candidate in Private Law at Stockholm Centre for Commercial Law, Stockholm University. Shelly Kreiczer-Levy is an Associate Professor of Law (Senior Lecturer) at the College of Law and Business, Ramat Gan. Erna Dyah Kusumawati is a PhD Researcher at the Faculty of Law of the University of Groningen. Furthermore, she is a teaching staff member at the International Law Department of the Faculty of Law of the Sebelas Maret University (UNS) in Surakarta, Indonesia. Dulce Lopes has a PhD from the University of Coimbra and is a Professor of Law at the same university. She is also a consultant to private and public projects in the planning and housing fields in Portugal. Cathy Sherry is an Associate Professor of Law at the University of New South Wales. Julian Sidoli studied at University College London and Cardiff University and was called to the Bar by the Inner Temple. He is a Barrister at Pendragon Chambers, Swansea. Stefan van Tongeren studied at the University of Groningen and is currently a PhD Candidate at the University of Groningen. Michel Vols has a PhD from the University of Groningen. He holds a Chair in Public Order Law at the University of Groningen.

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Common Threads in Housing Law Research: A Systematic and Thematic Analysis of the Field

Michel Vols & Julian Sidoli This is the second book in the series ‘Studies in Housing Law’.1 Once again it brings together a range of work from diverse scholars and practitioners from a number of countries. The basic rationale underpinning this approach is that there is an opportunity of mutual learning – mutual learning between different jurisdictions, between different scholars and between different methodologies and approaches. It is argued that housing law, because of its diversity – ranging from issues of doctrinal property law on the one hand, to social and environmental aspects on the other – cannot take a narrowly partisan approach. It cannot be the case that all wrongs can be righted by, say, an economically driven approach alone or, alternatively, a sole focus on housing rights. Furthermore, the reality is that the issues and manifestations of such incidences vary greatly between different countries and, indeed, different cities and regions within the same country. This introduction aims to provide, in addition to an outline of the papers in this volume, an overview of recent housing research as a way of providing the non-specialist reader some insight into current debates. Housing law has emerged as a distinct field in academic legal studies only in recent years. The same can be said of housing law as a distinct field of legal practice. In England and Wales, for example, housing law was a branch of property law until the 1970s even though people have had housing needs since before the establishment of the common law. Through a series of landmark cases involving homelessness, the duties of local authorities with regard to housing to more recent human rights and antisocial behaviour cases, it is now established that housing law is a distinct field of practice. Academic trends have also followed the lead from practice. A generation ago, housing law was not firmly established as a discipline in its own right. Nowadays, a considerable literature has grown up around housing law. This introduction aims to unravel some common threads in the contemporary study of housing law and housing rights. Besides that, we aim to assess whether comparative analysis in the field of housing law research actually takes place.

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See for the first volume: J. Sidoli del Ceno, M. Vols & M.N.F. Kiehl, Regulating the City, Den Haag, Eleven International Publishing, 2017.

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1.1

Systematic Review of Housing Law Research (2015-2017)

We conducted a systematic review of recent publications on housing law that can be traced via the database of Google Scholar. First, we searched this database for academic publications published between 2015 and June 2017 that contained one of the following words in the title: ‘housing law’, ‘housing right’, ‘housing rights’ or ‘right to housing’.2 This search on Google Scholar resulted in 176 hits.3 After we excluded the patents and citations from the search results, 147 publications were left. We assessed all these documents manually and selected the relevant publications written in the English language.4 Monographs, book chapters and papers in scholarly journals were included in our database, and conference presentations, case notes, newspaper articles, bachelor/master thesis and book reviews were excluded. After this initial selection, 68 relevant publications on housing law and housing rights were found. In addition, we conducted a more general search on Google Scholar for publications that contained ‘housing law’, ‘housing right’, ‘housing rights’ or ‘right to housing’ in the main text or abstract or title. This search resulted in 7,000 results. With the help of the Harzing’s ‘Publish or Perish’ computer program the number of results was narrowed down.5 With the help of this program we selected the publications published between 2015 and June 2017 that according to Google Scholar were cited in at least three other publications. Studies that only briefly discussed housing law or rights were excluded from our data set. This resulted in 18 relevant publications that were not already found in the first search round. As a result, we collected a total number of 86 publications concerning housing law for our analysis. After we collected our data set, codes were assigned to the publications. With each code we refer to ‘a word or short phrase that symbolically assigns a summative, salient, essence-capturing, and/or evocative attribute for a portion of language-based or visual data’.6 We assessed for each publication which countries were taken into account in the research and whether the publication concerned comparative research that makes comparisons across different countries or cultures. Besides that, we assigned more substantive codes (e.g. ‘eviction’ or ‘squatting’) to each publication to discover common threads in recent housing law research. As we already expected, our data set shows that contemporary housing law research focuses on housing law all over the world. In the 86 publications in our data set, housing law issues in more than 20 countries are discussed. The most prominent jurisdictions are 2 3 4 5 6

All in title: “housing law” OR “housing right” OR “housing rights” OR “right to housing”. The search was conducted on 27 June 2017. We have excluded publications that only had an English title or abstract. See . J. Saldaña, The Coding Manual for Qualitative Researchers, London, Sage, 2009, p. 3.

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Common Threads in Housing Law Research: A Systematic and Thematic Analysis of the Field

the United States (discussed in 18 publications), South Africa (15 publications), Spain (10 publications), the United Kingdom (6 publications), Italy (6 publications), Brazil (5 publications) and Canada (5 publications). Moreover, our analysis reveals that most housing law research seems to analyse housing law issues in just one jurisdiction. Only a small minority of papers in our data set presents the results of comparative research: Only 10 publications discuss the results of comparative research. A small number of publications in our data set are difficult to characterise as part of a common tread in current housing law research. They tend to be textbooks or broad doctrinal studies of housing law in one specific country. For example, Brown discusses a large number of issues within housing law in the United States of America.7 Other studies discuss the relationship of the housing law/rights and property theory in general,8 social control and citizenship,9 gender and housing,10 strata title and multi-unit housing,11 residential mortgage-backed securitisation12 and supportive housing schemes for older adults.13 Still, our analysis also reveals some common threads in current housing law research.

1.2

Existence, Implementation and Realisation of the Right to Housing

The issue of whether a right to housing should actually be recognised and how this right should be implemented is a major debate within the housing law discipline.14 Especially

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C.N. Brown, Experiencing Housing Law, St. Paul, West Academic Publishing, 2016. C. Martnez-Escribano, ‘Tenancy and Right to Housing: Private Law and Social Policies’, European Review of Private Law, Vol. 23, No. 5, 2015, pp. 777-795; A.J. Van der Walt & S. Viljoen, ‘The Constitutional Mandate for Social Welfare-Systemic Differences and Links between Property, Land Rights and Housing Rights’, PER: Potchefstroomse Elektroniese Regsblad, Vol. 18, No. 4, 2015, pp. 1035-1090; W. Migliari, ‘New Forms of Inequality in Cape Town: A Comparative Economic and Legal Study to Defend the Right to Housing’, Journal of Comparative Urban Law and Policy, Vol. 1, No. 1, 2017, pp. 111-130. D. Fée, ‘Housing and Citizenship in the UK: Towards a Conditional Right?’, Revue Française de Civilisation Britannique, Vol. 21, No. 1, 2016, pp. 1-17; See also M. Vols, ‘Banning Criminals and Nuisance Neighbours from Housing: Human Rights Proof? Exclusion and the Dutch Urban Areas Special Measures Bill’, in J. Sidoli del Ceno, M. Vols & M. Kiehl (Eds.), Regulating the City: Contemporary Urban Housing Law, Den Haag, Eleven International Publishing, 2017, pp. 127-143. S. Chant & K. Datu, ‘Women in Cities: Prosperity or Poverty? A Need for Multi-Dimensional and MultiSpatial Analysis’, in C. Lemanski & C. Marx (Eds.), The City in Urban Poverty, Hampshire, Springer, 2015, pp. 39-63. Troy et al., ‘It Depends What You Mean by the Term Rights: Strata Termination and Housing Rights’, Housing Studies, Vol. 32, No. 1, 2017, pp. 1-16. S. Soederberg, ‘Subprime Housing Goes South: Constructing Securitized Mortgages for the Poor in Mexico’, Antipode, Vol. 47, No. 2, 2015, pp. 481-499. E. Iecovich, ‘Live-in Care Workers in Sheltered Housing for Older Adults in Israel: The New Sheltered Housing Law’, Journal of Aging & Social Policy, Vol. 28, No. 4, 2016, pp. 277-291. N. Moons & H. Bernard, ‘Conceptual and Practical Concerns for the Effectiveness of the Right to Housing’, Oñati Socio-Legal Series, Vol. 6, No. 3, 2016, pp. 656-675.

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Michel Vols & Julian Sidoli in the United States it is a matter of debate whether a right to housing exists at all.15 For example, Alexander holds that there is no formal federal, state or constitutional right to housing in the United States. Still, her research shows that housing rights movements’ illegal occupations and local housing reforms concretise the human right to housing in local American laws. An American right to housing is established through private and local laws and concerns a right ‘to remain, a right to adequate and sustainable shelter, a right to housing in a location that preserves cultural heritage, a right to a self-determined community, and a right to equal housing opportunities for non-property owners’.16 Various other studies deal with how the right to housing has developed all over the world over the years. For example, Hohmann analyses which role the UN special rapporteurs play in the development of the right to adequate housing. She holds that the rapporteurs’ reports are important normative statements, even if the reports’ impact has been often muted by practical and political factors.17 A great number of publications analyse how the right to housing has been implemented in a specific jurisdiction.18 Yet, some 15

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J. Hoover, ‘The Human Right to Housing and Community Empowerment: Home Occupation, Eviction Defence and Community Land Trusts’, Third World Quarterly, Vol. 36, No. 6, 2015, pp. 1092-1109; D. Overfelt & D.L. Brunsma, ‘Rights to Housing’, in Blau et al. (Eds.), Leading Rogue State: The US and Human Rights, New York, Routledge, 2015, p. 16; K.R. Liba & S. Harding, ‘More than a Commodity: The Right to Adequate Housing’, in K.R. Liba & S. Harding (Eds.), Human Rights-Based Community Practice in the United States, New York, Springer, 2015, pp. 39-59; K. Patel ‘Sowing the Seeds of Conflict? Low Income Housing Delivery, Community Participation and Inclusive Citizenship in South Africa’, Urban Studies, Vol. 53, No. 13, 2016, pp. 2738-2757. L.T. Alexander, ‘Occupying the Constitutional Right to Housing’, Nebraska Law Review, Vol. 94, No. 2, 2015, p. 248. J.M. Hohmann, ‘Principle, Politics and Practice: The Role of UN Special Rapporteurs on the Right to Adequate Housing in the Development of the Right to Housing in International Law’, Queen Mary School of Law Legal Studies Research Paper, 2016, pp. 1-20. See L.E. Perriello, ‘Are Foreigners Entitled to a Right to Housing’, The Italian Law Journal, Vol. 1, No. 2, 2015, p. 365 (on the right to housing in Italy); C. Levy-Vroelant, ‘The Right to Housing in France: Still a Long Way to Go from Intention to Implementation’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 88-108 (on the right to housing in France); J.M. Hohmann, Protecting the Right to Housing in England: A Context of Crisis, London, Just Fair, 2015 (on the right to housing in the United Kingdom); E. Murphy, For a Proper Home: Housing Rights in the Margins of Urban Chile, 1960-2010, Pittsburgh, University of Pittsburgh Press, 2015 (on the right to housing in Chile); F. King, ‘Scotland: Delivering a Right to Housing’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 155-161 (on the right to housing in Scotland); MartínezEscribano, supra note 8 (on implementation of the right to housing in European tenancy law systems); B.O. Mmusinyane, Comparative Implementation Strategies for the Progressive Realisation of the Right to Adequate Housing in South Africa, Canada and India, Pretoria, Unisa, 2015 (on the right to housing in South Africa, India and Canada); Moons & Bernard, supra note 14 (on the right to housing in Belgium); A. Diver, ‘Putting Dignity to Bed? The Taxing Question of the UK’s Housing Rights “Relapse”’, Justiciability of Human Rights Law in Domestic Jurisdictions, Heidelberg, Springer, 2016, pp. 333-361 (on the right to housing in the United Kingdom); R. Solomon, ‘Bounded Political Contestation: The Domestic Translation of International Health and Housing Rights in Australia’, Australian Journal of Political Science, 2017, pp. 1-16 (on the right to housing in Australia); J. Ponce, ‘Affordable Housing, Zoning and the International Covenant on Economic, Social and Cultural Rights: Some Lessons from the Spanish and South African Experiences’, Journal of Comparative Urban Law and Policy, Vol. 1, No. 1, 2017, p. 8 (on the right to housing in Spain and South Africa).

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researchers hold that the lack of enforceability undermines the existence of the right to housing.19 For example, several Canadian studies discuss the landmark Tanudjaja v. Attorney General (Canada) case in which it was decided that the right to housing as a positive right is not justiciable.20 Lirio do Valle’s analysis of litigation on the right to housing in Rio de Janeiro shows very similar results with regard to the situation in Brazil.21 A large body of literature has been published on the situation in South Africa.22 Chenwi gives an overview of how the South African government struggles to implement the right to housing.23 Although the country has progressive housing laws, case law, policies and programmes, the situation on the ground remains critical. Chenwi holds that lessons can be learnt from South Africa’s approaches and strategies to implement the right to housing. She argues that litigation, and the threat of litigation, advocacy, social mobilisation, education and improved participation (meaningful engagement) are key elements of a successful strategy in enforcing the right to housing. Tchawouo Mbiada assesses which role political accountability mechanisms such as the ombudsman can contribute to the realisation of

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Solomon, supra note 18. D. DesBaillets, ‘The International Human Right to Housing & the Canadian Charter: A Case Comment on Tanudjaja v. Canada (Attorney General)’, Windsor Yearbook of Access to Justice, Vol. 32, 2015, pp. 121-138; D. Bullen, ‘A Road to Home: The Right to Housing in Canada and Around the World’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 1-9; Y. Dirks, ‘Community Campaigns for the Right to Housing: Lessons from the R2H Coalition of Ontario’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 135-142; T. Heffernan, F. Faraday & P. Rosenthal, ‘Fighting for the Right to Housing in Canada’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 11-45. See also M. Young & S. Bender Johnston, ‘A Tale of Two Rights: The Right to the City and a Right to Housing’, in J. Sidoli del Ceno, M. Vols & M.N.F. Kiehl (Eds.), Regulating the City, Den Haag, Eleven International Publishing, 2017, pp. 11-39. V.R. Lirio do Valle, ‘Enforcing Socio-Economic Rights through Immediate Efficacy: A Case Study of Rio De Janeiro’s Right to Housing’, Tulane Journal of International & Comparative Law, Vol. 25, No. 1, 2016, pp. 1-44. See S. Wilson, J. Dugard & M. Clark, ‘Conflict Management in an Era of Urbanisation: 20 Years of Housing Rights in the South African Constitutional Court’, South African Journal on Human Rights, Vol. 31, 2015, pp. 472-503; P.T. Modhi, ‘The Role of Third Parties Contracted by Government in Realising the Right to Access Housing in South Africa: Legislative and Policy Reform-Feature’, ESR Review: Economic and Social Rights in South Africa, Vol. 16, No. 2, 2015, pp. 11-13; G. Muller, ‘Proposing a Way to Develop the Substantive Content of the Right of Access to Adequate Housing: An Alternative to the Reasonableness Review Model’, Southern African Public Law, Vol. 30, No. 1, 2015, pp. 71-93; C. Tshoose, ‘A Closer Look at the Right to have Access to Adequate Housing for Inhabitants of Informal Settlements Post Grootboom’ Southern African Public Law, Vol. 30, No. 1, 2015, pp. 94-111; D. Ranslem, ‘Temporary’ Relocation: Spaces of Contradiction in South African Law’, International Journal of Law in the Built Environment, Vol. 7, No. 1, 2015, pp. 55-71.; Patel, supra note 15; L.R Cirolia, W. Smit & J. Duminy, ‘Grappling with Housing Issues at the City Scale: Mobilizing the Right to the City in South Africa,’ in P. Herrle, A. Ley & J. Fokdal (Eds.), From Local Action to Global Networks: Housing the Urban Poor, Farnham, Ashgate, 2015, pp. 159-174; T. Monson, ‘Everyday Politics and Collective Mobilization Against Foreigners in a South African Shack Settlement,’ Africa, Vol. 85, No. 1, 2015, pp. 131-153; Ponce, supra note 18; K. Kornienko, ‘Waiting, Hope, Democracy, and Space: How Expectations and Socio-Economic Rights Shape Two South African Urban Informal Communities’, Journal of Asian and African Studies, Vol. 52, No. 1, 2017, pp. 34-49. L. Chenwi, ‘Implementation of Housing Rights in South Africa: Approaches and Strategies’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 68-87.

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Michel Vols & Julian Sidoli the right to housing.24 Van der Walt and Viljoen discuss the relationship of the right to housing, land rights and property rights in a theoretical analysis of South African law. They hold that in the South African context, housing rights should be seen ‘as discrete constitutional rights that stand on their own constitutional foundations and that they do not need to be protected as property rights. On the other hand, they are not fundamentally circumscribed or opposed by property rights either’.25

1.3

Housing Affordability

Another important topic in contemporary housing law research concerns affordability of housing.26 For example, Migliari shows how risky real-estate investments may affect the right to housing and result in new urban forms of inequality.27 Ponder analyses the effects of gentrification on housing affordability in the United States.28 Furthermore, Desmond and Bell discuss the lack of affordable housing and the dismantling of rent control regulations in the United States.29 With regard to the United Kingdom, Hohmann’s analysis shows the lack of affordable housing in that country as well.30 Other research deals with the effectiveness of legal interventions that aim to advance housing equity. Ramsey-Musolf, for example, found that compliance with California’s Housing Element Law increased over the years. However, the study reveals deficient low-income housing production and a surplus market-rate housing production.31

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C.J.T. Mbiada, ‘The Public Protector as a Mechanism of Political Accountability: The Extent of Its Contribution to the Realisation of the Right to Access Adequate Housing in South Africa’, Potchefstroom Electronic Law Journal, Vol. 20, 2017, pp. 2-34. Van der Walt & Viljoen, supra note 8. Martínez-Escribano, supra note 8 (on rent control in various European countries); Soederberg, supra note 12 (on low-income housing in Mexico and mortgage-backed securitisation); N.M. Davidson, ‘Affordable Housing Law and Policy in an Era of Big Data’, Fordham Urban Law Journal, Vol. 44, 2017, pp. 277-300 (on the impact that big data may have on affordable housing policy); Solomon, supra note 18, pp. 374-375 (on political debates about housing affordability in Australia). Migliari, supra note 8. E. Ponder, ‘Gentrification and the Right to Housing: How Hip Becomes a Human Rights Violation’, Southwestern Journal of International Law, Vol. 22, No. 2, 2016, pp. 359-383. M. Desmond & M. Bell, ‘Housing, Poverty, and the Law’, Annual Review of Law and Social Science, Vol. 11, 2015, pp. 15-35. Hohmann, supra note 18. D. Ramsey-Musolf, ‘Evaluating California’s Housing Element Law, Housing Equity, and Housing Production (1990-2007)’, Housing Policy Debate, Vol. 26, No. 3, 2016, pp. 488-516.

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1.4

Common Threads in Housing Law Research: A Systematic and Thematic Analysis of the Field Discrimination, Social Exclusion and Minority Protection

The prevention of discrimination, social exclusion and the societal need for minority protection are also widely debated in current housing law research.32 A number of US publications deal with racial segregation and the Fair Housing Act that aims to reduce housing discrimination.33 Zasloff describes the history of this legislation’s origins. He holds that we should rethink the scholarly consensus that the Fair Housing Act failed.34 Besides that, recent European housing law research analyses whether and how international housing rights (i.e. UN treaties, Article 8 ECHR, European Social Charter) protect minority groups such as Travellers and Roma.35 Lastly, a number of other publications discuss legal interventions that aim to achieve a balanced socio-spatial distribution of social groups in residential areas.36

1.5

Habitability, Housing Quality and Vacant and Abandoned Housing

Another common thread in contemporary housing law research concerns habitability, housing conditions and quality as well as substandard, vacant and abandoned housing.37 32

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Monson, supra note 22 and Patel, supra note 15 (both on housing allocation and ethno- and xenophobia in South Africa); Chant & Datu, supra note 10 (on gender and discrimination issues in housing law); J.D. Gonda, Unjust Deeds: The Restrictive Covenant Cases and the Making of the Civil Rights Movement, Chapel Hill, UNC Press Books, 2015 (on race and housing in the United States). R.G. Schwemm, ‘Fair Housing Litigation After Inclusive Communities: What’s New and What’s Not’, Columbia Law Review, Vol. 115, 2015, pp. 106-126; A. Cavin, ‘A Right to Housing in the Suburbs: James V. Valtierra and the Campaign Against Economic Discrimination’, Journal of Urban History, 2017 (on the James v Valtierra Supreme Court ruling and exclusionary zoning and economic segregation). J. Zasloff, ‘The Secret History of the Fair Housing Act’, Harvard Journal on Legislation, Vol. 53, 2016, pp. 247-278. D. O’Donovan, ‘Breaking the Cycle of Discrimination? Traveller/Roma Housing Exclusion and the European Convention on Human Rights’, International Journal of Discrimination and the Law, Vol. 16, No. 1, 2016, pp. 5-23; C. Coman & C.I. Rezeanu, ‘The “Free” Movement of Roma in the EU: From the Presumption of the Fundamental Right to Housing to Forced Evictions and Expulsion’, Bulletin of the Transilvania University of Brasov. Series VII: Social Sciences Law, Vol. 9, No. 2, 2016, pp. 81-90; A. Dobrushi & T. Alexandridis, ‘International Housing Rights and Domestic Prejudice: The Case of Roma and Travellers’, Social Rights Judgments and the Politics of Compliance: Making it Stick, Cambridge, Cambridge University Press, 2017, pp. 436-472. K. Borevi & B. Bengtsson, ‘The Tension between Choice and Need in the Housing of Newcomers: A Theoretical Framework and an Application on Scandinavian Settlement Policies’, Urban Studies, Vol. 52, No. 14, 2015, pp. 2599-2615; T.C. Wong & C. Goldblum, ‘Social Housing in France: A Permanent and Multifaceted Challenge for Public Policies’, Land Use Policy, Vol. 54, 2016, pp. 95-102. Desmond & Bell, supra note 29 (on habitability and code enforcement in the United States); Hohmann, supra note 18 (on non-decent housing in the private rental sector in the United Kingdom); Ponder, supra note 28 (on effects of gentrification on habitability). Two recent publications deal with housing conditions and the right to housing in disaster areas: Y. Liang, ‘Satisfaction with Economic and Social Rights and Quality of Life in a Post-Disaster Zone in China: Evidence from Earthquake-Prone Sichuan’, Disaster Medicine and Public Health Preparedness, Vol. 9, No. 2, 2015, pp. 1-8; J.E. Duyne Barenstein, ‘The Right to

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For example, Feris analyses the relationship of the human right to sanitation and the right to adequate housing.38 Furthermore, publications concerning habitability focus on slum housing conditions and government strategies to eradicate urban slums.39 Other research does not focus on slums, but on other types of residential premises. For example, Manda describes how the Japanese ‘Vacant Housing Law’ gives local authorities in Japan powers to identify vacant premises and to oblige property owners to repair or remediate them. He concludes that the United States should develop strategies to prevent a potential exacerbation of vacant and abandoned housing-related blight over the courts of the next 45 years.40 With regard to the United States, Davidson discusses how big data analysis will help policy makers to ensure housing quality more efficiently and effectively.41

1.6

Homelessness

Investigating homelessness is a continuing concern within housing law research too.42 With regard to the European context, Kenna et al. analyse several measures to prevent and address homelessness.43 Hohmann holds that levels of homelessness in the United Kingdom are rising points to a ‘retrogressive step in the enjoyment of the right to housing, and thus a serious failing in the Government’s obligations under the ICESCR’.44 Nonetheless, King

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Adequate Housing in Post-Disaster Situations: The Case of Relocated Communities in Tamil Nadu, India’, in P. Daly (Ed.), Rebuilding Asia Following Natural Disasters: Approaches to Reconstruction in the AsiaPacific Region, Cambridge, Cambridge University Press, 2016, pp. 236-260. L. Feris, ‘The Human Right to Sanitation: A Critique on the Absence of Environmental Considerations’, Review of European, Comparative & International Environmental Law, Vol. 24, No. 1, 2015, pp. 16-26. Daniel et al., ‘Slum Housing Conditions and Eradication Practices in some Selected Nigerian Cities’, Journal of Sustainable Development, Vol. 8, No. 2, 2015, p. 230 (on slum clearance in Nigeria); Monson, supra note 22 (on slums in South Africa and the right to housing); Patel, supra note 15 (on slum upgrade programmes in South Africa); V.K. Nagaraj, ‘From Smokestacks to Luxury Condos: The Housing Rights Struggle of the Millworkers of Mayura Place, Colombo’, Contemporary South Asia, Vol. 24, No. 4, 2016, pp. 429-443 (on eliminating ‘slum culture’ in Sri Lanka); J. Speer, ‘The Right to Infrastructure: A Struggle for Sanitation in Fresno, California Homeless Encampments’, Urban Geography, Vol. 37, No. 7, 2016, pp. 1049-1069 (on downtown encampments of homeless people in California); Kornienko, supra note 22 (on township improvements in South Africa). P. Manda, ‘Preparing our Housing for the Transition to a Post-Baby Boom World: Reflections on Japan’s May 26, 2015 Vacant Housing Law’, Cityscape: A Journal of Policy Development and Research, Vol. 17, No. 3, 2015, pp. 239-248. Davidson, supra note 26. Speer, supra note 39 (on homeless people in California invoking their right to urban infrastructure); P. Watt, ‘Gendering the Right to Housing in the City: Homeless Female Lone Parents in Post-Olympics, Austerity East London’, Cities, Vol. 70, 2017 (on homeless female lone parents in London). Kenna et al., Pilot Project – promoting Protection of the Right to Housing – homelessness Prevention in the Context of Evictions Final Report, Brussels, European Commission Directorate-General for Employment, Social Affairs and Inclusion Directorate Soc, 2016. Hohmann, supra note 18, p. 4.

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Common Threads in Housing Law Research: A Systematic and Thematic Analysis of the Field

found that the homelessness legislation in Scotland makes a commitment to homeless households. Still, ‘the challenge now is delivering on that’.45

1.7

Evictions and the Right to the City

Another major topic within contemporary housing law research are evictions and forced displacement of people.46 In nearly all continents, researchers have analysed this topic. A seminal study on evictions in North America is the recent work of Desmond. In Evicted: Poverty and Profit in the American City, he describes the devastating effect of evictions on Milwaukee’s urban poor during the recent housing crisis. Desmond advocates an American right to housing as well as legal and policy solutions to advance that right.47 Several publications build on his work. For example, Alexander explores how the right to housing could be implemented on a local level through resolutions and ordinances.48 Other North American studies discuss evictions, tenure security and housing rights.49 For example, Lee assesses the effects of privatising public housing on tenants’ housing rights. Her analysis reveals that public housing in the United States offers tenants greater security in tenancy, and that privatisation puts these and other tenants’ rights at risk.50 Furthermore, Ponder describes the negative effects of gentrification on legal security of tenure in New York City.51 With regard to evictions in Europe, a research team led by Kenna conducted an impressive comparative analysis of evictions and the prevention of homelessness within Members States of the European Union. They present rich comparative data on not only the numbers of evictions but also risk factors in eviction and preventative measures.52 Other publications assess the role of European Union law, European human rights law (Article 8 ECHR) as well as the International Covenant on Economic, Social and Cultural Rights within the procedural as well as substantive protection against eviction.53 45 46

47 48 49 50 51 52 53

King, supra note 18, p. 161. P. García Amado, ‘Connecting Tenure Security with Durable Solutions to Internal Displacement: From Restitution of Property Rights to the Right to Adequate Housing’, International Migration, Vol. 54, No. 4, 2016, pp. 74-86 (on displacement of urban internally displaced persons); Fée, supra note 9, pp. 6-8 (on evictions and anti-social behaviour). M. Desmond, Evicted: Poverty and profit in the American city, Crown, 2016. See also Desmond & Bell, supra note 29. L.T. Alexander, ‘Evicted: The Socio-Legal Case for the Right to Housing’, The Yale Law Journal, Vol. 126, No. 2, 2016, pp. 431-447. Hoover, supra note 15. J. Lee, ‘Rights at Risk in Privatized Public Housing’, Tulsa Law Review, Vol. 50, No. 3, 2015, pp. 759-801. Ponder, supra note 28. Kenna et al., supra note 43. O. Saunders, ‘Article 8 in Housing Law: No Home for Human Rights Values’, Southampton Student Law Review, Vol. 6, No. 1, 2016, pp. 72-90 (Article 8 ECHR in the United Kingdom); K. Casla, ‘The Rights we

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A large and growing body of literature assesses the legal protection against eviction in Africa. The majority of publications focus on the situation in South Africa.54 Chenwi gives an overview of the most relevant case law that protects South Africans against the loss of their home.55 Ebrahim discusses the importance of a coherent and reasonable waiting list in eviction proceedings under South African law.56 Other studies to housing law in other countries in the African continent also address eviction issues.57 A number of publications in our data set concern evictions in South America.58 For example, Freeman and Burgos describe the ‘thinning’ of Rio de Janerio’s favelas. Poor city dwellers are removed from their homes by a combination of threats, promises, disinformation, psychological terror and intentional generation of insecurity.59 We also found several studies on evictions in Asia. Shin and Kim describe the displacement of poorer owner-occupiers and tenants in the light of Seoul’s highly speculative urban development processes and gentrification.60 They hold that popular resistance against eviction has been undermined by brutal state oppression and stigmatisation of the evictees

54 55

56

57 58 59

60

Live in: Protecting the Right to Housing in Spain through Fair Trial, Private and Family Life and NonRetrogressive Measures’, The International Journal of Human Rights, Vol. 20, No. 3, 2016, pp. 285-297 (Article 8 ECHR in Spain); B. Sanchez & J. Carlos, ‘The UN Committee on Economic, Social and Cultural Rights’ Decision in IDG V. Spain: The Right to Housing and Mortgage Foreclosures’, Journal européen des droits de l’homme, Vol. 2016, No. 3, 2016, pp. 320-339 (International Covenant on Economic, Social and Cultural Rights); O’Donovan, supra note 35 (Article 8 ECHR in Ireland); J.S. Mullor, ‘The Right to Housing and the Protection of Family Life and Vulnerable Groups’, in M. González Pascual & A. Torres Pérez (Eds.), The Right to Family Life in the European Union, New York, Taylor & Francis, 2016, pp. 214-231. See also M. Vols, P.G. Tassenaar & J.P.A.M. Jacobs, ‘Dutch Courts and Housing Related Anti-social Behaviour. A First Statistical Analysis of Legal Protection against Eviction’, International Journal of Law in the Built Environment, No. 2, pp. 148-161; M. Vols, M. Kiehl & J. Sidoli del Ceno, ‘Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany’, European Journal of Comparative Law and Governance, Vol. 2, 2015, pp. 156-181. Van der Walt & Viljoen, supra note 8; Wilson et al., supra note 22; Mmusinyane, supra note 18. Chenwi, supra note 23. See also S. Fick & M. Vols, ‘Best Protection against Eviction? A Comparative Analysis of Protection against Evictions in the European Convention on Human Rights and the South African Constitution’, European Journal of Comparative Law and Governance, Vol. 3, 2016, pp. 40-69; M. Vols & S. Fick, ‘Using Eviction to Combat Housing-Related Crime and Anti-social Behaviour in South Africa and the Netherlands’, South African Law Journal, Vol. 134, No. 2, 2017, pp. 327-360. S. Ebrahim, ‘The Right to Housing: Challenges Associated with the “Waiting List System” Ekurhuleni Metropolitan Municipality v. various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)’, Southern African Public Law, Vol. 30, No. 1, 2015, pp. 112-121. Daniel et al., supra note 39 (on slum clearance and evictions in Nigeria). L. Earle, ‘Housing, Citizenship and the Right to the City’, in L. Earle (Ed.), Transgressive Citizenship and the Struggle for Social Justice, London, Springer, 2017, pp. 27-64. J. Freeman & M. Burgos, ‘Accumulation by Forced Removal: The Thinning of Rio De Janeiro’s Favelas in Preparation for the Games’, Journal of Latin American Studies, Vol. 48, 2016, pp. 1-29. See also: S.H. Rocha Franco, ‘Human Dignity and the Right to Adequate Housing in the Global Mega-Events Era: A Discussion from the Favelas of Rio De Janeiro’, in E. Sieh & J. McGregor (Eds.), Human Dignity, London, Springer, 2017, pp. 263-277. H.B. Shin & S.H. Kim, ‘The Developmental State, Speculative Urbanisation and the Politics of Displacement in Gentrifying Seoul’, Urban Studies, Vol. 53, No. 3, 2016, pp. 540-559.

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as being motivated by self-interests for more compensation. In the 1990s and 2000s, the resistance led to more compensation of evictees and alternative accommodation in public rental flats. Still, Korea’s ‘culture of property’ impels people to keep distance from denunciating redevelopment projects and undermines popular resistance against eviction. In another study, Nagaraj describes the forced removal of working-class poor communities in Colombo and its effect on the right to the city of city dwellers.61 Lastly, Ho analyses urban private ownership and evictions in China.62 Protest against eviction is a common thread in contemporary housing law research. Several researchers assess popular resistance against displacement all over the world. Dirks, for example, discusses how in Canada protest and community organising are used to produce systemic social change in housing law.63 A large number of studies analyse the protest against evictions in Spain during the financial and economic crisis in the 2010s. For example, Álvarez de Andrés et al. discuss how the Spanish Mortgage Victims Group successfully prevented over 1,100 evictions throughout the country.64 Other publications deal with squatting, informal settlements, the right to the city and protest against eviction too. Vuksanovic-Macura & Macura analyse the battle of the residents of a squatter settlement in Belgrade in the first half of the twentieth century against the loss of their home.65 A number of studies relate squatting with Lebebvre’s concept of the right to the city. Grazioli holds that the forms of organisation and life stemming from squatting can contribute to updating the definition of the right to the city.66 61 62 63 64

65 66

Nagaraj, supra note 39. C.Y. Ho, Neo-Socialist Property Rights: The Predicament of Housing Ownership in China, London, Lexington Books, 2015. Dirks, supra note 20. See also R. Robinson, ‘Catherine Lennon’s Story: Lessons from Front Line Advocacy on the Human Right to Housing’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 143-154. E. Alvarez de Andrés, M.J. Zapata Campos & P. Zapata, ‘Stop the Evictions! the Diffusion of Networked Social Movements and the Emergence of a Hybrid Space: The Case of the Spanish Mortgage Victims Group’, Habitat International, Vol. 46, 2015, pp. 252-259; E. Alvarez de Andrés, P. Zapata & M.J. Zapata Campos, ‘Networked Social Movements and the Politics of Mortgage: From the Right to Housing to the Assault on Institutions’, in C. Gurdgiev, L. Leonard & M.A. Gonzalez-perez (Eds.), Lessons from the Great Recession: At the Crossroads of Sustainability and Recovery, Emerald Group Publishing Limited, 2016, pp. 231-249. See also: I. Barbero, ‘When Rights Need to be (Re) Claimed: Austerity Measures, Neoliberal Housing Policies and Anti-Eviction Activism in Spain’, Critical Social Policy, Vol. 35, No. 2, 2015, pp. 270-280; C. Flesher Fominaya, ‘Redefining the Crisis/Redefining Democracy: Mobilising for the Right to Housing in Spain’s PAH Movement’, South European Society and Politics, Vol. 20, No. 4, 2015, pp. 465-485; S. Gonick, ‘Disrupting Neoliberalism’s Ideologies: From Civil Death to Civil Disobedience in Madrid’s Right to Housing Movement’, Urban Madrid, 2015, pp. 51-59. Z. Vuksanovic-Macura & V. Macura, ‘The Right to Housing: Squatter Settlements in Interwar Belgrade The Defense and Demolition of Jatagan-Mala’, Journal of Urban History, Vol. 1, 2016. M. Grazioli, ‘From Citizens to Citadins? Rethinking Right to the City Inside Housing Squats in Rome, Italy’, Citizenship Studies, Vol. 21, No. 4, 2017, pp. 393-408; N. Nur & A. Sethman, ‘Migration and Mobilization for the Right to Housing in Rome’, in P. Mudu & S. Chattopadhyay (Eds.), Migration, Squatting and Radical Autonomy: Resistance and Destabilization of Racist Regulatory Policies and B/Ordering Mechanisms, New York, Routledge, 2016, p. 78; C. Di Feliciantonio, ‘Subjectification in Times of Indebtedness and Neolib-

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We acknowledge that the scope of this short literature review is limited in terms of the language of the publications assessed. A great number of publications on housing law are published in languages other than English and do not receive the international attention that they deserve. Furthermore, this literature review has only focused on publications that were published recently, which contained some specific words in the title or were cited at least three times. Despite its exploratory nature, we believe that our review still offers some general insight into the contemporary debates within the study of housing law. We hope that our study can function as a building block for further research projects that assess a larger, more diverse set of publications on housing law research.

1.8

Overview of This Book

The papers in this volume of Studies in Housing Law focus on several aspects in the current debates within the study of housing law. In Chapter 2, ‘The Changing Vision of the Home: Rethinking Housing and Intimacy’, Shelly Kreiczer-Levy continues to develop the concept of the home in housing law. Instead of focusing on individual traits of the home, she discusses living arrangements as a core feature of the relational and communal home. KreiczerLevy focuses on the role of intimacy in shaping the use of the home and relationships in it. In the chapter, she analyses the impact of intergenerational households and the sharing economy, in particular Airbnb, on the use of the concept of home in law. In Chapter 3, ‘Empty Homes and Needy People: Time for a New Housing Policy in Portugal and Elsewhere?’, Dulce Lopes presents a detailed insight into the problems concerning vacant housing in Portugal. She analyses the gap between the proliferation of empty or vacant houses and the social and human needs for housing. Lopes advocates a new housing policy in Portugal that strikes a better balance between property and housing, liberal and social rights, essence and existence. This policy should improve existing mechanisms and establish other intervention institutes that allow for a socially sustainable availability of permanent dwellings. In Chapter 4, ‘Strata Title: The New Feudalism’, Cathy Sherry discusses the ways in which changes to property law which facilitate the kinds of developments developers would like to market, such as strata title legislation, can have an unanticipated, far-reaching effect on communities. Sherry holds that governments have allowed change to be driven by private developers, who are primarily concerned with making money. Yet, these changes have occurred with insufficient appreciation of their ramifications.

eral/Austerity Urbanism’, Antipode, Vol. 48, No. 5, 2016, pp. 1206-1227. See about the right to the city as well: Chant & Datu, supra note 10; Cirolia et al., supra note 22; Nagaraj, supra note 39, pp. 438-440; Speer, supra note 39; Ponce, supra note 18, pp. 108-110; Rocha Franco, supra note 59; Watt, supra note 42; Earle, supra note 58; Young & Bender Johnston, supra note 20.

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In Chapter 5, ‘Planning Contracts under Swiss Law: A Tool for Special Housing Needs and the Problem of Breach of Contract’, Nathalie Adank discusses planning contracts that link housing policy with efforts to use land as rationally as possible. Planning contracts are considered to be an incentive for the private sector to cooperate with local authorities, as well as a useful tool for cities to foster the development of housing projects. Adank analyses how cities should deal with a breach of planning contracts by the private party to the contract. She focuses on the importance of public interest in solving this question. She holds that the creation of a right of purchase is the best remedy to address a breach of a planning contract by the private party to the agreement. In Chapter 6, ‘The Recurring Dream of Affordable Housing in Indonesia: A Human Rights Perspective’, Erna Dyah Kusumawati analyses challenges faced in recognising and implementing the right to adequate housing in Indonesia. She analyses the right’s legal basis under Indonesian law and assesses the development of Indonesian housing policies. Dyah Kusumawati concludes that a rights-based approach may help to improve the housing situation and problems in Indonesia. In Chapter 7, ‘Tenant’s Right to Respect for Home: A Challenge for Swedish Tenancy Courts?’, Haymanot Baheru discusses tenure security in landlord and tenant law in Sweden. She assesses whether there is a legally relevant meaning of the concept of ‘home’ in the context of the Swedish Land Code. Moreover, Baheru explores the understanding of the concept of ‘home’ within the scope of Article 8 of the European Convention on Human Rights and Fundamental Freedoms. Her analysis reveals that Swedish tenancy courts have had to deal with the question of how the European right to respect for the home impacts the statutory tenure protection in the Swedish national legislation. Still, a case law analysis raises the question of whether the doctrinal method used by the Swedish courts can satisfy the procedural protection Article 8 provides. In Chapter 8, ‘The Right to Housing and the Right to a Second Chance’, Stefan van Tongeren and Michel Vols present a first overview of the facilitation and frustration of the housing of ex-offenders by Dutch landlords and local authorities. Their case law analysis suggests that although the housing of ex-offenders seems to be causing legal problems, this is not frequently occurring. Still, van Tongeren and Vols hold that the few published judicial decisions may only be the tip of the iceberg. Furthermore, they hold that the rejection and exclusion of prospective tenants based on their criminal record clearly restricts their right to housing, but not necessarily constitute a violation of this right. Still, empirical research is needed in order to comprehend the scale on which ex-offenders in the Netherlands and elsewhere are being excluded from (social) housing and whether these practices violate the right to housing.

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References Alexander, L.T., ‘Occupying the Constitutional Right to Housing’, Nebraska Law Review, Vol. 94, No. 2, 2015, pp. 245-301. Alexander, L.T., ‘Evicted: The Socio-Legal Case for the Right to Housing’, The Yale Law Journal, Vol. 126, No. 2, 2016, pp. 431-447. Alvarez de Andres, E., Zapata Campos, M.J. & Zapata, P., ‘Stop the Evictions! The Diffusion of Networked Social Movements and the Emergence of a Hybrid Space: The Case of the Spanish Mortgage Victims Group’, Habitat International, Vol. 46, 2015, pp. 252-259. Alvarez de Andrés, E, Zapata, P. & Zapata Campos, M.J., ‘Networked Social Movements and the Politics of Mortgage: From the Right to Housing to the Assault on Institutions’, in Gurdgiev, C., Leonard, L. & Gonzalez-perez, M.A. (Eds.), Lessons from the Great Recession: At the Crossroads of Sustainability and Recovery, Bingley, Emerald Group Publishing Limited, 2016, pp. 231-249. Barbero, I., ‘When Rights Need to be (Re) Claimed: Austerity Measures, Neoliberal Housing Policies and Anti-Eviction Activism in Spain’, Critical Social Policy, Vol. 35, No. 2, 2015, pp. 270-280. Barenstein Duyne, J.E. ‘The Right to Adequate Housing in Post-Disaster Situations: The Case of Relocated Communities in Tamil Nadu, India’, in P. Daly (Ed.), Rebuilding Asia Following Natural Disasters: Approaches to Reconstruction in the Asia-Pacific Region, Cambridge, Cambridge University Press, 2016, pp. 236-260. Borevi, K. & Bengtsson, B., ‘The Tension between Choice and Need in the Housing of Newcomers: A Theoretical Framework and an Application on Scandinavian Settlement Policies’, Urban Studies, Vol. 52, No. 14, 2015, pp. 2599-2615. Brown, C.N., Experiencing Housing Law, St. Paul, West Academic Publishing, 2016. Bullen, D., ‘A Road to Home: The Right to Housing in Canada and Around the World’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 1-9. Casla, K., ‘The Rights We Live In: Protecting the Right to Housing in Spain through Fair Trial, Private and Family Life and Non-Retrogressive Measures’, The International Journal of Human Rights, Vol. 20, No. 3, 2016, pp. 285-297.

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Cavin, A., ‘A Right to Housing in the Suburbs: James V. Valtierra and the Campaign Against Economic Discrimination’, Journal of Urban History, Vol. 43, 2017 (published online). Chant, S. & Datu, K., ‘Women in Cities: Prosperity or Poverty? A Need for Multi-Dimensional and Multi-Spatial Analysis’, in C. Lemanski & C. Marx (Eds.), The City in Urban Poverty, Hampshire, Springer, 2015, pp. 39-63. Chenwi, L., ‘Implementation of Housing Rights in South Africa: Approaches and Strategies.’ Journal of Law and Social Policy, Vol. 24, 2015, pp. 68-87. Cirolia, L., Smit, W. & Duminy, J., ‘Grappling with Housing Issues at the City Scale: Mobilizing the Right to the City in South Africa,’ in P. Herrle, A. Ley & J. Fokdal (Eds.), From Local Action to Global Networks: Housing the Urban Poor, Farnham, Ashgate, 2015, pp. 159-174. Coman, C. & Rezeanu, C.I., ‘The “Free” Movement of Roma in the EU: From the Presumption of the Fundamental Right to Housing to Forced Evictions and Expulsion’, Bulletin of the Transilvania University of Brasov. Series VII: Social Sciences Law, Vol. 9 No. 2, 2016, pp. 81-90. Daniel, M.M., Wapwera, S.D., Mamman Akande, E., Musa, C.C. & Aliyu, A.A., ‘Slum Housing Conditions and Eradication Practices in Some Selected Nigerian Cities’, Journal of Sustainable Development, Vol. 8, No. 2, 2015, p. 230. Davidson, N.M., ‘Affordable Housing Law and Policy in an Era of Big Data’, Fordham Urban Law Journal, Vol. 44, 2017, pp. 277-300. DesBaillets, D., ‘The International Human Right to Housing & the Canadian Charter: A Case Comment on Tanudjaja v. Canada (Attorney General)’, Windsor Yearbook of Access to Justice, Vol. 32, 2015, pp. 121-138. Desmond, M., Evicted: Poverty and Profit in the American City, New York City, Crown, 2016. Desmond, M., & Bell, M., ‘Housing, Poverty, and the Law’, Annual Review of Law and Social Science, Vol. 11, 2015, pp. 15-35.

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Di Feliciantonio, C., ‘Subjectification in Times of Indebtedness and Neoliberal/Austerity Urbanism’, Antipode, Vol. 48, No. 5, 2016, pp. 1206-1227. Dirks, Y., ‘Community Campaigns for the Right to Housing: Lessons from the R2H Coalition of Ontario’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 135-142. Diver, A., ‘Putting Dignity to Bed? The Taxing Question of the UK’s Housing Rights “Relapse”’, Justiciability of Human Rights Law in Domestic Jurisdictions, Heidelberg, Springer, 2016, pp. 333-361. Dobrushi, A. & Alexandridis, T., ‘International Housing Rights and Domestic Prejudice: The Case of Roma and Travellers’, Social Rights Judgments and the Politics of Compliance: Making It Stick, Cambridge, Cambridge University Press, 2017, pp. 436-472. Earle, L., ‘Housing, Citizenship and the Right to the City’, in L. Earle (Ed.), Transgressive Citizenship and the Struggle for Social Justice, London, Springer, 2017, pp. 27-64. Ebrahim, S., ‘The Right to Housing: Challenges Associated with the “Waiting List System” Ekurhuleni Metropolitan Municipality v. various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)’, Southern African Public Law, Vol. 30, No. 1, 2015, pp. 112-121. Fée, D., ‘Housing and Citizenship in the UK: Towards a Conditional Right?’, Revue Française de Civilisation Britannique, Vol. 21, 2016, pp. 1-17. Feris, L., ‘The Human Right to Sanitation: A Critique on the Absence of Environmental Considerations’, Review of European, Comparative & International Environmental Law, Vol. 24, No. 1, 2015, pp. 16-26. Fick, S. & Vols, M., ‘Best Protection against Eviction? A Comparative Analysis of Protection against Evictions in the European Convention on Human Rights and the South African Constitution’, European Journal of Comparative Law and Governance, Vol. 3, 2016, pp. 40-69. Flesher Fominaya, C., ‘Redefining the Crisis/Redefining Democracy: Mobilising for the Right to Housing in Spain’s PAH Movement’, South European Society and Politics, Vol. 20, No. 4, 2015, pp. 465-485.

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Freeman, J. & Burgos, M., ‘Accumulation by Forced Removal: The Thinning of Rio De Janeiro’s Favelas in Preparation for the Games’, Journal of Latin American Studies, Vol. 48, 2016, pp. 1-29. Garca Amado, P., ‘Connecting Tenure Security with Durable Solutions to Internal Displacement: From Restitution of Property Rights to the Right to Adequate Housing’, International Migration, Vol. 54, No. 4, 2016, pp. 74-86. Gonda, J.D., Unjust Deeds: The Restrictive Covenant Cases and the Making of the Civil Rights Movement, Chapel Hill, UNC Press Books, 2015. Gonick, S., ‘Disrupting Neoliberalism’s Ideologies: From Civil Death to Civil Disobedience in Madrid’s Right to Housing Movement’, Urban Madrid, 2015, pp. 51-59. Grazioli, M., ‘From Citizens to Citadins? Rethinking Right to the City Inside Housing Squats in Rome, Italy’, Citizenship Studies, Vol. 21, No. 4, 2017, pp. 393-408. Heffernan, T., Faraday, F. & Rosenthal, P., ‘Fighting for the Right to Housing in Canada’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 11-45. Ho, C.Y., Neo-Socialist Property Rights: The Predicament of Housing Ownership in China, London, Lexington Books, 2015. Hohmann, J.M., Protecting the Right to Housing in England: A Context of Crisis, London, Just Fair, 2015. Hohmann, J.M., ‘Principle, Politics and Practice: The Role of UN Special Rapporteurs on the Right to Adequate Housing in the Development of the Right to Housing in International Law’, Queen Mary School of Law Legal Studies Research Paper, 2016, pp. 1-20. Hoover, J., ‘The Human Right to Housing and Community Empowerment: Home Occupation, Eviction Defence and Community Land Trusts’, Third World Quarterly, Vol. 36, No. 6, 2015, pp. 1092-1109. Iecovich, E., ‘Live-in Care Workers in Sheltered Housing for Older Adults in Israel: The New Sheltered Housing Law’, Journal of aging & social policy, Vol. 28, No. 4, 2016, pp. 277-291.

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Kenna, P., Benjaminsen, L., Busch-Geertsema, V. & Nasarre-Aznar, S., Pilot Project – promoting Protection of the Right to Housing – homelessness Prevention in the Context of Evictions Final Report, European Commission Directorate-General for Employment, Brussels, Social Affairs and Inclusion Directorate Soc, 2016. King, F., ‘Scotland: Delivering a Right to Housing’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 155-161. Kornienko, K., ‘Waiting, Hope, Democracy, and Space: How Expectations and SocioEconomic Rights Shape Two South African Urban Informal Communities’, Journal of Asian and African Studies, Vol. 52, No. 1, 2017, pp. 34-49. Lee, J., ‘Rights at Risk in Privatized Public Housing’, Tulsa Law Review, Vol. 50, No. 3, 2015, pp. 759-801. Liang, Y., ‘Satisfaction with Economic and Social Rights and Quality of Life in a PostDisaster Zone in China: Evidence from Earthquake-Prone Sichuan’, Disaster Medicine and Public Health Preparedness, Vol. 9, No. 2, 2015, pp. 1-8. Liba, K.R. & Harding, S., ‘More than a Commodity: The Right to Adequate Housing’, in K.R. Liba & S. Harding (Eds.), Human Rights-Based Community Practice in the United States, New York, Springer, 2015, pp. 39-59. Lirio do Valle, V.R., ‘Enforcing Socio-Economic Rights through Immediate Efficacy: A Case Study of Rio De Janeiro’s Right to Housing’, Tulane Journal of International & Comparative Law, Vol. 25, No. 1, 2016, pp. 1-44. Lvy-Vroelant, C., ‘The Right to Housing in France: Still a Long Way to Go from Intention to Implementation’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 88-108. Manda, P., ‘Preparing our Housing for the Transition to a Post-Baby Boom World: Reflections on Japan’s May 26, 2015 Vacant Housing Law’, Cityscape: A Journal of Policy Development and Research, Vol. 17, No. 3, 2015, pp. 239-248. Martinez-Escribano, C., ‘Tenancy and Right to Housing: Private Law and Social Policies’, European Review of Private Law, Vol. 23, No. 5, 2015, pp. 777-795.

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Mhodi, P.T., ‘The Role of Third Parties Contracted by Government in Realising the Right to Access Housing in South Africa: Legislative and Policy Reform-Feature’, ESR Review: Economic and Social Rights in South Africa, Vol. 16, No. 2, 2015, pp. 11-13. Migliari, W., ‘New Forms of Inequality in Cape Town: A Comparative Economic and Legal Study to Defend the Right to Housing’, Journal of Comparative Urban Law and Policy, Vol. 1, No. 1, 2017, pp. 111-130. Mmusinyane, B.O., Comparative Implementation Strategies for the Progressive Realisation of the Right to Adequate Housing in South Africa, Canada and India, Pretoria, Unisa, 2015. Monson, T., ‘Everyday Politics and Collective Mobilization Against Foreigners in a South African Shack Settlement’, Africa, Vol. 85, No. 1, 2015, pp. 131-153. Moons, N. & Hubeau, B., ‘Conceptual and Practical Concerns for the Effectiveness of the Right to Housing’, Oñati Socio-Legal Series, Vol. 6, No. 3, 2016, pp. 656-675. Muller, G., ‘Proposing a Way to Develop the Substantive Content of the Right of Access to Adequate Housing: An Alternative to the Reasonableness Review Model’, Southern African Public Law, Vol. 30, No. 1, 2015, pp. 71-93. Mullor, J.S., ‘The Right to Housing and the Protection of Family Life and Vulnerable Groups’, in M. González Pascual & A. Torres Pérez (Eds.), The Right to Family Life in the European Union, New York, Taylor & Francis, 2016, pp. 214-231. Murphy, E., For a Proper Home: Housing Rights in the Margins of Urban Chile, 1960-2010, Pittsburgh, University of Pittsburgh Press, 2015. Nagaraj, V.K., ‘From Smokestacks to Luxury Condos: The Housing Rights Struggle of the Millworkers of Mayura Place, Colombo’, Contemporary South Asia, Vol. 24, No. 4, 2016, pp. 429-443. Nancarrow, M.R., ‘Community Housing Emerges from the Shadowlands: Property Rights and the Implications of a National Regulatory Framework Under the Community Housing National Law’, Alternative Law Journal, Vol. 42, No. 1, 2017, pp. 35-41. Nur, N. & Sethman, A., ‘Migration and Mobilization for the Right to Housing in Rome’, in P. Mudu & S. Chattopadhyay (Eds.), Migration, Squatting and Radical Autonomy:

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Resistance and Destabilization of Racist Regulatory Policies and B/Ordering Mechanisms, New York, Routledge, 2016, p. 78. O’Donovan, D., ‘Breaking the Cycle of Discrimination? Traveller/Roma Housing Exclusion and the European Convention on Human Rights’, International Journal of Discrimination and the Law, Vol. 16, No. 1, 2016, pp. 5-23. Overfelt, D. & Brunsma, D.L., ‘Rights to Housing’, in J. Blau, A. Moncada & C. Zimmer (Eds.), Leading Rogue State: The US and Human Rights, Routledge, New York, 2015, p. 16. Patel, K., ‘Sowing the Seeds of Conflict? Low Income Housing Delivery, Community Participation and Inclusive Citizenship in South Africa’, Urban Studies, Vol. 53, No. 13, 2016, pp. 2738-2757. Perriello, L.E., ‘Are Foreigners Entitled to a Right to Housing’, The Italian Law Journal, Vol. 1, No. 2, 2015, p. 365. Ponce, J., ‘Affordable Housing, Zoning and the International Covenant on Economic, Social and Cultural Rights: Some Lessons from the Spanish and South African Experiences’, Journal of Comparative Urban Law and Policy, Vol. 1, No. 1, 2017. Ponder, E., ‘Gentrification and the Right to Housing: How Hip Becomes a Human Rights Violation’, Southwestern Journal of International Law, Vol. 22, No. 2, 2016, pp. 359-383. Ramsey-Musolf, D., ‘Evaluating California’s Housing Element Law, Housing Equity, and Housing Production (1990-2007)’, Housing Policy Debate, Vol. 26, No. 3, 2016, pp. 488516. Ranslem, D., ‘“Temporary” Relocation: Spaces of Contradiction in South African Law’, International Journal of Law in the Built Environment, Vol. 7, No. 1, 2015, pp. 55-71. Robinson, R., ‘Catherine Lennon’s Story: Lessons from Front Line Advocacy on the Human Right to Housing’, Journal of Law and Social Policy, Vol. 24, 2015, pp. 143-154. Rocha Franco, S.H., ‘Human Dignity and the Right to Adequate Housing in the Global Mega-Events Era: A Discussion from the Favelas of Rio De Janeiro’, in E. Sieh & J. McGregor (Eds.), Human Dignity, London, Springer, 2017, pp. 263-277.

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Saldaña, J., The Coding Manual for Qualitative Researchers, Sage, London, 2009. Sanchez, B. & Carlos, J., ‘The UN Committee on Economic, Social and Cultural Rights’ Decision in IDG V. Spain: The Right to Housing and Mortgage Foreclosures’, Journal européen des droits de l’homme, Vol. 2016, No. 3, 2016, pp. 320-339. Saunders, O., ‘Article 8 in Housing Law: No Home for Human Rights Values’, Southampton Student Law Review, Vol. 6, No. 1, 2016, pp. 72-90. Schwemm, R.G., ‘Fair Housing Litigation After Inclusive Communities: What’s New and What’s Not’, Columbia Law Review, Vol. 115, 2015, pp. 106-126. Shin, H.B. & Kim, S.H., ‘The Developmental State, Speculative Urbanisation and the Politics of Displacement in Gentrifying Seoul’, Urban Studies, Vol. 53, No. 3, 2016, pp. 540-559. Sidoli del Ceno, J., Vols, M. & Kiehl, M.N.F., Regulating the City, Den Haag, Eleven International Publishing, 2017. Soederberg, S., ‘Subprime Housing Goes South: Constructing Securitized Mortgages for the Poor in Mexico’, Antipode, Vol. 47. No. 2, 2015, pp. 481-499. Solomon, R., ‘Bounded Political Contestation: The Domestic Translation of International Health and Housing Rights in Australia’, Australian Journal of Political Science, 2017, pp. 1-16. Speer, J., ‘The Right to Infrastructure: A Struggle for Sanitation in Fresno, California Homeless Encampments’, Urban Geography, Vol. 37, No. 7, 2016, pp. 1049-1069. Tchawouo Mbiada, C.J., ‘The Public Protector as a Mechanism of Political Accountability: The Extent of Its Contribution to the Realisation of the Right to Access Adequate Housing in South Africa’, Potchefstroom Electronic Law Journal, Vol. 20, 2017, pp. 2-34. Troy, L., Easthope, H., Randolph, B. & Pinnegar, S., ‘It Depends what You Mean by the Term Rights: Strata Termination and Housing Rights’, Housing Studies, Vol. 32, No. 1, 2017, pp. 1-16. Tshoose, C., ‘A Closer Look at the Right to have Access to Adequate Housing for Inhabitants of Informal Settlements Post Grootboom’, Southern African Public Law, Vol. 30, No. 1, 2015, pp. 94-111.

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Van der Walt, A.J. & Viljoen, S., ‘The Constitutional Mandate for Social Welfare-Systemic Differences and Links between Property, Land Rights and Housing Rights’, PER: Potchefstroomse Elektroniese Regsblad, Vol. 18, No. 4, 2015, pp. 1035-1090. Vols, M., ‘Banning Criminals and Nuisance Neighbours from Housing: Human Rights Proof? Exclusion and the Dutch Urban Areas Special Measures Bill’, in J. Sidoli del Ceno, M. Vols & M. Kiehl (Eds.), Regulating the City: Contemporary Urban Housing Law, Den Haag, Eleven International Publishing, 2017, pp. 127-143. Vols, M. & Fick, S., ‘Using Eviction to Combat Housing-related Crime and Anti-social Behaviour in South Africa and the Netherlands’, South African Law Journal, Vol. 134, No. 2, 2017, pp. 327-360. Vols, M., Kiehl, M. & Sidoli del Ceno, J., ‘Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany’, European Journal of Comparative Law and Governance, Vol. 2, 2015, pp. 156-181. Vols, M., Tassenaar, P.G. & Jacobs, J.P.A.M., ‘Dutch Courts and Housing Related Antisocial Behaviour. A First Statistical Analysis of Legal Protection against Eviction’, International Journal of Law in the Built Environment, No. 2, 2015, pp. 148-161. Vuksanovic-Macura, Z. & Macura, V., ‘The Right to Housing: Squatter Settlements in Interwar Belgrade The Defense and Demolition of Jatagan-Mala’, Journal of Urban History, Vol. 1, 2016. Watt, P., ‘Gendering the Right to Housing in the City: Homeless Female Lone Parents in Post-Olympics, Austerity East London’, Cities, Vol. 70, 2017. Wilson, S., Dugard, J. & Clark, M., ‘Conflict Management in an Era of Urbanisation: 20 Years of Housing Rights in the South African Constitutional Court’, South African Journal on Human Rights, Vol. 31, 2015, pp. 472-503. Wong, T.C. & Goldblum, C., ‘Social Housing in France: A Permanent and Multifaceted Challenge for Public Policies’, Land Use Policy, Vol. 54, 2016, pp. 95-102.

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Young, M. & Bender Johnston, S., ‘A Tale of Two Rights: The Right to the City and a Right to Housing’, in J. Sidoli del Ceno, M. Vols & M.N.F. Kiehl (Eds.), Regulating the City, Den Haag, Eleven International Publishing, 2017, pp. 11-39. Zasloff, J., ‘The Secret History of the Fair Housing Act’, Harvard Journal on Legislation, Vol. 53, 2016, pp. 247-278.

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The Changing Vision of the Home: Rethinking Housing and Intimacy

Shelly Kreiczer-Levy

2.1

Introduction

The home is a complex legal concept. It has its exterior property-like characteristics that serve to protect privacy and security. It provides a shelter from the outside world in the most physical sense. Home is also a relational concept. It hosts the most intimate of interactions and fosters intimacy among people who reside together. The law protects the home in various capacities – it protects the right to housing a human right, it protects residents from invasion of privacy, it protects tenant from unlawful eviction. In addition to regulating the home from outside invasion, the law also regulates the relationships within the home, among family members, friends, or roommates. This chapter depicts the rise and fall of intimacy in the home. It examines the role of the law both in supporting relational commitments in joint living arrangements and in regulating commercial activity in the home. It critically evaluates the impact of social and economic factors on the composition of the home. Two modern developments will be analyzed: (1) intergenerational households, and especially adult children living with their parents because of economic difficulties, and (2) the sharing economy, in particular Airbnb, that allows residents to open up their homes to strangers in exchange for monetary compensation. The chapter will begin, in Part I, by presenting the conception of the home in the law. Part II will then discuss joint living – people who live together and share a home. It presents the argument that home is a unique spatial environment that supports intimate relationships. It argues that living with others is a relational and communal enterprise that should be recognized by the law. Part III turns to the fragmentation of the home and the changing role of intimacy. It discusses the sharing economy and the challenges it brings to legal regulation of the home. Finally, this chapter concludes with a complex and nuanced vision of the home as a legal space.

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2.2

The Home in the Law

The legal treatment of the home can be roughly divided into four categories: (1) the basic right to housing, (2) the home as a personal and intimate sphere that is free from interference of others, (3) the home as the locus of familial relations, and (4) the home as part of the neighborhood. First and foremost, the home is understood as a basic need. One could not survive without a place to live. The right to housing is protected in international treaties and is focused on the home as a physical shelter.1 However, the idea of home in the law reaches beyond its physicality. Home is “a place of regeneration, of repose and refreshment, and renewal of physical and psychological energy.”2 It is believed to be a sanctuary from the outside world.3 The idea of home as a refuge is based on exclusion in the home as a locus of privacy and control. The owner’s prerogative to exclude others from his/her property, in particular his/her home, is often perceived as the core of property law.4 In addition, the home is understood as closely connected to personhood, as it is “scene of one’s history and future, one’s life and growth.”5 Thus, the four walls of the home define the boundaries of “spiritual territoriality.”6 It is free from interference of the state, including protection of privacy, against the involuntary taking of a home, and against creditors’ claims. Alongside this individualistic vision, the legal concept of the home is also tied with the concept of family. The home is a relational environment. The law acknowledges, to some extent, familial responsibilities in the home in a variety of contexts, yet this legal recognition is limited for the most part to the nuclear family.7 As a result, feminist scholars argue that the home confines women to traditional roles of tending to the needs of other members of the family.8 It is a locus of patriarchy, oppression, and domestic violence.9 A related critique is that the home is essentially a white, heterosexual, middle-class concept. The

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2 3 4 5 6 7 8

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Article 25 of the Universal Declaration of Human Rights; The Right to Adequate Housing, UN Fact Sheet No. 21; E.C. Christiansen, ‘Adjudicating Non-Justiciable Rights: Socio Economic Rights and the South African Constitutional Court’, Columbia Human Rights Law Review, Vol. 38, 2007, p. 321. S.G. Smith, ‘The Essential Qualities of a Home’, Journal of Environmental Psychology, Vol. 14, 1994, p. 31. D.B. Barros, ‘Home as a Legal Concept’, Santa Clara Law Review, Vol. 46, 2006, p. 256; R.M. Rakoff, ‘Ideology in Everyday Life: The Meaning of the House’, Policy & Society, Vol. 7, 1977, pp. 85, 94. See L. Katz, ‘Exclusion and Exclusivity in Property Law’, University of Toronto Law Journal, Vol. 58, 2008, p. 275; J.E. Penner, The Idea of Property in Law, Clarendon, 1997, p. 103. M.J. Radin, ‘Property and Personhood’, Stanford Law Review, Vol. 34, 1982, pp. 957, 992. J. Messerly, ‘Roommate Wanted: The Right to Choice in Shared Living’, Iowa Law Review, Vol. 93, 2008, pp. 1949, 1964. P. Laufer-Ukeles & S. Kreiczer-Levy, ‘Family Formation and the Home’, Kentucky Law Journal, Vol. 104, 2016, p. 449. See discussion in L. Fox, ‘Re-Possessing “Home”: A Re-Analysis of Gender, Homeownership and Debtor Default for Feminist Legal Theory’, William & Mary Journal of Women & the Law, Vol. 14, 2008, pp. 423, 435-451. Id. at p. 436.

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home is a physical that reproduces familiar and traditional social relations and social institutions.10 It allows the state to favor certain associations and encourage particular patterns of behavior, associated with the nuclear family. According to the argument, the conflation of the home and the family shifts the burden of responsibility for a citizen’s welfare from society to the nuclear family.11 In addition, the home is also part of a larger social fabric: the neighborhood, schools, and playgrounds. It is rooted in a community. Although there is fairly little legal protection against displacement and gentrification,12 legal scholars have voiced this concern as part of a larger perspective on property rights.13 The legal role of the home is thus nuanced and complex. The home is understood as a personal and intimate environment that is free from interference of the state and the public, and that serves as a platform for interaction with family, friends, and neighbors. At the same time, the law regulates relationships and favors traditional forms of associations. In the next two parts, I turn to discuss two important developments that challenge this conception of the home.

2.3

Living with Others: Intergenerational Cohabitation

This chapter engages with the nature of intimacy in the home and is deigned to prompt a discussion of the legal treatment of close, personal relationships. Sociological scholarship in recent decades emphasizes the rising important multigenerational bonds.14 Grandparents assume caretaking roles of children.15 High divorce rates and birth out of wedlock make women more likely to be single mothers and rely on the assistance of their extended kin, especially their own mothers.16 Parents continue to help their adult children in a variety of ways, including financial assistance and the provision of their time. In addition, shared living arrangements are becoming a predominant form

10 11 12 13 14 15 16

S. Mallett, ‘Understanding Home: A Critical Review of the Literature’, Sociological Review, Vol. 52, 2004, pp. 62, 66. L. Rosenbury, ‘Federal Visions of Private Family Support’, Vanderbilt Law Review, Vol. 65, 2014, p. 1835; Mallett, supra note 10. Rodriguez v. Henderson, 578 N.E.2d 57, 59 (Ill. App. Ct. 1991). E.M. Penalver, ‘Land Virtues’, Cornell Law Review, Vol. 94, 2009, p. 821; N. Shoked, ‘The Community Aspect of Private Ownership’, Florida State Law Review, Vol. 38, 2011, p. 759. V.L. Bengston, ‘Beyond the Nuclear Family: The Increasing Importance of Multigenerational Bonds’, Journal of Marriage & the Family, Vol. 63, 2001, p. 1. Id. at p. 4. Bianchi et al., ‘Intergenerational Ties: Alternative Theories, Empirical Findings and Trends, and Remaining Challenges’, in Booth et al. (Eds.), Intergenerational Caregiving, Washington DC, Urban Institute, 2008.

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Shelly Kreiczer-Levy of parental support.17 Adult children’s living with their parents is considered a global phenomenon that spans through North America, Israel, Europe, and Asia.18 The reason for this global trend is mostly economic. Economic downturn has negatively affected the independence of the younger generation.19 According to the sociologist Kathrine Newman, jurisdictions with weak welfare states have the highest frequency of adult children living with their parents.20 Multigenerational households also include elderly parents living with their children. In these cases, adult children are the homeowners. Their parents either help with children21 or require care themselves.22 Elder care is a major concern nowadays and several countries enforce parental support obligations.23 Changing patterns of living arrangements present a challenge to the familiar legal treatment of the home. As explained in Part I, the law supports an individualistic vision of the home, highlighting exclusion and privacy as its primary values. The law does recognize familial obligations but these are confined mostly to the cohabitation of minor children with their parents24 and cohabitating couples.25 Adult children are no more than guests in their parents’ home and can be evicted at will.26 Similarly, elderly parents who live with their children have no rights. The law in many Western countries relies on formal ownership of the home and does not recognize other occupants. This position does not take seriously the vision of home as a platform for intimate associations. The home is more than its 17 18

19

20 21 22 23 24 25

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Id. See K.S. Newman, The Accordion Family: Boomerang Kids, Anxious Parents, and the Private Toll of Global Competition, Boston, Beacon Press, 2013 (discussing Italy, Spain, Japan); Mulder et al., ‘A Comparative Analysis of Leaving Home in the United States, the Netherlands and West Germany’, Demographic Research, Vol. 7, 2002, p. 565; for Israel, see S. Kreiczer-Levy, ‘Intergenerational Relations and the Family Home’, The Law & Ethics of Human Rights, Vol. 8, 2014, p. 131; for Canada, see B.A. Mitchell, A.V. Wister & E.M. Gee, ‘There Is No Place Like Home: An Analysis of Young Adults’ Mature Co-residency in Canada’, International Journal Aging & Human Development, Vol. 54, 2002, p. 57; J. Reid Keene & C.D. Batson, ‘Under One Roof: A Review of Research on Intergenerational Coresidence and Multigenerational Households in the United States’, Sociology Compass, Vol. 4, 2010, p. 642. H.B. Farber, ‘A Parent’s “Apparent” Authority: Why Intergenerational Coresidence Requires a Reassessment of Parental Consent to Search Adult Children’s Bedrooms’, Cornell Journal of Law & Public Policy, Vol. 21, 2011, p. 39; Keene & Batson, supra note 18. Newman, supra note 18. J. Dixon Weaver, ‘Grandma in the White House: Legal Support for Intergenerational Caregiving’, Seton Hall Law Review, Vol. 43, 2013, p. 1. S. Moskowitz, ‘Adult Children and Indigent Parents: Intergenerational Responsibilities in an International Perspective’, Marquette Law Review, Vol. 86, 2002, p. 401. Id. See discussion at P. Laufer-Ukeles & A. Blecher-Prigat, ‘Between Function and Form: Towards a Differentiated Model of Functional Parenthood’, George Mason Law Review, Vol. 20, 2013, pp. 419, 460. See, for example, K. Kiernan, ‘Unmarried Cohabitation and Parenthood in Britain and Europe’, Law & Policy, Vol. 26, 2004, p. 33; C. Grant Bowman, ‘Social Science and Legal Policy: The Case of Heterosexual Cohabitation’, Journal of Law Family Studies, Vol. 9, 2009, p. 1. In his influential work on the household, Robert Ellickson describes the home based on current property and contract law, as “household at will.” See R.C. Ellickson, The Household: Informal Order around the Hearth, Princeton, Princeton University Press, 2008.

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physical qualities, and relationships in the home are ultimately what makes a home, as opposed to a house. Furthermore, current legal position is questionable as it fails to appreciate the changing dynamic of the home. Home is no longer a site for the nuclear family alone. It hosts a variety of relationships. Intergenerational households are one example that is becoming more and more common in various countries across the globe. I argue that the law should adopt a more sophisticated approach toward living arrangements that challenge the nuclear family. Specifically, the argument focuses on eviction of the occupant (adult child or elderly parent) at the will of the owner. The reason for this focus is that eviction is a primary concern in housing law. Nonetheless, future work can develop legal rules for other cohabitation problems such as conflicts of use or relocation. I have previously argued that the law cannot treat parents and children who live together as legal strangers.27 Instead, I called for an examination of forms of living with others. Not all living arrangements are the same. Some arrangements are casual and intentionally noncommitted. Others, however, involve a shared commitment for the home including shared activities, rules of conduct, and an emotional, physical, or financial contribution to the home.28 Three categories were suggested: mere coresidence (roommates), home sharing, and shared lives. The first (‘coresidence’) category includes cases of common residence that are based on comfort and individuality. People live together because it is convenient and prudent, but they do not form attachments. Short-term roommates are a good example. In these cases, all legal responsibilities between the parties are based on their explicit contractual obligations. The second category (‘home sharing’) concerns cases where a homesharing community has been created. Typically, such arrangements concern formal rightholders, in our case parents, and occupants that have no formal property rights, in our case adult children. However, as I mentioned, multigenerational households can also include elderly parents living with their children. Other possible arrangements involve siblings living together or friends sharing a home for many years. It is important to emphasize that home sharing is based not on the type of relationship per se, but rather on the nature of the joint living arrangement. In a home-sharing arrangement, there is a long-term relationship, and everyday life at home reveals a commitment to the wellbeing of co-occupants. The argument is that in such cases cohabitants create the ‘home’ together, and it becomes a communal – as opposed to individual – creation. The third category (‘shared lives’) concerns home-sharing cases that include an additional element: the sharing of financial sources. When coresidents pool their resources,

27 28

S. Kreiczer-Levy, ‘The Informal Property Rights of Boomerang Children in the Home’, Maryland Law Review, Vol. 74, 2014, p. 127. Id.

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under certain conditions, such cases may justify the acknowledgment of a proprietary interest in the home. This relational vision of the home serves as the foundation for reworking current eviction rules. I am not arguing in favor of forced cohabitation when the parties (or some of them) do not want to live together anymore. Instead, I argue that the voice of the adult child or elderly parent cannot be ignored when the home-sharing arrangement ends. Acknowledging voice can be done in a number of ways, including imposing a duty to explain and justify the decision, or to listen to the child’s arguments, and the setting of cooling-off periods. Mandatory mediation procedures and standard notice requirement are examples for such a protection. In the case of elderly parents living with their children, protection against eviction can be stronger. Parents care for their children from their initial stages of development, to their maturity, supporting them financially and emotionally. When children grow up and become homeowners they can reciprocate and provide a home for the parent. The research of intergenerational relations usually distinguishes between serial reciprocity and direct reciprocity. Peter Laslett explains that in serial reciprocity each generation contributes to later generations and receives from its predecessors.29 This might be true in some contexts, but home sharing can provide an opportunity for more direct reciprocity. There are some possible criticisms of the argument presented here. A first concern is that the autonomy of the homeowner is jeopardized because he/she can no longer freely decide to revoke permission to live in his/her home. The concept of home sharing does recognize autonomy, but at the same time accepts that autonomy is entangled with sharing in the home. A homeowner can choose freely whether to let another person into his/her home. My argument is that once an owner has decided to enter a home-sharing community, he/she has embraced the responsibility and other-regarding attitude and behavior it entails. Although the owner is not forced to an ongoing relationship, there is a particular way to exit. A different concern is that the case of boomerang children, as opposed to elderly parents, presents a challenge to traditional educational expectations. The legal and ethical responsibility of parents to their children has usually referred to the time of minority, when the child needs to be cared for and nurtured.30 Leaving the parental home is culturally understood as an act of independence, associated with both emotional and physical maturity.31 However, this is indeed a cultural-specific perception. Among certain racial and ethnic 29 30

31

P. Laslett, ‘Is There a Generational Contract?’, in P. Laslett & J.S. Fishkin (Eds.), Justice Between Age Groups and Generations, Chicago, University of Chicago Press, 1992, pp. 24, 26. M. Garrison, ‘Towards a Contractarian Account of Family Governance’, Utah Law Review, Vol. 1998, p. 241; A.L. Alstott, ‘Property, Taxation and Distributive Justice: What Does a Fair Society Owe Children – and Their Parents?’, Fordham Law Review, Vol. 77, 2004, p. 1941. Sassler et al., ‘Are They Really Mama’s Boys/Daddy’s Girls? The Negotiation of Adulthood upon Returning to the Parental Home’, Sociological Forum, Vol. 23, 2008, p. 670.

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groups, multigenerational coresidence is common.32 Educating a child to become independent and leave home assumes a particular residential pattern that centers on the nuclear family. As explained earlier, recent trends may reflect a gradual shift in family structure and dynamics. A third critique is that the law should not interfere with intimate relations in the home. The law will disrupt the more amicable ways in which families and friends can resolve differences. Yet, the law already intervenes with familial relations in the home. It gives the owner the power to end the relationship unilaterally. Nevertheless, familial relations will definitely be damaged if disputes turn into litigation and therefore Alternative Dispute Resolution (ADR), such as mediation or arbitration, should be preferred. This chapter’s aim is to advance a conceptual change of intimacy in the home, and the generally proposed remedies are moderate enough to allow most family members to settle their differences outside of court. To sum up this part, the purpose of this chapter is not to offer concrete legal solutions,33 but rather to provoke discussion of the nature of intimacy in the home and the legal treatment of close, personal relationships.

2.4

Airbnb and the Fragmentation of the Home

While the previous part discussed intimacy in the home, this part presents a very different direction. It describes the rise of the sharing economy as a force that invites nonintimate interactions into the home. The sharing economy is an alternative form of consumption, based on collaboration in the production, creation, or use of products and services. As collaboration is now simplified and redefined by technological advances and on-line communication, people are able to share, barter, lend, rent, swap, and gift34 their property. The sharing economy allows owners to rent out assets such as a car, their home, a bicycle, or even pets to strangers using new forms of peer-to-peer markets. The sharing economy challenges the concept of home because it unsettles the legal distinction between personal use and commercial use.35 This part highlights the modern fragmentation of the meaning of home and calls for a new conceptualization of the home, one that appreciates the multiple interactions, including commercial ones, within it. This modern development is promoted by a central sharing economy platform, Airbnb. Airbnb is marketplace, where right-holders share their homes with tourists for a fee. The 32 33 34 35

Farber, supra note 19. Kreiczer-Levy, supra note 27. R. Botsman & R. Rogers, What’s Mine is Yours: The Rise of Collaborative Consumption, New York, Harper Business, 2010. See S. Kreiczer-Levy, ‘Consumption Property in the Sharing Economy’, Pepperdine Law Review, Vol. 43, 2015, p. 61.

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typical transactions include a short-term rent of a spare room or an entire house. Occasionally, hosts rent out houses and apartments throughout the year and do not live on the premises at all.36 This latter type of transactions is well within the familiar framework of the hospitality business and is not a home at all. However, when a host rents out his/her own home to strangers in exchange for monetary compensation, the home becomes a platform for commercial activity. Airbnb invites commercial transactions and strangers into the home. The vision of the home as a sanctuary and as an intimate location is challenged. Of course, homes in modernday living are not completely intimate. Many people work from home and run home-based businesses.37 Yet, Airbnb poses a more radical threat. Airbnb is not only a commercial activity conducted in the home, but about sharing a home. It brings people into one’s home, not as visiting customers, but as temporal, casual roomers. They occupy the space and reside with the owner. It therefore challenges the very core of the idea of the home presented earlier – intimacy and privacy. When one lives with strangers, the home becomes less intimate, secure, and private. Because guests are tourists, and the transactions are shortterm rentals, no intimacy can be developed. As opposed to a permanent roomer, the sharing economy is about casual renting patterns. The home becomes a platform for interactions and social exchange with strangers that come and go.38 The fragmentation of the home into seemingly conflicting uses – commercial and intimate, private and open to the public – unsettles several important regulatory rules. Tax law, zoning laws, and business permits often engage in boundary setting between categories of living. Should Airbnb transaction be taxed as if they were hotels? Should hosts secure a business permit when they rent out a room in their home? Should hosts be allowed to discriminate when accepting guests to their homes? Cities across the world have struggled with classifying Airbnb activity in the home. The challenge for the concept of home is significant. Prior digressions were relatively minor and did not strike the core of the concept: preserving the vision of the home as an intimate, private, and secure spatiality. This development could lead to dismissing the concept of home altogether. The sharing economy exposes, according to such a view, the inherent difficulties of the intimate-home model. While this conclusion is possible, it is ill-advised. Distinguishing between different properties based on their contribution to privacy, autonomy, or security is important and establishes a rich and nuanced property regime.39 36 37 38 39

Available at: . N. Garnett, ‘On Castles and Commerce: Zoning Law and the Home-Business Dilemma’, William & Mary Law Review, Vol. 42, 2001, pp. 1191, 1211. Kreiczer-Levy, supra note 35. Id.

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A second conclusion, equally problematic, is to preserve the old concept by significantly limiting sharing economy transactions. Such a legal response is overreaching and impractical. Moreover, it downplays the advantages of this activity.40 This chapter suggests a third possibility following my previous work.41 The home is an important spatial category, but its definition and boundaries have to be relaxed. Rather than focusing on the intimate commercial divide, I suggest we think of the home as an intermediate space that hosts a variety of interactions and activities. Relationship with friends, neighbors, and family is an important part of the home. Yet, owners should be able to shape their personal spatiality to include commercial interactions with strangers and thus expand their network of relations. This perception of the home as an intermediate space hosting a nexus of connections is based on two important principles. First, the core use of the property has to remain personal and private, and preserve a certain level of intimacy in order to be understood as a home.42 If the right-holder rents out a house to tourists and lives elsewhere, then this house is clearly a commercial property. It cannot be understood as a home, nor should legal regulation treat it as such. This logic is followed by New York Regulation, according to which only owners or tenants that are living in the property can legally rent their apartments for short periods of time.43 French law similarly allows for short-term rentals without a permit, provided the house being rented is rightholder’s place of permanent residence.44 Second, the level of interaction with strangers and the nature of the home ultimately depend on the right-holder’s preferences. The right-holder decides whether to open up his/her home to strangers. He/She decides whether to pursue a personal, intimate, and secluded vision of his/her personal space or open it up for commercial activity and invite others, people who are different from him/her. In this sense, and in stark contrast to the previous part, this proposed perception fits comfortably with a property regime based on exclusion45 and exit.46 This refined definition of the home has legal implications. It suggests creating new classifications for the home and intimacy. Instead of either the private–commercial or the home–hotel dichotomy, legal regulation has to employ additional categories. Alongside the intimate home, this chapter suggests working with three additional categories: com-

40 41 42 43 44

45 46

C.P. Lamberton & R.L. Rose, ‘When Is Ours Better Than Mine? A Framework for Understanding and Altering Participation in Commercial Sharing Systems’, Journal of Marketing, Vol. 2012, p. 109. Kreiczer-Levy, supra note 35. Id. Laws of New York 2010, Chapter 225. Article L. 631-7-1A du Code de la construction et de l’habitation. Also see A. Millerand, ‘Airbnb: Une Utilisation Plus Risquée Que L’on Ne Le Croit’, Droit Du Partage (24.9.14), available at: . See Barros, supra note 3; Rakoff, supra note 3. For exit see H. Dagan & M. Heller, ‘The Liberal Commons’, Yale Law Journal, Vol. 110, 2001, p. 549.

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mercial property, home as an intermediate space, and the mixed use home. When hosts rent out a house they do live in, they are engaging with commercial property. Legal regulation in such cases should involve an evaluation of the various advantages and disadvantages of the activity, but they present no real challenge to the home. The more complex cases involve a home that entertains commercial activity. Commercial activity can be moderate or extensive. Yet, classification cannot rest solely on the level of activity. It requires a holistic view of the interactions, relations, and activity in the home. The law should examine to what extent the activity is integrated in the everyday life within the home. Put differently, the question is whether the activity adds to the personal core by opening the space to others. If it does, then it deserves the special treatment awarded by the law. When the commercial use is dominant and shapes the personal space, less protection is required. Two concrete tests follow: the level of commercial activity and the extent of parallel use. These tests serve to distinguish between two categories: home as an intermediate space and the mixed use home. The first test is the level of commercial activity. The right-holder can rent out a room in his/her home several times a year or throughout the entire year. The more frequently the host rents out his/her home, the more substantial the commercial activity becomes within the personal space. It is important to note, however, that the commercial use does not negate the personal nature of the spatiality. However, a substantial amount of commercial use points to the conclusion that this activity should not be exempted from legal regulation. Nonetheless, as I explain later, legal regulation has to be mindful that it is a home. The line between extensive and moderate commercial activity is far from clear. A good rule of thumb examines the yearly income. If the income from the activity does not surpass the expenses of maintaining the home (taxes, utilities, etc.), then commercial use is not dominant. According to data provided by Airbnb website, 42% of hosts in San Francisco are using the site to cover regular living expenses.47 A different rule of thumb looks at the amount of days a host rents out his/her home each year. The city of London, for example, does not require any special permit from Airbnb hosts provided that the right-holder rents the property out for no more than 90 days a year.48 This is not an uncommon rule.49 Today jurisdictions focus on the level of activity, neglecting an additional test: parallel use. The parallel use suggested test examines the interaction between the host and users in his/her home. Hosts and guests can live in separate units or share a kitchen and a bathroom.

47 48

49

Available at: . Deregulation Act 2015, c.20 §§ 44, 45; available at: ; UK Enacts New Home Sharing Law, available at: . See the regulation in Amsterdam, available at: .

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They may meet once during the visit or interact daily. When the meetings are frequent and the host shares his/her facilities, the intimate and commercial intermingle and are an integral part of the right-holder’s personal space. These two tests, taken together, provide an important consideration for regulation. When the commercial activity is relatively low and the interaction between hosts and guests is significant, the property should be classified as an intermediate space. On the other hand, when the level of commercial activity is high and the interaction is negligent, the property would be classified as a mixed use home. Local regulation must distinguish between the categories, with the former being subject to minimal regulation to ensure safety and the latter subject to a moderate level of regulation. Both categories are distinct from commercial property, subject to extensive regulation. It is important to note that recommendations for comprehensive regulation exceed the scope of this chapter. It does not cover important considerations, such as the effect on neighborhood, communities, or the environment.50 The next step includes a review of specific rules in tax, business permits, and antidiscrimination laws and suggesting new rules based on these two tests.

2.4.1

Tax

Many local governments impose an occupancy or tourist tax on hotels.51 Are Airbnb hosts subject to such a tax? Are rooms and houses offered on the site essentially hotels or boarding houses? In an attempt to legalize their business, Airbnb now collects and remits in various cities. San Francisco and Amsterdam are prominent examples.52 In both of these cities, the tax imposed is identical to the standard tourist tax.53 Even hosts that rent out a room for only a few nights per year are considered hotels for the purpose of the tax. The frequency of sharing transactions and the extent of parallel use are not considered in collecting the tax. In the dichotomy between home and hotel, this arrangement classifies all sharing economy transactions as purely commercial. The nexus of connection model requires a more nuanced arrangement, one that is sensitive to the frequency and nature of sharing transactions. This chapter encourages policy makers to consider three distinct categories: (1) commercial use, for hosts who do not live in the house they rent out (subject 50 51 52

53

See S. Nadler, The Sharing Economy: What Is It and Where Is It Going? (MBA thesis, MIT, 2014). Summary available at: . San Francisco Business and Tax Regulations Code § 502 (2015), available at: . For a full list of local governments see . D. Kerr, ‘Airbnb Begins Collecting 14% Hotel Tax in San Francisco’, CNET (17 September 2014, 12:23 PM), available at: . In San Francisco it is 14%, see id; in Amsterdam tourist tax is 5%, see supra note 49.

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to full occupancy tax); (2) home as an intermediate space for hosts with a low level of participation in the sharing economy (subject only to income tax and not to occupancy tax); and (3) mixed use for increased involvement with Airbnb, creating a new rate for occupancy tax.

2.4.2

Zoning and Permits

A significant regulatory mechanism includes business permits and zoning rules. These rules directly address the legality of short-term rentals, rather than merely regulate their effect. Several cities in the world see Airbnb activity as illegal and compel hosts to meet the entire regulatory requirements imposed on hotels. Barcelona, Paris, Berlin, and New York all make it difficult for Airbnb hosts to offer short-term rentals of their property.54 However, New York, Berlin, and Paris do allow people to rent out their own home if it is their primary place of residence.55 London,56 Amsterdam,57 and Portland,58 on the other hand, have regulated short-term rentals provided certain conditions are met. London and Amsterdam do not require business permits at all, depending on the level of activity.59 In Grand Rapids, MI, regulations allow owners to rent out rooms via sites such as Airbnb, with several important restrictions.60 In order to get a permit, the property must be the principal dwelling of the owner during the rental activity; the license is subject to a fee; only one room can be rented; and all owners and residents within 300 feet of the property must be notified.61 A zoning ordinance in Portland, OR, has adopted similar regulation.62

54

55 56 57 58 59

60 61

62

S. Schechner, ‘Paris Confronts Airbnb’s Rapid Growth’, Wall Street Journal, 25 June 2015, available at: ; Z.T. Tun, ‘Top Cities Where Airbnb Is Legal Or Illegal’, Investopedia, 30 October 2015, available at: . Loin° 2014-366 24 mars 2014 pour l’Accès au Logement et un Urbanisme Rénové (Paris); N.Y. MULT. DWELL. LAW § 4 (McKinney 2011). Schechner, id. See Dagan & Heller, supra note 46. See supra note 49. Portland, OR, Zoning Code §§ 33.207.010–.070 (2015. When the hosts rent out the house for no more than 90 days per year, comply with fire safety regulation, and are subject to local property tax, there is no need for a permit under UK law. See Deregulation Act 2015, c.20 §§ 44, 45. Also see . In Amsterdam, there is a new category of private rental for vacation purposes which requires that rentals will not exceeds 60 days a year, and that there will be no more than 4 guests per visit. It also requires paying a tourism tax. See supra note 49. Grand Rapids, MI, City Code, Article VII, Chapter 116 and Article V, Chapter 61. Id. Also see the one-room short-rental fact sheet issued by the city of Grand Rapids, available at:

(last visited 15 February 2015). Portland Zoning Code § 33.207 (2015).

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This review shows that most cities work with two of the three suggested categories. Grand Rapids and Portland work with the mixed use home and commercial use. London distinguishes between the intermediate space home exempt from regulation and the commercial use category. Considering the complexity of the phenomenon, this chapter suggests working with three categories. Three categories will provide a more nuanced set of rules that fully acknowledge the intricacy of personal use property. The first category (home as an intermediate space) will require no permit, only minimal regulation to ensure safety. The threshold for the category will change depending on the particular characteristics of each jurisdiction. The second category (the mixed use home) will require a permit, notifying neighbors and paying fees. Both the first and the second categories require the listing to be the hosts’ primary place of residence. The third category (commercial use) requires a comprehensive set of regulatory rules.

2.4.3

Antidiscrimination Laws

Generally, owners can decide who they want to invite to their home for dinner or to stay as a house guest.63 Yet, this prerogative is significantly curtailed when the decision concerns a place of business. When individuals enter the public space, they are no longer free to choose their conduct or values.64 A recent study about Airbnb practices found that users with African-American sounding names were 16% less likely to be accepted as guests than users with white sounding names.65 There are additional indications of discrimination in the sharing economy.66 Fair housing laws as well as public accommodation laws are relevant.67 This chapter will focus on general principles and will not offer a comprehensive review of antidiscrimination law. The challenge to property law lies in the dichotomy between private and intimate and open to the public. On the one hand, the home is an intimate location and sharing of living arrangements entails intimacy.68 On the other hand, as I have argued elsewhere, the most important advantage of the intermediate space is its openness to the other.69 Because the 63 64 65 66 67 68 69

See T. Iglesias, ‘Does Fair Housing Law Apply to “Shared Living Situations”? Or the Troubles with Roommates’, Journal of Affordable Housing & Community Development, Vol. 22, 2014, pp. 111, 115. Id.; M. Bell, ‘The New Article 13 EC Treaty: A Sound Basis for European Anti-Discrimination Law’, Maastricht Journal of European and Comparative Law, Vol. 6, 1999, p. 1. B.G. Edelman, M. Luca & D. Svirsky, ‘Racial Discrimination in the Sharing Economy: Evidence from a Field Experiment’, Harvard Business School NOM Unit Working Paper No. 16-069, 2016. N. Leong & A. Belzer, ‘New Public Accommodation Laws’, Georgetown Law Journal, Vol. 105, forthcoming, 2017. L.G. Lerman & A.K. Sanderson, ‘Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodation Laws’, N.Y.U. Review of Law & Social Change, Vol. 7, 1978, p. 215. Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012). Kreiczer-Levy, supra note 35.

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sharing economy opens up a new sphere of interaction and exchange, discrimination undermines this purpose and the values it stands for. On balance, I suggest that antidiscrimination law should apply to the mixed use category and to commercial use category. In certain cases, the intermediate personal use can be exempt.

2.5

Conclusion

This chapter surveyed new developments that challenge the legal concept of the home. Instead of focusing on individual traits of the home, this chapter discussed living arrangements as a core feature of the relational and communal home. It focused in particular on the role of intimacy in shaping the use of the home and relationships in it. The two developments seem to pull in different directions. The first development celebrated intimacy in the home and insisted on recognizing the commitments between people who live together. It argued that living with others in the home may create a community that merits the law’s support. From this emphasis on joint living, the second development moved to the fragmentation of intimacy and argued that in the sharing economy living arrangement is sometimes commercial in nature. This development demonstrates that the home is no longer just a site for intimate relationship but also a platform for interactions with people who are different from the owner, casual strangers that come and go. This second development advocates a nuanced vision of the home as an intermediate space that hosts both intimate and commercial interactions. Although these developments are importantly different, they also converge in significant ways. Both developments center on the owner’s choice to open up his/her home to others. While opening up the home to intimate other-regarding joint living entails legal obligations to cohabitants, opening the home to strangers implicates local communities that manifest in legal regulation. In addition, both developments are in some sense a result of economic changes. Economic downturn leads to intergenerational cohabitation and to commercial activities in the home. Looking forward, the role of intimacy in the home is likely to continue to change. People spend more time in the workplace, they move around from place to place more than before, and it will be interesting to examine the legal concept of the home in the years to come.

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References Alstott, A.L., ‘Property, Taxation and Distributive Justice: What Does a Fair Society Owe Children – and Their Parents?’, Fordham Law Review, Vol. 77, 2004, pp. 1941-1979. Barros, D. B., ‘Home as a Legal Concept’, Santa Clara Law Review, Vol. 46, 2006, pp. 255306. Bell, M., ‘The New Article 13 EC Treaty: A Sound Basis for European Anti-Discrimination Law’, Maastricht Journal of European and Comparative Law, Vol. 6, 1999. Bengston, V.L., ‘Beyond the Nuclear Family: The Increasing Importance of Multigenerational Bonds’, Journal of Marriage & the Family, Vol. 63, 2001, pp. 1-16. Bianchi, S.M. et al., ‘Intergenerational Ties: Alternative Theories, Empirical Findings and Trends, and Remaining Challenges’, in A. Booth et al. (Eds.), Intergenerational Caregiving, Washington, DC, Urban Institute, 2008. Botsman, R. & Rogers, R., What’s Mine is Yours: The Rise of Collaborative Consumption, New York, Harper Business, 2010. Christiansen, E.C. ‘Adjudicating Non-Justiciable Rights: Socio Economic Rights and the South African Constitutional Court’, Columbia Human Rights Law Review, Vol. 38, 2007, pp. 321-386. Dagan, H. & Heller, M., ‘The Liberal Commons’, Yale Law Journal, Vol. 110, 2001, pp. 549-623. Dixon Weaver, J., ‘Grandma in the White House: Legal Support for Intergenerational Caregiving’, Seton Hall Law Review, Vol. 43, 2013, pp. 1-74. Edelman, B.G., Luca, M. & Svirsky, D., ‘Racial Discrimination in the Sharing Economy: Evidence from a Field Experiment’, Harvard Business School NOM Unit Working Paper No. 16-069, 2016. Ellickson, R.C., The Household: Informal Order around the Hearth, Princeton, Princeton University Press, 2008.

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Farber, H.B., ‘A Parent’s “Apparent” Authority: Why Intergenerational Coresidence Requires a Reassessment of Parental Consent to Search Adult Children’s Bedrooms’, Cornell Journal of Law & Public Policy, Vol. 21, 2011, pp. 39-75. Fox, L., ‘Re-Possessing “Home”: A Re-Analysis of Gender, Homeownership and Debtor Default for Feminist Legal Theory’, William & Mary Journal of Women & the Law, Vol. 14, 2008, pp. 423-494. Garnett, N., ‘On Castles and Commerce: Zoning Law and the Home-Business Dilemma’, William & Mary Law Review, Vol. 42, 2001, pp. 1191-1244. Garrison, M., ‘Towards a Contractarian Account of Family Governance’, Utah Law Review, Vol. 1998, pp. 241-269. Grant Bowman, C., ‘Social Science and Legal Policy: The Case of Heterosexual Cohabitation’, Journal of Law Family Studies, Vol. 9, 2009, pp. 1-52. Iglesias, T., ‘Does Fair Housing Law Apply to “Shared Living Situations”? Or the Troubles with Roommates’, Journal of Affordable Housing & Community Development, Vol. 22, 2014, pp. 111-153. Katz, L., ‘Exclusion and Exclusivity in Property Law’, University of Toronto Law Journal, Vol. 58, 2008, pp. 275-315. Keene, J.R. & Batson, C.D., ‘Under One Roof: A Review of Research on Intergenerational Coresidence and Multigenerational Households in the United States’, Sociology Compass, Vol. 4, 2010, pp. 642-657. Kiernan, K., ‘Unmarried Cohabitation and Parenthood in Britain and Europe’, Law & Policy, Vol. 26, 2004, pp. 33-55. Kreiczer-Levy, S., ‘Intergenerational Relations and the Family Home’, The Law & Ethics of Human Rights, Vol. 8, 2014, pp.131-160. Kreiczer-Levy, S., ‘The Informal Property Rights of Boomerang Children in the Home’, Maryland Law Review, Vol. 74, 2014, pp. 127-168. Kreiczer-Levy, S., ‘Consumption Property in the Sharing Economy’, Pepperdine Law Review, Vol. 43, 2015, pp. 61-124.

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Lamberton, C.P. & Rose, R.L., ‘When Is Ours Better Than Mine? A Framework for Understanding and Altering Participation in Commercial Sharing Systems’, Journal of Marketing, Vol. 2012, pp. 109-125. Laslett, P., ‘Is There a Generational Contract?’, in P. Laslett & J.S. Fishkin (Eds.), Justice Between Age Groups and Generations, Chicago, University of Chicago Press, 1992. Laufer-Ukeles, P. & Blecher-Prigat, A., ‘Between Function and Form: Towards a Differentiated Model of Functional Parenthood’, George Mason Law Review, Vol. 20, 2013, pp. 419-483. Laufer-Ukeles, P. & Kreiczer-Levy, S., ‘Family Formation and the Home’, Kentucky Law Journal, Vol. 104, 2016. Leong, N. & Belzer, A., ‘New Public Accommodation Laws’, Georgetown Law Journal, Vol. 105, forthcoming, 2017. Lerman, L.G. & Sanderson, A.K., ‘Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodation Laws’, N.Y.U. Review of Law & Social Change, Vol. 7, 1978. Mallett, S., ‘Understanding Home: A Critical Review of the Literature’, Sociological Review, Vol. 52, 2004, pp. 62-89. Messerly, J., ‘Roommate Wanted: The Right to Choice in Shared Living’, Iowa Law Review, Vol. 93, 2008. Mitchell, B.A., Wister, A.V. & Gee, E.M., ‘There is No Place Like Home: An Analysis of Young Adults’ Mature Co-residency in Canada’, International Journal Aging & Human Development, Vol. 54, 2002, pp. 57-84. Moskowitz, S., ‘Adult Children and Indigent Parents: Intergenerational Responsibilities in an International Perspective’, Marquette Law Review, Vol. 86, 2002, pp. 401-455. Mulder, C.H. et al., ‘A Comparative Analysis of Leaving Home in the United States, the Netherlands and West Germany’, Demographic Research, Vol. 7, 2002, pp. 565-592. Nadler, S., The Sharing Economy: What Is It and Where is It Going?, MBA thesis, MIT, 2014.

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Newman, K.S., The Accordion Family: Boomerang Kids, Anxious Parents, and the Private Toll of Global Competition, Boston, Beacon Press, 2013. Penalver, E.M., ‘Land Virtues’, Cornell Law Review, Vol. 94, 2009, pp. 821-888. Penner, J.E., The Idea of Property in Law, Oxford, Clarendon Press, 1997. Radin, M.J., ‘Property and Personhood’, Stanford Law Review, Vol. 34, 1982, pp. 957-1015. Rakoff, R.M., ‘Ideology in Everyday Life: The Meaning of the House’, Policy & Society, Vol. 7, 1977, pp. 85-104. Rosenbury, L., ‘Federal Visions of Private Family Support’, Vanderbilt Law Review, Vol. 65, 2014, pp. 1835-1870. Sassler, S. et al., ‘Are They Really Mama’s Boys/Daddy’s Girls? The Negotiation of Adulthood upon Returning to the Parental Home’, Sociological Forum, Vol. 23, 2008, pp. 670698. Shoked, N., ‘The Community Aspect of Private Ownership’, Florida State Law Review, Vol. 38, 2011, pp. 759-826. Smith, S.G., ‘The Essential Qualities of a Home’, Journal of Environmental Psychology, Vol. 14, 1994, pp. 31-46.

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3

Empty Homes and Needy People: Time for a New Housing Policy in Portugal and Elsewhere?

Dulce Lopes

3.1

Introduction

This article addresses the current gap between a physical and market reality – the proliferation of empty or vacant houses – and the social and human needs for housing, especially for those who cannot, due to economic, cultural and social reasons, access them. Indeed, there is a relevant and increasing number of houses or dwellings that are uninhabited both in Europe and in Portugal and, at the same time, there is a relevant and increasing number of homeless people.1 The Portuguese Housing Strategy for 2015-2031, adopted by the Resolution of the Council of Ministers no. 48/2015, 15 July 2015,2 describes this situation as a paradoxical one due, on the one hand, to the high number of empty homes and, on the other, to the difficulties experienced by families in finding housing that is adequate to their means and needs. In fact, although technically speaking the housing deficit should have already ended due to the construction in the last 20 years of about a half million new homes, there are still problems related to the degradation of the housing stock in old urban centres, the mobility needs of families and housing costs, which remain high, particularly those related to renting. Additionally, more than the absence of housing what is striking in Portugal is

1

2

According to The Guardian more than 11 million homes lie empty across Europe, while the number of homeless people reaches figures as high as 4.1 million (available at: ). The newspaper Público also reported about the situation in Portugal (available at: ).However, according to official data from the Portuguese Statistics Institute (Instituto Nacional da Estatística), in 2011 only 696 homeless people existed in Portugal (in a population of 10,562,178 residents). This data is a result of the definition used of homelessness that excludes all people that live in empty buildings and shelters. To this number one must add 2,103 families living in shacks or rudimentary housing and 4,775 families living in improvised shelters (in a total of 4 million families). This excerpt was taken from the English version of the above-mentioned resolution, available online at: .

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that existing dwellings – that are both not placed into the real estate or renting market or placed there under unbearable conditions – are inaccessible to most layers of the population. Therefore, according to the above-mentioned strategy, ‘It is in this context that the expression “so many people without a home and so many homes without people takes on a new dimension” because there is no longer a housing deficit in Portugal, but rather difficulties in gaining access to housing.’ This paper will address this inadequacy and attempts, from a public law point of view, to define ways, some existing, others proposed, to bridge the gap between those two ends of the housing system paradox.

3.2

Empty Houses and Needy People: The Situation in Portugal

In Portugal the reasons for a patent situation of vacant or abandoned houses3 have to do mainly with: – the strong waves of emigration or internal migration that left houses uninhabited for most of the year or led in some cases to the abandonment of rural and urban property4; – the demographic evolution of Portugal that has shown a tendency towards the decreasing and ageing of the resident population5; – the excess of urbanization (urban expansion or growth) that has created housing misadjusted to market needs6;

3

4

5

6

According to Portuguese legislation, the fiscal concept of a vacant building or fraction is applicable to houses empty for a year or more (Decree-Law no. 159/2006, 8 August 2006). In light of the Portuguese Housing Strategy for 2015-2031, the rate of vacant dwellings over the total number of conventional dwellings was 12.5% in 2011. The most important tendencies regarding the occupation of the Portuguese territory can be resumed in the triptych ‘urbanization, metropolitanization and litoralization’, generating, as in most of the world, an asymmetric development model (cf. 1.1.1. the Portuguese Strategy for Sustainable Cities 2020, adopted by the Resolution of the Council of Ministers no. 61/2015, 11 August 2015). This ‘distancing’ between owners and their houses has also brought about difficulties in what concerns dwellings whose ownership is fragmented or unknown since it hardens both private licensing and public intervention. According to official data on 31 December 2015, the resident population in Portugal was estimated to be 10,341,330, less 33,492 than the estimated population on 31 December 2014. This resulted in an effective growth rate of –0.32% in 2015 (Instituto Nacional de Estatística, I.P., Estatísticas Demográficas 2015, INE, I.P, Lisboa, 2016). According to the Portuguese Institute for Housing and Urban Rehabilitation, Contributos para o Plano Estratégico de Habitação, 2008-2013, Relatório 1 – Diagnóstico de Dinâmicas e Carências Habitacionais, Lisboa, IHRU, 2008, the number of dwellings almost doubled from 1970 to 2001, always above the growth of family households.

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– the unattractiveness of the leasing market7 due in great part to the long period of the established system of rent control that has generated disinvestment in property and also a lack of interest in placing property for rent8; – the current economic crisis that has worsened the situation of low-income families and impoverished the middle class and thus has raised the indebtedness level and mortgaged insolvencies9; – the degradation of properties and the unattractiveness of central and other peripheral areas of the city for housing purposes, this despite the urban rehabilitation efforts that have actively been put into place.10 In many cases the absence of use of those dwellings leads to or aggravates the physical degradation of the premises, with the negative effects this has on the urban environment11; additionally, the resilience of the territories and

7

8

9

10

11

According to 3.1.3. of the Portuguese Strategy for Sustainable Cities 2020, only 15% of the vacant family dwellings were available for rent. Nevertheless, the numbers of housing tenure in Portugal in 2012 were close to the ones in Spain, Greece, Slovenia and Iceland (with 75.4% owner outright or mortgage; 10.9% tenant at a market price; and 14.5% tenant at a reduced price or free), according to I. Ramsay, ‘Two Cheers for Europe: Austerity, Mortgage Foreclosures and Personal Insolvency Policy in the EU’, in H.W. Micklitz & I. Domurath (Eds.), Consumer Debt and Social Exclusion in Europe, London, Routledge, 2015, p. 204. As is commonly remarked, State intervention in the housing market has not always led to optimal solutions, introducing factors of disruption regarding the location and occupation of dwellings. For a general overview of such a relationship, see A. Cardoso, State Intervention in Housing in Portugal 1960-1980, Reading, School of Planning Studies, 1983. M. Frade & M. Pinheiro Almeida, ‘Country Report: Portugal’, in H.W. Micklitz & I. Domurath (Eds.), Consumer Debt and Social Exclusion in Europe, London, Routledge, 2015, p. 47, give indication that in 2012, 26 houses a day were turned over to banks by households and real-estate companies; however, in 2013 the number was only seven houses per day, which can be explained by the legal determinations (see for instance Law 58/2012) and the practice to renegotiate credits and mortgages). For further development on the situation in Portugal see Seixas et al., ‘Potentials and Restrictions on the Changing Dynamics of the Political Spaces in the Lisbon Metropolitan Area’, in J. Knieling & F. Othengrafen (Eds.), Cities in Crisis: Socio-Spatial Impacts of the Economic Crisis in Southern European Cities, London, Routledge, 2016, p. 224. This rehabilitation, regulated by Decree-Law 307/2009, 23 October 2009, is intended to regenerate degraded spaces or in the process of being degraded with major problems of aging and economic and functional decline, allowing for their better integration into the urban areas and their revitalization (for an analysis of this concept under the Portuguese legislation, see F.P. Oliveira, D. Lopes & C. Alves, Regime Jurídico da Reabilitação Urbana – Anotado, Coimbra, Almedina, 2011, commentary to Article 12). Rehabilitation can have the effect of increasing the demand for housing in these locations by the middle classes and thus creating at the same time social housing. Indeed, one of the main general purposes of urban rehabilitation has been the increase of housing premises for social purposes (cf., in the Lisbon area, the positive evolution according to Santos et al., ‘O parque habitacional devoluto em Lisboa: medição e uso prospetivo’, Os Valores da Geografia: Atas do X Congresso da Geografia Portuguesa, Lisboa, Associação Portuguesa de Geógrafos, 2015, pp. 329-334). For a correlation between the needs of residential developments and the urban environment (and also the general principle of sustainable development), especially in what regards the need for adequate planning and quality parameters of housing, see B. Goodchild, Housing and the Urban Environment: A Guide to Housing Design, Renewal and Urban Planning, Oxford, Blackwell Science, 1997; and, with a focus in the Portuguese situation, F.P. Oliveira, ‘Social Sustainability in Planning Law’, US – China Law Review, Vol. 8, No. 1, 2011, pp. 45-52.

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cities depends upon their effective occupation and use, which demands the involvement of all actors, including the most vulnerable ones, in the definition and execution of urban policies, which is still sadly lacking. On the other side, there are a large number of persons, families and groups, that is, migrants, ethnic minorities or other vulnerable groups, that require living space but cannot under normal market and financial conditions have access to it because they have scarce means, are socially excluded or are facing temporary needs that cannot be satisfied by their normal dwellings. With this framework in sight, our aim here is to analyse several legal mechanisms that can be used to reduce the gap between the number of empty houses (assuming they fulfil the parameters laid down for adequate housing facilities12) and the housing needs for mainly needy persons and families. We include in this group not only those that cannot access the normal housing market and, therefore, have no access to adequate housing, but also homeless or vulnerable people13 that live in informal settlements, usually shacks that lack minimal housing criteria. We do not include in our analysis illegal housing that, nevertheless, satisfies adequate housing criteria because Portuguese policy tends, in this case, to the regularization of such dwellings, even when their holder is not the formal owner of the land.14 We also deal with other intervention purposes such as the response to crises, catastrophes or other emergency situations, or to the necessity of relocating families while public or even private construction works are taking place. This is not an easy task since the

12

13

14

According to adequate shelter for all parameters developed at the Second United Nations Conference on Human Settlements (Habitat II) that took place in Istanbul, 3-14 June 1996. Article 65(1) of the Portuguese Constitution also defines basic standards for housing: adequate dimensions, hygienic conditions, comfort and preservation of personal intimacy and family privacy. For an analysis of the concept of homelessness regarding three distinct dimensions: the absence of a home, the systemic discrimination and social exclusion that affects homeless people and the fact that they are right bearers and central agents of the social transformation necessary for the realization of the right to adequate housing, see the Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Human Rights Council of the United Nations, 30 December 2015, pp. 5-6. The Portuguese Strategy for the Integration of the Homeless (2009-2015) includes both persons without a roof and persons without a house living in a temporary lodging. A more complex categorization is proposed by Finnish regulations, according to which one may distinguish between rooflessness, houseless, insecure housing (in unsuitable houses), insecure housing (in suitable houses) and inadequate housing (where there is a safe right of occupation of a place that, however, is unfit for accommodation). See P. Fredriksson & J. Pätäri, Right to Housing in Europe – Need for a Comprehensive Strategy, Housing Rights In Europe Conference, Helsinki Ministry of the Environment 18-19 September 2006, p. 41. In this case a special legal regime applies (Law n.º 91/95, 2 September 1995, called the urban areas of illegal genesis). For a closer description of such ‘legalization Policy’, see F.P. Oliveira & D. Lopes, As Áreas Urbanas de Génese Ilegal (AUGIs) no Contexto da Política de Legalização, Coimbra, Almedina, 2016.

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housing needs we consider are of a divergent nature: in some cases definitive and in others temporary. In addition, the type of ownership of the property allocated to housing purposes differs: in some cases public and in others private property.15 In each case the response of the law, if any, differs. It is naturally easier to find instruments that allocate public property to social housing purposes; however, the amount of public housing available is manifestly not enough and ‘political’ choices need to be made. In the case of private property, it is also easier to find mechanisms that respond to exceptional needs such as, for instance, those motivated by the occurrence of catastrophes for a defined period of time rather than to the satisfaction of permanent housing needs of the low-income segment of the population or of vulnerable groups. However, as is recognizable, a very loose and extremely temporary satisfaction of pressing housing needs, even if in dwellings with adequate living conditions, is not enough to satisfy the needs for a stable home where personal development and integration is possible. Indeed, for a house to be considered a home, not only physical criteria should be met, but also other criteria that enable personal flourishing in a deep and meaningful relation to a particular place.16 As Kenna puts it ‘home must be conceptualized as a house plus an x factor’.17 For certain, this ‘x factor’ can only be brought about by a stable connection to a place of residence protected from displacement and dispossession.18 Therefore, a more global ‘housing policy’ should be defined that allows, in cases of real and pressing necessity, for the use of property by non-owners, naturally, with respect for the legal and economic content of property rights, ensuring that owners can effectively 15

16

17 18

In Portugal, there is a complex system of property, with three very different forms of ownership (public, private and collective), which require different de iure responses to similar de facto problems. The collective property, called ‘Baldios’, includes property owned and managed by local private communities to satisfy communal goals (and not by public entities or private persons) and is normally destined to productive uses; therefore, it is not used, as a rule, for housing purposes. Regarding this collective form of property, see Law no. 68/93, 4 September 1993, and C. Nabais, ‘Alguns perfis da propriedade colectiva nos países do civil law’, in Estudos de Homenagem ao Prof. Doutor Rogério E. Soares, Coimbra, Studia Iuridica, Coimbra Editora, 2001, pp. 223-261. According to M. Mikkola, Housing As Human Right In Europe, n/d, pp. 13-14, available online at , the minimum standards of housing according to the European Social Charter (Article 31) are the following: reasonable waiting time for standard housing; habitability of both standard and temporary housing; temporary housing for all in all circumstances; affordable housing for those without adequate income and, in any case, non-discrimination. Home, however, is a rather complex construction that, according to L. Fox O’Mahoney, ‘The Meaning of Home: From Theory to Practice’, International Journal of the Built Environment, Vol. 5, No. 2, 2013, pp. 159-166, should be understood according to elements such as financial investment, physical structure, territory, identity and self-identity and a social and cultural signifier. These last two elements are emphasized in cfr. R. Atkinson & K. Jacobs, House, Home and Society, London, Palgrave, 2016, pp. 7-10. P. Kenna, ‘Globalization and Housing Rights’, Indiana Journal of Global Legal Studies, Vol. 15, No. 2, p. 468. As characterized by O’Mahoney and Sweeney in L. Fox O’Mahoney & J. Sweeney (Eds.), The Idea of Home in Law: Displacement and Dispossession, London, Ashgate, 2016, pp. 1-12.

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participate in those administrative procedures and that they receive due compensation for the contribution made on behalf of public housing allocation mechanisms.

3.3

Why Reconcile Property and Housing Rights?

Property and housing rights have long been discussed together but have not always walked hand in hand. Indeed, property has long enjoyed a special status. It is considered a fundamental right that can be enforced against all who infringe upon it as it enjoys protection in all fields of law (constitutional, civil, criminal and administrative) and even beyond state borders.19 In Portugal, this right (inserted into Article 62 of the Portuguese Constitution) is seen as analogous to the category of rights, liberties and guarantees. Therefore, it is subject to privileged protection regarding economic, social and cultural rights, such as the right to social security, education, health and housing (Article 65 of the Portuguese Constitution).20 Housing rights, although also fundamental, are usually dependent upon a decision of public entities and subject to the resources available to progressively satisfy them: the socalled reserve of the possible.21 A housing law demand is, therefore, less likely to be satisfied due to the discretionary powers of the public entities involved than one that is founded on the protection of property. This means that traditional property rights are accorded a higher protective status than the most recent housing rights. In addition, in the international arena the instruments that include a reference to housing are of a more indeterminate nature than the ones referring to property,22 pointing 19

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Especially in what regards the protection awarded by the European Convention on Human Rights (Article 1 of Protocol 1), the Charter of Fundamental Rights of the European Union (Article 17) and all the international decisions on expropriation measures that helped define a special role and protective status all around. This shows that public authorities can only legitimately interfere with property, seen as a human right, if they respect some major principles and rules, such as the need to safeguard the balance between property rights and the general interest, the respect of the proportionality principle and also the existence of procedural guarantees. See, inter alia, the Decisions of the ECHR in the Sporrong and Lönnroth v. Sweeden (application nos. 7151/75; 7152/75; decision of 23 September 1982) Matos e Silva, Lda, and others v. Portugal (application no. 15777/89; decision of 16 September 1996) and Elia, Srl. v. Italy (application no. 37710/97; Decision of 2 August 2001) cases. See, also, the Judgment of 13 December 1979, in Case 44/79, Liselotte Hauer v. Land Rheinland-Pfalz [1979] ECR 3727. For a general framework, see A.R. Coban, Protection of Property Rights Within the European Convention on Human Rights, Farnham, Ashgate, 2004. J.J.G. Canotilho & V. Moreira, Constituição da República Portuguesa – Anotada, Vol I Artigos 1º a 107º, 4. Ed., Coimbra: Coimbra Editora, 2007, commentary to Article 62. This nature of property rights has long been acknowledged and applied in the Portuguese administrative and constitutional case law. See J.J.G. Canotilho, ‘Tomemos a Sério os Direitos Económicos, Sociais e Culturais’, Boletim da Faculdade de Direito da Universidade de Coimbra, No. Especial, Estudos em Homenagem ao Prof. Doutor Ferrer Correia, Vol. III, Coimbra, Faculdade de Direito de Coimbra, 1991, p. 478. See as basic landmarks Article 25(1) of the Universal Declaration of Human Rights and Article 11 of the International Covenant on Economic, Social and Cultural Rights. But even before, and naturally after them, the right to housing had been mentioned in several international instruments concerning special vulnerable groups or people such as refugees, women, persons with disability and at all levels of regulation: UN,

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mainly to the responsibilities of States in promoting and ensuring insofar as possible adequate housing in a specific time and spatial frame. Those same instruments put also into evidence the fact that the right to housing is much broader and complex than the right of property or the right to land. In fact, it goes beyond the detention of formal legal titles and offers protection even in cases where those titles are being violated, thus justifying some level of responsibility of non-State actors in this field.23 Despite this legal difference, it has been acknowledged that the distinction between property and housing rights is not of a substantial or ontological nature (residing on a qualitative difference of the fundamental rights at hand), but that it depends mostly on the degree of determination or concretization of such rights and their legal content, calling for different sets of public and private responsibilities. This has led to a certain dogmatic unity between all types of fundamental rights24 and a recognition of a level of protection similar to the rights of both housing and property,25 while also allowing for a balancing of rights between the two that results not simply in the prevalence of liberty rights over social rights. This allows for private property rights to be restricted even in cases where those restrictions are not explicitly provided for in the Constitution, as long as constitutional

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European, Inter-American, and African human rights instruments. Nevertheless, at the European level both the ECHR and the Charter of Fundamental Rights of the European Union do not strictly encompass the right to housing, although in correlation to other rights, some degree of protection is awarded to one’s home. The most relevant instrument has, therefore, been the European Social Charter (Article 31) and the work of the European Committee of Social Rights that promotes access to housing of an adequate standard, the reduction of homelessness and the affordability of housing (see, for further developments, A. Kucs, Z. Sedlova & L. Pierhurovica, ‘The Right to Housing: International, European and National Perspectives’, Cuadernos Constitucionales de la Cátedra Fadrique Furió Ceriol, No. 64/65, 2008, pp. 101-123; G. Kardos, ‘The Internationally Recognized Right to Housing: Implications and (Some) Applications’, Cuadernos Constitucionales de la Cátedra Fadrique Furió Ceriol, No. 64/65, 2008, pp. 91-100; and P. Kenna, ‘Adequate Housing in International and European Human Rights Law: A Panoramic View’, LandAS International Journal of Land Law & Agricultural Science, No. 7, 2012, pp. 4-18). As recognized by the Office of the United Nations High Commissioner for Human Rights, The Right to Adequate Housing, Fact Sheet No. 21/Rev.1, United Nations Office at Geneva, Switzerland, Reprinted, 2014. See, in Portugal, R. Novais, Direitos Sociais Teoria jurídica dos direitos sociais enquanto direitos fundamentais, Coimbra, Coimbra Editora, 2010; R. Novais, ‘Direito, Liberdade e Garantia: uma noção imprestável na justiça administrativa?’, Cadernos de Justiça Administrativa, No. 73, 2009, pp. 229 ff.; and C. Blanco de Morais, ‘De novo a querela da “unidade dogmática” entre direitos de liberdade e direitos sociais em tempos de “exceção financeira”’, E-Pública Revista Electrónica De Direito Público, No. 3, 2014, p. 2 ff. In a more prudent way, but pointing out to the unity of the value system and the integration role of the principle of human dignity (Article 1 of the Portuguese Constitution) see J. Miranda, ‘Os Direitos Fundamentais na Ordem Constitucional Portuguesa’, Revista Española de Derecho Constitucional, Vol. 6, No. 18, 1986, pp. 121-122. Social rights are no longer seen as mere programmatic and non-justiciable rights, but rights with a defined legal content, including both negative (not to be deprived from property and not to be prevented from accessing it) and positive dimensions and implying, although in different compositions and manners, the need to respect, protect and fulfil (see I.E. Koch, Human Rights As Indivisible Rights: The Protection of Socioeconomic Demands under the European Convention on Human Rights, Leiden, Martinus Nijhoff Publishers, 2009, pp. 14-38).

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requirements, such as the pursuit of a legitimate and important public interest, the respect of the proportionality principle and the payment of a due compensation, are respected. The social function of the property is also implicit in the Portuguese Constitution,26 according to which property as a constitutional right serves two different purposes: first, a personal and private one that ensures an area of freedom to its owner; and, second, a social and public one that requires that such discretional area be oriented towards the common good of society.27 This means that the owner should give property a socially just use, allowing for public powers such as the legislator or the administration, mostly when planning the territory, to impose limits on the use of soil in the name of relevant public interests. In fact, due to its irreproducibility and its indispensability to the satisfaction of all men’s realizations and needs, land is traditionally subject to a stronger social link than other forms of property. However, housing facilities have also acquired a special public relevance over the years28 due mainly to the link between the right to adequate housing and the basic right to human dignity.29 This social function of housing premises has rightfully been pointed out by high authorities in Portugal, such as the Portuguese Ombudsman,30 which has opposed public municipal eviction and demolition procedures unless resettlement was guaranteed. In addition, there has been a remarkable evolution in constitutional case law on this subject.31 A reconciliation of these intimately linked two ends of the housing policy is, therefore, not only welcomed but also needed: A house needs use in order to accomplish its public

26

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29 30

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Considering that the social function of property can be derived from the broader context of the Portuguese Constitution, see J. Miranda & R. Medeiros, Constituição da República Portuguesa Anotada, Tomo I, Coimbra, Coimbra Editora, 2005, p. 626. According to the teachings of A. Correia, Manual de Direito do Urbanismo, Vol. I, 4.ª ed., Coimbra, Almedina, 2010, p. 810. As is pointed out in the Draft outcome document of the United Nations Conference on Housing and Sustainable Urban Development (Habitat III), in Quito, 17-20 October 2016, according to which ‘cities and human settlements’ should be able to ‘fulfil their social function, including the social and ecological function of land, with a view to progressively achieving the full realization of the right to adequate housing as a component of the right to an adequate standard of living, without discrimination, universal access to safe and affordable drinking water and sanitation, as well as equal access for all to public goods and quality services in areas such as food security and nutrition, health, education, infrastructure, mobility and transportation, energy, air quality and livelihoods’ (our italics). As argued in A. Martins, ‘A Protecção Da Casa De Morada De Família’, Julgar, No. 23, 2014, pp. 32-34. J.F. Costa, ‘O direito a uma habitação condigna: desafios do presente, horizontes do futuro’, III Congreso Internacional del PRADPI FIO PROFIO: Ombudsman y colectivos en situación de vulnerabilidad, Madrid, 2 October 2015, available online at . In Decision no. 143/07 (and in previous Decisions no. 130/92 and 131/92) the Portuguese Constitutional Court pointed out that housing was a social right opposed solely to public entities and only in the conditions and terms defined by law (through an interpositio of the legislator); but in Decisions 486/97 and 420/2000, this right is opposed to private owners as part of their solidarity obligations linked to the human dignity of the tenant and the social function of the property.

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function and utility; people need houses in order to preserve their human dignity and achieve their full personal potential.

3.4

How to Reconcile Property and Housing Rights?

The relationship between property and housing has changed over the years, accompanying the major transformations in State structure, organization and means. Indeed, public policies in Portugal have long determined the fate of the housing market either through direct intervention in social housing or indirectly through planning, financing and restricting private intervention in property.32 The outcome of such transformations determines the effectiveness of the housing policy in ensuring minimum standards for quality of housing and in preventing homelessness. Of course, in cases where housing demands are not satisfied by the markets (by purchasing or renting a dwelling under market conditions) or when accessing the available dwellings is impossible or close to impossible,33 the role of the State becomes evident.

3.4.1

The Role and Level of Public Intervention in Housing

According to Article 65(2) of the Portuguese Constitution, the role of the State in what regards housing involves programming and executing planning instruments; promoting the construction of affordable social housing; stimulating private construction according to the general interest and access to owned or leased housing; and supporting private and collective housing initiatives. Therefore, there is a wide range of mechanisms that the State and other public entities such as municipalities34 can use to shape the housing field: physical initiatives such as construction of social housing or shelters; spatial measures such as regional and town planning instruments and the definition of rehabilitation areas; social measures such as assistance with living costs, credits, housing subsidies, control of rents; and financial and

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For a discussion on this relationship and evolution, see M. Lopes Pereira Borges, Milestone 1 – Caracterização Geral do Mercado de Habitação, Universidade de Aveiro, 2011. This happens frequently to vulnerable persons due to their financial and social status, such as being unemployed, or due to their legal position, such as with migrants. The residential conditions of immigrants has deteriorated over the 1990s due mainly to the lack of capacity of the housing and leasing market to meet the needs of the new immigration waves and the absence of collective solutions for seasonal migration; see Malheiros et al., Acesso à Habitação e Problemas Residenciais dos Imigrantes em Portugal, Lisboa, Observatório da Imigração, 2011, p. 54. Municipalities have clear legal attributions in the housing area, according to Article 23(2)(i) of Law no. 75/2013, 12 September 2013.

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tax measures such as taxation schemes that burden vacant dwellings and incentives for the construction or leasing of housing under social conditions. After the 1974 Portuguese Revolution,35 the wave of public intervention was centred on the direct production of dwellings under, for example, the umbrella of rehousing programs in order to eradicate slums created by the internal and external migration prompted by the urbanization and decolonization processes. However, this direct form of intervention did not meet the existing needs36 and has proven to be flawed in what regards the promotion of integration and the respect for non-discrimination demands since this intervention created peripheral and monofunctional settlements that were kept apart from the rest of the urban areas.37 Limiting ourselves to the last few decades in Portugal, we should point out – as happened in many other policy areas – an evolution from the public to the private sector. From an initial standpoint where public intervention was very strong – either imposing heavy limitations on the increase of rents or on the termination of private lease contracts, and promoting the development and construction of huge social housing facilities – the evolution tended towards the devolution to the market of the housing policy. This, however, does not mean a total withdrawal by the State since its intervention is still mandated by the Constitution, but rather a transformation in the tools it uses to promote adequate housing: from a State who builds and provides directly for the necessary dwellings38 to a State who plans,39 regulates (for instance, the technical rules and building 35 36 37

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Malheiros et al., supra note 33, p. 57, considers that housing only received a consistent institutional recognition after 1974. Id., p. 58. For reference to a clustering of poor people, see S. Musterd & R. Andersson, ‘Housing Mix, Social Mix and Social Opportunities’, Urban Affairs Review, Vol. 40, No. 6, 2005, p. 763. There has been, as a consequence, a decrease in the importance given to public social housing in recent years. In this context, interventions have been centred in the qualification of existing social housing and, in some cases, in demolishing it and replacing it with new forms of social support. This contributes to the objective of greater social cohesion and to the reduction of social exclusion. The decline and total or partial demolition of the urban areas ‘at risk’ is, therefore, a recent trait of the Portuguese regeneration policy. For an example, see S. Alves, ‘Construção, densificação, declínio e demolição de uma área urbana em crise: Uma história de desassossego em torno do abandono e das políticas’, Cidades, Comunidades e Territórios, Vol. 23, 2011, pp. 41-59. Also, slums have been undergoing demolitions. However, these demolitions have been criticized by national and international forums because in some cases no resettlement has been provided for and the demolition and subsequent destiny of such areas is purely of an economic nature (for an official sum of such criticisms, see the Recommendation n.º 3/B/2016 of the Portuguese Ombudsman, of 17 August 2016). This dimension still exists although mostly in exceptional situations (extreme poorness, emergency cases) and is normally provided for by pre-existing public buildings or by contractual arrangements with the private and social sectors. A form of supported rent is available in these cases, as a sort of mixed tenure, according to Law 81/2004, 19 September 2014. The requirement to take into account the social and housing needs of the population, particularly the most disadvantaged, is a legal obligation of means of any planning procedure, which makes illegal any omission of these interests in the decision-making process. On this behalf, plans should promote the destination of new and rehabilitated housing to social purposes. Nonetheless, this is not generally the case, due on the

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codes regarding housing quality) and incentivizes private behaviour in the housing market. The State becomes a Guaranteeing or Guarantor State40 that, according to a minimalistic role in the economy, replaces the promotion of social housing with the allocation of subsidies for acquiring or maintaining property and for stimulating the leasing market as well as adopting a more contractual approach to the housing policy.41 Nowadays, the flaws of the market and the economic crisis have led again to the need to find a new balance between property and housing that is no longer based on State or municipal dirigisme but goes beyond a mere guaranteeing perspective under which it is up to the State to promote alternate forms or incentives to access private housing or to aggravate the taxation of vacant and degraded property in order to increase its availability in the housing market. According to Kenna, ‘ultimately states and courts must “trump” private property rights with the panoply of human rights, including socio-economic rights’,42 which require new forms of intervention that are adjusted to give a meaningful and effective content to housing rights. Indeed, the Portuguese Housing Strategy for 2015-2031 points to a more active position of the State, stating, for instance, that ‘it is important to create rules within the legal framework of public housing assets in order to make the presumption that real estate without a known owner is state property work, as happens in the case of rustic buildings’ (Measure 1.1.3.: improves municipal tools for the promotion and rehabilitation of buildings which are dilapidated or in ruins, and the use of vacant buildings in consolidated urban areas). Our contribution in this paper from here forward will focus on the existing and on the possible mechanisms that allow for a balancing between our two departure points – empty houses and needy people – by putting some of the former at disposal of the latter. The analysis will be directed to possible restrictions on property rights in order to satisfy housing necessities of third persons, leaving aside forms of intervention in owned or leased housing such as evictions, demolitions and expropriation to other purposes. Additionally, public and social housing or resettlement programmes will only indirectly be called upon since their immediate purpose is to provide housing to the most needed.

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one hand to the real-estate crisis and the promoter’s reluctance to mix uses and, on the other hand, to the design of financing programs (even the ones financed by the European Union) that are directed mainly to uses that are more profitable than housing. J.J.G. Canotilho, ‘O Estado Garantidor. Claros – Escuros de um Conceito’, O Direito e o Futuro. O Futuro do Direito, Combra: Almedina 2008, pp. 571-576; P.C. Gonçalves, ‘Estado de Garantia e Mercado’, Revista da Faculdade de Direito da Universidade do Porto, Vol. VII (Comunicações do I Triénio dos Encontros de Professores de Direito Público), 2010, pp. 97-128. For an analysis of such evolution see N. Serra, Estado, Território e Estratégias de Habitação, Coimbra, Quarteto Editora, 2002. Kenna, supra note 17, p. 464.

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3.4.2

Existing Mechanisms

Portuguese legislation already includes mechanisms that tend to render urban property, that is, dwellings or residential settlements, available to people in need, though they are disseminated through several legal regimes.43 General provisions can be found within the expropriation code adopted by Law no. 168/99, 18 September 1999 under which expropriation and also requisition of private property is possible to guarantee public interest needs (Articles 1 and 80). However, the common assertion that public and private interests are not always opposed to and, in some cases, do coincide the need to satisfy concrete and pressing housing needs (that nevertheless do not correspond to the creation of social housing) has not been, to our knowledge, one of the reasons that has justified resorting to expropriation. Moreover, requisition for a certain delay of time is allowed in cases of national and urgent public interest, making this institute available only in situations of crisis or emergency as, for instance, when environmental calamity takes place (as established in Article 24.º of the General Law on Civil Protection, Law 27/2006, 3 July 2006).44 Within urban rehabilitation areas, special provisions apply allowing for, in some operations, expropriation by public entities or forced alienation of private property to third parties in order to promote the physical intervention in the buildings at stake, even if they are meant to be placed in the market for residential purposes (Articles 61 and 62 of Decree-Law no. 307/2009, 23 October 2009). However, this also means that the private person that is interested in buying the property (either from the managing public entity or directly from its former owner) must have means to acquire it and, in most cases, to rehabilitate it, which, consequently, excludes access to housing by low-income interested parties. Additionally, in order to get reimbursed for expenses incurred in acting on behalf of owners (assuming their conservation or rehabilitation responsibilities), public entities can use a forced lease mechanism for a number of years to get compensation (Article 59 id. and Article 20 of Decree-Law no. 157/2006, 8 August 2006). Moreover, public law servitudes can be imposed to ensure the temporary relocation of activities and persons in rehabilitation

43 44

Also for an overview of these mechanisms, Provedor de Justiça, O Provedor de Justiça e a Reabilitação Urbana, Lisboa, 2004, pp. 52-58. In our perspective the rule on requisitions is very restrictive since it is possible that situations of mere local or regional dimension would require the use of such institute, as happens with the need to relocate a family after a fire has occurred in their home and no public dwelling is available. Even if this were the case, other limits generally placed upon requisition (its maximum duration of a year) and the probable need to do some improvements on the premises turn the requisition into a very weak instrument in what concerns the satisfaction of pressing housing needs that, however, might be prolonged for more than a year. Due to these restrictions, in urgent situations, dispossessed persons are usually placed into temporary shelters or pensions.

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areas, which is particularly relevant in cases where transfer is needed while construction activities are taking place (Article 60 of Decree-Law no. 307/2009). Another temporary mechanism applicable when there is a need to intervene in a private building in order to demolish or rehabilitate it, should it be in a state of disrepair, is the relocation of tenants and good faith occupants of the building.45 In these cases, the intervention by the municipality or by the owner can only take place if a new residence is provided for, usually under the same conditions and in the same area of residence or, alternatively, a compensation is paid (Articles 13 to 17 of Decree-Law no. 157/2006 and Article 73.º of Decree-Law 309/2008). Also, reasons related to the health conditions of the occupants are grounds to suspend any pending public eviction procedures [Article 109(3) and (4) of Decree-Law no. 555/99, 16 December 1999] unless relocation is provided.46 This means, however, that in many cases the rehabilitation intervention envisaged does not take place due, on the one hand, to the scarce availability of private housing that satisfies legal relocation requirements and, on the other hand, to the fact that public entities do not usually dispose of a reserve of urban property that can be used for this purpose. In such situations, neither adequate housing nor other relevant public interests related to the rehabilitation of the premises are satisfied. With this present-day legal framework only some pressing temporary housing needs are adequately met in Portugal while more stable necessities are often put on a long waiting list for public or social housing dwellings.47 Temporary housing, however, cannot be equivalent to the needs of finding a home for people in need of one.48 New forms of putting 45

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As for squatting movements, no specific framework exists. It is possible that municipalities, as happens in some cases around Europe, may offer squatters the possibility of using public buildings under a contractual arrangement. However, this must be linked to the public utility activities performed by private associations, even if informal, that is, art centres or social support groups. The concession of public building for housing purposes – and to a certain extent shelters – would be somewhat difficult to justify due to the need to respect legal and technical requirements for residential buildings that a public entity cannot overlook. It should be noted that unlike what happened with the former Land Law (Article 52 ff. of Decree-Law 794/76, 5 November 1976) that recognized a relocation duty whenever public intervention was undergoing (even if such relocation was done in a very basic way through, for instance, removable houses), the new General Law on the Public Policy of the Land in Portugal (Law 31/2014, 30 May 2014) is surprisingly silent on this behalf. According to recently publicized data, there are more than 4000 families waiting for housing availability from the State (see the newspaper Público 19 December 2016, available at: ). As previously mentioned, the concept of home goes much beyond a mere roof over one’s head. This is in line with the strategy for homelessness that includes the following goals. Goal 1: no one sleeping rough; Goal 2: no one living in emergency accommodation for longer than is an ‘emergency’; Goal 3: no one living in transitional accommodation longer than is required for successful move-on; Goal 4: no one leaving an institution without housing options; Goal 5: no young people becoming homeless as a result of the transition to independent living (see Ending Homelessness – A Handbook for Policy Makers, 2010). Nevertheless, the scarcity of social housing has not allowed for the homeless population to be a priority group when it comes to the allocation of social housing (see L. Baptista, ‘The First Portuguese Homelessness Strategy: Progress and Obstacles’, European Journal of Homelessness, Vol. 7, No. 2, 2013, p. 91).

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pre-existing houses to the use they were meant to have without involving further urbanization should, therefore, be sought.

3.5

Possible Ways Forward

There are two basic approaches that can be used to balance the prima facie conflict between property and housing rights. The first approach prefers using typical administrative mechanisms to interfere in private rights; the second prefers using private mechanisms to accomplish indirect public goals. Each of these approaches involves departing from the view that the owner should always have full and permanent control over his/her property regardless of the uses made and the uses needed. Portugal is, from our point of view, an example of the first approach. Article 65 of the Constitution links housing and urban planning law as if planning – even a socially sustainable planning – could solve all existing housing issues. There is a widespread reluctance to use private law mechanisms to accomplish public goals such as the availability of adequate housing. This can be better explained through an example. Article 35.º ff. of Decree-Law no. 157/2006, 8 August 2016, established that in cases where the tenant had lawfully required rehabilitation of the leased place and it was not provided by the landlord or the administration, he could forcefully – though through the courts and paying a compensation – become its owner. This possibility of a ‘forced alienation’ to fulfil a private goal was widely criticized and judged unconstitutional.49 However, a close institute – the forced sale within the urban rehabilitation legislation (Article 62 of Decree-Law no. 307/2009, 23 October 2009)50 – was deemed not to be in violation of the Portuguese Constitution despite the criticism otherwise51 because it served a relevant public interest. This reluctance to use private law mechanisms to regulate the market, however, should be reconsidered because in most cases the result of private disputes such as eviction procedures following the termination of the leasing contract will turn into a serious concern for public authorities. It will be up to the authorities to face the consequences of more homeless people to whom they should not turn their back. In fact, the last resort mechanism for

49

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According to Decision 92/2009, of 16 March of the Portuguese Constitutional Court. See also P.H. Leal Cordeiro da Costa, ‘Venda Forçada do Locado’, Coimbra, 2009, available at . This mechanism, under a decision of the Administration, also forcefully transfers property from the owner that didn’t abide to a rehabilitation order to interested private entities selected through a public procedure, According to Decision 421/2009, of 2 September of the Portuguese Constitutional Court. To view some of the criticisms to this solution, see L. Meneses Leitão, ‘O regime jurídico da reabilitação urbana e a garantia do direito de propriedade’, Revista Jurídica do Urbanismo e do Ambiente, Nos. 31-34, 2009/2010, pp. 135143.

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housing problems will always be the provision of social housing by the State or municipalities. This – accompanied by the above-mentioned retraction of the State from active public housing policies and, therefore, by the insufficiency of dwellings to face temporary and permanent housing needs – is a volatile mixture that only resorting to family and social associations or other forms of private solidarity helps to stabilize.52 Therefore, and in the case of Portugal, taking into account the existence of empty buildings that are progressively degrading, a more generous and adequate use of rehabilitation mechanisms should be promoted,53 but since public housing is still scarce and presumably will continue to be so under the existing legal framework, a further option could be to broaden the scope of application of the already existing forced lease mechanisms not only to rehabilitation areas or rehabilitation in leased dwellings but also to all situations where conservation expenses incurred by municipal authorities ought to be repaid. In addition, as previewed in Measure 1.1.3. of the Portuguese Housing Strategy for 2015-2031, a system analogous to the one existing for unoccupied or abandoned rural land could be established in the case of vacant dwellings whose owner agrees to the occupation, is unknown or cannot be reached.54 This could contribute to the allocation of existing dwellings that are vacant and suffering in many cases from continuous dilapidation to the satisfaction of social housing needs. This allocation could range from temporary legal

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Indeed, informal networks have been in many cases successful in what concerns supplementing or substituting a weaker State in situations of crisis (see A. Pedroso de Lima, ‘Care as a Factor for Sustainability in Situations of Crisis: Portugal between the Welfare State and Interpersonal Relationships’, Cadernos Pagu, No. 46, 2016, pp. 79-105). However, more recently, touristic and similar uses such as local lodging have been prevalent in the rehabilitation of historical areas. These new tendencies regarding the occupation of urban central areas have gravely diminished the number of rehabilitated dwellings for housing purposes (and contributed to the increase of their prices) and prompted the use of financial programs that promote the leasing of rehabilitated housing (Program ‘Reabilitar para Arrendar’). Indeed, by means of Law 62/2012, 10 December 2012, a ‘land trust’ (or a land availability mechanism) was introduced that includes not only public property (from State or municipalities), common property (the so-called ‘baldios’) but also private property, in this case not only from those who willingly decide to integrate their lands in the trust but also the property from those that are unknown and that have no agricultural or forestry use. These lands should be declared as such following a public (and widely publicized) administrative recognition procedure defined by Law n.º 152/2015, 14 September 2015. After 3 years in which the lease of the property is only possible through yearly contracts, administrative justification and acquisition by the state is possible. If this doesn’t happen, the State continues to administer the land as a spontaneous agent (negotiorum gestio) for 15 years, in which time the land can only be made available to private investors on a precarious basis; after those 15 years there is a mandatory administrative justification and the land passes on to State ownership, who should make it available for agricultural and forestal uses. In case the owner is identified during the recognition procedure, the land is returned and all the profits (less the expenses) are also handed over – Article 9 of Law 62/2012; if he is identified within the 15 years, he substitutes the administration entity (but the contracts do not cease) and the former administrator can be compensated by expenses and improvements introduced to the property – Article 15 of Law 62/2012.

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occupation, renting and selling the dwellings according to the several tenure policy options available under Decree-Law no. 280/2007, 7 August 2007,55 or, in any case, it could be accompanied by legal obligations to use the dwellings adequately and effectively and also by reversion clauses. Constitutionality issues could be raised against this mechanism due to the strong guarantee of property rights provided by the Portuguese Constitution.56 We believe, however, that similar to what happened with the forced sale institute (Decision of the Constitutional Court no. 421/2009), those arguments could be counterbalanced. Indeed, the legal diploma that needs to be adopted should fulfil all due constitutional requirements, namely the respect for basic principles of proportionality, equality and due compensation and the attainment of an important and legitimate public goal: the availability of housing to those in need of it. However, a new balancing point between property and housing is hard to strike, mainly when urban property is at stake. The differences in value between rural and urban areas make it much easier – especially where, such as in Portugal, abandonment and disinterest for the fields is an unrelenting reality – to find an equilibrium between property rights and the public function associated to the effective or pro-labore use of the land. Introducing new legal and administrative acquisitive mechanisms to premises that might be used for housing purposes puts a higher financial strain on public authorities. Also it actively touches relevant private interests of the owner that might deliberately want to keep the dwellings expectant on the market or of neighbours that might oppose a social housing facility in their midst. The second approach – use of traditional private mechanisms to accomplish public goals – that could also contribute to the availability of adequate housing has been so far the one privileged in Brazil.57 It makes use of the possible richness (but also the great 55

56

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These types of tenures would vary according to the needs of each case and the public housing policy defined, as exemplified by G. Payne, ‘Urban Land Tenure Policy Options: Titles or Rights?’, Habitat International, No. 25, 2001, pp. 415-429. Both the Constitution [in Articles 88(2) and 96(1)] and the General Law on the Public Policy of the Land (Article 36 of Law 31/2014, 30 May 2014) only allow explicitly for such instruments regarding means of production and rural land. However, both A. Sousa Franco & Guilherme de Oliveira Martins, A Constituição Económica Portuguesa, Coimbra, 1993, p. 172, and Provedor de Justiça, O Provedor de Justiça.., cit., p. 38, consider that vacant housing dwellings should be qualified as production means (and not consumption goods) allowing for the adoption of specific legislation that reacts against the deterioration of property and coincidentally allows for its social use. The example of Brazil is here particularly relevant not only due to the close historical proximity with Portugal, but also to the communion of the main constitutional pillars in what regards housing: the role of the social function of property and the importance of the principle of human dignity. Among many others, see H.M.V. Rangel & J.V. Silva, ‘O Direito Fundamental à Moradia Como Mínimo Existencial, e a sua Efetivação à Luz do Estatuto da Cidade’, Veredas do Direito, Vol. 6, No. 12, 2009, pp. 57-78; T. Galmacci, ‘O Regime Jurídico do Direito à Moradia’, Revista Magister de Direito Ambiental e Urbanístico, No. 36, 2011, pp. 3550. Nevertheless, the example of Brazil will only be used as a comparative experience and will not form the main purpose of our contribution.

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complexity) attached to the institute of acquisitive prescription or usucapio and allows for a relaxation of traditional criteria that are behind such an institute. In fact, there are several new forms of usucapio such as the special usucapio established in the Constitution of the Federal Republic of Brazil (Article 183) and in the Statute of the City (Federal Law 10.257/2001) and anchored on the social function of the property.58 This special spin off of the traditional usucapio can be both rural and urban and either individual or collective. In the case of the special individual usucapio of urban property several criteria must be met: a peaceful and continuous possession; an intention to act as owner (animus possidentis); an elapse of a minimum of 5 years; a maximum dimension of the premises of 250 m2; a destination to housing of the possessor and his family; an absence of other rural or urban property by the possessor. Regarding the special collective usucapio of urban property, it consists of a joint acquisition of property from persons integrated in a low-rent community when the type of dwellings does not allow for another form of regularization. It presents the following specific traits: acquisition by low-rent possessors59; occupied area larger than 250 m2; and the impossibility of identifying the land occupied by each possessor. These criteria prove that the special usucapio is indeed a tool that aims to ensure permanent housing to low-income residents or belonging to vulnerable groups, and, therefore, an institute apt to be a part of a more complete housing strategy. In Portugal this path would require a big departure from the traditional civil law institutes and also the institution of legal procedures (either judicial or extrajudicial) to recognize the acquisition of dwellings. Also, it would not solve the most pressing problems of those who are indeed without a home and are not able to satisfy the basic criteria for such acquisitive prescription: possession with animus for a certain period of time. However, it could be an auxiliary tool in establishing a comprehensive framework of institutes that, compressing in a constitutional manner property rights, ensures the availability of housing when and where it is most needed.

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For an analysis of such instruments, see, among others, N. Nader, Usucapião de imóveis: usucapião ordinário, usucapião extraordinário, usucapião especial rural e urbano, 5. ed., Rio de Janeiro: Forense, 1996; M.B. Rossato & J.C.A.M. Pedroso, ‘A Usucapião Especial Urbana – Coletiva e Individual – Como Meio De Política Pública De Habitação’, n/d, available online at ; L.E.R. Freyesleben, ‘A Usucapião Especial Urbana Coletiva do Estatuto da Cidade como Instrumento de Promoção do Príncipio Fundamental do Respeito à Dignidade da Pessoa Humana’, Revista do CEJUR/TJSC: Prestação Jurisdicional, Vol. 1, No. 3, 2015, pp. 108-120. For a broader view of the housing policy in Brazil that also includes public programs such as the ‘My house, my life’ program, see P. Mavropoulos Beekhuizen Villar, O Direito Fundamental a` Habitação e o Direito do Urbanismo: uma análise do direito portugue^s e do direito brasileiro, Master Dissertation, Coimbra, 2015. This concept remains legally undefined though there is a juris tantum presumption that it includes families that reside in neighbourhoods peripheral to urban centres or in irregular situation (see J. Dos Santos Carvalho Filho, Comentário ao Estatuto da Cidade, 5. Ed., São Paulo, Atlas S.A., 2013, p. 170).

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3.6

Conclusion

Focusing on not only the quantitative but also the qualitative gap between the number of empty dwellings and needy people, we endorse the view that a new Housing Policy is necessary to strike a better balance between property and housing, liberal and social rights, essence and existence. And we are not alone; Barros also focuses his attention on ways to adequately balance the personal interest in a home and competing interests, in some cases even the interest of the house owner.60 In the Portuguese case, this housing policy should be based upon the improvement of existing mechanisms. But also the establishment of other intervention institutes – of public or even of private nature – that allow for a socially sustainable availability of permanent dwellings is highly desirable and needed. As Gilman has put it ‘the home is a human institution. All human institutions are open to improvement (…) The home is too important a factor in human life to be left behind in the march of events; its influence is too wide, too deep, too general for us to ignore’.61

References Alves, S., ‘Construção, densificação, declínio e demolição de uma área urbana em crise: Uma história de desassossego em torno do abandono e das políticas’, Cidades, Comunidades e Territórios, Vol. 23, 2011, pp. 41-59. Atkinson, R. & Jacobs, K., House, Home and Society, London, Palgrave, 2016. Baptista, I., ‘The First Portuguese Homelessness Strategy: Progress and Obstacles’, European Journal of Homelessness, Vol. 7, No. 2, 2013, pp. 87-107. Benjamin Barros, D., ‘Home as a Legal Concept’, Santa Clara Law Review, Vol. 46, No. 2, 2006, pp. 255-306. Blanco de Morais, C., ‘De novo a querela da “unidade dogmática” entre direitos de liberdade e direitos sociais em tempos de “exceção financeira”’, E-Pública Revista Electrónica De Direito Público, No. 3, 2014.

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D. Benjamin Barros, ‘Home as a Legal Concept’, Santa Clara Law Review, Vol. 46, No. 2, 2006, p. 282. C. Perkins Gilman, The Home, Its Work and Influence, New York, Charlton Company, 1910, p. 4.

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Canotilho, J.J.G., ‘Tomemos a Sério os Direitos Económicos, Sociais e Culturais’, Boletim da Faculdade de Direito da Universidade de Coimbra, No. Especial, Estudos em Homenagem ao Prof. Doutor Ferrer Correia, Vol. III, Coimbra, Faculdade de Direito de Coimbra, 1991. Canotilho, J.J.G., ‘O Estado Garantidor. Claros – Escuros de um Conceito’, O Direito e o Futuro. O Futuro do Direito, Combra, Almedina, 2008, pp. 571-576. Canotilho, J.J.G. & Moreira, V., Constituição da República Portuguesa – Anotada, Vol I Artigos 1º a 107º, 4. Ed., Coimbra, Coimbra Editora, 2007. Cardoso, A., State Intervention in Housing in Portugal 1960-1980, Reading, School of Planning Studies, 1983. Coban, A.R., Protection of Property Rights within the European Convention on Human Rights, Farnham, Ashgate, 2004. Correia, A., Manual de Direito do Urbanismo, Vol. I, 4.ª ed., Coimbra, Almedina, 2010. Costa, J.F., ‘O direito a uma habitação condigna: desafios do presente, horizontes do futuro’, III Congreso Internacional del PRADPI FIO PROFIO: Ombudsman y colectivos en situación de vulnerabilidad, Madrid, 2 October 2015, available online at . Dos Santos Carvalho Filho, J., Comentário ao Estatuto da Cidade, 5. Ed., São Paulo, Atlas S.A., 2013. Fox O’Mahoney, L., ‘The Meaning of Home: From Theory to Practice’, International Journal of the Built Environment, Vol. 5, No. 2, 2013, pp. 156-171. Fox O’Mahoney, L. & Sweeney, J. (Eds.), The Idea of Home in Law: Displacement and Dispossession, London, Ashgate, 2016. Frade, M. & Pinheiro Almeida, M., ‘Country Report: Portugal’, in H.W. Micklitz & I. Domurath (Eds.), Consumer Debt and Social Exclusion in Europe, London, Routledge, 2015. Fredriksson, P. & Pätäri, J., Right to Housing in Europe – Need for a Comprehensive Strategy, Housing Rights In Europe Conference, Helsinki Ministry of the Environment 1819 September, 2006.

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Freyesleben, L.E.R., ‘A Usucapião Especial Urbana Coletiva do Estatuto da Cidade como Instrumento de Promoção do Príncipio Fundamental do Respeito à Dignidade da Pessoa Humana’, Revista do CEJUR/TJSC: Prestação Jurisdicional, Vol. 1, No. 3, 2015, pp. 108120. Galmacci, T., ‘O Regime Jurídico do Direito à Moradia’, Revista Magister de Direito Ambiental e Urbanístico, No. 36, 2011, pp. 35-50. Gonçalves, P.C., ‘Estado de Garantia e Mercado’, Revista da Faculdade de Direito da Universidade do Porto, Vol. VII (Comunicações do I Triénio dos Encontros de Professores de Direito Público), 2010, pp. 97-128. Goodchild, B., Housing and the Urban Environment: A Guide to Housing Design, Renewal and Urban Planning, Oxford: Blackwell Science, 1997. Kardos, G., ‘The Internationally Recognized Right to Housing: Implications and (Some) Applications’, Cuadernos Constitucionales de la Cátedra Fadrique Furió Ceriol, No. 64/65, 2008, pp. 91-100. Kenna, P., ‘Globalization and Housing Rights’, Indiana Journal of Global Legal Studies, Vol. 15, No. 2, 2008, pp. 397-469. Kenna, P., ‘Adequate housing in International and European Human Rights Law: A Panoramic View’, LandAS | International Journal of Land Law & Agricultural Science, No. 7, 2012, pp. 4-18. Koch, I.E., Human Rights As Indivisible Rights: The Protection of Socio-economic Demands under the European Convention on Human Rights, Leiden: Martinus Nijhoff Publishers, 2009. Kucs, A., Sedlova, Z. & Pierhurovica, L., ‘The Right to Housing: International, European and National Perspectives’, Cuadernos Constitucionales de la Cátedra Fadrique Furió Ceriol, No. 64/65, 2008, pp. 101-123. Leal Cordeiro da Costa, P.H., ‘Venda Forçada do Locado’, Coimbra, 2009, available at: . Lopes Pereira Borges, M., Milestone 1 – Caracterização Geral do Mercado de Habitação, Universidade de Aveiro, 2011.

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Malheiros, J. et al., Acesso à Habitação e Problemas Residenciais dos Imigrantes em Portugal, Lisboa: Observatório da Imigração, 2011. Martins, A., ‘A Protecção Da Casa De Morada De Família’, Julgar, No. 23, 2014. Mavropoulos Beekhuizen Villar, P., O Direito Fundamental à Habitação e o Direito do Urbanismo: uma análise do direito português e do direito brasileiro, Master Dissertation, Coimbra, 2015. Meneses Leitão, L., ‘O regime jurídico da reabilitação urbana e a garantia do direito de propriedade’, Revista Jurídica do Urbanismo e do Ambiente, Nos. 31-34, 2009/2010, pp. 135-143. Mikkola, M., Housing As Human Right in Europe, n/d, available online at: . Miranda, J., ‘Os Direitos Fundamentais na Ordem Constitucional Portuguesa’, Revista Española de Derecho Constitucional, Vol. 6, No. 18, 1986. Miranda, J. & Medeiros, R., Constituição da República Portuguesa Anotada, Tomo I, Coimbra, Coimbra Editora, 2005. Musterd, S. & Andersson, R., ‘Housing Mix, Social Mix and Social Opportunities’, Urban Affairs Review, Vol. 40, No. 6, 2005. Nabais, C., ‘Alguns perfis da propriedade colectiva nos países do civil law’, in Estudos de Homenagem ao Prof. Doutor Rogério E. Soares, Coimbra, Studia Iuridica, Coimbra Editora, 2001, pp. 223-261. Nader, N., Usucapião de imóveis: usucapião ordinário, usucapião extraordinário, usucapião especial rural e urbano, 5. ed., Rio de Janeiro, Forense, 1996. Novais, R., ‘Direito, Liberdade e Garantia: uma noção imprestável na justiça administrativa?’, Cadernos de Justiça Administrativa, No. 73, 2009. Novais, R., Direitos Sociais Teoria jurídica dos direitos sociais enquanto direitos fundamentais, Coimbra, Coimbra Editora, 2010.

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Oliveira, F.P., ‘Social Sustainability In Planning Law’, US – China Law Review, Vol. 8, No. 1, 2011, pp. 45-52. Oliveira, F.P. & Lopes, D., As Áreas Urbanas de Génese Ilegal (AUGIs) no Contexto da Política de Legalização, Coimbra, Almedina, 2016. Oliveira, F.P., Lopes, D. & Alves, C. Regime Jurídico da Reabilitação Urbana – Anotado, Coimbra, Almedina, 2011. Payne, G., ‘Urban Land Tenure Policy Options: Titles or Rights?’, Habitat International, No. 25, 2001, pp. 415-429. Pedroso de Lima, A., ‘Care as a Factor for Sustainability in Situations of Crisis: Portugal between the Welfare State and Interpersonal Relationships’, Cadernos Pagu, No. 46, 2016, pp. 79-105. Perkins Gilman, C., The Home, Its Work and Influence, New York, Charlton Company, 1910. Ramsay, I., ‘Two Cheers for Europe: Austerity, Mortgage Foreclosures and Personal Insolvency Policy in the EU’, in H.W. Micklitz & I. Domurath (Eds.), Consumer Debt and Social Exclusion in Europe, London, Routledge, 2015. Rangel, H.M.V. & Silva, J.V., ‘O Direito Fundamental à Moradia Como Mínimo Existencial, e a sua Efetivação à Luz do Estatuto da Cidade’, Veredas do Direito, Vol. 6, No. 12, 2009, pp. 57-78. Rossato, M.B. & Pedroso, J.C.A.M., ‘A Usucapião Especial Urbana – Coletiva e Individual – Como Meio De Política Pública De Habitação’, n/d, available online at: . Santos, T., Rodrigues, A., Ramalhete, F. & Tenedório, J.A., ‘O parque habitacional devoluto em Lisboa: medição e uso prospetivo’, Os Valores da Geografia: Atas do X Congresso da Geografia Portuguesa, Lisboa, Associação Portuguesa de Geógrafos, 2015.

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Seixas, J., Tulumello, S., Corvelo, S. & Drago, A., ‘Potentials and Restrictions on the Changing Dynamics of the Political Spaces in the Lisbon Metropolitan Area’, in J. Knieling & F. Othengrafen (Eds.), Cities in Crisis: Socio-Spatial Impacts of the Economic Crisis in Southern European Cities, London, Routledge, 2016. Serra, N., Estado, Território e Estratégias de Habitação, Coimbra, Quarteto Editora, 2002.

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Strata Title: The New Feudalism

Cathy Sherry

4.1

Introduction

High-rise buildings and master planned communities are a global phenomenon, with many international companies rolling out physically consistent developments from Sydney to Singapore to London. While principles of engineering and design may be universal, legal systems are not and jurisdictional differences in private property law affect the ability of developers to create the kinds of communities they want to market. As the majority of land in many countries is privately owned, private property law is and always has been fundamental to property development.1 While public planning law will regulate the initial construction of developments, ultimately secure private titles to all of the land, airspace and facilities will need to be allocated for those developments to be sold. Further, private property law will regulate the on-going rights and responsibilities of successive multiple titleholders of individually and collectively owned space. Property law is not always amendable to the aims of urban planners, architects, designers or property developers. Consequently, developers and their lawyers have been instrumental in instigating changes to property law to facilitate development. In the past, these changes were most likely to come through the evolution of the common law; today, they are likely to come from the legislature. Either way, the consequences of these changes are not simply that they make developers’ lives easier and more profitable. As developers are building the places in which large sections of a community will work and live – the physical locus of our democracy – these changes have implications for us all. The purpose of this article is to look at the ways in which changes to property law which facilitate the kinds of developments developers would like to market, such as strata title legislation, can have an unanticipated, far-reaching effect on our community.2

1

2

For example, private ownership in Australia is particularly high, with 95% of housing in the private sector. Whereas 33% of households own the freehold title of their homes outright, 35% own the freehold and have a mortgage, 24% rent from a private landlord and 5% rent from a state or territory housing authority: ABS (Australian Bureau of Statistics) 2010, Australian Year Book 2009-10, cat.no.1301.0, ABS, Canberra, p. 320. The argument in this article is set out much more fully in C. Sherry, Strata Title Property Rights: Private Governance of Multi-owned Properties, Abingdon, Routledge, 2016.

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4.2

The Importance of Property Theory

As I frequently tell my students, property law does not fall out of the sky. It is made by people in order to regulate access to the limited and essential resource that is land. For most property theorists, this is axiomatic, but in the realm of land policy and legislative reform, it is common for stakeholders of all varieties (governments, developers, property managers, investors, residents) to assume and assert that aspects of property law are inevitable or immutable. As a result, in the context of a rapidly developing area of law like multi-owned properties, it is useful to remember that there is in fact no ‘inevitable content’ to property law.3 As the progressive property theorists rightly state, property is a contested concept, and we must argue for what is in and what is out of protected property rights.4 Property theorists also agree that the property rules we choose help to construct our social and political system and that as a result, we must be attentive to the systemic effects of exercising property rights.5 As Singer says, the ‘mix of entitlements and obligations we can legitimately claim depends on the kinds of human relationships we can defend, nothing more and nothing less’.6 Dagan reasonably asserts that the test of the legitimacy of private property law is whether the rights it creates amount to ‘justificatory practice’ determined by reference to social values,7 or as other theorists have put it, property law always has a connection to basic morality. Without a connection to morality, it would not be possible for property rights to secure such widespread, ‘in rem’ acceptance.8 Rose describes the ‘second-best morality’ of property (the compromise position of most property rights), noting that property ‘does not presume saintliness, but it also is not made for total sinners: she is neither the girl next door nor the woman in red’.9 Her morality may not be flawless, but she is moral nonetheless. Perhaps the best illustration of the way in which private property law reflects a community’s morality and helps to construct its social and political system is the aberrant and endemic use of racially restrictive covenants in American suburban development in the twentieth century. Of course racially restrictive covenants were deeply amoral, but their amorality helps to highlight the moral content of property. In contrast, when the moral content of property is consistent with current community values, we tend to assume that 3 4 5 6 7 8 9

H. Dagan, ‘The Limited Autonomy of Private Law’, American Journal of Comparative Law, Vol. 56, No. 3, 2008, p. 814. Alexander et al., ‘A Statement of Progressive Property’, Cornell Law Review, Vol. 94, No. 4, 2008, pp. 743744. J.W. Singer, ‘Democratic Estates: Property Law in a Free and Democratic Society Essay’, Cornell Law Review, Vol. 94, No. 4, 2008, pp. 1049-1050. J.W. Singer, Entitlement: The Paradoxes of Property, New Haven, Yale University Press, 2000, pp. 215-216. Dagan, supra note 3, pp. 814-815. T.W. Merrill & H.E. Smith, ‘The Morality of Property’, William & Mary Law Review, Vol. 48, No. 5, 2007, pp. 1849-1896. C.M. Rose, ‘The Moral Subject of Property’, William and Mary Law Review, Vol. 48, No. 6, 2007, p. 1900.

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its content is obvious or inevitable, as opposed to being a consequence of a moral choice. Covenants are also a centrally relevant example for high-density development, because as will be explained below, they have always been an essential tool for property developers. In 1917 the United States Supreme Court in Buchanan v. Warley 245 US 60 (1917) ruled that it was unconstitutional for municipalities to racially segregate housing through zoning laws. In response, property lawyers began to do privately what local municipalities had previously done for them. They attached Tulk v. Moxhay10 restrictive covenants to freehold land, prohibiting land being bought or occupied by anyone who was not Caucasian.11 On a micro level, these covenants were simply voluntary contractual agreements between an original vendor and purchaser that the purchaser would agree to his or her land being permanently bound by this restriction. Each subsequent purchaser also impliedly agreed to the restriction by voluntarily buying the land. The theory underlying the law’s enforcement of all freehold covenants is that rational individuals negotiate agreements that maximise the economic value of their land.12 If it transpires they are wrong about the wealth-maximising effect of a covenant, it is they who will suffer. Racially restrictive covenants were taken up enthusiastically by the US real-estate industry and even the Federal Housing Authority.13 They were finally outlawed by the Supreme Court in 1948 in Shelley v. Kraemer 334 U.S. 1 (although some would argue that many of the restrictions on household size and composition that are common in contemporary residential developments in the United States remain racially discriminating, albeit in a more subtle or insidious way14). It should be obvious that racially restrictive covenants were not simply the exercise of a private property right, but multiplied millions of times across time and space, the creation of a system of residential apartheid. The covenants did not simply affect the parties to the transactions, but obviously affected those outside the transactions, who were excluded from land, radically reducing their housing choice and deeply affronting their dignity. Racially restrictive covenants have also had an enduring effect on American suburbs and society. For example, the United States has struggled with the problem of racially segregated schooling for decades, devoting millions of dollars and policy hours to attempts to solve the problem, with limited success.15 Racially segregated schools have their genesis in

10 11 12 13 14 15

(1848) 2 Ph 774; 41 ER 1143. J.A. Kushner, ‘Apartheid in America: An Historical and Legal Analysis of Contemporary Racial Residential Segregation in the United States’, Howard Law Journal, Vol. 22, No. 4, 1979, pp. 547-686. R.A. Epstein, ‘Notice and Freedom of Contract in the Law of Servitudes Comments’, Southern California Law Review, 1981, Vol. 55, p. 1353. E. McKenzie, Privatopia: Homeowner Associations and the Rise of Residential Private Government, New Haven, Yale University Press, 1994, p. 65. McKenzie, supra note 13, pp. 74-78. J. Kozol, The Shame of the Nation: The Restoration of Apartheid Schooling in America, New York, Crown Publishers, 2005.

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4.3

Post-Feudal Property Law in Common Law Systems

Racially restrictive covenants are an instance in which private property law went horribly wrong. In contrast, modern property law usually encapsulates, creates and strengthens many of the essential values of modern democratic society,17 in particular, the core values of personal and economic freedom, as well as privacy, frequently enjoyed in the home. Modern property law does not do this by accident. It is the result of centuries of effort on the part of judges, and later legislatures, to eradicate doctrines of feudal property law that limited personal freedom and served the values of feudal society.18 The Statute of Quia Emptores 1290, the simplified estates system without fees tail, the rule against perpetuities and the numerus clausus principle19 all help to construct standardized, simplified property rights, free from non-possessory owner control. Heller calls them ‘boundary rules’, modern legal doctrines that separate property categories and ‘keep resources well-scaled for productive use’.20 Unlike contract law which allows parties considerable freedom to dream up almost any bargain they please, property law is very restrictive, particularly in relation to the fee simple. Parties cannot create novel fees simple,21 and they are limited in their ability to control a fee simple through time. Ironically, it is these limitations which create the freedom we enjoy in modern land ownership. When we inherit or more likely purchase land, particularly in common law jurisdictions like Australia, New Zealand, Canada and the United States where long-term urban leases are rare, it will be a fee simple, which subject to public law, we are free to live and work on as we please…with the exception of limiting the freedom of our successors in title. In the centuries that property law strove to eradicate controlling doctrines of feudal land law, one anomaly emerged, the freehold covenant. In Anglo-Australian law, freehold 16 17 18 19 20 21

S.E. Asher, ‘Interdistrict Remedies for Segregated Schools’, Columbia Law Review, Vol. 79, 1979, p. 1170. Singer, supra note 5. A.W.B. Simpson, A History of the Land Law, 2nd ed., Clarendon Press, 1986, pp. 208-209. T.W. Merrill & H.E. Smith, ‘Optimal Standardization in the Law of Property: The Numerus Clausus Principle’, Yale Law Journal, Vol. 110. No. 1, 2000, pp. 1-70. M.A. Heller, ‘The Boundaries of Private Property’, Yale Law Journal, Vol. 108, No. 6, 2008, p. 1166. Keppell v Bailey (1834) 2 My & K 517; Hill v Tupper (1863) 2 H & C 121; (1863) 159 ER 51.

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covenants have their genesis in Tulk v. Moxhay, in which Lord Cottenham decided that a fee simple purchaser was bound by the contractual agreement of a predecessor in title because he was aware of the agreement. With all due respect to Lord Cottenham, it is hard to conclude that Tulk v. Moxhay was correct. In property law, notice is relevant to property rights, not contractual rights; simply knowing about a predecessor’s contract in relation to land does not make that contract binding. Admittedly, absent modern registration systems, notice was a bit of a lottery, but the decision in Tulk potentially undermined the social and economic utility of large swathes of freehold land by hobbling land with all manner of predecessor contracts. As Simpson notes, The effect of restrictive covenants is to sterilize the use of a parcel of land permanently; in principle it is not at all clear that a private landowner ought to be allowed to do this without public control of his activities. Whatever their merits, restrictive covenants can have a very detrimental effect on the free development of land, which is not in all cases in the public interest.22 Realizing the disastrous consequences of Tulk, English courts swiftly back-tracked, limiting covenants to those that benefit land, not a business or person,23 and most significantly, covenants that only include restrictions, not positive obligations.24 In the United States freehold covenants have an alternative genesis and more widereaching effect. In an act of judicial creativity that even outstripped Lord Cottenham, in an 1852 commentary on Spencer’s Case, Judge Hare anomalously decided that privity of estate existed in the grantor/grantee relationship, not merely the landlord/tenant relationship, as was and still is the case in Anglo-Australian law.25 As a result, in America, a covenant by a fee simple purchaser to perform positive obligations (e.g. to pay money) will run with the land so long as the obligations ‘touch and concern’ the land. These covenants are known as ‘real covenants’ and, along with the later adopted Tulk v. Moxhay equitable restrictive covenants and easements, make up the United States concept of ‘servitudes’. Whether positive or restrictive, the law in relation to freehold covenants in England, Australia and the United States is notoriously complex. This is a direct result of judicial

22

23

24 25

Simpson, supra note 18, p. 257. As O’Connor has argued, a jurisprudential justification for restrictive covenants is hard to pin down: P. O’Connor, ‘Covenants as Regulation’, Property Law Review, Vol. 1, 2011, p. 145. Outside statute, a covenant cannot exist in gross: London County Council v Allen [1914-15] All ER Rep 1008; [1914] 3 KB 642; Clem Smith Nominees Pty Ltd v Farrelly (1978) 20 SASR 227; Tooth & Co Ltd v Barker [1960] NSWR 51; (1960) 77 WN (NSW) 231. Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403; Austerberry v. Corporation of Oldham (1885) 29 Ch D 750 (CA); Pirie v Registrar General (1962) 109 CLR 619. U. Reichman, ‘Toward a Unified Concept of Servitudes’, Southern California Law Review, Vol. 55, 1981, p. 1177, p. 1233.

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ambivalence; that is, because it is not clear that covenants’ benefits outweighed their detriments, courts are reluctant to enforce them. Ambivalence manifests itself in multiple rules which invalidate a range of covenants, hence covenant law’s technicality. Unlike leasehold covenants which eventually come to an end, freehold covenants, like the fee simple to which they are attached, theoretically go on forever, operating as a form of ‘deadhand control’, something modern property law has striven hard to eradicate. If covenants apply to wide swathes of land, they operate as a system of private legislation, regulating the use of land and behaviour of large numbers of people, in the present and future. With the stroke of a lawyer’s pen, covenants hobble the freest, most fulsome interest in land, the fee simple, with a myriad of restrictions, potentially compromising the social and economic value of land. In the United States, because covenants can include positive obligations, they are potentially more burdensome than in jurisdictions which limit freehold covenants to restrictions, and as a result of this (as well as the shameful history of racially restrictive covenants), United States judges and academics have been forced to consider the most serious social and economic consequences of freehold covenants. In a United States symposium on servitudes in the early 1980s, Uriel Reichman noted that, Private property is sanctioned by society not only to promote efficiency, but also to safeguard individual freedom. Servitudes [positive covenants, restrictive covenants and easements] are a kind of private legislation affecting a line of future owners. Limiting such ‘legislative powers’ to an objective purpose of land planning eliminates the possibility of creating modern variations of feudal serfdom. There might be nothing objectionable in personal agreements concerning personal labor, adherence to ideologically prescribed modes of behaviour, or promises to buy from a certain supplier. When such obligations, however, become permanently enforced against an ever-changing group of owners, the matter acquires different dimensions.26 In other words, rather than being a fussily technical but largely innocuous interest in land, freehold covenants, particularly positive covenants, threaten to undo centuries of hard work, creating property titles that are ‘modern variations of feudal serfdom’.

4.4

Freehold Covenants and Global Property Development

Despite judges’ ambivalence about freehold covenants, property developers in common law jurisdictions have used them enthusiastically for over a century. This is because

26

Reichman, supra note 25, p. 1233 (emphasis added).

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covenants allow freehold residential developments to be privately planned and controlled through time, the promise of which aids marketing. However, freehold covenants do not facilitate all development. In fact, in England and Australia, they presented a stumbling block for high-rise development and master planned communities with shared facilities, because freehold covenants can only restrict land use and not impose positive obligations. High-rise buildings must have common areas (foyers, lifts, car parks) which require money to be maintained. Master planned estates may have common areas and facilities (tennis courts, swimming pools, parks, lakes, woodland), which also require money to be maintained. If those high-rise buildings or master planned estates are divided into individual freehold titles, it is impossible to impose on-going obligations to pay maintenance money for common areas on those individual titles using orthodox English and Australian property law. That is why although it has always been possible to have ‘flying freeholds’ (fee simple ownership of sections of a building) in Anglo-Australian law, they were rarely used for apartment development.27 In England, leasehold title avoided the problem of positive obligations on freehold title and was always used for apartments in preference to flying freeholds; despite the enactment of commonhold legislation, leasehold continues to be used to this day.28 This is because, unlike the United States and Australia, England has a long and accepted tradition of leasehold tenure, not only for apartments but as a means of private residential planning. Over the centuries, the English aristocracy and land-owning institutions used long-term leasehold to develop their land, turning London and other British cities from meadows and swamps into dense, residential centres. ‘Building leases’ mandated building materials and styles, set-backs, central garden squares and hydraulic infrastructure, theoretically ensuring a high standard of initial construction. Subsequent 99-year leases were used to control the social make-up of neighbourhoods, maintain their residential character and prevent further subdivision.29 Leasehold tenure was the legal tool Ebenezer Howard envisaged would create his Garden City.30 A group of trustees would own the freehold title to the land, granting residents and businesses leasehold interests. The Garden City ideals would be implemented through the terms of the trust and the leasehold covenants. Leasehold tenure is also used for modern UK gated communities31 and remains the most common form of new apartment ownership. While long-term leasehold creates a number

27 28 29

30 31

D.N. Clarke, ‘Commonhold – A Prospect of Promise’, Modern Law Review, Vol. 58, No. 4, 1995, p. 487. J. Brown, ‘English Commonhold: A Failed Experiment?’, Property Law Review, Vol. 3, 2013, p. 85. J. Summerson, Georgian London, London, Penguin Books, 1978; H.J. Dyos, Victorian Suburb: A Study of the Growth of Camberwell, Leicester, Leicester University Press, 1961; D.J. Olsen, Town Planning in London: The Eighteenth and Nineteenth Centuries, New Haven, Yale University Press, 1964, pp. 126-143; D. Cruickshank & N. Burton, Life in the Georgian City, New York, Viking, 1990. E. Howard, Garden Cities of To-morrow, Swan Sonnenshein, 1902. S. Blandy & D. Lister, ‘Gated Communities: (Ne) Gating Community Development?’, Housing Studies, Vol. 20, No. 2, 2005, pp. 287-301.

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of complications for property markets and management, one of its advantages is that leasehold covenants can contain a wide range of restrictions and positive obligations, and so long as they ‘touch and concern’ the land, they will be enforceable against successors in title. Marking the early stages of globally homogenized property development, Ebenezer Howard’s Garden City ideals were very popular in both Australia32 and the United States.33 They were one of the driving forces behind the profoundly suburban nature of much residential development in both countries. However, the legal structure Howard relied on was not similarly embraced. Long-term leasehold was deeply politically unpalatable in the New World for governments of all persuasions as it smacked of an oppressive aristocracy and the land insecurity from which so many immigrants had fled.34 If Howard’s planning ideals were going to be implemented by planners and private property developers in the antipodes, alternative legal means needed to be found. Australia initially compromised by using restrictive covenants. These could not mandate obligations to pay money and consequently could only be used for relatively minimalist master planning. Building materials could be restricted to brick and tile, subdivision and multi-stories were prohibited, but open space had to be publicly owned and maintained. For most of the twentieth century, this limited collectively enjoyed facilities in suburban development to public parks, sports fields and bushland. The enforcement of restrictive covenants requires individual owners to sue their neighbours, and as a result, they are sometimes more honoured in the breach than observance.35 Despite this, the effects of restrictive covenants and Howard’s ideals can still be seen in suburbs all across Australia, where low-rise, freestanding freehold houses, on spacious blocks of land, remain the norm, even after decades of state urban consolidation policies. Twentieth-century American residential development took a different trajectory. As McKenzie has so masterfully documented,36 in implementing Howard’s ideas, US developers took advantage of the anomalous ‘real covenant’, which allowed positive obligations to pay money for the upkeep of common facilities to be imposed on successive freehold owners. Real covenants became more effective still when courts accepted that a separate association of homeowners, which did not necessarily own any land, could collect and administer

32 33 34 35

36

R. Freestone, Model Communities: The Garden City Movement in Australia, Melbourne, Thomson Nelson, 1989. McKenzie, supra note 14, p. 8. G. Davison, ‘The Past and Future of the Australian Suburb’, Australian Planner, Vol. 31, No. 2, 1993, p. 65; McKenzie, supra note 14, p. 8. C. Sherry, ‘The Legal Fundamentals of High-Rise Buildings and Master Planned Estates: Ownership, Governance and Living in Multi-owned Housing with a Case Study on Children’s Play’, Australian Property Law Journal, Vol. 16, No. 1, 2008, pp. 6-8. McKenzie, supra note 14.

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money on owners’ behalf, as well as enforce other covenants.37 McKenzie describes the modest development of private residential communities in the first half of the twentieth century and their exponential development in the post-WWII building booms. In 1975 there were 20,000 homeowner associations (HOAs) in the United States;38 by 1990, there were 130,000,39 and today, there are over 300,000 HOAs, with 60 million residents.40 HOAs all have collectively owned private property, including parks, pools, woodlands, marinas and entire town centres, and they provide a range of services from property management and maintenance to private security forces. The use of both privately owned homes and collectively owned common property is regulated by ‘C, C & Rs’ (covenants, conditions and restrictions; that is, restrictive and positive freehold covenants), which also impose obligations to pay money for the provision of services and the upkeep of facilities. The rise of HOAs has been described as the single most important change in US residential property law in the twentieth century.41 With state and federal government acceptance of the condominium concept in the early 1960s, the ability of developers to create and sell individually owned freehold titles, coupled with collectively owned common property, all governed by an association of owners wielding rules, was extended to medium- and high-rise buildings.42 Successive condominium booms in the United States have resulted in the construction of millions of new ‘condos’ in states like Florida and California, as well as the conversion to condominiums of existing tenanted apartment buildings or co-operatives in older, established urban centres like New York. While condominium developments are partially dependent on legislation, the predominant underpinning of US low- and high-rise, multi-owned developments is servitudes. Easements and real covenants are a product of the common law, and restrictive covenants are the product of equity, and although frequently abstruse, the common law and equitable rules for validity are performing the function of striking down socially and economically harmful interests in land.43 For example, the requirement that an easement ‘accommodate’ the dominant tenement44 ensures that idiosyncratic agreements that benefited long-gone

37 38 39 40 41 42 43

44

Neponsit Property Owners’ Association, Inc v Emigrant Industrial Savings Bank 278 NY 248 (1938). McKenzie, supra note 14, p. 107. R. Dilger, ‘Residential Community Associations: Issues, Impacts, and Relevance for Local Government’, State and Local Government Review, Vol. 23, No. 1, 1991, p. 17. E. McKenzie, Beyond Privatopia: Rethinking Residential Private Government, Washington, DC, Urban Institute Press, 2011, p. 2. G.S. Alexander, ‘Dilemmas of Group Autonomy: Residential Associations and Community’, Cornell Law Review, Vol. 75, 1989, p. 5. McKenzie 1994, supra note 13, pp. 94-95. See Reichman, supra note 25; S.F. French, ‘Toward a Modern Law of Servitudes: Reweaving the Ancient Strands’, Southern California Law Review, Vol. 55, 1981, p. 1261; C.M. Rose, ‘Servitudes, Security, and Assent: Some Comments on Professors French and Reichman’, Southern California Law Review, Vol. 55, 1981, p. 1403. Re Ellenborough Park (1956) Ch 131; (1955) 3 All ER 667.

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landowners personally do not clutter and impede the use of freehold titles. The US requirement that a freehold covenant ‘touch and concern the land’ performed a similar function. While servitudes have facilitated the development of hugely complex private communities, US judges have consistently scrutinized the content of servitudes, as well as private HOA rules, striking down privately created land regulation when it is economically or socially harmful. The traditional easement and covenant rules were synthesized in the Restatement (Third) of Property (Servitudes) 2000, which, inter alia, prohibits servitudes that are illegal, unconstitutional or against public policy, unreasonable restraints on alienation, undue restraints on trade or unconscionable. The Restatement also confirms the judicially created45 requirement that the rules of HOAs be objectively ‘reasonable’. Like the United States, Australia experienced successive post-WWII residential building booms, but owing to the Anglo-Australian prohibition on positive obligations on land, as well as Australia’s dislike of long-term leasehold titles, large-scale construction of apartments and master planned estates with private facilities proved more difficult. Australian developers became frustrated by their inability to replicate the kinds of developments they had seen overseas, initially in the United Kingdom, but increasingly in the United States. They wanted to be able to construct and market apartment and master planned developments with the freehold title that the Australian population demanded.46 To solve this dilemma, Australian developers pressured state governments to enact legislation to facilitate their aims. The first enactment was the New South Wales Conveyancing (Strata Titles) Act 1961 which created freehold titles for apartments, burdened by positive obligations to pay money for the upkeep of the building, contained in compulsory statutory levies.47 The act also created the potential for further obligations and restrictions on title through developer and owner-written private (not public) by-laws. By-laws, like C, C & Rs in the United States, regulate both privately owned apartments and collectively owned common property, and in most states, there was (and still is) almost no limit on their content. In contrast to the complex rules governing freehold covenants, by-laws simply needed to relate to the ‘use and enjoyment’ of lots and common property to be valid (by way of illustration, a by-law banning the eating of meat in an apartment is a bylaw that relates to the use of a lot). The legislation also automatically created a ‘body corporate’ made up of all owners, with the power to collect levies, create and enforce by-laws, as well as carry out other governance activities. Evidencing the role that private property developers have played in reforming property law for their own ends, this first strata title act was written by a government committee 45 46 47

Hidden Harbour v. Norman 309 So 2d 180, 182 [15] (Fla Dist Ct App, 1975). Sherry, supra note 2. Each year, the body corporate is required to estimate the costs of maintaining and running the strata scheme, and to levy the apartment owners accordingly. The costs of maintaining the scheme are affected by a compulsory, statutory duty, imposed on bodies corporate, to maintain the common property.

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that was instigated, supervised and paid by a consortium of private property developers, a remarkable occurrence even by Australian standards.48 The New South Wales’ legislation was subsequently copied by all other Australian states, as well as multiple overseas jurisdictions, including Malaysia, Jamaica and New Zealand. The second enactment was the Queensland Group Titles Act 1973 which allowed the imposition of positive obligations in the form of levies and the creation of privately written by-laws, on low-rise master planned estates, some of which are equivalent in size to entire suburbs. During the parliamentary debates on the act, the opposition revealed that the Minister for Justice’s Second Reading speech was taken directly from a letter sent to the Queensland Law Commission by the lawyers of one of the state’s largest developers, Hooker Centenary.49 Hooker had been forced to use a complicated company title and easement structure for their Centenary Estates project in Brisbane to overcome the prohibition on positive covenants in Queensland law.50 Centenary Estates was a master planned development with freestanding homes set around privately owned cul-de-sac streets or ‘courts’. The prohibition on positive covenants meant that it was not possible for the developer to simply impose monetary obligations on the individual freehold titles, compelling maintenance of the private cul-de-sacs. The developer suggested to the Queensland Law Commission that there was a pressing need for legislation to change this state of affairs and the government subsequently obliged. All other Australian states eventually followed suit, with ‘community’ or extended strata title legislation that applies to large sites of land. The legislation facilitates the subdivision of sites into individual freehold titles (vacant blocks, houses, townhouses or apartments) and collectively owned common property. The legislation also creates a body corporate, comprised of all owners, which functions as a miniature, private government. Developments may be master planned residential estates with privately owned streets, parks, bushland, sporting facilities and security services or tourist developments with holiday apartments, pools and gyms. Some developments are a combination of the two. All of the privately owned lots and common property are regulated by privately created by-laws (written by the developer’s lawyer and theoretically alterable by the subsequent 48 49

50

A. Kondos, ‘The Hidden Faces of Power: A Sociological Analysis of Housing Legislation in Australia’, in R. Tomasic (Ed.), Legislation and Society in Australia, Sydney, Unwin Hyman, 1980. C. Sherry, ‘Land of the Free and Home of the Brave? The Implications of United States Homeowner Association Law for Australian Strata and Ccommunity Title’, Australian Property Law Journal, Vol. 23, 2014, pp. 94-121. In fact, Queensland law fails to facilitate either positive or restrictive covenants. Although Tulk v. Moxhay is part of the common law of Queensland, the Registrar has not had a statutory power to note developermade restrictive covenants on the Torrens register, making it difficult to ensure successors in title have notice of the covenant. Despite the difficulty of enforcing covenants against successors in title, they have still been used by Queensland property developers: S. Christensen & W.D. Duncan, ‘Is It Time for a National Review of the Torrens’ System? The Eccentric Position of Private Restrictive Covenants’, Australian Property Law Journal, Vol. 12, 2005, p. 104.

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owners), and the extensive common facilities are maintained through statutorily imposed positive obligations to pay annual levies. In addition to statutory levies, the freehold titles are often further burdened by positive obligations in the form of developer-made body corporate contracts. That is, prior to selling the homes or apartments, the developer causes the body corporate to enter into a range of management and other service contracts (security, recreation, garden maintenance) that the subsequent owners, as members of the body corporate, will be obliged to discharge. The developer is usually paid large sums of money by the management or service provider for creating these contracts.51 The management and services that the contracts provide form part of the ‘lifestyle’ being marketed in conjunction with the properties. Developer-made body corporate contracts are essentially positive obligations on land; that is, by virtue of owning land, purchasers have to pay ongoing sums of money. While there have been many positive effects to these legislative innovations, (e.g. urban consolidation), there have also been adverse effects. The most obvious are widespread disputes over exploitative developer-made contracts,52 as well as disputes over the regulation of activities inside private homes, most notably bans on pet ownership and regulation of aesthetics. The root cause of these disputes is the legislative avoidance of the rules on freehold covenants (complete prohibition on positive covenants and limitations on the content of restrictive covenants), with insufficient appreciation of the social, economic and political rationale for those rules.53 Unlike the complex rules on freehold covenants (and easements), there are almost no rules for the validity of strata and community title by-laws. Under most states’ statutes, by-laws simply need to relate to ‘the use or enjoyment’ of a lot or common property to be valid. As a result, in most states, by-laws banning all domestic pets, including cats that never leave their apartment, or dogs that never make a noise, are perfectly valid. It does not matter that these by-laws represent a deep intrusion into people’s homes and private lives in a way that is completely at odds with ordinary freehold ownership. A by-law banning all children under the age of 13 playing in a private common property park without the supervision of a resident adult over the age of 21 is also valid, irrespective of whether the by-law may be harmful to children’s well-being.54 Unlike a public, local council, a private body corporate has no legal obligation to consider the well-being of children or any other group of residents when creating by-laws. If the majority agrees to the by-law, it is valid. Finally, a by-law that authorizes a developer to cause a body corporate to enter into a long-term agreement with a local gym is valid even

51 52 53 54

C. Sherry, ‘Long-Term Management Contracts as Developer Abuse’, in S. Blandy, J. Dixon & A. Dupuis (Eds.), Multi-Owned Housing: Law, Power and Practice, Abingdon, Ashgate Publishing, 2010. Sherry 2010, supra note 51. Sherry, supra note 2. Sherry 2008, supra note 35.

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if it compels the ultimate owners to keep paying for services that no one is using.55 Unlike the United States where these kinds of rules are actively reviewed by courts in accordance with common law and equitable doctrine, Australian state governments, which arguably did not fully appreciate the dangers of wide-scale private regulation of land, have given tribunals and courts minimal powers for by-law review. The consequence has been a new form of freehold ownership, which does not include the freedom that we traditionally associate with fees simple. Instead of purchasing an interest in land that allows owners to live their lives as they please, subject to public regulation and possibly minimal restrictions on building, people now purchase a fee simple that will enmesh them in complex relationships with other private citizens who have the power to determine how they use their own homes, whether they have a pet, the colour of their blinds, how their children play, and even the plants in their garden. Further, instead of being free from on-going obligations to pay money after initial purchase, freehold owners find themselves obliged to pay for extensive maintenance and multiple services that they may no longer want or need. Consistent with the warning issued by Reichman noted above, unlimited freehold covenants, or their statutory equivalent, unlimited bylaws, have the potential to create modern variations of feudal serfdom. The problem is not the strata and community title legislation per se. The costs of maintaining a collectively owned building and/or land are inevitable, and we needed legislation to overcome the limitations in the common law that were stymying apartment development in this regard. However, we needed to understand the social, political and economic rationale for those limitations so that we did not throw the baby out with the bath water, so to speak. Covenant rules needed to be modified to allow legitimate or ‘morally’ defensible obligations and restrictions on freehold land (e.g. ordinary maintenance obligations and restrictions on objectively disturbing behaviour in high-density dwellings), but covenant law did not need to be modified to allow developers to impose a wide range of self-serving monetary obligations on land in the form of developer-made contracts, or to allow private citizens unjustifiable powers to regulate their neighbours’ lives (e.g. banning inoffensive pets or safe children’s play).

4.5

Conclusion

Property law is notoriously technical. This is not so professors can torture students with arcane doctrines or so lawyers can charge clients exorbitant fees. As Singer argues, property law is complex because it is performing the extraordinarily difficult but essential task of regulating multiple people’s access to the limited resource that is land.56 When property 55 56

Casuarina Rec Club Pty Limited v The Owners – Strata Plan 77971 (2011) 80 NSWLR 711. Singer 2000 supra note 6, pp. 30-31.

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law grants rights to one person (e.g. an existing owner such as a developer), it inevitably takes them away from another (e.g. a future owner of an apartment). Further, property law does not grant rights to a single person, but it typically grants rights to all citizens, who, in exercising multiple property rights, create social, political and economic systems (e.g. entire areas of high-density cities in which people are not free to own pets or determine at what age their children can play unsupervised). As a result, we need to be attentive to the consequences of exercising property rights, particularly newly created rights. High-rise developments and master planned communities with mandatory levies, private governing bodies and private by-laws all create complex property rights that have traditionally been prohibited in post-feudal property law for sound reasons. Increased populations and ever-intensifying urbanisation demanded some change to those prohibitions, but changes needed to be better understood. Unfortunately, because governments, particularly in Australia, have allowed change to be driven by private developers, who quite legitimately are primarily concerned with making money, change has occurred with insufficient appreciation of its ramifications. Instead of simply creating new freehold interests burdened by the entirely legitimate requirement to pay for the maintenance of a common building and to refrain from using land in disruptive ways, strata and community title have created freehold interests burdened by extensive and often inefficient financial obligations, as well as batteries of intrusive and controlling rules. In short, strata title runs the risk of becoming the new feudalism.

References Alexander, G.S., ‘Dilemmas of Group Autonomy: Residential Associations and Community’, Cornell Law Review, Vol. 75, 1989, pp. 1-61. Alexander, G.S., Penalver, E.M., Singer, J.W. & Underkuffler, L.S., ‘A Statement of Progressive Property’, Cornell Law Review, Vol. 94, No. 4, 2008. Asher, S.E., ‘Interdistrict Remedies for Segregated Schools’, Columbia Law Review, Vol. 79, 1979. Blandy, S. & Lister, D., ‘Gated communities: (Ne) Gating Community Development?’, Housing Studies, Vol. 20, No. 2, 2005. Brown, J., ‘English Commonhold: A Failed Experiment?’, Property Law Review, Vol. 3, 2013.

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Christensen, S. & Duncan, W.D., ‘Is It Time for a National Review of the Torrens’ System? The Eccentric Position of Private Restrictive Covenants’, Australian Property Law Journal, Vol. 12, 2005. Clarke, D.N., ‘Commonhold – A Prospect of Promise’, Modern Law Review, Vol. 58, No. 4, 1995, pp. 486-504. Cruickshank, D. & Burton, N., Life in the Georgian City, New York, Viking, 1990. Dagan, H., ‘The Limited Autonomy of Private Law’, American Journal of Comparative Law, Vol. 56, No. 3, 2008, pp. 809-834. Davison, G., ‘The Past and Future of the Australian Suburb’, Australian Planner, Vol. 31, No. 2, 1993, pp. 63-69. Dilger, R., ‘Residential Community Associations: Issues, Impacts, and Relevance for Local Government’, State and Local Government Review, Vol. 23, No. 1, 1991, pp. 17-23. Dyos, H.J., Victorian Suburb: A Study of the Growth of Camberwell, Leicester, Leicester University Press, 1961. Epstein, R.A., ‘Notice and Freedom of Contract in the Law of Servitudes Comments’, Southern California Law Review, Vol. 55, 1981, pp. 1353-1368. Freestone, R., Model Communities: The Garden City Movement in Australia, Melbourne, Thomson Nelson, 1989. French, S.F., ‘Toward a Modern Law of Servitudes: Reweaving the Ancient Strands’, Southern California Law Review, Vol. 55, 1981, pp. 1261-1322. Howard, E., Garden Cities of To-morrow, Swan Sonnenshein, 1902. Kondos, A., ‘The Hidden Faces of Power: A Sociological Analysis of Housing Legislation in Australia’, in R. Tomasic (Ed.), Legislation and Society in Australia, Sydney, Unwin Hyman, 1980. Kozol, J., The Shame of the Nation: The Restoration of Apartheid Schooling in America, New York, Crown Publishers, 2005.

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Kushner, J.A., ‘Apartheid in America: An Historical and Legal Analysis of Contemporary Racial Residential Segregation in the United States’, Howard Law Journal, Vol. 22, No. 4, 1979, pp. 547-686. McKenzie, E., Privatopia: Homeowner Associations and the Rise of Residential Private Government, New Haven, Yale University Press, 1994. McKenzie, E., Beyond Privatopia: Rethinking Residential Private Government, Washington DC, Urban Institute Press, 2011. Merrill, T.W. & Smith, H.E., ‘Optimal Standardization in the Law of Property: The Numerus Clausus Principle’, Yale Law Journal, Vol. 110, No. 1, 2000, pp. 1-70. Merrill, T.W. & Smith, H.E., ‘The Morality of Property’, William & Mary Law Review, Vol. 48, No. 5, 2007, pp. 1849-1896. O’Connor, P., ‘Covenants as Regulation’, Property Law Review, Vol. 1, 2011, pp. 147-152. Olsen, D.J., Town Planning in London: The Eighteenth and Nineteenth Centuries, New Haven, Yale University Press, 1964. Reichman, U., ‘Toward a Unified Concept of Servitudes’, Southern California Law Review, Vol. 55, 1981, pp. 1177-1260. Rose, C.M., ‘Servitudes, Security, and Assent: Some Comments on Professors French and Reichman’, Southern California Law Review, Vol. 55, 1981, pp. 1403-1416. Rose, C.M., ‘The Moral Subject of Property’, William and Mary Law Review, Vol. 48, No. 6, 2007, pp. 1897-1926. Sherry, C., ‘The Legal Fundamentals of High-Rise Buildings and Master Planned Estates: Ownership, Governance and Living in Multi-owned Housing with a Case Study on Children’s Play’, Australian Property Law Journal, Vol. 16, No. 1, 2008, pp. 1-23. Sherry, C., ‘Long-Term Management Contracts as Developer Abuse’, in S. Blandy, J. Dixon & A. Dupuis (Eds.), Multi-Owned Housing: Law, Power and Practice, Abingdon, Ashgate Publishing, 2010.

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Sherry, C., ‘Land of the Free and Home of the Brave? The Implications of United States Homeowner Association Law for Australian Strata and Community Title’, Australian Property Law Journal, Vol. 23, 2014, pp. 94-121. .

Sherry, C., Strata Title Property Rights: Private Governance of Multi-owned Properties, Abingdon, Routledge, 2016. Simpson, A.W.B., A History of the Land Law, 2nd ed., Oxford, Clarendon Press, 1986. Singer, J.W., Entitlement: The Paradoxes of Property, New Haven, Yale University Press, 2000. Singer, J.W., ‘Democratic Estates: Property Law in a Free and Democratic Society Essay’, Cornell Law Review, Vol. 94, No. 4, 2008, pp. 1009-1062. Summerson, J., Georgian London, London, Penguin Books, 1978.

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Planning Contracts under Swiss Law: A Tool for Special Housing Needs and the Problem of Breach of Contract

Nathalie F. Adank

5.1

Introduction

Planning contracts are a new way of addressing housing issues. They stay at the crossroads between two important public policies: the land use policy and the housing policy. Both of them have been subject to a high public awareness since several years, as the increase of the housing needs has to be matched with a tendency to reduce the surfaces of land allocated to urbanisation. We tend to observe that it should be built more, on less land, to address the housing needs of growing populations. In parallel to this, it is not housing in general that must be provided for, but often housing for special needs: students, elderly people, low-income families and so on. This raises questions about the effectiveness of the regular real-estate market in those particular fields. Special housing needs are often addressed by the state, as part of a social policy. However, over the years, many countries have encountered budgetary difficulties and the time has come to examine whether the private sector could contribute to such housing policy. Planning contracts have the advantage to link the housing policy with efforts to use land as rationally as possible. One of the main questions their use raises is how cities should deal with a breach of said contracts. Indeed, if a landowner engages with the city and agrees to build housing, it is necessary to analyse the impact of any breach of said agreements (i.e. if the landowner fails to build). This paper does not address the situation in which the city is the defaulting party but concentrates on a breach by the private party to the contract. It focuses on the importance of public interest in solving this question and argues that the creation of a right of purchase is the best remedy to address a breach of a planning contract by the private party to the agreement. This paper takes the Swiss legal system as an example. The scarcity of land in Switzerland and the high density of population in this country make it an interesting ‘testing ground’ for innovative solutions.

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5.2

The Concept of Planning Contract and Its Utility to Address Housing Issues

5.2.1

Definition of a Planning Contract and Context of Use

5.2.1.1 General Context: Land Use Law Planning contracts are instruments of land use law. In several countries (‘Section 106 Agreements’ in the United Kingdom, ‘Städtebauliche Veträge’ in Germany, ‘land use contracts’ in Canada, etc.), they are used as a way to mitigate the effects of a new development and/or to let the developer contribute to infrastructure costs. This being said, the first question to answer is a very general one: Does the legal system allow for the conclusion of contracts, which are bilateral and consensual instruments, while land use law is based on unilaterally edicted plans and administrative decisions? For a very long time, land use law remained a field of public law to which consensualism was extraneous. To be admissible, planning contracts must be shaped so as to integrate themselves in a context of plans, determining the admissible use of land on each plot of a distinct perimeter. The aim of land use plans is to coordinate different applicable regulations in land use and thus coordinate different zoning areas. Master plans are adopted to lay down the foundations of land development. Based on master plans, land use plans primarily delineate building zones, agricultural zones and areas to be protected.1 This system has shown its efficiency in dividing building land from areas to be let unbuilt, thus protecting landscapes and fostering the possibilities for agriculture to develop. However, it lacks individuality and needs, in a second time, to be defined. Indeed, the zoning plans are not positively binding: Those can only forbid certain uses of land, but do not include a special duty to build on building land, for example. As a consequence, any landowner of a plot in a building zone could freely decide not to build on his plot, to keep the land as an asset for the next generation, for example. This creates a problem of rational land management: Authorities cannot efficiently decide how many plots should be rezoned as building land to meet the needs, as it is unsure whether the landowners will actually use their right to build and contribute to the development of the real-estate market. This paper suggests that planning contracts could be used as a means to sharpen the definition of the use to be made of a specific plot and to set precisely, between landowners and planning authorities, which type of use is to be made of a particular plot of land. This is the point where the land use policy would meet the housing policy, as the authorities

1

See for an example in Switzerland: Art. 14 Swiss Zoning Act; C. Kälin, Switzerland Business & Investment Handbook, Zurich, Orell Füssli, 2011, p. 256.

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could negotiate not only a set time limit within which the plot should be built, but also what kind of construction should be realised, for instance, housing of a special type. 5.2.1.2 The Planning Contract as an Instrument of Land Use Law A planning contract is an agreement under public law,2 between a landowner and a city, ruling issues of land use and planning law.3 It is an adaptable tool, which can pursue several goals of public interest, broader than rational land use stricto sensu. Planning contracts should not be mistaken with the phenomenon of ‘contract zoning’, known in the United States and used by developers to ensure legal feasibility of a project. Contract zoning primarily seeks the vesting of development rights,4 whereas planning contracts aim to reconcile private development projects with public interests in land userelated matters (use of land stricto sensu and public policies such as housing and traffic management). – Contract zoning consists in rezoning a particular area in order to allow a specific development not permitted under the regular zoning policy, subject to an agreement by the landowner to abide by certain conditions.5 Development regulations are frozen during the term of the agreement.6 – Planning contracts are part of the existing land use policy and do not replace traditional zoning plans. They do not either supersede the applicable rules. They are used to approximate legally permitted uses with development strategies of a landowner in the frame of what the general zoning plan provides. The decision to zone a parcel instead of another is only possible if both alternatives are equal in terms of rational land use.7 Thus, planning contracts always remain within the frame of a rational land use management. As a consequence, their use does not generate unequal treatment between landowners. In a nutshell, contract zoning goes further than the plan, whereas planning contracts generally remain within the legally admitted uses. They rather tend to specify, between several uses of a plot that would be consistent with the applicable regulations, which one should be preferred, because it could be profitable to the private interests of the developer

2 3 4 5 6 7

A. Ruch, ‘Aktuelle Grundfragen des Raumplanungsrechts’, in A. Ruch & A. Griffel (Eds.), Raumplanungsrecht in der Krise, Zürich, Schulthess Verlag, 2008, p. 35. N. Adank, Le contrat de planification – utilité, admissibilité et régime du contrat d’aménagement du territoire, Zürich, Schulthess Verlag, 2016, p. 7. D. Callies, D. Curtin & J. Tappendorf, Bargaining for Development, Washington, DC, Environmental Law Institute, 2003, p. 91 et seq. D. Trager, ‘Contract Zoning’, Maryland Law Review, Vol. 23, No. 2, 1963, p. 122. Callies et al., supra note 4, p. 108. F.P. Oliveira, Contratos para planeamento – Da consagração legal de uma prática, às dúvidas práticas do enquadramento legal, Coimbra, Almedina, 2009, p. 18; Adank, supra note 3, p. 101.

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or owner of the plot, as well as to public interest. If a plot is zoned as building land of high density, this lets the choice to the landowner to choose between building office space, housing to be sold, housing for lease and so on. A planning contract could set more precisely which use should be preferred. As a consequence, contract zoning is often considered to serve primarily private interests, while planning contracts always serve a public interest as well. Planning contracts can aim at different goals within the frame of the public interest to rational land use, as this interest is very broadly defined. The most common type of planning contracts is the agreement by which the admissible use of a plot is set, in exchange of the landowner committing himself to build on his plot.8 If the goal of the planning contract is to fight against land hoarding, the obligation to build will be general, without any restriction on the type of use, except those contained in the building code. If the aim of the planning contract is rather to deal with a housing shortage, the obligation will be specified according to the needs in the specific situation.

5.2.2

The Role of Planning Contracts to Address Housing Issues

The situation on the housing market is very different from region to region. Hence, in Switzerland, for example, cantons have adopted various laws to promote housing building and to protect existing housing from demolition or transformation into commercial uses. Those regulations have turned the real-estate market into a highly regulated market, which could tend to discourage developers to innovate. Nevertheless, those tools have a limited effect, as they are used quite late in the spatial planning process. They only become applicable when land use plans have been adopted and the admissible use has been set. In general, regulations mainly apply when the landowner seeks a building permit. At that stage, the bargaining power of each party is rather small, as there is only little that can be negotiated. Moreover, at that stage, the authorities are limited by the requirement to respect private property: The more restrictive a regulation is, the more it must be justified by an overriding public interest. As a consequence, the landowner cannot be forced to build housing only because there is a shortage on the market. He retains the right to use his property freely, subject to the applicable legal restrictions. In addition, legal restrictions to private property must ground in a public interest, which should be sufficiently important to justify such a restriction. As a consequence, coercive means to let private developers build housing are only applicable when the shortage is such that it may weigh more than the right to private property.

8

Y. Antoniazza, Die Baupflicht, Zürich, Schulthess Verlag, 2008, p. 45.

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According to the opinion expressed in this paper, more attention should be given to the opportunity to solve the question of housing at a very early stage, namely during the planning process. Through a planning contract, cities could decide to make the decision to zone a particular piece of land in the building zone depend on the condition that private developers commit themselves to build on that plot. This would be compliant with general principles of public law when public interest allows for a discretionary choice between several parcels possibly zonable as building land. Developers could, for instance, commit themselves to integrate housing for special needs in their project and to build within a set time limit. Planning contracts offer the advantage to promote housing at the same time as they contribute to a sound land use policy. Moreover, while using planning contracts, the authorities make the most of their bargaining power as they can negotiate with landowners at a time when they are not guaranteed to have their plot zoned as buildable. Hence, they are more likely to accept to act in the public interest if they can hope for building rights than if those have already been granted previously, outside contractual processes. To sum up, planning contracts have the following advantages: 1. They offer cities the opportunity to deal with the housing issue at a very early stage. This allows the authorities to make the most of the bargaining power triggered by the fact that the demand for buildable land exceeds by far what can be granted by planning authorities. 2. Planning contracts are a way to address the housing question in a comprehensive way. As a consequence, such contracts are a way for the authorities to foster social diversity (in terms of income, of origins and of generation) as well as a functional mix between residential, commercial and other uses in a neighbourhood. These goals can only be achieved if the housing issue is not dealt with at the last moment, but planned on a long-term basis. Generally speaking, building social housing is a task municipalities should carry out. Yet, they face different difficulties in doing so. First, they often face financial difficulties, as the cost of land has increased constantly over the last decades. Thus, land acquisition by public authorities (to make possible the development of social housing units) cannot keep pace with a growing demand in certain areas. Housing for special needs should, where necessary, be built on private grounds. In such context, however, an incentive must be found to make (social) housing attractive for private developers. This would allow the integration of social housing or housing for special needs in a more global project, where units rented or sold on the open market could balance the financial plans. In order to do so, planning contracts could be a way to raise the interest of private developers in contributing to build housing.

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Second, social and functional diversity is difficult to achieve if social housing or housing for special needs is built by public entities. As a matter of fact, even if there is a high public interest in social and functional diversity, it is not the public entities’ responsibility to develop housing for categories of populations which can care for their own housing. As a consequence, housing developments built by public authorities lack diversity and tend to create a ‘ghetto effect’. Cities nowadays need to act together with private developers to carry out several tasks of public interest. However, bringing private developers to integrate a part of housing for special needs in a standard project requires a certain bargaining power, to negotiate with developers. All the more so when existing regulations do not allow cities to impose affordable housing quotas in private development schemes.9 This is exactly what planning contracts make possible: If the question of what should be built on a particular plot is addressed early, in a process where a landowner is not yet 100% sure to have his plot zoned as building land, cities can make the most of their bargaining power to get the developer to act in the public interest. This way to act should, however, not lead to cities misusing their discretionary powers in the zoning process. There should be no auctions on building land, but a reasonable negotiation within the frame of rational land use strategies and the principles of the rule of law (see below on this particular question). 3. Planning contracts are negotiated instruments. As a consequence, their use reduces the need for cities to pass new regulations forcing developers to build housing. Incidentally, the legal feasibility of such an obligation is not yet demonstrated, as it would strongly affect the constitutionally recognized right to private property. In addition, negotiated solutions are better accepted by all parties; this reduces the risk of appeals. Moreover, they provide cities with an interesting bargaining power. As a matter of fact, cities should conclude planning contracts when, facing the necessity to revise the zoning plan, they have to choose between two or more alternatives equal in terms of rational land use. The choice is then a question of opportunity. Such a situation could, for example, arise if an increased density should be reached by rezoning some land, but the master plan lets the question open of which precise plots should be developed in this sense. As a consequence, the authorities could, in such circumstances, decide to zone a particular plot of land instead of another depending on the willingness of the landowner to contribute to the housing policy. This should generate interest among developers to enter into planning contracts. Hence, planning contracts represent a way to convince a landowner to integrate housing for special needs in a global construction project and to encourage greater social diversity and mixed-use developments.

9

Or if the regulations provide for the conclusion of contracts: see, for example, the agreements under Section 106 of the Town and Country Planning Act 1990 (as amended).

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5.3

Several Solutions to Deal with a Breach of Contract

5.3.1

Definition of a Breach of Contract

5.3.1.1 General Definition The definition of a breach of contract in the context of public contracts is the same as in the general private contracts theory. Indeed, contracts governed by public law still correspond to the general definition of contract, that is, an exchange of mutual expression of intent by two or more parties. They are usually drafted as formal deeds. Breach of contract should be distinguished from the situation where, due to a particular event, performance of the contract turns to be impossible. Breach of contract refers to a situation where the obligor fails to discharge an obligation at all or as required.10 Nonperformance of the contract triggers several consequences, such as damages or claims for specific performance. In the ‘ideal’ case, the contract already contains rules applying to the breach of contract, drafted by the parties to meet their particular needs. However, it can happen that the contracting parties did not discuss this issue or voluntarily did not want to include such a provision in their agreement. In this situation, general rules must apply. The peculiarities of planning contracts with respect to other types of contracts raise the question of a necessary adaptation of such rules to the particular field of housing policy and land use management. 5.3.1.2 Breach of Planning Contracts Planning contracts can be breached either by the landowner or by the authorities. Generally speaking, there is a breach of contract either when the admissible use of the plot is not granted – for example, because the zoning plan is not adopted – or when the landowner does not fulfil his obligation to build on the land. Breach of contract by the public party to the agreement triggers some questions that cannot be addressed in this paper, such as the question of a proper ‘responsibility’ of a public entity for breach of contract if a land use plan is submitted to the vote of a city assembly. The question of the steps that should be taken to sue the authorities will also be let apart. Breach of contract by the private landowner can be divided into two different scenarios. First, it may happen that the landowner does not build anything on his plot. Such behaviour could be triggered by the hope to make a profit from the rezoning of the plot, materialised by a sales deed to a much higher value than the acquisition price. It could also result from

10

Cf. Art. 97 para. 1 Swiss Code of Obligations.

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the fact that the developer fails to obtain a bank loan for his construction project, due to a bad balanced financial plan or to changing economic or investment conditions between the moment when the planning contract is signed and the deadline to fulfil the obligations. However, the reason why the landowner breaches the contract is not relevant for our purposes, as any theory on an efficient breach of contract cannot be used where public interest is at stake. Second, the landowner could build something else than what was agreed upon. For example, he changes his project and builds luxury apartments instead of social housing, one-bedroom apartments instead of large flats for families and so on. In such a case, there is no land hoarding – it could even happen that the new construction best matches the market needs, but the goal pursued by the public authorities while concluding the contract is not reached, as the needs for a special type of housing are not met.

5.3.2

The Consequences of a Breach of Contract

5.3.2.1 The General Regime Applicable to the Breach of Contract In a system of continental law, the promisee can sue the promisor either to obtain specific performance or for damages. But, damages are not the main consequence of a breach of contract, as it is in common law. It is considered that contracting parties have concluded an agreement to meet a certain interest and that this interest does not necessarily disappear with the breach of contract. Therefore, the promisee can seek the execution of the contract if such is still possible.11 On a more practical side, there are many situations in which the promisee chooses to abandon specific performance, as the process to obtain such would be too long and difficult. Still, the choice between damages and specific performance belongs to the promisee. 5.3.2.2

The Absence of General Rules for Public Contracts

a The Difficult Development of Public Contracts The question that must be answered when considering an agreement under public law is whether the general rule, stating that the promisee is free to choose between damages and specific performance, also applies to breaches of public contracts. In other words, does the public nature of the agreement change the rights of the promisee confronted by a defaulting partner? This being said, we will only deal with the situation in which the public authorities are the promisee and the citizen is the defaulting party.

11

P. Tercier & P. Pichonnaz, Le droit des obligations, Zürich, Schulthess Verlag, 2012, N. 1129.

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Public contracts have not developed the same way in all legal systems, as have private contracts. In several legal systems, contracts concluded under public law were for a long time considered to be illegal. This was due to the belief that the State and a citizen could not be equal partners, which is a condition to conclude an agreement between two parties. The fact that the State can only act within the frame of the law and its obligation to pursue public interests made a large majority of authors believe that contracts under public law could not be concluded. The risk that the State would favour some citizens more than other by entering into agreements with some of them, as well as the fear that the application of the law could be ‘sold’ to the highest bidder, remained present in the legal literature for a long time. In addition to these general concerns, several fields of public law were particularly considered to be inappropriate for contracts. Land use law was precisely one of them, until recently. As we exposed earlier, the system of land use plans was considered exhaustive, letting no space for contractual negotiations. Nowadays, there is no doubt that public contracts are lawful, as this follows the general tendency for the State to seek consensus and cooperation with citizens, in order to achieve goals that require some collaboration. The same applies for land use law, where the standard system has proved to be insufficient to meet legal goals. Nevertheless, rules governing agreements under public law are very slow to emerge. Due to the fact that public contracts can be concluded in a large variety of situations, it is quite impossible to establish a general set of rules applicable to all of them.12 There are too many different interests at stake according to the particular field in which a contract can be concluded. Thus, it is necessary to develop specific rules for each type of agreements under public law, taking into account the peculiarities of each field of law. b The Applicability of Private Contract Law As there are no general rules applicable to public contracts, there are no general rules applicable to the breach of a public contract. Therefore, this question must be addressed according to the rules applicable to private contracts. Some of them have become of a time general principles of law.13 They are considered ‘so general’ that they apply indistinctly to situations governed by private or public law. However, most provisions of private contract law cannot be used directly when the use of a public contract raises a particular question that parties have not addressed in their agreement. Those rules must be adapted to the specific field of public law they are supposed to govern and, more generally, they must take into account the fact that one of the contracting parties fulfils a public task.14 For 12 13 14

B. Waldmann, ‘Der verwaltungsrechtliche Vertrag – Eine Einführung’, in I. Häner & B. Waldmann (Eds.), Der verwaltungsrechtliche Vertrag in der Praxis, Zürich, Schulthess Verlag, 2007, p. 10. T. Müller-Tschumi, ‘Leistungsstörungen bei verwaltungsrechtlichen Verträgen’, in I. Häner & B.W. Waldmann (Eds.), Der verwaltungsrechtliche Vertrag in der Praxis, Zürich, Schulthess Verlag, 2007, p. 60. Müller-Tschumi, supra note 13, p. 70.

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example, when addressing the question of a breach of a planning contract, one should take into account the fact that land use regulations provide for some specific coordination rules and that the authorities negotiate agreements to achieve a rational and sound land use policy. Furthermore, rules applicable to the breach of a planning contract used to promote housing construction must consider the fact that the reason why the agreement was signed is that such a contract could help fight against a shortage in specific types of housing. The question of the applicable rules puts into light the difficulties deriving from using contracts – an instrument usually used between private partners – as a tool to implement the land use policy, governed by principles of public law, such as proportionality and different rights guaranteed by the Constitution (specifically the right to private property). Concluded in the perspective of a particular housing policy, planning contracts should, in addition, comply with the general goals of such a policy. As a consequence, provisions of private contract law are only applicable to public agreements if they are considered to be adequate in the particular situation and if it is possible to accommodate them with public interest. In other words, it must be examined whether public interest enters into conflict with the rule that could be applied. When examining if public interest conflicts with rules of contract law, one should take different elements into account. In a very first time, we suggest to examine which public interest is pursued. Often, this analysis will come to the conclusion that different aspects of public interest were taken into account at the moment the contract was concluded. In a second time, the different public interests should be prioritised in order to determine which is the most important among them and which are secondary. In a third time, the result of the first two analyses will make it possible to decide whether the rule of contract law is (at all) applicable to the public contract and if yes, whether and in which direction it should be adapted. For this purpose, the goals of the particular public policy/policies concerned could help adapt private rules to the public circumstances of the fact. Keeping in mind that the aim of this whole process is to find a solution that suits at the same time the public interest and the individual interests of the private party to the contract, this exercise is very different from case to case. Another question to be addressed is how intense this public interest is in the present situation. As an example, the solution will be different if the promised affordable housing is not built at all, or if the units built are too small (one-bedroom apartments instead of two-bedroom apartments). In the first case, public interest to rational land use and public interest to housing for every household are both impacted, whereas in the second case, the problem only affects the type of households that will benefit from the new dwellings. Depending on the tightness of the link between the public interest pursued and the breached

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obligation, it should be possible to determine if the circumstances make it necessary to part from the rules applicable under private contract law.15 c The Discrepancy between Interests Perspectives Planning contracts, specifically those in the field of housing, are concluded in a context of two very different perspectives. On the one hand, citizens have private interests in mind, such as to valorise their plot of land, to secure their position as landowner for the future decades. They can be interested in concluding a planning contract because they feel the land regulation is about to change and such an agreement could serve as an evidence for their interest in keeping their building rights. Public authorities, on the other hand, are obliged to pursue public interests and must stay within the frame of the law. They cannot, for example, make the most of an agreement to get the landowner to pay more taxes than the law foresees. This dichotomy is mainly relevant at the moment the contract is concluded, because it contributes to determine within which frame the contract is admissible; it is, however, also useful to remember it when looking at the specific problem of breach of contract. As a matter of fact, this duality makes it very often necessary to adapt rules of private law to the field of public law. Hence, these divergent interests imply that the means used to address a breach of contract can and must be of different intensity. On the one hand, public interest would generally call for coercive means, which would make it possible to reach the result which the contract aimed to achieve. On the other hand, proportionality and constitutional rights would tend to prefer softer ways to deal with breach of contract, in order to protect the private party to the contract. More specifically, the peculiarities of land use law and of the housing policy would call for very coercive instruments to deal with a breach of contract. As a matter of fact, considering that an obligation to build housing will very often be agreed on if public authorities are not in a position to provide housing for all types of needs on their own, there is a high public interest to the execution of the agreement. One could, for example, imagine having a third party build what had been promised, in lieu of the defaulting promisor. At the same time, it must be stressed that planning contracts and those containing obligations to build housing directly interfere with private property. As a matter of fact, they are equivalent to a renouncement from landowners to part of the freedom to use at their discretion the object of private property. This is part of a rather liberal conception of constitutional rights, which recognises each of us the right to determine whether in a particular situation we could waive the protection offered by the law. However, from the landowners’ perspective, breach of contract should be answered by other means than the execution by a third party.

15

M.S. Nguyen, Le contrat de collaboration en droit administratif, Bern, Stämpfli, 1998, p. 109 et seq.

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A renouncement to a part of your constitutional right to private property does not necessarily mean you renounce to any protection from the Constitution. As a consequence, this kind of contracts call for a very delicate balance between both types of interests, what makes it difficult to find a general rule, applying in any case of breach. It could even be said that the same breach of contract could call for different consequences according to the circumstances of each case.

5.4

The Impact of Public Interest on the Question of Applicable Rules

5.4.1

Difficulties Arising out of Public Interest-Based Contracts Such as Planning Contracts

Having said that general rules must be adapted to the fact that planning contracts are public contracts, concluded between a landowner and a planning authority acting towards public interest, the promisee should not be allowed to choose between specific performance and damages. It is particularly true that the interest in regard to which the contract was concluded does not disappear with the breach of contract when public interests are at stake. As a matter of fact, the conclusion of a public contract is not the result of an interesting deal between two people, but a means to achieve a goal of general interest. Therefore, the authorities should, generally, not be free to abandon their right to claim the execution of the contract. It must be reminded that the law only allows for the conclusion of contracts under public law and specifically under land use law if this tool enables the authorities to pursue more efficiently the public interests in a particular case. Hence, when the public party to the agreement faces a breach of the contract, its behaviour should be consistent with public interest. The authorities who are party to a contract should choose the way to handle the breach of contract that fits best the interests that justified the conclusion of the contract. As long as specific performance is possible, public interest commands that the authorities try to obtain the fulfilment of the contract.16 This is, in most cases, the solution that meets best the public interests. If the promisor does not act himself, the question of the execution by a third party should be examined. The preference given to specific performance is due to the fact that planning contracts are concluded in the perspective of public interests that cannot be converted into a certain sum of money. Be it an interest of land use policy or of housing policy, it is difficult to imagine, from a continental point of view at least, a case in which damages could properly compensate the breach of contract. When a public interest is affected, there is often no 16

Müller-Tschumi, supra note 13, p. 70.

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damage stricto sensu suffered that would need to be compensated, because public interest is, in general, an ‘ideal’ interest,17 while the concept of damages refers to a compensation in money for loss or injury. Hence, without damage, there can be no compensation, except for a few cases where a legal provision allows for an exception. For instance, failure to build housing for special needs cannot be compensated with any amount of money, even if one may think, at first sight, that it would be possible for the authorities to sue the defaulting party for a certain amount of money covering the costs of building housing elsewhere. Even if the city were to build housing on its own in case of default, the payment of damages would neither solve the problem of finding an appropriate plot of land (especially in areas with a shortage of building land), nor take into account the possible interactions between the housing units and other parts of the designed development or the neighbourhood. Thus, the fact that private developers become involved in the housing policy and get encouraged to develop mixed-use projects has no equivalent if the city were to perceive damages to build itself the lacking dwellings. The public authorities would most likely not be able to achieve the same result. Moreover, while it is not unreasonable to assume that the city could build housing with the damages paid by the defaulting developer, it is highly uncertain whether the amount of damages that would be paid could allow for the acquisition of a plot with similar qualities to the one subject to the planning contract. It may happen that a development had been favoured in a particular neighbourhood, where the public authorities are not sure to obtain land, even at a high price. Regarding the specific situation, the question is not whether the authorities could build the corresponding number of flats or rooms that had been promised, but rather whether the qualities (in a broad sense) can be equivalent.

5.4.2

The Impact of Breach of Contract on Public Interest

The fact that planning contracts address the housing problem at an early stage implies that it turns them into one of the points to be coordinated in the land use process. The revision of a zoning plan is based on statistic assumptions of the needs, in the future, of different uses of land. Based on demographic projections, for instance, it takes into account the amount of housing units necessary, their type and the area they should be built on, in order to coordinate other imperatives of the zoning area with the needs of the housing policy. Generally speaking, building new housing implies an increased need for infrastructure (roads, sewers, hospitals, school classes, etc.). In addition to that, the specific type of housing to be built also has an influence on the type of infrastructure to be planned: schools, theatres, retirement homes and so on. The question of (public) transport should also be 17

H. Zwahlen, ‘Le contrat de droit administratif’, Revue de droit suisse, Vol. 77, No. 2, 1959, p. 638a.

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addressed. All those elements must be coordinated according to the previsions established by the competent authorities and concretised in the planning contracts. If the planning contract is breached, this means that housing is not going to be built in the foreseen areas, which puts into question the rest of the zoning plan. Two different consequences must then be addressed: the lack of housing compared to what had been planned and the possible necessity to adapt the zoning plan according to the importance of the breach of contract. First, the needs for housing are not satisfied anymore if what was supposed to have been built is not built. This makes it necessary to rethink the housing policy for a distinct perimeter, depending on the importance of the missed development. Breach of such contracts could also lead the competent authorities to consider that realisation of new equipment (schools, sewers, etc.) is not necessary anymore in a particular area. Second, if the difference between the planned situation and the one at hand is important, the zoning plan should be adapted in order to run a new coordination process.18 As a matter of fact, land use plans, with their whole content, must stay as close to reality as possible. Hence, they must be adapted when determining circumstances have evolved. This adaptation would also allow the authorities to seek a better solution in terms of housing by finding new neighbourhoods to foster housing construction. In addition, due to the fact that all planning measures interact with each other, a zoning plan is the result of large-scale coordination. As soon as one of the elements changes, the whole planning process is questioned. The fact is that if most cases of breach of contract would represent a change of the circumstances that have been considered relevant in the planning process, only some of these cases would be important enough to trigger a revision of the land allocation plan. As a result, in some cases, breach of contract would be contrary to public interest without being sufficiently important to adapt the plan, so that this would result in a higher discrepancy between planning instruments and reality.

5.4.3

The Suggested Regime

General rules are thus unsatisfying, because they do not take sufficient account of the fact that public contracts are concluded in the perspective of fulfilling public interest. We therefore suggest establishing a principle of primacy of specific performance19 that would be consistent with public interest. On that principle, exceptions could be established, depending on the particular circumstances of a case. Further, we must analyse the existing possibilities to obtain specific performance and determine their impact on the defaulting 18 19

Art. 21 para. 2 Swiss Zoning Act. Cf. Müller-Tschumi, supra note 13, p. 70.

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party’s situation. Particular attention should be paid to the constitutional rights protecting the private property (guarantee of private party).

5.5

Solutions Applicable to a Breach of Planning Contract

5.5.1

General Situation

The public interest that was decisive when signing the planning contract makes specific performance the most common consequence of a breach of contract.20 We suggest two main remedies to seek specific performance: execution by substitution or the acquisition of the land supporting the planning contract, serving as a substitute to specific performance stricto sensu.

5.5.2

Execution by Substitution

5.5.2.1 General Rule Execution by substitution is a means to obtain specific performance, using a third party to perform the defaulting party’s obligations. It can be used if the defaulting party has been given the chance to fulfil its obligations. In the point of view of public interest, it represents one of the best solutions, allowing the pursued public interest to be achieved. However, recognising the right for the public party to the contract to have recourse to execution by substitution implies accepting the fact that a defaulting landowner can be forced to tolerate that a third party, appointed by the authority who is party to the contract, builds on his plot. This would cause a serious violation of the landowner’s constitutional protection of private property.21 Indeed, even in committing himself to build, the landowner retains the right to choose the type of building he wishes to develop on his land.22 On the contrary, execution by substitution removes the choice from the defaulting landowner, who would have to bear this as a result of his breach of contract. Such a solution would, as a general rule, not be consistent with the constitutional right to private property.

20

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J. Dubey & J.B. Zufferey, Droit administratif, Basel, Helbing Lichtenhahn, 2014, N. 2221; M.O. Besse, Le régime des plans d’affectation, En particulier le plan de quartier, Zürich, Schulthess Verlag, 2011, p. 421; Müller-Tschumi, supra note 13, p. 69 et seq. See also Nguyen, supra note 15, p. 206. Art. 26 Swiss Federal Constitution. Cf. Antoniazza, supra note 8, p. 25.

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5.5.2.2 Exceptions There are some exceptions to the general inconsistency of execution by substitution with the right to private property. One of them would be the circumstances in which a landowner has already been granted a building permit. Indeed, such permission is, in most legal systems, issued on the base of a detailed (building) project with plans (drafted by the landowner’s architect according to his instructions) and a particular description of what the landowner intends to build. In such a situation, execution by substitution would represent a less serious breach of the right to private property, as the project carried out by the third party would be the one presented by the landowner to obtain his building permission. In such a case, the project constructed on the plot would necessarily be consistent with the intentions of the landowner. This may seem a rather satisfying solution. However, this point is highly problematic if the project contains only a little proportion of social housing: It is not part of the authorities’ duties to step up if a private development is not realised, unless the proportion of social housing is important with regard to the other uses of the development. Consequently, execution by substitution is not only questionable in terms of protection of private property, but also in terms of limitations to the activities of public authorities.

5.5.3

Right of Purchase

5.5.3.1 General Concept If letting a third party build instead of the defaulting landowner is not possible, another solution would be the transfer of the property rights on the considered plot, in order to make the construction possible. This could happen through the exercise of a right of purchase.23 Rights of purchase give their beneficiary the right to buy a designated plot of land, either at the discretion of the buyer or subject to particular conditions. With regard to the breach of a planning contract, a right of purchase would entitle the public party to the contract to buy the parcel subject of the contract, in order to build the housing units that were to be built by the defaulting party. In such cases, the exercise of the right of purchase should be conditioned to the fact that the promisor breaches the planning contract and to a formal notice to the promisor. The right of purchase can exist by law or as a result of an agreement. As long as no legal provisions contain a legal right of purchase, this remedy can only be used if the contracting parties have included such a right in their agreement. In addition, the right of

23

Art. 216a Swiss Code of Obligations.

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purchase could be registered with the land registry. This way, such rights become opposable to third parties24 and anyone is supposed to know their existence. In the absence of a contractual provision, the public party to the contract is not entitled to expropriate the plot object of the said contract. Indeed, while concluding a planning contract, the public party opts for the contractual solution and loses the prerogatives of public power. In addition to that, expropriating would require to be provided by a statute, which is not the case presently in Switzerland, for example. The right of purchase is, therefore, the only means to transfer the property of the plot to a party willing and able to build according to the contractual provisions. 5.5.3.2 Situation after the Exercise of the Option Once exercised, the right of purchase leads the city to acquire the relevant parcel. Since the right of purchase shall guarantee the correct execution of several obligations relevant for public interest, the city should either build or make the plot available for other citizens willing to build. A very important point is that the same obligations should be transferred with the property as those which were foreseen in the breached contract. This method allows the city to ensure that its housing policy is not affected by the fact that it uses a contractual process in order to seek cooperation from the private sector. Indeed, even if the landowner breaches the contract, the only major risk is a delay in the completion of the planned dwellings. This is for sure problematic, but it remains a temporary issue that can be dealt with until the new landowner fulfils its obligations. If the city chooses not to build in its own name, it can transfer the ownership of the plot to a third party. Two methods are possible. First, the contract or the legal provision containing the right of purchase can make it transferable. In this case, the city can transfer the right of purchase to the third party, who acquires the property directly from the defaulting promisor. In such a case, the city never owns the plot. It acts only as a third party. Second, the city can acquire the plot of land in its own name and sell it to the third party afterwards. The sales deed would then be subject to the buyer compelling with the obligations stated in the breached planning contract. Such a condition is necessary, because the right of purchase is justified by the fact that the breaching party is no longer able to act in the perspective of public interest. The scope of acquiring the plot and transferring it to a third party is to make the realisation of public interest possible. The fact that the city sells the land instead of building it in its own name does not untie the city from its commitments towards public interest. Third, the city could retain the property of the land but grant a private developer a right to build in exchange of an annual rent. This solution has the advantage to keep land in the city’s ownership, but allows for some negotiation with another developer regarding the construction of a certain type of buildings on this 24

Art. 959 Swiss Civil Code.

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plot. Granting the private developer a right to build would entitle the city to act directly against the developer in case of a breach of contract. 5.5.3.3 Exclusion of Government Procurement The transfer of land from the city to a third party, with the obligation for this latter to build what was promised under the breached planning contract, could raise another question: Is this a government procurement or can the third party be chosen freely? Generally speaking, regulations on government procurements do not apply to the sale of land, because they are mainly designed to ensure that public money is spent for the offer that has the best quality–price ratio. As a consequence, the transfer of the property is not subject to a specific procedure. Nevertheless, we suggest that the city should compel with principles generally applicable such as equality of treatment, transparency and the principle of the economically most advantageous offer, which could be transposed to our case. These principles should lead the city to balance between two main criteria: the price offered to acquire the land and the term within which the buyer could commit himself to build the planned housing units. This being said, the construction of housing units for social purposes in itself (compared to the sale of land) could meet the definition of a public procurement. The different provisions in the contract should be analysed very carefully, in order to determine whether the city primarily sells the land or whether the main purpose is to have social housing built, which would then be a case of public procurement. In case the city grants a right to build, the question should also be addressed the same way.

5.6

Concluding Remarks

Planning contracts are an important tool for the housing policy, as they represent an incentive for the private sector to cooperate with local authorities, as well as a useful tool for cities to foster the development of housing projects. Linking land use problematics with the housing issue makes of public interest the greatest challenge in solving the question of applicable rules. Therefore, a possible violation of the contract raises the issue of the role of public interest in the different consequences of a breach of contract. We have shown that among the two main remedies, execution by substitution is rarely consistent with the constitutional right to private property. We therefore insist on the necessity for parties to a planning contract to consider the opportunity of a right of purchase, which represents the best way to reconcile the interest in the execution in forma specifica of the contract and the protection of the landowner.

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References Adank, N., Le contrat de planification – utilité, admissibilité et régime du contrat d’aménagement du territoire, Zürich, Schulthess Verlag, 2016. Antoniazza, Y., Die Baupflicht, Zürich, Schulthess Verlag, 2008. Besse, M.O., Le régime des plans d’affectation, En particulier le plan de quartier, Zürich, Schulthess Verlag, 2011. Callies, D., Curtin, D. & Tappendorf, J., Bargaining for Development, Washington, DC, Environmental Law Institute, 2003. Dubey, J. & Zufferey, J.B., Droit administratif, Basel, Helbing Lichtenhahn, 2014. Kälin, C., Switzerland Business & Investment Handbook, Zurich, Orell Füssli, 2011. Müller-Tschumi, T., ‘Leistungsstörungen bei verwaltungsrechtlichen Verträgen’, in I. Häner & B.W. Waldmann (Eds.), Der verwaltungsrechtliche Vertrag in der Praxis, Zürich, Schulthess Verlag, 2007, pp. 58-86. Nguyen, M.S., Le contrat de collaboration en droit administratif, Bern, Stämpfli, 1998. Oliveira, F.P., Contratos para planeamento – Da consagração legal de uma prática, às dúvidas práticas do enquadramento legal, Coimbra, Almedina, 2009. Ruch, A., ‘Aktuelle Grundfragen des Raumplanungsrechts’, in A. Ruch & A. Griffel (Eds.), Raumplanungsrecht in der Krise, Zürich, Schulthess Verlag, 2008, pp. 1-38. Tercier, P. & Pichonnaz, P., Le droit des obligations, Zürich, Schulthess Verlag, 2012. Trager, D., ‘Contract Zoning’, Maryland Law Review, Vol. 23, No. 2, 1963, pp. 121-155. Waldmann, B., ‘Der verwaltungsrechtliche Vertrag – Eine Einführung’, in I. Häner & B. Waldmann (Eds.), Der verwaltungsrechtliche Vertrag in der Praxis, Zürich, Schulthess Verlag, 2007, pp. 2-22. Zwahlen, H., ‘Le contrat de droit administratif’, Revue de droit suisse, Vol. 77, No. 2, 1959, pp. 461a-663a.

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The Recurring Dream of Affordable Housing in Indonesia: A Human Rights 1

Perspective Erna Dyah Kusumawati

6.1

Introduction

The recognition of the right to adequate housing has become increasingly robust since its adoption in the Universal Declaration of Human Rights (UDHR) in 1966 and the subsequent International Human Rights Documents.2 The adoption of the UDHR featured an outstanding move of the development and the protection of human rights.3 The right to housing as a part of the right to an adequate standard of living is considered crucial because the fulfilment of housing, as one of basic material needs, is a precondition of a freedom and dignified life.4 In addition to the UDHR, various subsequent international instruments have recognized the right to adequate housing, including the International Covenant on Economic, Social and Cultural Rights (the ICESCR), adopted in 1966.5 Article 11(1) guarantees the recognition of everyone’s right to adequate standard of living for himself and family, including adequate food, clothing and housing and to the continuous improvement of living condi-

1

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3 4

5

The first draft of this article was presented in the Conference on Governance and Sustainable Society in Southeast Asia, 18-20 November 2015, in Amsterdam and the Hague, the Netherlands. This article is a revised and updated version. I would like to thank to Prof. Marcel Brus and Dr. Antenor Hallo de Wolf from the University of Groningen for their insightful comments and feedbacks in developing and revising this article. I owe my deepest gratitude to the Indonesia Endowment Fund for Education (LPDP) as my sponsor, whose scholarship has enabled me to conduct this research as a part of my PhD dissertation project. B. Terminski, The Right to Adequate Housing in International Human Rights Law: Polish Transformation Experiences, Revista Latinoamericana de Derechos Humanos, Vol. 22, No. 2, July-December, 2011, pp. 219241, at p. 224; see also UN Habitat, Review of international and national legal instruments, United Nations Housing Rights Programme, Report No. 1, Nairobi, 2002, p. 1. GA Res. 217 A (III), 10 December 1948. A. Eide, ‘Adequate Standard of Living’, in Moeckli et al. (Eds.), International Human Rights Law, New York, Oxford University Press, 2010, pp. 233-234; see also J.M Hohmann, The Right to Housing: Law, Concepts and Possibilities, Oxford, Hart Publishing, 2013, pp. 16-17. 1966 International Covenant on Economic, Social and Cultural Rights, 993 UNTS.

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Erna Dyah Kusumawati tions.6 Under this instrument, the right to adequate housing is stipulated more far-reaching7 and could be considered as the most comprehensive,8 the clearest legal provision compared to the other provisions.9 As with other economic and social rights, the right to housing is subjected to a progressive realization, meaning that states must continuously fulfil this right. Numerous other human rights instruments targeting specific groups have also recognized this right. These instruments are (1) Convention on the Elimination of all Forms of Discriminations Against Women (CEDAW),10 (2) Convention on the Rights of the Child (CRC),11 (3) Convention on the Elimination of All forms of Racial Discrimination (CERD),12 (4) Convention Relating to the Status of Refugees,13 (5) Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT),14 (6) Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW),15 and (7) Convention on the Rights of People with Disabilities (CRPD).16 Due to its extensive recognition and protection at the international level; the right to adequate housing has its legal foundations to be enforced in order to fulfil the enjoyment of housing rights both internationally and nationally,17 particularly in the jurisdiction of the state parties to the international treaties mentioned above. In contrast to its international legal recognition, housing conditions are nevertheless underdeveloped. As the United Nations has estimated ‘approximately 100 million people worldwide are without a place to live and over 1 billion people are inadequately housed’.18 The CESCR has found that every country, even the most developed, faces several problems regarding the fulfilment of housing rights.19 For example, the United States, one of the

6 7

8 9 10 11 12 13 14 15 16 17 18 19

Id. Art. 11(1). M. Kothari, ‘Homelessness and the Right to Adequate Housing: Confronting Exclusion, Sustaining Change’, in Danieli et al. (Eds.), The Universal Declaration of Human Rights, Fifty years and Beyond, New York, Baywood Publishing Company, Inc., 1999, pp. 201-217, at 204. UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 4: The Right to Adequate Housing (Art. 11(1) of the Covenant), 13 December 1991, E/1992/23, para. 3. Hohmann, supra note 4, p. 14. 1981, Convention on the Elimination of all Forms of Discriminations Against Women, 1249 UNTS. 1990, Convention on the Rights of the Child, 1577 UNTS. 1969, Convention on the Elimination of All forms of Racial Discrimination, 660 UNTS. 1954, Convention Relating to the Status of Refugees, 189 UNTS. 1987, Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 1465 UNTS. 2003, Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 2220 UNTS. 2008, Convention on the Rights of People with Disabilities, 2515 UNTS. P. Kenna, Housing Rights and Human Rights, FEANTSA (European Federation of National Organizations working with the Homeless), Brussels, 2005, p. 11. CESCR, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, paras. 35-39, UN Doc. E/CN.4/2005/48, March, 2005. CESCR, supra note 18, para. 3.

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wealthiest countries in the world, suffers high rates of housing insecurity and homelessness.20 Although rich countries experience grave problems in offering housing opportunities to their population, developing countries greatly suffer severe drawbacks. Developing countries in Africa, Asia and Latin America have experienced a massive threat of homelessness as a result of fast-growing populations.21 Moreover, the problem of housing and homelessness increases as a result of negative impacts of globalization.22 As the fourth most populous country in the world, Indonesia faces an enormous housing problem. By the end of 2015, the country’s total population was estimated at 251 million people23 and is predicted to reach 306 million people in 20 years.24 During the same time frame, 50.40% of the population, including 23% of the slum population, lived in urban areas.25 As urbanization continues, housing problem increases. Furthermore, Indonesia’s population is concentrated on Java Island, as it has better supporting infrastructure than other islands. Currently, Java is the most populous island in Indonesia, with an estimated 145 million inhabitants at the end of 2015,26 about 60% of the Indonesian population.27 As such, there is continuous pressure on the island to provide adequate housing, public transportation and a healthy environment for its inhabitants. These problems can also be found throughout other Indonesian territories. Data provided by the Indonesian Ministry of National Development Planning confirms that in 2014 the housing backlog was affecting

20

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24 25 26 27

K.R. Libal & S. Harding, Human Rights Based in Community Practiced in the United States, New York, Springer, 2015, pp. 40 and 51; see also the UN General Assembly, A/HRC/13/20/Add.4, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik on his Mission to the United States of America, 12 February 2010, para. 79, available online at . United Nations Human Settlements Programme, Housing for All: The Challenges of Affordability, Accessibility and Sustainability: The Experiences and Instruments from the Developing and Developed Worlds: A Synthesis Report, Nairobi-Kenya, 2008, p. 1. P. Kenna, ‘Globalization and Housing Rights’, Indiana Journal of Global Legal Studies, Vol. 15, No. 2, 2008, pp. 397-469, at p. 403; see also U.N. Economic. & Social Council [ECOSOC], Sub-Commission on Promotion and Protection of Human Rights, Preliminary Report: The Realization of Economic, Social and Cultural Rights: Globalization and Its Impact on the Full Enjoyment of Human Rights, UN Doc. E/CN.4/ Sub.2/2000/13, June, 2000, para. 44. The UN Habitat website, available at: , (accessed October 2015). Based on the 2010 national census, the National Statistics Bureau also predicted that the total Indonesian population had reached 255,417.00 million in 2015, see at . National Statistics Bureau, available at: . Id. National Statistics Bureau, Proyeksi Penduduk menurut Provinsi, 2010-2035, available at: . D. Widyoko, ‘Good Governance and Provision of Affordable Housing in DKI Jakarta-Indonesia: Case Study’, in M. Sohail (Ed.), Partnering to Combat Corruption Series, WEDC, Loughborough University, the United Kingdom, 2007, pp. 1-68.

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Erna Dyah Kusumawati approximately 13.5 million households.28 This housing backlog will continue to grow by 0.7-1 million households per annum.29 Furthermore, the proportion of households living in inadequate housing has increased over the past years, reaching 32 million families in 2013.30 Considering Indonesia’s immense housing problem and its ratification of various international human rights instruments that require it to respect, protect and fulfil housing rights, the country should, therefore, adopt measures to control and provide housing and housing access to poor communities. In order to do so, Indonesia should employ the human rights-based approach (HRBA) in designing laws and policies relating to the right to housing. This approach will help Indonesia in implementing the right to housing in its jurisdiction. This article examines various challenges faced in recognizing and implementing the right to adequate housing in the Indonesian legal system. It will analyse its legal basis under the Indonesian law. Further, it will also briefly discuss the Indonesian housing policies development and their problems and challenges. Moreover, it investigates whether the HRBA is employed in designing laws and policies. It will then conclude that a rights-based approach may help to improve the housing situation and problems in Indonesia. This article is divided into eight parts. Following this introduction, the methodological approach in writing the paper will be briefly discussed. In Section 6.3, the HRBA and its relation for the better implementation of human rights will be deliberated. Section 6.4 provides a general overview of the international obligations enshrined in the international human rights law on the right to housing, which is indeed crucial to analyse the fulfilment of the Indonesia’s international obligation. Moreover, Section 6.5 will discuss the meaning of affordable housing provided to examine as to whether Indonesia provides affordable housing for its inhabitants, particularly for the disadvantaged groups. Moving from the international obligations, Section 6.6 will examine the implementation of the right to housing at the national level. This section has three elements, that is, the legal basis of the aforementioned right under the Indonesian legal system, the development of the national housing policies and the challenges faced by the government. Furthermore, Section 6.7 will examine Indonesia’s compliance with its obligations concerning the right to adequate housing from HRBA. The last part will offer some concluding remarks.

28 29 30

Indonesian Ministry of National Development Planning (Bappenas), Indonesia: A Road Map for Housing Policy Reform, Jakarta, 2015, p. 7. Widyoko, supra note 27. N.T. Utomo, Affordable Housing Finance Policies on Indonesia, 28-29 May 2014, available at .

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6.2

The Recurring Dream of Affordable Housing in Indonesia: A Human Rights Perspective Methodology

The article draws on the normative legal research which primarily relies on the text of laws and regulations in a specific country, that is, Indonesia. This method is useful to analyse Indonesia’s compliance with its international obligations stemming from its ratification of several human rights treaties with regard to the right to adequate housing. This particularly relates to the obligation to incorporate housing provisions in the domestic legal and policy frameworks. States’ practices have showed efforts to fulfil their international obligations, yet the implementation of the right to housing is still far from the aims of the treaties. Therefore, it is crucial to look at the implementation by using principles contained in the HRBA that look beyond the normativity of the right in the legal system. Such principles include direct and intentional linkage to human rights; participation and consultation of those affected and beneficiaries (empowerment); non-discrimination; special attention to the needs of vulnerable and marginalized subgroups within the larger set of beneficiaries; and accountability.31 These principles will be employed to examine the current Indonesian housing laws and policies starting from the fulfilment of the international obligation stemming from the international treaties to the implementation of the right at the national level. A more detailed discussion on the HRBA and its relation to the implementation of human rights will be further elaborated in the following section.

6.3

The Human Rights-Based Approach: Concept and Development

The HRBA has been used in the context of development processes based on international human rights norms.32 It emphasizes both process and outcomes of development.33 It is a tool for analysing the improvement of people’s living conditions by focusing on people’s

31

32 33

Although the HRBA does not have a universal definition, some common principles can be recognized. From several literatures those principles are the most prevalent. See, for example, W. Vandenhole & P. Gready, ‘Failures and Success of Human Rights-Based Approaches to Development: Towards a Change Perspective’, Nordic Journal of Human Rights, Vol. 32, No. 4, 2014, pp. 291-311, at p. 294; UNICEF, Global Evaluation of the Application of the Human Rights Based Approach to UNICEF Programming, Final ReportVolume I, available at: ; see also R. Hearne & P. Kenna, ‘Using the Human Rights-Based Approach to Tackle Housing Deprivation in an Irish Urban Housing Estate’, Journal of Human Rights Practice, Vol. 6, No. 1, 2014 (March), pp. 1-25. UNICEF, supra note 31, p. 2. Vandenhole & Gready, supra note 31, p. 293. See also L. van der Ploeg & F. Vanclay, ‘A Human Rights Based Approach to Project Induced Displacement and Resettlement’, Impact Assessment and Project Appraisal, Vol. 35, No. 1, 2017, pp. 34-52, at p. 38; see also Hearne & Kenna, supra note 31.

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Erna Dyah Kusumawati living conditions, their needs, problems and potential.34 Such approach reveals inequality experienced by the community and addresses discrimination practices that hinder development.35 In addition, the HRBA can also be employed to recognize right holders–duty bearers as well as their entitlements and obligations, respectively.36 Utilizing the HRBA can be very advantageous, especially in ensuring that the principles and standards of human rights are incorporated into the policymaking process and the daily management of public institutions,37 thus, the HRBA leading to better results.38 As was pointed out in the methodology section, the HRBA contains several principles. The first three principles, namely (1) participation and consultation of those affected and beneficiaries (empowerment); (2) non-discrimination; and (3) special attention to the needs of vulnerable and marginalized subgroups, are needed due to the shift of the development as a charity-based or needs-based approach into a rights-based approach that emphasizes the realization of rights and empowerment.39 This shift ensures that citizens will play a role in development rather than simply be the object of development. An HRBA aims to empower people affected by newly adopted policies to know and claim their rights and to increase responsible individuals’ and institutions’ ability and accountability for respecting, protecting and fulfilling rights.40 Empowerment will provide people with opportunities to participate in influencing government decisions that affect human rights. This approach perceives that citizens serve as principal actors or subjects of development, rather than objects of it. By putting more consideration to the less fortunate groups, the approach aims to diminish the discrimination resulting from the development as is often experienced by these groups. The accountability principle relates to the obligation of states as the duty bearers of human rights. Under the human rights regime, states are accountable for their actions in fulfilling their obligations to citizens, as human rights holders. The HRBA can be employed

34 35 36

37 38

39 40

J.K. Boesen & T. Martin, Applying a Rights-Based Approach: An Inspirational Guide for Civil Society, The Danish Institute for Human Rights, 2007, p. 10, available at: . UNICEF, supra note 31, p. 2. UNICEF, Introduction to the Human Rights Approach: A Guide for Finnish NGOs and Their Partners, UNICEF Finland, 2015, pp. 8-10, available online at the Human Rights Based Approach Portal, introductionto-the-human-rights-based-approach-a-guide-for-finnish-ngos-and-their-partners; see also UNFPA websites at: . See (accessed October 2015). See UN Office of the High Commissioner for Human Rights (UN-OHCHR), Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation, HR/PUB/06/8, 2006, pp. 16-18, available online at: ; see also Vandenhole & Gready, supra note 31, p. 296. Urban Jonsson, Human Rights Approach to Development Programming, UNICEF, 2003, p. 21, available online at: . Available at: (accessed October 2015).

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to increase the ability of responsible parties to recognize and know how to respect human rights, to fulfil human rights and to ensure that parties can be held accountable. Accountability can be pursued through various mechanisms: local, national and international.41 In this regard, the HRBA has put ‘great responsibility to governments’, as the main responsible parties for human rights to take positive actions with regard to human rights.42 In relation to development, various parties, such as private parties, NGOs and multinational companies, may also be involved in the development process and this may affect the results as well; however, these parties are outside the scope of this article and will not be discussed further. Finally, the principle of the HRBA is the link to human rights as strong legal norms and standards.43 This means HRBA should be executed in the similar vein of the human rights norms, either at international, regional or the domestic level.44 This linkage of the human rights to housing is derived from standards and norms from both international human rights law and national law, or regional laws if applicable. The following section will discuss in a greater detail the norms and states’ obligations enshrined in the international laws on the right to adequate housing

6.4

The International Obligations on the Right to Adequate Housing

The right to adequate housing enshrined in international human rights treaties, particularly in the ICESCR, imposes a set of obligations that should be fulfilled by states. As a protected economic, social and cultural right, the right to housing requires states to respect, protect, fulfil and facilitate the right as a general onus to be achieved progressively in accordance with states’ maximum available resources.45

41

42 43 44 45

The international process can be employed by citizens only if their state agrees on and ratifies the international mechanisms provided by certain international instruments. In the case of the ICESCR, states must ratify the Second Optional Protocol on Individual Complaints as determined on 10 December 2008 through resolution A/RES/63/117, available at: . A recent example of the use of international accountability procedures involved a Spanish citizen (Ms. IDG) who claimed that Spain has not provided effective access to the court to protect Spanish citizens’ right to adequate housing. This case was under the Communication No. 2/2014 and decided by the CESCR on 17 June 2015. Ms. IDG succeeded in proving that ‘no adequate warning [had been] provided’ by the Court, particularly for the auction process, due to her failure to pay her mortgage. The Committee decided that inadequate notice for an auction could affect citizens’ right to adequate housing because such auctions can evict people from their homes and lead to homelessness. For further details on the decision and recommendations, see UN CESCR, E/C.12/55/D/2/2014, 13 October 2015, available at (accessed 19 October 2016). Vandenhole & Gready, supra note 31, p. 295. Vandenhole & Gready, supra note 31, p. 294. Id. Art. 2(1) of the ICESCR.

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The obligation to respect the right to housing means states are required to refrain from interfering with the enjoyment of economic, social and cultural rights;46 for example, states have to refrain from practices of arbitrary forced evictions and of interference or intrusion of family life. The obligation to protect requires states to prevent violations of housing rights by third parties;47 in other words, states have to protect its population from landlords’ or private developers’ activities which could interfere with the enjoyment of the right to housing. The obligation to fulfil entails that states are obliged to adopt appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of housing rights.48 The obligation to fulfil may be said as a positive obligation to which states have to take some actions in order to realize certain rights. Such actions can be in the form of adopting housing policies and strategies, providing housing subsidies for the poor or other vulnerable groups, to enable them to access housing. Although right to housing and other economic and social cultural rights are subjected to progressive realization, the parties to the ICESCR are obliged to adopt some immediate actions under the minimum core of obligations. The CESCR, in its General Comment No. 3 on the Nature of State Parties’ Obligations, states that in realizing human rights progressively, states are obliged to fulfil human rights ‘at the very least minimum essential levels of each of the rights’; this is known as the concept of minimum core obligations.49 Since progressive realization is meant to improve the enjoyment of human rights, regressive steps are prohibited when states reach the minimum core level.50 However, the Committee realized that the words ‘the available resources’ could possibly limit states’ ability to guarantee economic, social and cultural rights.51 Further, it affirms that Article 2(1) of the Covenant implicitly offers the possibility of adopting retrogressive measures, as long as states can justify these measures and show that all of the maximum available resources had been employed.52 The minimum core obligations aim to ensure the fulfilment of human rights at an essential level. These obligations serve as a ‘floor’ or basic level which should be fulfilled

46 47 48 49 50 51

52

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997, para. 6, available online at . Id. Id. CESCR, General Comment No. 3: The Nature of State Parties’ Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, E/1991/23, para. 10. Ibid. para. 9. Nolan et al., ‘Two Steps Forward, No Steps Back? Evolving Criteria on the Prohibition of Retrogression in Economic and Social Rights’, in Aoife Nolan (Ed.), Economic and Social Rights after the Global Financial Crisis, Cambridge, Cambridge University Press, 2013, pp. 121-145, at p. 124; See also General Comment No. 3, supra note 49, para. 1. CESCR, General Comment No. 3, supra note 49, para. 10.

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by member states regardless of resources limitation.53 Concerning the minimum core obligation of the right to housing, General Comment No. 4 also states the need to immediately adopt steps, especially in efforts promoting the right to housing, by abstaining from certain practices that can infringe the right to housing, such as evicting people from their houses, and by committing to provide ‘self-help’ to affected groups, such as by allocating a certain amount of funds from state budget to support programmes designed to develop settlements.54 The Committee also emphasizes that, if a state can no longer rely on its available resources, in accordance with Articles 11(1), 22 and 23 of the ICESCR, it may seek or request international cooperation. The urgency of paying attention to low-income groups’ access to housing is a central element of states’ obligation to fulfil the right to housing,55 as shown in some of the Committee’s concluding observations on states’ reports. On multiple occasions, the Committee has expressed its concern over discriminatory access to housing, especially for indigenous communities or minorities, and the shortage of housing and lack of remedies based on national law. In these cases, the CESCR has urged states to fulfil their obligation to increase housing subsidies,56 to adopt a system to finance low-income housing for low-income groups,57 to recognize the right to housing in national legislation,58 as well as to provide adequate remedies in case of discrimination.59 Based on states’ obligations, as enshrined in Article 2(2) of the ICESCR, the Committee has urged states to adopt comprehensive anti-discrimination laws which could prevent discrimination and enable the prosecution of perpetrators,60 particularly in situations where discrimination has a devastating effect on societies.61 Another core obligation in the right to housing learned from the landmark decision of the South African Constitutional Court in the Grootboom case in 200062 is the requirement to ensure the availability of emergency accommodations for those who are in desperate needs of housing.63 Thus, governments are obliged to ensure access to housing for popula53 54 55 56 57 58 59 60 61

62

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A. Chapman & S. Russel, ‘Introduction’, in A. Chapman & S. Russel (Eds.), Core Obligations: Developing a Framework for Economic, Social and Cultural Rights, Belgium, Intersentia, 2002, p. 14. CESCR, General Comment No. 4 supra note 8, para. 10. CESCR, General Comment No. 4 supra note 8, para. 11. CESCR, Concluding Observations, Colombia, E/2002/22 (2001) 110, paras. 770. Ibid., para. 791, see also CESCR, Concluding Observation, Algeria E/2002/22 (2001) 116, para 835. CESCR, Concluding Observations, Czech Republic, E/2003/22 (2002) 25 paras. 75, 92. CESCR, Concluding Observation, Poland E/2003/22 (2002) 54, paras. 377, 389. CESCR, Concluding Observation, Slovakia, E/2003/22, 2002, 50 paras. 314, 327. Deep-rooted discrimination is faced by Roma communities. Over centuries of residence in many European countries, they have faced discrimination in many fields, including access to health care, education, employment and access to housing. The Constitutional Court of the Republic of South Africa, Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169, Judgment on 4 October 2000. Id., paras. 63-69, 95.

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tions, especially ‘access to temporary relief’ for people who had no access to land and housing, who live in unbearable conditions and who live in crisis such as eviction, threats of demolition as well as disasters.64 Aside from the obligations mentioned above, establishing effective mechanisms to monitor the implementation process is also part of states’ immediate obligations, which should be realized either by states’ bodies or by independent bodies at the national, regional and international level. Thus, an effective monitoring system for all adopted strategies relating to the right to housing is crucial to the fulfilment of housing rights.65 Monitoring can be a powerful tool for oversight, ensuring that the policies and strategies adopted by states are well implemented and targeted at the right groups. To conclude, states have minimum core obligations with regard to right to housing, which are in line with the three types of obligations, that is, to respect, to protect and to fulfil. However, not every obligation is compatible with the progressive nature of the fulfilment of housing rights. Certain obligations should be adopted immediately; these include the following: a. Recognizing the right to housing in national legislation, including providing effective remedies, if discrimination on right to housing occurs; and concluding provisions for emergency accommodation in the time of emergency. b. Adopting national housing policies and strategies, such as conferring legal security of tenure, increasing housing subsidies, adopting a system of financing of low-income dwelling or providing public housing for the poorest. c. Enforcing the national legislation and monitoring the programmes or strategies which have been adopted. Following the description of the international obligation derived from the international treaties, the following section provides a further discussion on the meaning of affordable housing. The next section aims to provide guidance for the interpretation on the affordability of housing provided by the CESCR in its General Comment and several experts on housing issue. The section on affordability is relevant to this article as it will assist to examine the affordability issue in the Indonesian housing policy.

6.5

The Meaning of Affordable Housing

Affordability means the ability of a person to afford financial burdens relating to housing, both buying and renting houses. Housing affordability can be understood as a relationship

64 65

Id., paras. 95, 99 (2c). CESCR, General Comment No. 4 supra note 8, para. 13.

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between housing and people.66 It shapes decisions, as households must choose between housing-related and non-housing-related expenditures.67 Affordability can be very subjective and vary from one family to another. Indeed, housing affordability is a complex issue which is influenced by several factors such as employment and basic household needs, which may differ for each family. It is also influenced by the housing market, in which housing prices tend to rise every year, thus making it difficult for people without a sufficient salary to own or to rent a decent house. Housing affordability is prominent in the housing field as it influences people’s ability to access housing and enjoy their right to an adequate standard of living. The concept of affordability is more than the ability of a person to buy or rent a house. In the long term, it affects several issues, including economic, social, planning and environmental ones.68 Housing affordability refers to a government-provided standard which identifies a certain amount of household income that can be spent on housing expenses.69 General Comment No. 4 on the right to adequate housing, adopted by the CESCR, states that ‘a person’s ability to afford a house should be at such a level that it does not threaten the attainment and satisfaction of other needs’.70 The CESCR observes that states have a positive obligation to ensure the affordability of housing by providing housing subsidies for the poor.71 Moreover, states have to protect tenants from unreasonable rent levels or increases of rent through inappropriate means. It further affirms another obligation: to ensure the affordability of the natural materials used as building materials of cultural houses. In this case, states are obliged to intervene and deal with affordability problems by providing access to affordable housing. Contrary to ‘housing affordability’, affordable housing refers to housing for which the occupants pay no more than 30% of their salary for housing expenses72 or when the occupants are able to pay their housing expenses without threating the attainment of satisfaction

66 67 68 69

70 71 72

M.E. Stone, ‘What Is Housing Affordability? The Case for the Residual Income Approach’, Housing Policy Debate, Vol. 17, No. 1, 2006, pp. 151-184. Z. Yang & Y. Shen, ‘The Affordability of Owner-Occupied Housing in Beijing’, Journal of Housing and the Built Environment, Vol. 23, No. 4, 2008 (December), pp. 317-335. Gabriel et al., Conceptualising and Measuring the Housing Affordability Problem, Background Report, AHURI, Melbourne, 2006, available at: . C.M.E. Whitehead, ‘From Need to Affordability: An Analysis of UK Housing Objectives’, Urban Studies, Vol. 28, No. 6, 1991, pp. 871-887; Gabriel et al., ibid.; G. Branley & N.K. Kranley, ‘Affordability, Need, and the Intermediate Market: Responding to the Challenges in Pressured Regions’, in Boelhouwer et al. (Eds.), Home Ownership: Getting In, Getting From, Getting Out, the Netherlands, Delft University Press, 2005, pp. 96-97. CESCR, General Comment No. 4 supra note 8, para. 8(c). Ibid. A. Kalugina, ‘Affordable Housing Policies: an Overview’, Cornell Real Estate Review, Vol. 14, No. 1, 2016, pp. 76-83; see also J.F. Mc Donald, ‘Affordable Housing: An Economic Perspective’, Architecture Media Politics Society (AMPS), Vol. 7, No. 3, 2015 (May). Mc. Donald stated that affordable housing can be a social problem if many of low incomes cannot afford to buy or to rent housing.

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Erna Dyah Kusumawati of other expenses.73 The percentage is based on the Urban Indicators Program developed by the UN Habitat.74 Therefore, affordable housing refers to housing that is affordable for the low-income brackets. Based on the discussion in the previous paragraphs, affordable housing differs from housing affordability. The first refers to and is used interchangeably with terms such as low-cost housing, public housing or social housing, while the latter emphasizes on a standard imposed by the government.75 In this article, the term affordable housing will be used and it refers to public housing provided by the government such as rented housing or cheap houses built by private developers with subsidies or facilities provided by the government. The imperative role of government to tackle affordability issues in housing policy cannot be denied. This role has been seen as a challenging task for governments, for example, in controlling the housing rent costs, particularly in states such as Indonesia where individuals have the possibility of renting houses from other individuals (i.e. private markets). This obligation tends to be easier to implement in the field of public housing, whereby management is handled by an agency or the government. Controlling the (private) housing market is a complicated task since housing developers continuously raise housing prices, causing houses to become extremely expensive.76 To protect tenants from unreasonable rent fees and housing prices asked by private parties, governments should provide effective protective mechanisms in their legal systems. This type of obligation falls under the obligation to protect that has been discussed in Section 6.4. The discussion in the previous two sections on the international obligations and the meaning of affordable housing under the international human rights law is vital to examine the Indonesian current situation and the problem of housing and to assess whether Indonesia as a state party to the Covenant complies with its international obligations. The analysis of current situation related to the right to housing will be discussed in Section 6.6 which contains evaluations relating to (a) the recognition of the right to housing under

73 74

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CESCR, General Comment No. 4 supra note 8. UN Habitat, Urban Indicators Program (1996-2006), 2002, Nairobi, Kenya. Although indeed there is a debate around the limit whether affordability should not be exceeded to 30% or 40% of the income, certainly housing costs above 40% will trigger the so-called Housing Affordability Stress (HAS) which in the long term will threaten other expenses and housing will become unaffordable. See for the detail in E. Baker, K. Mason & R. Bentley, ‘Measuring Housing Affordability: A Longitudinal Approach’, Urban Policy and Research, Vol. 33, No. 3, 2015, pp. 275-290. Hohmann, supra note 4, pp. 5-6. Based on research conducted by Tien-Foo Sing et al., in Singapore the private housing market is entirely based on a laissez faire economic approach; as such, housing is more expensive; however, prices also varied as they also depended on house design and finishing. In this regard, the government cannot regulate or limit housing prices, as developers offer additional amenities. The more complex the amenities, the more expensive the houses. See T.F. Sing, I. Tsai, & M. Chen, ‘Price Dynamics in Public and Private Markets in Singapore’, Journal of Housing Economics, Vol. 15, No. 4, 2006, pp. 305-320.

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the domestic law, (b) the development of the housing policies, as well as (c) the challenges faced by the Indonesian Government to fulfil the right to adequate housing for the low incomes. Moreover, Section 6.7 is dedicated specifically to a discussion on the Indonesian compliance with its international obligation to provide affordable housing for its citizens and as to whether it has employed the HRBA in adopting laws and policies related to housing.

6.6

Right to Housing in Indonesia: Legal Basis, Policies and Challenges

6.6.1

The Recognition of the Right to Adequate Housing under the Indonesian Legal System

The recognition of human rights in Indonesia has only gained ground since the 1990s. Although the preamble of the 1945 Constitution recognizes the freedom of people and emphasizes the state’s obligation to promote general welfare and educate citizens, little attention had been given to implementing these ideas. Under the long reign of the so-called ‘New Order Era’ led by President Suharto (1965-1998) human rights were only recognized in a limited number of articles including the right to be equal before the law and government [Article 27(1)], the right to work [Article 27(2)] and the right to freely associate, assemble and express an opinion (Article 28). However, during the three decades of the New Order regime, human rights were only principles and were not really implemented due to strict government’s regulations curtailing human rights;77 and no institution had the power to hear claims that the government had breached the Constitution.78 Following the great economic crisis in 1996-1997 and the fall of the New Order at the end of the 1998, Indonesia has experienced a massive transformation from an authoritarian regime to a more democratic regime than the New Order regime. Indonesia had started to revive and to adopt new laws and regulations supporting the transformation. In the field of human rights, a relevant set of laws was adopted in 1999 and 2000. Moreover, the Constitution underwent amendments and was adjusted to the political changes. The most comprehensive human rights provisions were introduced in the second constitutional amendment which was passed in 2000. The Indonesian national legal system has recognized human rights related to housing in several regulations, including the Amended Indonesian Constitution of 1945 (hereinafter 77 78

T.M. Lubis, In Search of Human Rights: Legal-Political Dilemmas of Indonesia’s New Order, 1966-1990, Jakarta, Gramedia Pustaka Utama and SPES Foundation, 1993, pp. 84, 231, 252, 259. S. Butt & T. Lindsay, The Constitution of Indonesia; A Contextual Analysis, Constitutional Systems of the World Series, Oxford, the United Kingdom, Hart Publishing, 2012, chapters 1, 4 and 5.

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referred to as UUD 1945), Law No. 39 of 1999 on Human Rights, Law No. 1 of 2011 on Housing and Resettlement Area, Law No. 20 of 2011 on Tower Blocks, as well as through the ratification of international instruments and other organic laws adopted by the ministries in charge of public works, housing and social affairs. Article 28H(1) of the UUD 194579 stipulates that Indonesian citizens are entitled to live in physical and spiritual prosperity, to have a home, to enjoy a good and healthy environment and have the right to obtain medical care.80 This article does not state a right to housing per se, but nevertheless stipulates ‘hak untuk bertempat tinggal’, which translates literally into English as the right to a place to live. In this regard, the author prefers to use the terms the right to housing or right to home, which are broader in conceptual terms yet still within the meaning of ‘the right to a place to live’ as guaranteed legislatively. The right to housing should involve more than simple access to four walls and a roof. All persons have the right to live somewhere in peace and dignity.81 As such, housing should be adequate,82 in order to encourage the human dignity of the people who reside in it. According to Clapham, a house can be more than a shelter or a place to live, especially if it involves social emotions, relations and behaviour.83 Clapham’s definition of house is similar to the concept of home that will be discussed below. The concept of ‘home’ is broader than that of ‘house’. Home is a place to live, which establishes a sufficient and continuous link between the people and their home to maintain their identities and traditions regardless of the lawfulness of the occupation or ownership.84 It involves houses as buildings, as properties and the relation between houses and their inhabitants, as well as between inhabitants and their society.85 Also, a home offers privacy, which falls under civil rights. Home as a place to live thus encompasses three types of rights: economic, social and civil rights.

79

80 81

82 83 84

85

Secretariat General of the Constitutional Court of Republic of Indonesia, The 1945 Constitution of the Republic of Indonesia, Jakarta, 2003. The English version of the Constitution can be found online at . Art. 28H(1). This article was adopted in the Constitution during the second amendment, in 2002. CESCR, General Comment No. 4 supra note 8, para. 7. See also Report of the Special Rapporteur on the Right to Adequate Housing to the 57th Commission on Human Rights, E/CN.4/2001/51, 25 January 2001, para. 8. CESCR, General Comment No. 4 supra note 8, para. 7. D. Clapham, The Meaning of Housing: A Pathways Approach, Bristol, The Policy Press, University of Bristol, 2005, Chapter One, pp. 7-35. Winstertein and Others v. France, European Court of Justice, application No. 27013/07, Judgment of October 17, 2013, paras. 69, 70. See also the previous judgments of the Court in Buckeley v. The United Kingdom, 1996, paras. 52-54, Prokopovitch v. Rusia, 2004, para. 36, also in Yordanova and others v. Bulgaria, 2012, para. 103. L. Fox, Conceptualizing Home: Theories, Laws and Policies, Oxford, Hart Publishing 2007, pp. 145-146; see also L. Fox, ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’, Journal of Law and Society, Vol. 29, No. 4, 2002, pp. 580-610.

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The definition of the concepts of house and home is relevant to the Indonesian context of the right to housing guaranteed in the Constitution. The preparatory works of the Parliament with regard to the Amendment does not mention the meaning of the ‘place to live’.86 Therefore, in order to understand the meaning of the ‘place to live’ either as house or home, one can interpret the article by looking at another article corresponding to the Article 28(H) para. 1. In relation to the right to housing, the Constitution also guarantees the right to the protection of family and property in Article 28G(1). These two articles show that the right to housing enshrined in the Indonesian Constitution does not merely protect housing as buildings as a place to live, but also housing as a home to live, with or without a family and as a home to establish a relation between people and the surrounding communities as well as the environment. This link shows the importance of right to housing for inhabitants and how the right to housing influences their lives. Therefore, this important meaning of a house for individuals or family should be carefully considered in establishing housing policies.87 In addition to the Constitution, Law No. 39 of 1999 on Human Rights88 also protects the right to housing. Article 40 of the Law recognizes the right to a place to live and the right to a decent life. The right to property and protection of the family are also recognized. Furthermore, Indonesia is party to several international human rights instruments recognizing the right to adequate housing, including the ICESCR.89 The right to adequate housing is acknowledged in this Covenant as part of the right to an adequate standard of living, which also includes adequate food, clothing and housing [Article 11(2)]. By the ratification of the ICESCR, Indonesia is obliged to adopt measures, including financial or legislative ones, within its territories to realize the right to housing. The commitment to realizing the right to adequate housing and to addressing discrimination in housing access has also been enshrined in the National Long-Term Development Plan for 2005-2025 (RPJPN)90 and the National Medium-Term Development Plan for 86

87 88

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Sekretariat Jenderal dan Kepaniteraan Mahkamah Konstitusi Republik Indonesia (MKRI) (The Constitutional Court of the Republic of Indonesia), Naskah Komprehensif Perubahan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945: Latar Belakang, Proses dan Hasil Pembahasan 1999-2002, Buku VII Warga Negara dan Penduduk dan Hak Asasi Manusia, Edisi Revisi, MKRI, Jakarta, 2010, Chapter IV, pp. 213-364. Fox, 2007 supra note 85, pp. 116-118. Indonesia, Undang-Undang tentang Hak Asasi Manusia (Law on Human Rights), UU No. 39 Tahun 1999, LN No. 165 Tahun 1999, TLN No. 3886 (Law No. 39 of 1999 SG No. 165 of 1999). The English (unauthorized translation) version can be found online at: . In addition to the ICESCR, Indonesia is also party to several international human rights instruments which recognize the right to housing, that is, the CEDAW, the CRC, the CERD, the CAT, the ICMW, and the CRPD. However, unlike the ICESCR, which applies to all individuals and groups, these instruments target specific groups such as women, minority groups, children, migrant workers and persons with disabilities; they will thus not be discussed in this paper. The Rencana Pembangunan Jangka Panjang Nasional 2005-2025 (Long-Term National Development Plan 2005-2025) is enshrined in Act No. 17 of 2007. It affirms that there is a need to develop housing due to rapid population increase and holds that, in 2020, housing needs will exceed 30 million units, to house

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Erna Dyah Kusumawati 2010-2014 (RPJMN).91 The government has emphasized its commitment mainly to tackle issues of housing access for the low-income households. In 2011, the government enacted two regulations related to housing: Law No. 1 of 2011 on Housing and Resettlement Area92 and Law No. 20 of 2011 on Tower Blocks.93 These two laws affirm that the state bears the responsibility of adopting measures to protect its citizens, especially in the implementation and coordination of housing and settlements programmes to facilitate all persons in its territory in living in adequate and affordable accommodation and healthy, secure, harmonious and sustainable settlements.94 The Law on Tower Blocks emphasizes the state’s responsibility to fulfil the need for affordable housing for people with low incomes.95 Before these new laws were adopted, a few documents to facilitate access to affordable and healthy housing were enacted by the ministry responsible for public housing,96 including Decision No. 54/PRT/1991 on the Guidelines for the Development of LowIncome Housing and Decision No. 403/KPTS/M/2002 on the Regulation of Healthy LowIncome Housing. The ministry also enacted a strategic housing plan every 5 years. After the passing of the Housing Law in 2011, the national government has adopted several regulations to implement this law. The current ministerial regulation, adopted in September 2015, is Decision No. 42/PRT/M/2015 on Down Payment Aid for Low-income Households to Increase the Accessibility of Subsidized Housing. This regulation is aimed to augment the number of poor people with access to a home. Superficially, it targets the issues of housing affordability and accessibility, promoting better access to subsidized housing, particularly for the poor; however, as this regulation was only passed recently, its effectiveness in guaranteeing housing access cannot yet be appraised. By adopting these rules, the government has shown its intention to provide assistance for marginalized citizens.

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92 93 94 95 96

people without decent housing (see D. Sarana dan Prasarana, para. 5). Further, it identifies some challenges which could be tackled, for example, fulfilling citizen housing needs and eliminating slums in urban area – through, for example, tax reforms and requesting private developers to be involved in housing provision. The Rencana Pembangunan Jangka Menengah (RPJM, Medium-Term National Development Plan) is also enshrined in Act No. 17 of 2007; in 2015, Indonesia began the third RPJM, to stay in effect until 2019. The focus of this RPJM is to increase the level of citizen welfare and increase the availability of infrastructure, which will support the ‘cities without slums’ programme. See details in Act No. 17 of 2007, IV.2.3 RPJM ke-3 (2015-2019), pp. 66-67. Indonesia, Undang-Undang tentang Perumahan dan Pemukiman (Law on Housing and Resettlement Area), UU No. 1 Tahun 2011, LN No. 7 Tahun 2011, TLN No. 5188 (Law No. 1 of 2011, SG No. 7 of 2011). Indonesia, Undang-Undang tentang Rumah Susun (Law on Tower Blocks), UU No. 20 Tahun 2011, LN No. 108 Tahun 2011, TLN No. 5252 (Law No 20. of 2011, SG No. 108 of 2011). Indonesia, supra note 92, Consideration part (b) and supra note 93, Consideration part (b). Indonesia, supra note 93, Consideration part (d). The name of the ministry has changed several times, depending on the president’s cabinet selection. However, for several cabinet periods, the public housing sector has been under the coordination of the Ministry of Public Works.

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Without doubt, the Indonesian Government has recognized and guaranteed the right to housing in its domestic legislation. However, the effectiveness of these regulations has yet to be assessed, especially in light of the various violations of the right to housing that can be identified. The fact that a large number of people still live under bridges, on river banks and in slum areas indicates that the government should adopt a further effort to deal with this problem. The state’s obligations are not limited to enacting regulations, but also involve embracing measures to fully implement and supervise the implementation of the right to housing.

6.6.2

The Development of Housing Policy in Indonesia

Similar to other developing countries, Indonesia has a long-standing problem with affordable housing. This problem can be even worse if combined with a lack of land targeted for human settlement. The housing policies and problems in Indonesia will be discussed in the paragraphs below. If the landscapes of some metropolitan cities in Indonesia are captured by satellites, the view will show irregular shapes, in both size and texture.97 This situation is quite unlike that in developed states such as the Netherlands, where the view will show very regular shapes. This condition is caused by improper planning and the absence of regulations to control and organize human settlements.98 Moreover, urbanization is considered one of the reasons for this problematic situation. People migrate to large cities in search of better lives. Most of the time they fail to achieve this, and at the same time they cannot return to their places of origin. As a result, countless informal or illegal settlements are built in urban areas. Settlements in Indonesia can be categorized into two types, formal and informal.99 The main difference between these categories is the party which built the housing, for example, developer, government or individuals. Each of these types of housing can be divided into two subtypes. Formal settlements include organized and individual settlements, while informal settlements include legal and illegal settlements. These types will be presented in Figure 6.1.

97 98 99

Kuswartojo et al., Perumahan dan Pemukiman di Indonesia: Upaya Membuat Perkembangan Kehidupan yang Berkelanjutan, Bandung, ITB University Press, 2005, p. 105. Kuswartojo et al., supra note 97, p. 105. Kuswartojo et al., supra note 97, p. 108. See also Widyoko, 2007, supra note 27, p. 7.

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Erna Dyah Kusumawati Figure 6.1 The settlement types in Indonesia100

Settlements in Indonesia Formal

Organized

Informal

Individual

Legal

Illegal

The formal-organized settlements are usually established by the government or by developers appointed by the government. The development of these settlements follows city planning policies and the rules adopted by the government. Families or individuals can also build their houses on their own land; this policy produces formal-individual settlements. Similar to the first subtype, such settlements respect and obey city planning rules as well as the infrastructure provided by the government (usually the local government where the settlement is developed). Another type of settlement is informal-legal, meaning that individuals build their houses on their legally owned land, but do not follow construction and planning regulations. Thus, this type of settlement is generally not equipped with infrastructure or governmentprovided public services. The last subtype of settlement is informal-illegal, which is usually built on state-owned land such as river banks, unused railway tracks or under the bridges of highways. As these settlements are not in compliance with construction rules, they lack access to public services, sanitation and safe drinking water and are also vulnerable to forced eviction. The illegal and informal settlements have become a prominent problem in Indonesia; their size grows bigger and wider, particularly in big cities. For example, in 2009 Jakarta held 20% of shanty towns, while only 425 km2 is allocated for settlements.101 The informal settlers live in these settlements because of the difficulty in accessing affordable housing 100 Kuswartojo et al., supra note 97, p. 108. 101 This data is provided in the news uploaded in the Ministry of Internal Affairs, available online at ; however, the accurate number of the shanty towns cannot be retrieved as it is stated by the Ministry of Public Works and Housing Affair in its publication on ‘Penanganan Kawasan Permukiman Kumuh’, p. 9, 2015, available online at: .

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in big cities while they are in need of housing in the cities to gain a living. Therefore, they have no other choice than living in such places which is often being accused as a cause of flood.102 In this regard, the national government with collaboration with the local governments is obliged by the national legislation to adopt housing policies that provide access to affordable housing for its inhabitants. The Indonesian Government began to develop a comprehensive national housing policy in the 1970s.103 This policy was directed at organizing the development of settlements; one of the approaches adopted was institutionalization, which included urging private parties to develop housing. In 1974, the government established the National Housing Public Company, a legal entity/state housing enterprise known in Indonesian as Perum Perumnas (Perusahaan Umum Perumahan Nasional), as well as a bank, ‘Bank Tabungan Negara’ (BTN, State Savings Bank), which served to facilitate housing development. Perum Perumnas is mandated with fostering the development of low-income housing, including the infrastructure needed for such enhancements. With branches located in almost every region of Indonesia, by 2002 it had succeeded in building 431,233 houses.104 These numbers, however, have evidently not been sufficient due to Indonesia’s large population. However, houses were not only built by Perum Perumnas; some private developers have also been involved in providing housing. However, the prices of houses built by private developers increase annually, following the high demand and lack of available land. Previous regulations concerning Housing and Settlements, Law No. 4 of 1992 and Decree of 23 June 1992 on Balancing Housing Development between the Settlement Concept of 1:3:6 and the Principle of Cross-Subsidies (Pembangunan perumahan berimbang dengan konsep hunian berimbang 1:3:6 dengan prinsip subsidi silang) required developers

102 R. van Voorst & J. Hellman, ‘One Risk Replaces Another: Floods, Evictions and Policies on Jakarta’s Riverbanks’, Asian Journal of Social Science, Vol. 43, 2015, pp. 786-810, at pp. 794-796. 103 Although the housing policy in Indonesia can be traced to the country’s Old Order Regime or the President Soekarno regime, the target of the country’s housing policy is different. The Old Order targeted rapid growth of urban areas due to the population explosion and massive migration. The New Order continued the policies enacted by the old regime; however, the enormous flow of migration combined with the limited availability of public housing led to informal settlements mushrooming in urban areas. The housing policy in this era was targeted at improving housing and environmental conditions in urban living (known as kampung). This policy was implemented through the National Five-Year Strategic Planning Programme. Later on, the programme improved not only the physical elements of urban settlements, but also their inhabitants’ social and economic development. The decentralization period also helped improve housing matters. Previously, housing was only the responsibility of the central government; after decentralization, housing affairs were delegated to local governments. Detailed information regarding the development of housing policy in Indonesia can be found in D. Tunas & L.T. Darmoyono, ‘Self-Help Housing in Indonesia’, in Bredenoord, van Lindert & Smets (Eds.), Affordable Housing in the Urban Global South: Seeking Sustainable Solutions, London, Routledge Taylor and Francis Group, 2014, pp. 166-180. 104 Kuswartojo et al., supra note 97, p. 110.

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Erna Dyah Kusumawati to build houses following a specific formula, that is, 1:3:6.105 This meant that, for every one luxury settlement built, developers also had to build three modest houses and six simple or very simple houses (RS: Rumah sederhana, RSS: rumah sangat sederhana) for people in low-income brackets. With the new law on Housing and Resettlements Area, the government has changed this concept to use a 1:2:3 formula, meaning that for every luxury settlement built, developers are obliged to build two modest houses and three simple or very simple houses.106 These houses can be built on different plots of land, but should be developed in the same municipality. In 2007, the government launched the National Programme for 1,000 Block Towers to increase housing in metropolitan cities, taking the form of low-cost rental walk-up flats (Rusunawa) and high-rise, owned low-cost apartments (Rusunami).107 For developers willing to build such housing, the central government provided facilities, including tax incentives, ease of permits, and infrastructure to reduce development costs; these facilities thus reduced the rental cost or market price of the flats. Local governments provided the land for the construction of these flats. These 1,000 block towers were expected to be built throughout Indonesia.108 However, some private developers took advantage of the facilities and subsidies provided by the state to build apartments for middle- and high-income groups. Ultimately, only a few apartments for poor households were built; the rest were luxurious apartments.109 This programme was not successful in targeting the poor, and missed its target as the block towers were not built for the lowest income groups. Although the government tried to focus on providing housing, it did not control demand; therefore, the upper-middle class occupied these types of apartments rather than the low-income groups.110 The programme ceased in 2010 due to a lack of budget; however, the government did not stop its efforts to house the poor.

105 This decree was passed by three ministries: the Ministry of Internal Affairs, the Ministry of Public Works and the Ministry of Public Housing, respectively. 106 Indonesia, Peraturan Menteri Perumahan Rakyat tentang Penyelenggaraan Perumahan dan Kawasan Permukiman dengan Hunian Berimbang, No. 10 Tahun 2012 (Regulation of the Ministry of Public Housing No. 10 of 2012 on Balanced Settlement), see also Indonesia, Peraturan Menteri Perumahan Rakyat tentang Perubahan Peraturan Menteri Perumahan Rakyat No. 10 Tahun 2012 tentang Penyelenggaraan Perumahan dan Kawasan Permukiman dengan Hunian Berimbang, No. 7 Tahun 2013 (Regulation of the Ministry of Public Housing No. 7 of 2013 on the Revision of Regulation of the Ministry of Public Housing No. 10 on 2012 on Balanced Settlement). 107 A. Kusno, Politik Ekonomi Perumahan Rakyat Utopia Jakarta, Yogyakarta, Indonesia, Ombak, 2012, pp. xx-xxi. 108 The Permanent Mission of the Republic of Indonesia to the United Nations, 2012, Indonesian reply to the Special Rapporteur’s questionnaire on housing finance, 2012, p. 5, available at: . 109 A. Kusno, ‘Housing the Margin: Perumahan Rakyat and the Future Urban Form of Jakarta’, Indonesia, No. 94 October 2012, pp. 23-56, at 47-48. 110 Id., p. 48.

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The central government has tended to emphasize that local governments hold the primary responsibility for providing housing. However, in a few smaller cities such as Bogor, the demand for such housing has been low due to their locations, which are far from economic centres. As such, there has been a problem with a lack of infrastructure to connect subsidized housing to public transportation access points. For example, at the end of 2010, Jakarta had 5,600 rental units available, but 3,000 units were empty, despite their low costs – between 120,000 to 350,000 rupiah ($12 to 35) per month.111 Although such rental prices are not high, living in block towers changes residents’ way of life and creates greater financial burdens for them. For example, residents must spend more money on transportation as their workplaces are far from the block towers. Moreover, additional spending on clean water can be a barrier for rental. Another problem is the bureaucracy involved in accessing such accommodation. Prospective tenants must meet the following requirements112: be a victim of eviction, either as an illegal squatter or development-based eviction, or be a victim of disaster. Prospective tenants not fulfilling these requirements can still apply if they have low wages. Furthermore, all inhabitants wishing to live in these facilities must provide identification that shows that they legally reside in a particular city.113 Most of the people affected by eviction are immigrants from other cities; as the majority of the immigrants do not possess the requisite identification, they cannot access the Rusunawa. In cases of eviction, inhabitants without an identity card are left without any solutions except for returning to their hometowns, which is unlikely, or staying in the city without any alternative accommodation. As a result, they tend to seek other locations to build informal houses. The government also provides facilities such as subsidies and an easier land use development permit process for developers who commit to building houses for low-income groups.114 These developers can then market the houses at a lower price. However, this policy only worked temporarily, because the land provided for low-incomes housing was usually far from public services and lacked access to transportation, public health facilities, schools and so on. Low-income housing has thus been unpopular, and many flats go unsold or unrented. For customers or inhabitants, the government also provided some funds to assist lowincome groups in accessing housing through mortgages, including down payment subsidies

111 Id. 112 See, for example, Indonesia, Peraturan Daerah Provinsi Daerah Khusus Ibukota Jakarta tentang Mekanisme Penghunian Rumah Susun Sederhana Sewa, No.111 Tahun 2014 (Regulation of the Governor of the Jakarta Capital Region on the Settlement Mechanism of Rented Storey Housing, No. 111/2014), Arts. 2 and 3. 113 Id., Art. 4. Similar provisions can also be found in other cities’ regulations, such as Yogyakarta and Surakarta, both of which limit their Rusunawa to their own residents. 114 For example, in 2005, the government provided around IDR 600 billion to build 225,000 simple houses, bisnisindonesia.com, March 2005.

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6.6.3

Challenges of the Current Housing Policies

Triggering by the increasing housing backlog, in 2015, the government adopted the ‘construction of one million houses’ (Pembangunan Satu Juta Rumah) programme. Under this programme, the government was supposed to provide assistance to low-income groups with housing access and to invigorate housing regulations. The responsibility for housing policy in Indonesia is not only held by the central government, but also by the local governments, both provincial and regency, due to the decentralization policy.117 Law No. 1 of 2011 on Housing and Settlements stresses that the responsibility for providing housing and addressing the housing backlog is the joint responsibility of all involved parties.118 The new national policy will facilitate the housing needs of people with low and middle incomes. Around 600,000 houses will be financed from the national budget through a

115 The FLPP was adopted in 2005 and will remain in effect until the housing backlog can be reduced. The central government, which possesses the necessary financial capital, will establish cooperation with banks and developers. These latter parties will decide to whom this assistance will be given. In addition to the FLPP, the government provides housing assistance by helping subsidize mortgage interest. Flat interest rates, within mortgage terms and down payment assistance are expected to attract residents to buy houses on the private market. 116 One requirement to receive a mortgage is that would-be mortgagers have a written statement from their employers stating the salary received every month. This letter functions to guarantee that the mortgagers will be able to pay the monthly payments. Since 75% of low-income groups work in the informal sector and do not have fixed salaries, this requirement creates a barrier and limits their access to mortgages. 117 Act No 23 of 2014 on Local Government outlines the distribution of affairs between the central and local governments (see Arts. 10, 11 and 12). The central government handles fiscal and monetary affairs, international affairs, justice, religious affairs and national economic planning and administration (i.e. absolute affairs). The act also identifies some so-called ‘concurrent affair’, meaning that some affairs delegated to local governments [provincial, regency (Kabupaten) and municipality (Kota)] are authorized to implement both programmes related to basic public services and programmes not directly related to basic public services. Housing affairs is an obligatory affair (basic public service) which should be handled by local governments. 118 See Law No. 1 of 2011, supra note 93, Arts. 5 and 131.

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scheme called KPR FLPP (Kredit Pemilikan Rumah Fasilitas Likuiditas Pembiayaan Perumahan), also known as subsidized housing credit.119 This programme will not only develop new houses with ownership rights, but also provide rental tower blocks; thus, households that do not have houses or cannot afford to buy a house can temporarily live in rental houses provided by the government. To address the backlog of 15 million houses, Indonesia will still require 15 years at a rate of 1 million houses per year. In these 15 years, housing needs will also increase. However, these government efforts should be appreciated. This policy is a concrete action undertaken to realize the government’s obligation to provide housing access to its citizens. Although this programme only began in 2015, several obstacles have been identified of which financial matters and land availability are dominant. The budget needed for this programme is around 120 billion120 rupiah per year. This number is stemming from a prediction of the price of an average house with a size of 36 m2 being 120 million; presently, the government has only allocated a potential 86.5 billion rupiah in financing.121 These funds are from the national budget, from foreign loans and from state-controlled enterprises (such as the BTN). If the cost of houses reaches 120 million rupiah, these houses will be unaffordable for persons with low incomes. Although the government provides down payment assistance, as guaranteed under Decision No. 42/PRT/M/2015 on Down Payment Aid for Low-Income Households to Increase the Accessibility to Subsidized Housing,122 the remainder of the price is the tenants’ responsibility. The total state budget received by the ministry to support the low-cost housing programme in the third medium-term development plan (for 2015-2019) is 33.09 billion rupiah, while for 2015, only 7.7 billion rupiah is available.123 This money will not be directed only at the development of low-cost housing, but also for housing improvements. Compared to the budget required for the One Million Houses Programme launched by the president, a total of 120 billion rupiah per annum, the budget for the low-cost housing programme is still far from a reality. Although the budget has been raised in the last 4 years by around 427%,124 the government must still seek other financial resources to realize its initiative.

119 120 121 122

Tim Kiprah, ‘Sejuta Rumah untuk Rakyat’, Majalah Kiprah, Vol. 67, Year XV, April-May 2015, pp. 12-15. The word ‘billion’ used in this article refers to 1012. Tim Kiprah, supra note 119. Regulation No. 42/PRT/M/2015 on Down Payment Aid for Low Income Households to Increase Subsidized Housing Accessibility. 123 H. Febrianto, ‘Anggaran Pembangunan Rumah Rakyat Miskin Rp33 Triliun’, Koran Sindo, 16 April 2015, available at: . 124 The Ministry of Finance, available at (accessed September 2015).

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Besides financing of housing development, a second major problem is the lack of available land for settlements. The scarcity of land is a classical problem in housing provision. The central government should collaborate with local governments to obtain the land needed for settlements. Under Law No. 5 of 1960 on Basic Principles of Agrarian Law, land in Indonesia is categorized as state-owned land, ‘adat’125 land and individualowned land.126 Although the Agrarian Law stipulates that land in Indonesia has a social function and practical value, rather than a commodity or product to be sold on the market to make a profit, the reality of the matter is that much land is possessed by prominent developers or private companies; only a small amount is owned by the central government or local governments. These companies purchase land from individuals, then apply to the National Land Office ‘Badan Pertanahan Nasional-BPN’ to convert the land zoning from agricultural to residential or other purposes, such as hotels, luxury apartments or shopping malls.127 As a result, the price of houses built in or near these types of facilities is rocketing, and inaccessible and unaffordable for the middle- and low-income groups. Although the government has passed regulations obligating developers to build houses in a certain pattern, the monitoring of these regulations’ implementation is still far from a reality. Land owned by municipalities is limited, particularly in regions with existing palaces (sultanates, etc.). These palaces, due to their sovereignty and property rights gained far before Indonesia’s independence, possess a great deal of land in certain municipalities.128 This situation has caused greater difficulty for the government’s provision of land for public services, such as schools, health-care facilities, or public housing. When large areas of land have been acquired by private parties, political will from the government is necessary to retain said lands for the public interest.129

125 The term adat has been used extensively in foreign literature on the sociology and origins of Indonesian society. It refers to a society or group sharing specific norms and value, which characterize them and differentiate them from other societies. Such societies have lived on a specific area of land for generations. 126 Law No. 5 of 1960 on Basic Principles of Agrarian Law. 127 T. Firman, ‘Major Issues in Indonesia’s Urban Land Development’, Land Use Policy, Vol. 21, No. 4, October 2004, pp. 347-355. 128 This situation occurs in the Special Administrative Region of Yogyakarta, which has two palaces, that is, Kasultanan and Pakualaman. If the government has a programme to promote public interests, such as housing, highways or airports, the municipal or provincial government should request a licence from the palaces to use the land. Worst, most of this land has been occupied by the residents with an agreement between the occupiers and the palaces. This complicates the process of land conversion and in some cases could lead to evictions. Similar conditions exist in the city of Surakarta, which also has two palaces (Kasunanan Surakarta and Keraton Mangkunegaran). 129 Land acquisition for public infrastructure development is regulated under Act No. 2 of 2012, which states that land acquisition should be conducted through direct deliberation and voluntary-based consensus between the government and other parties. Public interest, in this regard, includes the development of roads, hospitals, schools, primary health care and so on. The process involves land-owners and their heirs as well as the local legislative councils (DPRD) at the provincial, district and/or municipal level. Owners receive compensation in the form of money, substituted land, resettlement and/or another form agreed by the parties.

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Vacant land, particularly in urban areas, is rare and unaffordable. The government must manage and plan locations for public housing. Thus, careful spatial planning is crucial. Similar to other developing countries, Indonesia has a severe lack of databases and information on land affairs for planning, decision-making, and public services.130 Learning from this weakness, the government, both central and local, should preserve the availability of land to implement its housing policies thoroughly. The next section investigates the Indonesian compliance with the international obligations through the HRBA by utilizing principles in the HRBA.

6.7

The Indonesian Compliance with the Duty to Provide Affordable Housing: A Human Rights-Based Approach Perspective

As explained, it is clear that the right to housing is vital for everyone. The obligations related to it are enshrined in international treaties, particularly the ICESCR, and bind states parties to such treaties. States parties are obliged to adopt laws and national policies on housing and to implement them without discrimination based on any ground, as well as to provide mechanisms and to remedy any violation or infringement. This list of obligations will be employed to examine the Indonesian compliance in providing housing for its people. Furthermore, the principles founded in the HRBA as discussed in part III, that is, direct link to human rights norms; participation and empowerment; non-discrimination; special attention to the needs of vulnerable and marginalized groups; and accountability, will be used to analyse the current Indonesian housing laws and policies. So far this study has found that the Indonesian Government has shown its intention to protect and fulfil its international obligations with regard to the right to adequate housing (see Sections 6.4 and 6.6). In general, Indonesia has adopted housing rights in its national laws such as the recognition of the right to housing both in its Constitution and the Human Rights Law. The government also affirms that providing housing for the poor is one of its obligations to fully implement the right to housing as one of the basic needs. The responsibilities are shared between the national and local governments. For example, the central and local governments have tried to increase the supply of low-cost housing and have recently begun providing poor groups with housing assistance. The fact that most big cities face housing problems whereby people are living in informal settlements with inadequate housing condition shows that the government needs to change or to modify its current policies. One of the means to adjust the policy is using the HRBA. Several questions relating to the Indonesian housing policies are relevant to be analysed from this perspective. These questions include: Were the adopted laws and

130 Firman, supra note 127, p. 353.

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policies grounded on the HRBA? Were the principles of accountability, participation, empowerment, non-discrimination and equality indeed implemented? As discussed in the methodology, such approach can be very advantageous, especially in ensuring that the principles and standards of human rights are incorporated into the policymaking process and the daily management of public institutions.131 The next paragraphs will examine whether the elements of the HRBA exist in the Indonesian housing policies. Before the emergence of the HRBA, the so-called ‘needs-based approach’ was most widely used. This approach is limited in scope and has a short-term nature.132 Governments applying development based on the needs will implement top-down policies without knowing or realizing the individuals’ needs; thus, numerous development projects were not successful. Hence, to avoid such policy, the participation of wider society is crucial to ensure that the development processes and outcomes will duly fulfil the people’s rights. The Government of Indonesia has already involved communities in the development planning processes, particularly through the emerging good governance principle. Such participation has begun in the smallest local government divisions, the village (Desa or Kelurahan), through the MUSRENBANGDES (Musyawarah Rencana Pembangunan Desa and literally translated into the Discussion on Village Development Planning Programme). This programme takes the form of a meeting, attended by all representatives of society, in which they convey their problems with and demands for the next 5-year of development in the Desa. Such a programme also exists at other levels of governance such as districts, municipalities, provinces as well as at the national level. However, societal participation has not been effective,133 particularly in housing and can be considered inadequate, particularly among low-income groups.134 Although the participation of privileged groups is also essential to adopt comprehensive housing policies, the involvement of low-income groups is crucial, particularly when the main purpose of housing development is to facilitate these groups’ access to affordable housing. To increase societal involvement, empowerment, in the form of education, is imperative. All levels of government and civil society can be involved in edifying low-income groups and enlightening them about their vital role in development planning. Participation does not stop there; societal participation is also needed in the monitoring of the programme’s imple-

131 Available at: (accessed October 2015). 132 KOMNAS HAM, Pembangunan Berbasis Hak Asasi Manusia: Sebuah Panduan, Jakarta, 2013, pp. 15-17. 133 Z. Hirawan, ‘Efektivitas Musrenbang dalam Penyusunan APBD Kabupaten Subang’, Jurnal Administrasi Publik, FISIP UNTIRTA Indonesia, Vol. 5 No. 2, 2014, available online at: . 134 Keputusan Menteri Permukiman Dan Prasarana Wilayah Selaku Ketua Badan Kebijaksanaan Dan Pengendalian Pembangunan Perumahan dan Permukiman Nasional (BKP4N) Nomor: 217/KPTS/M/2002 Tentang Kebijakan dan Strategi Nasional Perumahan dan Permukiman (KSNPP).

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mentation.135 Participation will also ensure the accountability of the government or other parties involved in the policies’ execution.136 Another essential element of good governance in the HRBA is accountability. Housing officials should be held accountable for all the policies and means of implementation they have adopted, particularly if they violate human rights. The element of accountability can be noticed at each level of government, both from inside and outside the institutions. In Indonesia, based on Government Regulation No. 50 of 2010, an official, as a public servant, is internally responsible to higher ranking officials. For example, an official who receives a gift related to his/her work may undergo a form of punishment ranging from light, moderate to severe. Light punishment may be in the form of a warning, be it oral or written, while a serious offense can lead a civil servant to be impeached. To decide the form of disciplinary action taken, certain procedures must be conducted and evaluated by the principal where the public servant works or by officials appointed for such tasks. In addition to the internal accountability mechanism, a few external accountability mechanisms have been established to ensure legal supremacy, in particular judicial and quasi-judicial mechanisms. Legal mechanisms can be pursued through national courts, while quasi-judicial procedures involve the ombudsman and KOMNAS Ham. However, the effectiveness of these mechanisms in the context of the right to housing needs to be assessed, and is still under examination as a part of the writer’s research. Especially in the case of discrimination in access to housing, the government must show responsibility by eliminating provisions or programmes leading to discrimination and ensuring that people involved in the execution of housing policies can be held accountable for their acts through the legal system. Furthermore, when private parties infringe on human rights, the state ought to hold them to account through mechanisms available in the legal system. Generally the human rights law only recognizes states to be the main duty bearer and thus primarily responsible for any human rights violation within their jurisdiction; nevertheless this is not the case in Indonesia. The Indonesian Human Rights laws of 1999137 and 2000138 recognize that human rights violations can be committed by ‘individuals or groups including state officials’. This provision brings a consequence that the state through its courts can prosecute any parties that violate human rights recognized under the Indonesian Law. Nevertheless, as enforcement measures in human rights are considered to be a weak tool,139 the government 135 136 137 138

KOMNAS HAM, supra note 132, pp. 52-55. Id. Indonesia Law on Human Rights, supra note 88, Art. 1 para. 6. Indonesia, Undang Undang tentang Pengadilan Hak Asasi Manusia (Law on Human Rights Courts), UU No. 26 Tahun 2000, LN No. 208, TLN No. 4026 (Law No. 26 of 2000, SG No. 208 of 2000), Art. 1 para. 4. 139 Kenna, supra note 17, p. 29. See also S. Fitzpatrick & B. Watts, ‘The Right to Housing’ for Homeless People’, in O’Sullivan et al. (Eds.), Homelessness Research in Europe, FEANTSA, Brussels 2010, pp. 105-122, at 106, available online at: .

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needs to focus its efforts more on vindicating the accepted international obligations at the national and local levels.140 Consequently, to avoid that housing programmes are not implemented, or targeted at the wrong groups, the government should improve monitoring functions as an element of accountability. Monitoring in accountability relates to the HRBA’s transparency principle. When the government ensures programme transparency, society can easily access all information concerning programme implementation. Hence, transparency will enable society to monitor all government programmes, especially those related to public interests and services. Moreover, the government must intervene or control the role of private parties, including developers and landlords, and their activities so as to not infringe on people’s right to housing. As has been shown, developers have tried to misuse facilities provided by the government for their own advantage, a negative attitude which affects rights fulfilment. Subsidies and facilities for building low-cost housing have been misused to build expensive tower blocks for middle- or high-income households. The government’s monitoring role is central in this respect. The state’s obligation to enact housing policy is not limited to the enactment and provision of subsidies, but also involves the supervision of its programmes to ensure that they are implemented properly and thus guarantee that the programmes’ original aims will be realized. Consequently, the Indonesian Government is obliged to enforce the law if any party violates its rules. This is a major noticeable weakness of Indonesia, where law enforcement is uncommon with respect to large companies or wealthy people. Another issue is indirect discrimination in accessing subsidized rental housing or public rental housing. As noted above, government policy stipulates that only people who legally reside in an area, as proven by an identity card, can access low-cost apartments.141 This policy correlates with the broader regional autonomy/decentralization efforts implemented by the Indonesian Government since 2004.142 Local governments possess full authority to manage their own budget, both the part that stems from their own incomes and that which is received from the national government. Local governments also have the authority to manage certain state affairs, as delegated by the national government, 140 Id. 141 See Regulation of the Governor of the Jakarta Capital Region, supra note 112. 142 This analysis is also supported by the view adopted by the Committee of Elimination of Racial Discriminations in its Concluding Observation on the related Convention that stated that the autonomy possessed by local governments is considered as a major obstacle in human rights implementation particularly in achieving equal access to social housing for migrants and minorities groups. See CERD/C/CZE/CO/7, para. 16, and CERD/C/SVK/CO/6-8, para. 17. Similarly, the CESCR adopted such view in several occasions of its Concluding Observations as cited in the Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate standard of Living, and on the Right to Non-discrimination in this Context, Leilani Farha, in the 38th session of the UN Human Rights Council’s meeting, 22 December 2014, paras. 30-31.

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including public housing and settlement, which are categorized as mandatory-concurrent affairs.143 The distribution of concurrent affairs within the government is regulated in Article 15 of Law No. 23 of 2014; further details of the distribution of affairs can be found in the annex.144 This detailed distribution of affairs is interesting and could possibly raise questions. Based on this annex, the central government handles programmes for providing housing to low-income families, develops financial support systems to enable low-income groups to access housing, provides and rehabilitates houses for victims of national disasters and offers public facilities for people affected by national policies.145 In practice, however, most rented public housing for the low incomes are built by the national government, not the local governments, utilizing the national budget. The assets, operations and management of this housing are then delegated to municipalities. This has created a few problems, including the issue of who are entitled to stay in public housing. Based on the Law on Local Governments 2014, local governments should adopt local provisions on rented public housing in order to manage public housing in their jurisdiction. As a result, local governments only allow legal residents of their area to be potential tenants. They do not provide alternative accommodation for non-residents, despite them having Indonesian citizenship. This practice could lead to (indirect) discrimination based on origin and legal documents, which is strictly prohibited under international human rights law to which Indonesia is bound. Discrimination is non-compliance with the obligation for the government or its agents to refrain from engaging in any actions resulting in direct or indirect discrimination. The right to non-discrimination (concerning housing access) is not subjected to progressive realization;146 therefore, the state has an immediate obligation to ensure the fulfilment of this right for all disadvantaged groups.147 To some extent, affirmative actions to improve the situation of targeted groups are allowed; such groups can thus benefit from equal treatment.148 The obligation to utilize the maximum available resources within the state is an enormously challenging element to measure.149 States always avow and conceal their ability to fulfil economic, social and cultural rights due to a lack of available resources. The Government of Indonesia, therefore, ought to employ all available resources to provide the budget required for its housing programme. Although the government has endeavoured to support 143 Indonesia, Undang-Undang tentang Pemerintahan Daerah (Law on Local Governments), UU No. 23 Tahun 2014, LN No. 244, TLN No. 5587 Tahun 2014, (Law No. 23 of 2014 SG No. 244 of 2014), Arts. 9 and 15. 144 Annex of Law No. 23 of 2014 on Local Governments, the Distribution of Concurrent Affairs between the Central, Provincial, Regency, and Municipality Governments. 145 Annex of Law No. 23 of 2014, supra note 144, paras. C(6) and D(1, 2 and 3). 146 General Comment No. 3 supra note 49, para. 1. 147 CESCR, General Comment No. 4 supra note 8, para. 8(e). 148 General Comment No. 20 on Non-Discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/G.C.20, 2009, paras. 8 and 9; see also M.M.S. Carmona, The Nature of the Obligations under the International Covenant in Economic, Social and Cultural Rights, the Netherlands, Intersentia, 2003, p. 401. 149 Hearne & Kenna, supra note 31, p. 9.

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the programme through national expenditures, nonetheless several encumbrances still exist. Therefore, the national government should involve more private developers in facilitating housing for low-income groups. This can be realized by providing subsidies, credit for venture capital and the simplification of licensing procedures. Apart from providing advantages endowed to private developers, the government should also monitor the activities of private parties to ensure that they do not infringe on the people’s right to housing Moreover, the government should also intervene to ensure the availability of land for its low-cost public housing programme. The shortage of land, combined with the increasing cost of housing and land, hinders middle- and low-income groups’ ability to access housing. Thus, these groups cannot afford to live in adequate shelter; informal settlements have thus been expanding.150 To tackle this, the government needs to invest more in rented public housing rather than houses for sale. This is particularly true if the price of housing is estimated to exceed 200 million rupiah (US$=14.286 IDR); urban populations, with an average income per capita of only around US$ 4,000-6,000 per year, will not be able to afford to purchase housing from the market.151 Rented public housing is more viable than owned housing, since low-income groups can stay in affordable accommodations for a certain period. Furthermore, by saving money on rent, middle- and low-income groups will, in the future, be able to afford a simple house with ownership rights to which they can relocate. The government, in this regard, can offer a subsidy or assistance for the relocation; in turn, the old rented housing can be occupied by other poor households. This strategy was quite successful in Ireland152 and may also be useful to implement in Indonesia. With these strategies, the government can allocate its budget to building additional rented public housing and thus tackle the lack of decent housing. Furthermore, providing housing for sale is also serviceable as a long-term policy. Housing and settlements are built everywhere in Indonesia and their advertisement flows all the time through the media. Housing for the middle and higher income are actually available; however, such housing development does not touch the poor groups, let alone to provide a less complicated procedure to access the housing. As a result, most of the vulnerable groups are left behind to live in inadequate housing in informal settlements. Living in affordable and decent housing is still a dream for most of the communities in Indonesia.

150 Ministry of Public Housing Strategic Plan 2010-2014, p. 7; Indonesia, ‘Country Report’, p. 14. 151 This analysis was conducted by the UN Special Rapporteur of the right to adequate housing during her 2013 visit to Indonesia. Details of her report can be found in UN Document A/HRC/25/54/Add.1, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and the right to freedom from discrimination, Raquel Rolnik; 26 December 2013. Available online at: . 152 See Hearne & Kenna, supra note 31.

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Therefore, housing policies should enable low-income groups to reside in decent houses which are both available and affordable for them. Adopting a policy enabling residents to access adequate and affordable houses is one of the measures that should be taken by the government153 to progressively fulfil the right to adequate housing. If all resources have been exploited and a lack of budget or other hindrances still exist, the government can seek assistance from outside the state, such as from foreign countries or international institutions. Furthermore, the Indonesian Government should ensure that no discrimination occurs in accessing public housing; hence, revising the existing and conflicting laws is requisite and cannot be postponed. This will ensure equality for all Indonesian citizens. Based on the observations discussed above, the housing policy in Indonesia is still inconsistent with HRBA principles. Understanding that HRBA can positively enhance human rights to housing fulfilment, the Indonesian Government can adopt best practices from several countries which have successfully used this method, such as Sweden, Ireland and the United Kingdom.154 As such, the housing problem can be moderated and housing policy can be made more comprehensive and holistic; it will be necessary to target not only housing needs, but also the social roots of existing problems.

6.8

Conclusion

Houses are more than just a commodity or asset that can be sold on the market. Houses offer a home, an entitlement to persons as human beings; consequently, affordable housing will foster low-income groups’ human dignity. Although the Government of Indonesia has initiated a housing policy since the country’s independence, the problem of housing availability and affordability persists. In addition to problems of fast-growing population and land scarcity, additional obstacles have been noticed, such as budget limitations, indirect discrimination and misleading target of the low-cost housing project. As for the budget constraints, this article demonstrates that the government is obliged to seek other resources, such as international assistance and cooperation, if no other sources of funding are available. Indirect discrimination in the housing policy is found when local 153 In the concluding observations of the Committee’s response to the member states’ reports, the Committee often recommends that states “…adopt comprehensive national housing legislation, including legislation on rent control that promotes affordable rental housing, in order to meet the needs of poor and of lowincome families, and as a matter of urgency, increase the availability of affordable rental housing…”. See, for example, Committee on Economic, Social and Cultural Rights, Concluding Observations, E/C.12/ITA/CO/5, 28 October 2015, para. 41(a). 154 Kenna, supra note 17, p. 29. Although Kenna also recognizes few weaknesses in the implementation of the right to housing in European countries, particularly the human rights enforcement, these three countries have succeeded to improve access to affordable housing for the low income as well as for the homeless people. See also Hearne & Kenna, supra note 31; Fitzpatrick & Watts, supra note 139, at pp. 114-115.

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governments require identity cards from poor households to get access to low-cost housing. This has given these groups no choice other than to live in inadequate housing, without knowing when they will leave that situation. Furthermore, the lack of accountability when housing programmes are misplaced or mislaid shows the difficulties people with low income encounter in striving for respect and fulfilment of their right to adequate housing. Moreover, due to multiple international conventions and treaties ratified by the Indonesian Government, it is obliged to be responsible and accountable in adopting policies concerning human rights, in particular with respect to housing. Several issues and hindrances identified in housing policy practices in Indonesia have made housing, especially for the low-income groups, unavailable or unaffordable. This problem will continue to exist, and perhaps even be exacerbated, if the government does not succeed to eradicate negative practices in the fields of housing and land policy. Hence, an effective application of a HRBA in planning, implementing and monitoring the right to housing is vital in improving the current situations. In adopting housing policy, the government must be creative and adopt comprehensive measures. Housing is not merely buildings, walls and roofs, but also a form of economic, social and cultural cohesion for the people living in the house. Therefore, the most effective strategy for society will involve a combination of housing policy with spatial, environmental, agrarian and economic planning. The government will need to establish an integral strategy that facilitates housing ambitions via multiple fields of policy making to further respect, protect and fulfil all citizens’ right to adequate housing without discrimination on any grounds.

References Baker, E., Mason, K. & Bentley, R., ‘Measuring Housing Affordability: A Longitudinal Approach’, Urban Policy and Research, Vol. 33, No. 3, 2015, pp. 275-290. Boesen, J.K. & Martin, T., Applying a Rights-Based Approach: An Inspirational Guide for Civil Society, The Danish Institute for Human Rights, 2007, p. 10, available at: . Branley, G. & Kranley, N.K., ‘Affordability, Need, and the Intermediate Market: Responding to the Challenges in Pressured Regions’, in Boelhouwer et al. (Eds.), Home Ownership: Getting In, Getting From, Getting Out, the Netherlands, Delft University Press, 2005, pp. 96-97. Butt, S. & Lindsay, T., The Constitution of Indonesia; A Contextual Analysis, Constitutional Systems of the World Series, Oxford, Hart Publishing, 2012, chapters 1, 4 and 5.

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Carmona, M.M.S., The Nature of the Obligations under the International Covenant in Economic, Social and Cultural Rights, the Netherlands, Intersentia, 2003, p. 401. Chapman, A. & Russel, S., ‘Introduction’, in A. Chapman & S. Russel (Eds.), Core Obligations: Developing a Framework for Economic, Social and Cultural Rights, Belgium, Intersentia, 2002, p. 14. Clapham, D., The Meaning of Housing: A Pathways Approach, Bristol, The Policy Press, University of Bristol 2005, Chapter One, pp. 7-35. Eide, A., ‘Adequate Standard of Living’, in Moeckli et al. (Eds.), International Human Rights Law, New York, Oxford University Press, 2010, pp. 233-234. Febrianto, H., ‘Anggaran Pembangunan Rumah Rakyat Miskin Rp33 Triliun’, Koran Sindo, 16 April 2015, available at: . Firman, T., ‘Major Issues in Indonesia’s Urban Land Development’, Land Use Policy, Vol. 21, No. 4, October 2004, pp. 347-355. Fitzpatrick, S. & Watts, B., ‘The Right to Housing’ for Homeless People’, in O’Sullivan et al. (Eds.), Homelessness Research in Europe, FEANTSA, Brussels 2010, pp. 105-122, at 106, available online at: . Fox, L., ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’, Journal of Law and Society, Vol. 29, No. 4, 2002, pp. 580-610. Fox, L., Conceptualizing Home: Theories, Laws and Policies, Oxford, Hart Publishing, 2007, pp. 145-146. Gabriel, M., Jacobs, K., Athurson, K., Burke, T. & Yates, J., Conceptualising and Measuring the Housing Affordability Problem, Background Report, AHURI, Melbourne, 2006, available at: . Hearne, R. & Kenna, P., ‘Using the Human Rights-Based Approach to Tackle Housing Deprivation in an Irish Urban Housing Estate’, Journal of Human Rights Practice, Vol. 6, No. 1, 2014 (March), pp. 1-25.

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Hirawan, Z., ‘Efektivitas Musrenbang dalam Penyusunan APBD Kabupaten Subang’, Jurnal Administrasi Publik, FISIP UNTIRTA Indonesia, Vol. 5, No. 2, 2014, available online at: . Hohmann, J., The Right to Housing: Law, Concepts and Possibilities, Oxford, Hart Publishing, 2013. Jonsson, U., Human Rights Approach to Development Programming, UNICEF, 2003, p. 21, available online at: . Kalugina, A., ‘Affordable Housing Policies: An Overview’, Cornell Real Estate Review, Vol. 14, No. 1, 2016, pp. 76-83. Kenna, P., Housing Rights and Human Rights, FEANTSA (European Federation of National Organizations working with the Homeless), Brussels 2005, p. 11. Kenna, P., ‘Globalization and Housing Rights’, Indiana Journal of Global Legal Studies, Vol. 15, No. 2, 2008, pp. 397-469. Kiprah, T., ‘Sejuta Rumah untuk Rakyat’, Majalah Kiprah, Vol. 67, Year XV, April-May 2015, pp. 12-15. Kothari, M., ‘Homelessness and the Right to Adequate Housing: Confronting Exclusion, Sustaining Change’, in Danieli et al. (Eds.), The Universal Declaration of Human Rights, Fifty Years and Beyond, New York: Baywood Publishing Company, Inc., 1999, pp. 201217. Kusno, A., Politik Ekonomi Perumahan Rakyat Utopia Jakarta, Ombak, Yogyakarta, Indonesia, 2012, pp. xx-xxi. Kusno, A., ‘Housing the Margin: Perumahan Rakyat and the Future Urban Form of Jakarta’, Indonesia, No. 94, October 2012, pp. 23-56. Kuswartojo et al., Perumahan dan Pemukiman di Indonesia: Upaya Membuat Perkembangan Kehidupan yang Berkelanjutan, Bandung, ITB University Press, 2005, p. 105. Libal, K.R. & Harding, S., Human Rights Based in Community Practiced in the United States, New York, Springer, 2015, pp. 40 and 51.

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Lubis, T.M., In Search of Human Rights: Legal-Political Dilemmas of Indonesia’s New Order, 1966-1990, Jakarta, Gramedia Pustaka Utama and SPES Foundation, 1993, pp. 84, 231, 252, 259. Mc Donald, J.F., ‘Affordable Housing: An Economic Perspective’, Architecture Media Politics Society (AMPS), Vol. 7, No. 3, 2015 (May). Nolan, A., Nicholas, J.L. & Courtis, C., ‘Two Steps Forward, No Steps Back? Evolving Criteria on the Prohibition of Retrogression in Economic and Social Rights’, in A. Nolan (Ed.), Economic and Social Rights after the Global Financial Crisis, Cambridge, Cambridge University Press, 2013, pp. 121-145. Sing, T.F., Tsai, I. & Chen, M., ‘Price Dynamics in Public and Private Markets in Singapore’, Journal of Housing Economics, Vol. 15, No. 4, 2006, pp. 305-320. Stone, M.E., ‘What is Housing Affordability? The Case for the Residual Income Approach’, Housing Policy Debate, Vol. 17, No. 1, 2006, pp. 151-184. Terminski, B., The Right to Adequate Housing in International Human Rights Law: Polish Transformation Experiences, Revista Latinoamericana de Derechos Humanos, Vol. 22, No. 2, July-December 2011, pp. 219-241. Tunas, D. & Darmoyono, L.T., ‘Self-Help Housing in Indonesia’, in Bredenoord, van Lindert & Smets (Eds.), Affordable Housing in the Urban Global South: Seeking Sustainable Solutions, London, Routledge Taylor and Francis Group, 2014, pp. 166-180. Utomo, N.T., Affordable Housing Finance Policies on Indonesia, 28-29 May 2014, available at: . Vandenhole, W. & Gready, P., ‘Failures and Success of Human Rights-Based Approaches to Development: Towards a Change Perspective’, Nordic Journal of Human Rights, Vol. 32, No. 4, 2014, pp. 291-311. van der Ploeg, L. & Vanclay, F., ‘A Human Rights Based Approach to Project Induced Displacement and Resettlement’, Impact Assessment and Project Appraisal, Vol. 35, No. 1, 2017, pp. 34-52. van Voorst, R. & Hellman, J., ‘One Risk Replaces Another: Floods, Evictions and Policies on Jakarta’s Riverbanks’, Asian Journal of Social Science, Vol. 43, 2015, pp. 786-810.

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Whitehead, C.M.E., ‘From Need to Affordability: An Analysis of UK Housing Objectives’, Urban Studies, Vol. 28, No. 6, 1991, pp. 871-887. Widyoko, D., ‘Good Governance and Provision of Affordable Housing in DKI JakartaIndonesia: Case Study’, in M. Sohail (Ed.), Partnering to Combat Corruption Series, Loughborough, WEDC, Loughborough University, 2007, pp. 1-68. Yang, Z. & Shen, Y., ‘The Affordability of Owner-Occupied Housing in Beijing’, Journal of Housing and the Built Environment, Vol. 23, No. 4, 2008 (December), pp. 317-335.

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Tenant’s Right to Respect for Home: A 1

Challenge for Swedish Tenancy Courts? Haymanot Baheru

7.1

Introduction

Legal issues relating to the home in landlord and tenant law are often distilled into questions concerning the unbalanced contractual relationship between the landlord and the tenant – who is presumed to be the weaker party from a socio-economic point of view – priorities of rights in cases of conflicting interests, as well as the social function rental dwellings serve. In this field of law, often referred to as social private law, the principle of freedom of contract is superseded by mandatory provisions that aim to protect the person that wishes to enter a tenancy agreement and, more importantly, a person who has entered a tenancy agreement and has established a home there.2 The tenancy agreement is a precondition for the establishment of the tenant’s home but its continuance is dependent on statutory protection. Such protection is provided for by the provisions on tenure security (sections 45 to 52) in the Swedish landlord and tenant law – Chapter 12 of the Land Code (1974:994), as well as Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Both forms of tenure security provide a substantive and procedural tenure protection for tenants.3 Procedural protection serves the purposes of providing tenants with due process when their tenancy is terminated. Substantive tenure protection aims to allow the continuance of a tenancy.4

1

2

3 4

This contribution is a revised version of the article “The Legal Concept of ‘Home’: A Concealed but Embedded Feature of Swedish Landlord and Tenant Law, Occasionally Infringing Human Rights?” (2016) published in Festskrift till Lars Pehrson. Bernitz, U. et al. (Ed.). I would like to extend my gratitude to my supervisor, Jori Munukka, Professor of Law, and to Johan Sandstedt, PhD, for their constructive comments on previous drafts of this article. Any shortcomings are my own. Unless otherwise noted, all translations are my own. K. Kjellström, ‘Den sociala civilrättens framväxt’, JT Jubeliumhäfte 2007, p. 39; C.U. Schmid & J.R. Dinse, ‘Towards a Common Core of Residential Tenancy Law in Europe? The Impact of the European Court of Human Rights on Tenancy Law’, ZERP-Working Paper 1/2013, p. 6; A. Victorin, ‘Om kontraheringstvång inom förmögenhetsrätten’, SvJT 1976, p. 447; T. Wilhelmsson, Critical Studies in Private Law, Dordrecht, Kluwer Academic Publishers, 1992. Cf. S.M. Maass, Tenure Security in Urban Rental Housing, Stellenbosch, Stellenbosch University, 2010, p. 3. M. Vols, M.N.F. Kiehl & J. Sidoli del Ceno, ‘Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany’, European Journal of Comparative Law and Governance, Vol. 2, p. 168.

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Tenants at risk of forfeiture of their residential tenancies pursuant to the provisions in the Land Code have started to invoke the right to respect for their home that Article 8 of the ECHR provides. The ECHR was ratified in 1953.5 Sweden has a dualist approach to international treaties. Conventions therefore have no direct effect in domestic law in the absence of incorporation by an act of parliament. The ECHR and the supplementing convention protocols were incorporated in Swedish domestic law by 1 January 1995.6 Prior to their incorporation, the courts applied a treaty-conform construction.7 The impact of the convention in the domestic law has, however, increased after the incorporation of the convention. The ECHR or the case law of European Court of Human Rights (ECtHR) had been invoked in 20-some cases in the Supreme Court before 1995, compared to over 200 thereafter.8 The number of cases where tenants’ right to respect for home as codified in Article 8 of the ECHR has been invoked in the decisions or rulings from the higher Swedish tenancy court, Svea Court of Appeal, is more modest: To date, there are only six published cases, all accounted for in this contribution. The earliest one is from 2014 and is published as a landmark case from the courts of appeal (RH). The recent influx of tenants invoking their convention-based right to respect for home is of interest in this essay. What role do the courts play in defining and enforcing tenants’ right to respect for their home? As the title suggests and the review of the cases where tenants have invoked their right to respect for their home pursuant to Article 8 of the ECHR demonstrates, the rental courts appear to be challenged by tenants’ right to respect for home as a human right. The first challenge the courts seem to face is conceptual: The convention provides protection for the occupier’s home. The Land Code does not make use of the concept of home. Therefore, the question of whether there is a legally relevant meaning of home in Swedish tenancy law arises. If so, how is the concept understood? This paper explores whether there is a legally relevant meaning of ‘home’ in the context of the Land Code. The ambition is not to present a conclusive concept of home. Rather, the purpose is to provide a conceptual springboard for which the concept can be understood – at least in the context of Swedish landlord and tenant law. The understanding of the concept within the scope of Article 8 will also be explored. The second challenge appears to be methodological: How is the ECHR as a legal source dealt with by the tenancy courts? The ECtHR has established a minimum level of protection against the loss of one’s home: Anyone at risk of losing his or her home should ‘in principle

5 6 7 8

Prop. 1951:165. Act (1994:1219) regarding the European convention on human rights and fundamental freedoms. Those of the subsequent protocols that have entered into force have been incorporated as well. H. Danelius, Mänskliga rättigheter i europeisk praxis. En kommentar till Europakonventionen om de mänskliga rättigheterna, 5 ed. Stockholm, Norstedts Juridik 2015, p. 42 f. V. Dag, ‘Svenska domstolars hantering av Europakonventionen’, SvJT 2013, p. 347.

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be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end’.9 The purpose is to investigate whether the method Svea Court of Appeal has applied in the cases takes into consideration whether the interference with the right to respect for the home is permissible according to paragraph 2 of Article 8. The scope of this study is limited to Swedish law and cases where tenants have invoked their right to respect for the home when risking forfeiture of their tenancy agreements due to contractual breach.

7.2

Is There a Legally Relevant Concept of Home in Swedish Tenancy Law?

There is no Swedish statutory definition of the concept of home, in any field of law. Where one has a place of residence seems to be of major importance in at least landlord and tenant law, enforcement law, social security law, tax law and procedural law, and a relevant factor in many other areas of law. The extent of consideration given to the concept of home in the Swedish legal research is scarce.10 So far, no coherent doctrinal concept of ‘home’ has been developed, but there has been some efforts made in landlord and tenant law. In the 1920s, Bergman, Professor of Law, connected the meaning of the concept to its ‘social meaning’.11 Christensen, Professor of Law, suggested some 70 years later, that the legal concept of home is connected to the common understanding of the word.12 Even if these explanations seem to be similar, they depend on either reliable sociological research or public consensus to provide guidance in legal practice. In the absence of that, one has to rely either on an approximation of the concept by the help of legal sources or on related, legally established, concepts. The interest to protect a person’s home is taken into consideration both by the legislator and by the courts in various contexts. For example, the consequence of an occupier’s loss 9 10

11 12

McCann v. the United Kingdom (application no. 19009/04), [GC] judgement of 13 May 2008, § 50. The most extensive research is credited to Anna Christensen in Hemrätt i hyreshuset. En rättsvetenskaplig studie av bostadshyresgästens besittningsskydd, Stockholm: Juristförlaget 1994. She examines the right to home in the context of tenure security. In her research, Christensen makes use of C.G. Bergman’s construction of tenant’s right to home from the early 1920s. Bergman argued that a distinction must be made between any rental dwelling let for residential purposes and a ‘home’. His writings made arguments in support of protecting the rental dwelling’s function as a home. His arguments can be found in the article ‘Hyresgästens hem’ in Tiden, No 2, 1922, pp. 92-112; the pamphlet ‘Hyresfrågan och hemmets rätt: till hyresgästerna inför hemskyddets slut den 1 oktober 1923’, Lund 1923; and a lecture transcript together with Herman Kuntze: ‘Hyresfrågan och samhället. Föredrag hållet å Göteborgs Högre Realläroverk den 27 januari 1924’, 1924, Göteborg, Framåt. Bergman 1922, supra note 10, p. 92. Christensen 1994, supra note 10, p. 362.

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Haymanot Baheru of home is taken into account in the context of enforced sales of tenant-owned dwellings.13, 14 The concept of ‘home’ has been described by the legislator and legal scholars as a noneconomic interest that can protect the individual against interference in cases of compulsory acquisition.15 In the legislative history of the landlord and tenant law, as well as in the legal doctrine, statutory tenure security is motivated with the purposes of protecting the tenant’s home. Same reason has been put forward as an argument for rent regulation by the legislator in terms of affordability – the enabling of tenants to remain in the rental dwelling they currently occupy.16 In landlord and tenant law, on a general level, there appears to be a consensus on the interconnectedness of the concept of home and security of tenure. Christensen, who developed a theory of law as normative patterns in a normative field, addressed this connection by describing the normative contents of rules and regulations. In her studies from 1994, she concluded that the connection consisted of a normative pattern she calls ‘residential right in the tenement house’, tenants’ right to home.17 Christensen’s ‘residential right in the tenement house’ is as an approximation to proprietary rights: She reasoned that a tenancy combined with strong tenure security is comparable to a right to the dwelling based on ownership.18 There has been some doctrinal resistance against Christensen’s idea of tenant’s right to home.19 It is probably not strongly 13 14

15 16 17

18 19

The Enforcement Code (1981:774) 5:1 item 6. When the asset that is subject to compulsory sale is a tenant-owned dwelling which serves as the debtor’s resident, it may be exempted from compulsory sale. The exception applies, inter alia, if the total value of the asset does not make the exemption unreasonable. Presently, tenant-owned dwellings that are valued above 300,000 SEK are not exempted (NJA 2004 p. 373). Sandstedt argues that the lack of consideration given to the debtor’s share in the asset, combined with the development of the market price, has made this benefit for home occupants merely theoretical. See J. Sandstedt, ‘Utmätning av bostad – och EMK:s tilltagande betydelse’, ERT 2016, p. 599 f. B. Bengtsson, Ideella värden i fastighetsrätten, Stockholm, Wolters Kluwer, 2016, p. 73 f. Prop. 1968:91, Appendix A, p. 41 f. The tenant’s right to home differs from right to housing, in which case housing is understood in the concept of access to roof over one’s head. There is no general right to housing (A. Lind, Sociala rättigheter i förändring. En konstitutionell studie, Uppsala, Uppsala universitet, 2009, p. 38). The right is declared as objective provisions for the public institutions: The Instrument of Government (1974:152) 1:2 paragraph 2 states ‘… the public institutions shall secure the right to employment, housing and education …’ (my emphasis). The Social Services Act (2001:453) 3:2 stipulates that the social services board shall ‘promote the individual’s right to housing’ (my emphasis). In the context of social services regulation, an individual that cannot satisfy the needs of himself/herself, is entitled to subsidies for acquiring a ‘reasonable’ living standard (4:1). A reasonable living standard encompasses roof over one’s head (P. Kjellbom & K. Alexius, ‘Socialrättsliga principer vid risk för vräkning – finns det i Sverige en rätt till boende, bostad eller ett hem?’, JT 2011/12, p. 279). Christensen 1994, supra note 10, p. 1; A. Christensen, ‘Protection of the Established Position. A Basic Normative Pattern’, Scandinavian Studies in Law, Vol. 40, 2000, p. 297 ff. Victorin and Dahlquist-Sjöberg have expressed scepticism to the existence of such right. The authors write: Some writers, like Anna Christensen, make the issue of tenure security to a main issue of nearly ideological nature. Christensen’s ways to address the issues in the book “Right to home in rental housing” is a clear example of such a setting. The goal, to create a “residential right in the tenement house”, goes in fact signifi-

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contested today. For example, Kjellbom and Alexius have described the tenant’s right to home as an implicit principle in the social services legislation.20 Similarly, Norberg and Juul-Sandberg refer to the right for a tenant to keep a dwelling that serves as a home as ‘the most basic right’.21 The protection of the tenant’s ‘home’ in the Swedish landlord and tenant law by forms of tenure security precedes the protection Article 8 of the ECHR provides. The conceptualizing of ‘home’ in Swedish landlord and tenant law can be dated to Bergman’s writings in the beginning of the 1920s.22 A tenant’s home is therefore protected under separate rights to home in Sweden. A tenant that is at risk of losing one’s home may therefore base his/her case on either of these grounds.23 When a tenant makes his/her case on the basis of the Land Code, the provisions on tenure security apply, see above. Notwithstanding the statutory absence of the concept in domestic law, there is a legally relevant concept of home: The concept of home is articulated in Article 8 of the ECHR. The concept is not defined in the convention. The understanding of the concept has been developed by the case law of the ECtHR. The court has repeatedly emphasized the concept’s autonomy to domestic classifications.24 The home, regardless of its legal nature or its use, is protected under the convention.25 Both owned and rented dwellings fall within the scope of Article 8.26 In Khatun and Others v. the United Kingdom, the Commission expressed that for the purposes of Article 8, there is no distinction made between applicants who

20

21

22 23 24 25 26

cantly beyond pure tenure security issues, but nevertheless indicate trajectory’ (my emphasis). A. Victorin & A. Dahlquist-Sjöberg, Flexibilitet och besittningsskydd. Stockholm, Kungliga tekniska högskolan, 2003 (Report no. 15, KTH’s Bostadsprojekt, essay no. 23), p. 26. Similarly, Lundstedt – the Scandinavian realist – met Bergman’s writings from 1922 with scepticism (SOU 1923:76 p. 57 ff.). See Kjellbom and Alexius 2011, supra note 17, p. 288. The social services can act as an independent party and recover the tenant’s right to home in the event a tenant is delayed with payment of rent by assuming payment responsibility, thus ensuring the tenant’s right to his/her home (Land Code 12:44, paragraph 1 item 1). The social welfare board’s right to guarantee the fulfilment of the tenant’s obligation to pay rent does not require the landlord’s consent (Prop. 1992/93:115 p. 16). P. Norberg & J. Juul-Sandberg, ‘Rent Control and Other Aspects of Tenancy Law in Sweden, Denmark and Finland: How Can a Balance be Struck between Protection of Tenants’ Rights and Landlords’ Ownership Rights in Welfare States?’, Paper presented at The European Network for Housing Research Conference, Belfast, United Kingdom 2016. See Bergman, supra note 10. See also Bengtsson, supra note 15, p. 39. For example, Winterstein and Others v. France (application no. 27013/3), judgment of 17 October 2013, § 69. Grabenwarter, C., European Convention on Human Rights. Commentary, München, Hart Publishing 2014, p. 196. Harris et al., Law of the European Convention on Human Rights, 3 ed., Oxford, Oxford University Press, 2014, p. 529 with references to Larkos v. Cyprus (application no. 29515/95), judgment of 18 February 1999; McCann v. the United Kingdom (application no. 19009/04), [GC] judgement of 13 May 2008; Paulic v. Croatia (application no. 3572/06), judgment of 22 October 2009; Kay and Others v. the United Kingdom (application no. 37341/06), judgment of 21 September 2010 and Bjedov v. Croatia (application no. 42150/09), judgment of 29 May 2012.

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have a proprietary interest in the land on which their house was built and those without such interest.27 There are therefore potentially two parallel concepts of ‘home’ in Swedish law, if one would accept the convention-based concept as also being a Swedish one. A dwelling that might be protected as a home by the convention does not necessarily receive the same protection in the domestic law in general, in landlord and tenant law in particular.

7.3

Is There a Concept of ‘Home’ within the Realm of the Land Code?

7.3.1

Introduction

The legislator does not make use of the concept of home in the Land Code. The question of whether there is a concept of ‘home’ within the realm of the Land Code can be answered by identifying which provisions in the Land Code establish the legitimacy of the home interest. As stated above, the concept of home is highly related to tenure security. As the latter assures the tenant’s right to home, it is a relevant point of departure for analysis. A potential understanding of the concept of ‘home’ within the realm of the Land Code has been provided by Christensen, who writes: ‘the concept of home that has developed in court rulings [concerning tenure security] coincides with the concept of home in everyday life.’28 How does one determine the everyday understanding of a concept? One way could be to compare with the definition of the noun ‘home’ in the national encyclopedia, where it is defined as ‘habitual residence of a particular individual, family or similarly; often with regard to the personal nature of the decoration, etc.’29 Christensen’s conceptualizing of the concept is directly related to her understanding of tenant’s right to home as a basic normative pattern.30 Bergman, as explained above, relates the understanding of the concept to its ‘social meaning’.31 See Section 3.3 below. In the following, I will attempt to provide a conceptual springboard for which the concept of home within the realm of the Land Code can be understood by connecting it to underlying concepts of housing rights in two conceptual categories: (a) security and privacy; and (b) subjective experiences. The category of security refers to the material protection a physical structure can provide against physical hardship and insecurity: a protection against natural elements and against intrusions from others. The category of privacy refers to the home as a private sphere – a separation between the private and the 27 28 29 30 31

Khatun and 180 Others v. the United Kingdom (application no. 38387/97), decision of 1 July 1998. Christensen 1994 supra note 10, p. 362. Nationalencyklopedin, hem. (visited 2017-04-01). Christensen 1994, supra note 10, p. 4. Bergman 1922, supra note 10, p. 92.

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public.32 The last category takes into account the bond an occupant develops with the dwelling he/she occupies over time. This sense of attachment is social and psychological and therefore difficult to mould into any other usable legal term than non-economic values.

7.3.2

Security and Privacy

7.3.2.1 The Home as a Physical Structure33 In the Land Code, a rental dwelling is defined as a house or parts of a house that is let, or primarily let, for residential purposes in exchange for compensation, 12:1, paragraphs 1 and 3.34 The statutory definition is mainly based on the material physical structure as well as its use. The object of a rental contract may either be a ‘house’ or ‘parts of a house’. A legal definition of the terms is not provided in the statue. A ‘house’ or ‘parts of a house’ can thus refer to one- or two dwelling buildings, garage, furnished room, a rental dwelling in a multi-dwelling building and so on.35 Additionally, ‘a rental dwelling’ may encompass several physical units, if the objects are let as one under the same contract.36 Bengtsson, Hager and Victorin write that the understanding of the term ‘house’ can be derived from the ‘common understanding’ of the word combined with ‘common sense’.37 Björkdahl connects the understanding of the term to its ‘traditional’ meaning by arguing that provisions on the standard of a rental dwelling in the Land Code, Articles 12:9-18c, do not provide much room for deviations in terms of construction and standard.38 The impreciseness is generally not a practical problem, especially in residential tenancy.39 From a theoretical point of view, and for the purposes of conceptualizing the ‘home’, certain characteristics of the physical structure – as proposed in the legal doctrine – are of interest: (i) provision of physical shelter for its occupiers and (ii) exclusive occupation and 32 33 34 35

36 37 38 39

A. Buyse, ‘Strings Attached: The Concept of “home” in the Case Law of the European Court of Human Rights’, European Human Rights Law Review, 2006, p. 294 f. For discussions on conceptualizing the home as a physical structure, see L. Fox, Conceptualising Home: Theories, Laws and Policies, Portland, Hart, 2007, p. 155 ff. Chapter 12 of the Land Code regulates both residential and commercial tenancies. A unit that does not serve residential purposes is a commercial unit, Land Code 12:1 paragraph 3 e contrario. The understanding of ‘building’ (Swe. byggnad) in this context differs from use elsewhere by the legislator, where a building can refer to constructions such as bridges and railway constructions. E.P. Björkdahl, Hyra av bostad och lokal, Uppsala, Iustus förlag, 2013, p. 28 f. with references to F. Lejman, Rättsförhållandet mellan hyresvärd och hyresgäst, Lund, C.W.K. Gleerup, 1951, p. 11 f. A. Victorin, Kommersiell hyresrätt, 3rd ed., Stockholm, Norstedts Juridik, 2003, p. 19. B. Bengtsson, R. Hager & A. Victorin, Hyra och annan nyttjanderätt till fast egendom, 8th ed., Stockholm, Norstedts Juridik, 2013, p. 36. Björkdahl, supra note 35, p. 29. L. Holmqvist & R. Thomsson, Hyreslagen, Zeteo, 2016, comment to 12:1. In the preparatory works, it is expressed that a rental dwelling includes, in addition to one or more rooms, kitchen or kitchenette and sanitary facilities (Prop. 1974:150 p. 491). The account for amenities suggests a strong correlation to adequate housing, see note 44.

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Haymanot Baheru use of a confined space.40 These characteristics provide the locus of the ‘home’. As the occupant’s right to use is exclusive, the ‘home’ has a feature of a private sphere: The home provides its inhabitants with a measure of security against attack or invasion by other individuals.41, 42 In terms of standard for residential tenure, the law prescribes a minimum standard that is related to its fitness for use, Land Code 12:9.43 7.3.2.2 The Use of a Rental Dwelling A (residential) rental dwelling must be let for, or mainly let for, residential purposes. Herein lies a social right aspect of the concept of home: access to adequate housing.44 A residential tenant may not make use of the dwelling for other purposes than the one intended, Land Code 12:23. Use against such purpose could be deemed as breach of contract by the tenant. For example, when a tenant sublets a unit via apartment sharing services extensively – and receives compensation thereby – the ‘use’ of the apartment is more commercial than residential.45, 46 Therefore, it has been argued that ‘home’ refers to the occupier’s place of residence.47, 48 Christensen argues that while it is possible for a person to rent several dwellings, the location that is considered as ‘home’ is the one where the occupant has his/her place of residence.49 See the connection to residential values below.

40 41 42 43

44

45

46

47 48

49

Lejman, supra note 35, p. 11 f.; Björkdahl, supra note 35, p. 28 ff; Victorin & Dahlquist-Sjöberg, supra note 19, p. 37. Bergman 1923, supra note 10, p. 5. Bergman 1923, supra note 10, p. 19: ‘My home is my castle!’ The provisions on the standards of rental dwellings can be compared with Bergman’s first requirement on the homes in residential properties: ‘wholesome and reasonably maintained residential dwellings’. See Bergman 1923, supra note 10, p. 6. Right to adequate housing is considered to be a social right, proclaimed inter alia in Article 25(1) of the Universal Declaration of Human Rights (UNGA Resolution 2200A [XX1] UN Doc A/810. Adopted and proclaimed by General Assembly resolution 217 A [III] of 10 December 1948), Article 11 in the International Covenant on Economic Social and Cultural Rights (ICESCR UN Doc. A/6316 [1966]; UNGA Resolution 2200A (XXI) Entered into force 3 January 1976) and Article 31 in Council of Europe’s revised European Social Charter (Part 1). See the Rental Board’s decision of 17 August 2015 in case no. 8741-15 and RBD 10:82, where an apartment had been used for prostitution purposes. A tenant that makes use of a rental dwelling for other purposes than residential could risk forfeiture, Land Code 12:42 paragraph 1 item 4. A unit ‘mainly’ let for residential purposes may be used for residential and commercial purposes. In such cases, the nature of the lease needs to be classified as either residential or commercial, Land Code 12:1 sec. 3. The preparatory works suggest that a unit let for mixed purposes may be classified as a residential unit as soon as the residential element is not of minor significance in comparison to the commercial element of the lease. Should the planning and the equipment of a unit be specially prepared for a particular trade, the assessment would be the reverse (Prop. 1968:91, Appendix A., p. 11 and 124). P. Kjellbom, ‘Socialtjänstens hyresrättsliga roller vid risk för påtvingad avflyttning från bostad’, Socialvetenskaplig tidskrift, No. 1 2013, pp. 13-34, p. 21. When the courts (a Rental Board or Svea Court of Appeal) assess where a person has his/her place of residence, the records from the registration of personal status is assumed to accurately reflect the person’s residence, unless special circumstances to the contrary are presented (RH 2003:60). Christensen 1994, supra note 10, p. 361.

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7.3.3

Tenant’s Right to Respect for Home: A Challenge for Swedish Tenancy Courts? Subjective Experiences and the Concept of Home

7.3.3.1 Introduction Although an adequate physical structure for shelter is an essential starting point for an analysis of the concept of ‘home’, it cannot be isolated from the occupant’s subjective experiences of social and personal nature. If one is to use Fox O’Mahoney’s conceptualizing of home as ‘house + x’, these meanings could be the x-factors: ‘the locus for family life, a place of safety, a place of privacy, continuity and a sense of permanence’.50 Bergman presents a similar understanding of the home. He writes that the social understanding of ‘home’ is (i) a personal attachment to a specific rental dwelling; (ii) it serves as the locus for family life; (iii) where a unity has formed between the unit and the household effects; and (iv) a place that is invested with meaning and memories.51 Bergman further argues that permanency is closely associated with the understanding of home.52 Fox O’Mahoney’s x-factors and Bergman’s account of their social meaning exemplify the tenant’s subjective experiences that are of non-economic nature.53 Christensen refers to these values collectively as ‘home values’.54 They are reflected in the following categories of non-economic values: emotional values and residential values.55 7.3.3.2 Emotional Values This category refers to the emotional values a person attaches to a property. A person does not need to own the property; it is sufficient that he/she has a connection to it.56 Emotional values are therefore of personal appreciation.57 Christensen observes that a ‘home’ does not necessarily need to be the one where one is physically present at all times: ‘it can be the place one considers as home and the place one returns to after a long journey or the lengthy hospital stay’.58 In residential tenure, a tenant can develop personal attachment to 50

51 52 53 54 55 56

57 58

By drawing on the work of other disciplines, Fox O’Mahoney portrays a concept of home beyond proprietary interests in a tangible dwelling to capture ‘the x factor’ within a cluster of home values. Fox O’Mahoney identifies the following x-factors: ‘financial investment’, ‘physical structure’, ‘territory’, ‘identity’ and a ‘social and cultural unit’, see L. Fox O’Mahoney, ‘The Meaning of Home: From Theory to Practice’, International Journal of the Built Environment, Vol. 5, No. 2, 2013, p. 139 f. Bergman 1923, supra note 10, p. 19. Bergman 1922, supra note 10, p. 92. Fox O’Mahoney, supra note 50, pp. 167 f. Christensen 1994, supra note 10, p. 362. Bengtsson 2016, supra note 15, p. 16 ff. Bergman took early a position against conceptualizing the ‘home’ exclusively in relation to ownership. In 1922 he wrote: ‘… the development in Sweden has moved towards the direction where the majority of the population in urban areas live in rental dwellings… the solution to the housing question in the cities does not lie in the building of owner-occupied houses in the foreseeable future. The one-sided aspiration in the aforementioned direction has – albeit great aspiration – led to the disregard of all the homes in the rental dwellings’. See Bergman 1922, supra note 10, p. 92. Bengtsson 2016, supra note 15, p. 18 f. Christensen 1994, supra note 10, p. 361.

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Haymanot Baheru a specific rental dwelling; the dwelling can be invested with meaning and memories.59 The courts have seemingly delimited the scope of attachment exclusively to the rental dwelling; that is, it does not encompass the location of the rental dwelling. For example, the tenure security of a tenant who wanted to keep a supplementary dwelling due to strong personal connection to a certain location in the form of family and friends was not deemed to be an interest meriting protection.60,61 7.3.3.3 Residential Values This category refers to the tenant’s peaceful enjoyment of the rental dwelling.62 Residential values differ from emotional values in the sense that peaceful enjoyment of one’s home is protected by provisions in the Land Code. Residential values are universally applicable to all types of residential dwellings. Residential values encompass residential quality and safety.63 Residential Quality The tenant’s comfort and well-being is a category of residential values that is connected to the use of the residential dwelling. The tenant’s ability to peacefully enjoy the rental dwelling can be affected by the standard of the dwelling and the occurrences of disturbances.64 The courts seem to acknowledge an ambit of enjoyment which encompasses the environment surrounding the residential dwelling. Deficiency in residential qualities can be sanctioned with remedial injunction and rent reduction, both when an objective deficit is at hand, that is, deficits in its fitness for use, and the occurrence of disturbances of other kind, for example, odour (even when it comes from neighbouring property), harassment or other aggressive behaviour from neighbours, loud noises, loitering, or the occurrence of excessive levels of radon in relation to recommended guidelines, Land Code 12:9-18.65 Safety In the context of landlord and tenant law, safety may be understood in the form of sense of permanence.66 A home is connected with being domiciled.67 The purpose of the provisions on tenure security is to ensure the continuance of a tenant’s occupation of his/her home 59 60 61 62 63 64 65 66 67

Bergman 1923, supra note 10, p. 19. Svea Court of Appeal’s decision of 22 April 2010, case no 4617-09. Compare with Demades v. Turkey (application no. 16219/90), judgment of 31 July 2003. See 4.3.2 below. Bengtsson 2016, supra note 15, p. 18. Ibid., p. 90 f. Ibid., p. 93; NJA 2016 p. 303. For example, RH 1988:11, RH 2002:27 and NJA 2016 p. 303. For additional account of cases, see Holmqvist & Thomsson, supra note 39, comments to 12:16. Bergman 1922, supra note 10, p. 92. According to Bergman, a home ‘cannot tolerate frequent moves’. See Bergman 1922, supra note 10, p. 94. Bergman 1922, supra note 10, p. 92.

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and thereby create ‘increased independence and well-being’ for the tenant, according to the legislator.68, 69 The tenant’s security of tenure also applies in relation to a new owner, provided that the lease is in writing and the tenant has moved into the flat prior to the party substitution, Land Code 7:13 – a form of a right in rem.70 Herein lies the connection between right to home and tenure security: Christensen argues that the former is the independent legal basis for tenure security in Swedish landlord and tenant law.71 The tenant does not need to reside in the unit prior to the party substitution; it is sufficient if he/she has made use of the unit somehow.72 Here, the connection between the concept of ‘home’ and the notion of permanency does not seem to have been taken into consideration. The provisions of tenure security are constructed as a general entitlement to extension of the lease upon the landlord’s termination of the contract.73 The provisions ensuring tenure security provide for security of multiple homes, but the court rulings suggest a strong protection for a dwelling considered to be the occupant’s home. A tenant who occupies a dwelling let for recreational purposes does not enjoy a comparably strong tenure security.74 Despite the applicability of a general entitlement to extension of the lease, the circumstances of the individual case can be as such that restrictions are imposed, Land Code 12:46.75 Here, the landlord’s objective reason(s) for terminating the contract is balanced with the interest(s) of the tenant warranting protection. The requirement of objectivity entails a delimitation on grounds a landlord may base his/her case upon. The inconveniences a loss of home could entail to the specific tenant’s safety and comfort and well-being are taken into consideration as an interest warranting protection.76, 77 A balancing of interests is applied when parties present an objective ground and an interest justifying protection, respectively. In the event one of the parties fails, the courts

68 69 70 71 72 73

74 75

76 77

Prop. 1968:91, Appendix A, p. 40. Compare with Fox O’Mahoney’s x-factors. Christensen, 2000, supra note 18, p. 299. Christensen 1994, supra note 10, p. 94, Svea Court of Appeal’s decision of 22 October 2010, case no 461709. Björkdahl, supra note 35, p. 203. Land Code 12:45-52. An account of the provisions on tenure security is outside the scope of this paper. A brief overview of interest in this context: The provisions exempt certain tenures, for example, subtenures for shorter periods than 2 years, furnished rooms (which can consist of several rooms and include bathrooms – but not kitchen. Hotel rooms are examples of furnished rooms. See Bengtsson, Hager & Victorin, supra note 19, p. 62) or dwellings let for recreational purposes when the tenure has lasted for a shorter period than 9 months or when the unit is a part of the landlord’s own resident, Land Code 12:45. Christensen 1994, supra note 10, p. 84. For example, forfeiture of lease, tenant’s breach of obligations is to the extent that the tenure could not reasonably be extended (e.g. delay with payment of rent), demolishing of the house and a termination of tenancy is not unfair for the tenant and so on. Land Code 12:46. Bengtsson 2016, supra note 15, p. 91; Victorin & Dahlquist-Sjöberg, supra note 37, p. 33. Could be referred to as ‘social reasons’ or ‘social considerations’.

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Haymanot Baheru have ruled in favour of the other party.78 Consequently, if both parties fail, the lease is extended.79 An extension of a lease when the tenant’s interest does not warrant protection is questionable with respect to the infringement of the landlord’s property rights and the society’s counter-interests to rationally dispose of the limited dwelling stock.80 The outermost delimitation of what can be considered a home should be unwarranted infringement on conflicting interests, which in this context are the landlord’s property rights and the society’s objective to secure the right to housing.81

7.3.4

Is There a Concept of Home within the Realm of the Land Code?

The account above suggests that it is possible to distil a concept of home by departing from provisions in the Land Code combined with case law that take the home interest into consideration and connecting it to housing interests. This method of conceptualizing the home enables a portrayal of the concept that goes beyond proprietary interests in a tangible dwelling. In residential tenure, the property that the occupant may claim as his/her ‘home’ is mainly based on the subjective interests of the occupier of the defined area which provides a roof over head.

7.4

The Concept of ‘Home’ in Article 8 of the ECHR

7.4.1

82

Who Is Protected and Who Must Respect or Protect?

7.4.1.1 Who Is Entitled to Respect for Their Home? Article 8 of the ECHR states:

78 79

80 81 82

Victorin & Dahlquist-Sjöberg, supra note 37, p. 66 note 14, with references to RBD 18:83 and RBD 4:87 (where the tenant’s interests did not warrant protection). Victorin & Dahlquist-Sjöberg, supra note 19, p. 33. The authors suggest that the consequence is directly related to the construction of the provisions on tenure security in the Land Code. In her studies of normative patterns, Christensen identifies the protection of the established position as a basic normative pattern in the areas of law which she calls the ‘social dimension’ (i.e. rules that govern circumstances and relationships, which directly affect everyone in their everyday lives. The function of the rules is to maintain, secure and develop the everyday life.). Christensen writes that the special characteristic of the normative pattern of the established position is exhibited by its exclusive availability to those who have already established themselves in a certain position. See Christensen 2000, supra note 18, p. 290. Victorin & Dahlquist-Sjöberg, supra note 19, p. 33. The provisions on tenure security do not take into consideration how the residential dwelling stock should be distributed in the society, Christensen 1994, supra note 10, p. 84. The selection of case law is based on relevance of the theme.

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Right to respect for private and family life 1. Everyone has the right to respect for his private and family, 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 right to respect for one’s home is entitled to everyone, that is, it is not exclusive to occupants of a type of property one may own. A person who has established a home enjoys protection of said home, regardless of the legal nature of the property – or its use.83 The concept of ‘home’ is not dependent on lawful or lawfully established occupation.84 The right to respect for one’s home is exclusive to those who have a home: Article 8 does not provide for a right to housing.85 Nor does it entitle each family to have a home for themselves.86 A person may occupy a home without any proprietary interest in that home. Both owned and rented dwellings fall within the scope of Article 8. In Khatun and Others v. the United Kingdom, the Commission expressed that for the purposes of Article 8, there is no distinction made between applicants who have a proprietary interest in the land on which their house was built and those without such interest.87 A dwelling can be a ‘home’ for a person who is neither its owner nor its tenant, but resides there because of family connection.88 In the landlord and tenant law context, the tenant’s co-habitants may have an independent right to respect for their home, provided that they have or have had ‘sufficient and continuing links’ to the place.89 See Section 7.4.3.2 regarding ‘sufficient and continuing links’. 83 84 85

86 87 88 89

Grabenwarter, supra note 25, p. 196. For example, Škrtic v. Croatia (application no. 64982/12), judgement of 5 December 2013, § 21. Buckley v. the United Kingdom (application no. 20348/92), judgment of 25 September 1996. Chapman v. the United Kingdom (application no. 27238/95), judgment of 18 January 2001; Marzari v. Italy (application no. 36448/97), judgment of 4 May 1999 and O’Rourke v. the United Kingdom (application no. 39000/97), judgment of 26 June 2001. The convention right to home is as such similar to tenant’s right to home within the realm of the Land Code, compare with section 3 above. Velosa Barreto v. Portugal (application no. 18072/91), judgment of 21 November 1995. Khatun and 180 Others v. the United Kingdom (application no. 38387/97), decision from 1 July 1998. Buyse, supra note 32, p. 297. See, for example, Gillow v. the United Kingdom (application no. 9063/80), judgement of 24 November 1986, § 46; Škrtic v. Croatia, § 22 and Winterstein and Others v. France, § 69. See Sandstedt on examples of where the ECtHR has used variations of this criterion, note 30. Within the realm of the Swedish landlord and tenant law, spouses and co-habiting partners enjoy an independent tenure security in the rental dwelling they currently reside in, Land Code 12:47. The provision enables such categories of people to substitute the

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7.4.1.2 Who Is Subject to a Corresponding Duty to Respect the Right for Home? The Swedish landlord and tenant law in general does not make a distinction between private landlords and public housing companies as landlords.90 Both categories of landlords act as competitors in an integrated rental market.91 The obligations and rights of the tenants and the landlords are governed by the Land Code. Article 8 portrays a protection for individuals against arbitrary interference by the public authorities (vertical effect). The Article does not impose an obligation on private parties towards the home occupant, for example, private landlords (direct horizontal effect). The word ‘respect’ in the context of Article 8 suggests the existence of positive obligations on contracting states. The ECtHR has observed that positive obligations are inherent in an effective respect for family life (and also, privacy, home and correspondence).92 Additionally, Article 1 of the ECHR requires that the contracting states secure the rights and freedoms of the convention. The Article has been interpreted as imposing both negative and positive obligations upon the contracting states.93 According to the provisions on tenure security in the Land Code, it is sufficient if a tenant who wants to remain in his/her home notifies the landlord that he/she challenges the termination. The landlord then has to refer the dispute to a Rental Board within a month after notifying the tenant, the Land Code 12:49. Article 8 does arguably have an indirect horizontal effect in relation to disputes between landlords and tenants on the basis that the reference to ‘public authorities’ includes courts and that the courts have a duty to comply with the convention rights.94 In the ECHR context, the interference can thus be said to be made by the courts.95 In the sphere of interpersonal

90

91 92 93 94 95

original tenant provided that the dwelling was aimed to be used or was used as a common residence. Cohabiting children may enjoy a more restricted form of this right – provided that they share the same household as the tenant and upon the landlord’s approval, Land Code 12:34. A decision of the Rental Board can replace the landlord’s consent in the absence of approval. In order for the child to be able to substitute a parent as a tenant, his/her personal qualifications are taken into consideration, that is, suitability and financial stability (Björkdahl, p. 192). The latter provision thus provides a theoretical tenure security for minors. Public housing companies are owned by the municipalities as either limited companies or foundations. When they are run as limited companies, they have to be run in a business-like manner, Act (2010:879) on Public Housing Companies § 1. J. Kemeny, From Public Housing to the Social Market: Rental Policy Strategies in Comparative Perspective, London, Routledge, 1995. Marckx v. Belgium (application no. 6833/74), judgment of 13 June 1979. Harris et al., supra note 26, p. 21. See also Dag, supra note 8, p. 381 f. See also E. Lees, ‘Horizontal Effect and Article 8: McDonald v. McDonald’, Law Quarterly Review, Vol. 131, 2014, pp. 34-39. S. Fick & M. Vols, ‘Best Protection Against Eviction? A Comparative Analysis of Protection Against Evictions in the European Convention on Human Rights and the South African Constitution’, European Journal of Comparative Law and Governance, Vol. 3, 2016, pp. 40-69, p. 45 note 37.

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relations, the ECtHR has stated that ‘a fair balance needs to be struck between the general interest and the interests of the people concerned’.96

7.4.2

Why Is It Relevant to Conceptualize the Home within the Ambit of Article 8?

In a human rights context, the courts need to ascertain the scope of Article 8 in order to determine the permissibility of an interference with a right: first by considering the applicability of the Article (8.1); second, (i) whether an action, for example, termination of a lease, is an interference with a tenant’s right to respect for his/her home – and if so, (ii) whether the interference is justified (8.2), including the proportionality of the interference to the end pursued. A conceptualizing of the ‘home’ in the ECHR context is of importance when the courts assess the permissibility of an interference of the right. In the balancing exercise that is carried out in the second step, the courts need to depart from an understanding of the concept as it is understood within the ambit of Article 8. The concept of home is not defined in the convention. The understanding of the concept has been developed by the case law of the ECtHR. Keeping in mind that the ECHR is a living instrument and that the court interprets it in the light of societal changes and in line with present-day conditions, the concept is continuously developing.97 In the following section, the concept of home will be analysed in connection to the conceptual categories of (a) security and privacy; and (b) subjective experiences, defined under Section 7.3.1 above. It will be followed by an account of the relevant domestic courts’ understanding of the concept.

7.4.3

The Concept of ‘Home’ within the Realm of Article 8

7.4.3.1 Security and Privacy The ECtHR has expressed that a home is usually ‘the place, the physically defined area, where private and family life develops’ (my emphasis).98 A room that is part of a house can in itself constitute a home.99 The requirement of a physically defined area suggests a 96 97 98

99

Velosa Barreto v. Portugal (application no. 18072/91), judgment of 21 November 1995, § 23. Demades v. Turkey, § 33; Cossey v. the United Kingdom (application no. 10843/84), judgment of 27 September 1990, § 35. For example, Moreno Gómez v. Spain (application no.4143/02), judgment of 16 November 2004, § 53; Giacomelli v. Italy (application no. 59909/00), judgment of 2 November 2006, § 76; Gaida v. Germany (application no. 32015/02), judgement of 3 July 2007, p. 9; Hatton and Others v. the United Kingdom [GC] (application no. 36022/97), judgment of 8 July 2003, § 96. Camenzind v. Switzerland (case no. 136/1996/755/954), judgement of 16 December 1997, § 35.

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connection to the home as a physical structure with regard to the function the physical structure provides, that is, to provide the occupant a private sphere.100 The ‘home’ as a physical structure is a prerequisite for the development of ‘sufficient and continuing links’ as there needs to be a physical space within which such links may be forged.101 A property without a house cannot constitute a home.102 The court’s development of the notion of ‘home’ does in this respect give support to the concept of home that has been developed by Fox O’Mahoney (home = house + x) as well as Bergman’s conceptualization of the concept in relation to its ‘social meaning’.103 The concept of home can be understood in the conceptual category of privacy. The right to respect for one’s home is embedded in the context of protection of ‘private and family life’. The ambit of privacy is limited to ‘privacy at home’ – freedom from interference.104 As Buyse has observed, the security element of the concept of home as a physical structure is absent in the ECtHR’s case law.105 7.4.3.2

Subjective Experiences

Sufficient and Continuing Links The concept of ‘home’ is an autonomous concept. As stated above, the concept is not related to proprietary interests. Whether a certain place can be regarded as home within the ambit of Article 8 is much related to the specific circumstances of the case. In general, home has been identified as the place to which the person has or has had ‘sufficient and continuing links’. Present occupation is not definitive to the question of whether or not there are ‘sufficient and continuing links’. The ECtHR’s qualification of what constitutes a ‘home’ in relation to an occupant’s ‘sufficient and continuing’ links suggests that the main underlying housing concept that is connected with the concept of home is attachment – in the broad sense. In Gillow v. the United Kingdom, the applicants had been absent from the home they had established and lived in for 2 years in Guernsey, United Kingdom, for 19 years. The applicants had, in the view of the ECtHR, retained sufficient continuing links with their house for it to be considered their ‘home’ for the purposes of Article 8.106 Factual circumstances of the case that strengthened the ‘sufficient and continuing links’ were the applicants had sold their former home in another city and moved to Guernsey with their family and 100 Buyse, supra note 32, p. 297. 101 S. Nield, ‘Article 8 Respect for the Home A Human Property Right?’, King’s Law Journal, Vol. 23, No. 2, 2013, p. 149. 102 Loizidou v. Turkey (application no. 15318/89), judgment of 18 December 1996, § 66. 103 See 3.1 and note 73. 104 Compare with Fox, supra note 33, p. 461 and Buyse, supra note 32, p. 303. 105 Buyse, supra note 32, p. 302. 106 Gillow v. the United Kingdom.

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furniture (no alternative home); the applicants had retained ownership of the house during their absence; they had kept their furniture in it and had returned to the property with the intention to take up permanent residence. While residency for 2 years, ownership and the keeping of personal belongings are objective factors supporting sufficient and continuing links to a place, the applicants’ intent to permanently reside in their house is of subjective nature. The court also suggests factual circumstances that could have diminished continuing links: the establishment of another home within the United Kingdom and length of absence.107 In Buckley v. the United Kingdom, time in the sense of lengthy habitation and absence of intent to establish another home was also a strengthening factor. Here, the applicant had acquired some land in 1988 to which she moved her three caravans, even though the site had not received planning permission for residential use of caravans.108 The factual circumstances of the case the court took into consideration were objective factors such as the applicant’s ownership of the land and lengthy habitation: She had lived there almost continuously since 1988. The court also took into consideration that her acquisition of the land was for the purposes of establishing a home, which is a subjective matter. The court’s reasoning also suggests that ‘sufficient and continuing links’ was strengthened by the absence of intent to establish another residence elsewhere.109 A temporarily broken continuity does not appear to weaken the applicants’ link to a place. In Buckley v. the United Kingdom, the applicant had temporarily set up her caravan elsewhere because of ‘family reasons’.110 Case law suggests that broken continuity as a result of the respondent state does not diminish an applicant’s ‘sufficient and continuing links’.111 Taking into consideration the impact of time in the sense of lengthy habitation has had for the establishment of ‘sufficient and continuing links’ in the cases mentioned above, it is possible to argue that temporary occupation of a place, for example, use of hotel rooms, falls outside the ambit of home.112 In Hartung v. France, an artist’s dressing room that had been available for the applicant’s use on occasional basis did not qualify as a home for the purposes of Article 8.113 In the aforementioned cases, the absence of establishment of another residence strengthened the applicants’ ‘sufficient and continuing’ links to a dwelling. In Demades v. Turkey, a house that had not been established for being used as a primary residence qualified as a ‘home’ in the ambit of Article 8. The court reasoned that ‘it may not always be possible 107 108 109 110 111 112

Ibid., § 46. See also Buckley v. the United Kingdom, where time was a strengthening factor. The home was thus unlawfully established. Buckley v. the United Kingdom, § 54. Ibid. See Buyse, supra note 32, p. 297. See Buyse, supra note 32, p. 297. Compare with note 64 reg. the exception of furnished rooms, for example, hotel rooms, from the provisions on tenure security in the Land Code. 113 Hartung v. France (application no. 10231/07), decision from 03 November 2009, En droit, p. 1.

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to draw precise distinctions, since a person may divide his time between two houses or form strong emotional ties with a second house, treating it as his home.’114 Whether a secondary residence can be regarded as a home in the meaning of Article 8 depends on factual circumstances in the specific case. In Demades v. Turkey, the court took into consideration both objective and subjective factors. Objective factors supporting the existence of ‘sufficient and continuing’ links were the house was fully furnished and equipped, the applicant and his family had made regular use of it and had resided in the house substantial periods of time over the years. It had served inter alia as a holiday home and for providing hospitality and entertainment to relatives, friends and persons associated with the applicant’s business activities. The objective matters suggest the need to make regular use of a resident in order for it to qualify as a home. The court also weighed in subjective factors such as the applicant’s and his family’s treatment of the house as a home. Emotional Attachment In Connors v. the United Kingdom, the ECtHR characterized the right to home as a right ‘which concerns 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’.115 The emotional attachment a person may develop with a home can be understood in view of this characterization. Home in this context resonates with Fox O’Mahoney’s value clusters of home as ‘identity’ and as ‘a social and cultural unit’.116 The mere circumstance that a person has a personal attachment to a location because of one’s personal family history does not seem to suffice. In Loizidou v. Turkey, the court expressed that the ambit of home in Article 8 does not encompass ‘an area of a state where one has grown up and where the family has its roots but where one no longer lives’.117 That is, the mere presence of the x-factors without the house cannot constitute a home, if home is understood in Fox O’Mahoney’s terms (home = ‘house + x’). Residential Values Peaceful enjoyment of the home. The concept of home is connected to residential values of peaceful enjoyment of the home. Peaceful could be understood as ‘quiet enjoyment of that area’.118 The occupants’ ability to peacefully enjoy his/her home seems to be related 114 Demades v. Turkey (application no. 16219/90), judgment of 31 July 2003, § 33. 115 Connors v. the United Kingdom (application no. 66746/01), judgement of 27 May 2004, § 82. 116 Fox O’Mahoney identifies two constituting elements of home as identity: (i) the importance of home in an occupier’s self-identity and (ii) the importance of home in the occupier’s social identity, see L. Fox, ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’, Journal of Law and Society, Vol. 29, No. 4, 2002, p. 598 f. 117 Loizidou v. Turkey, § 66. 118 Moreno Gómez v. Spain (application no.4143/02), judgment of 16 November 2004, § 53.

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to both the impact of the environment and the occupants’ ‘personal security and wellbeing’.119 The ECtHR has developed a case law where breaches of the right to respect for the home include intrusions that are not concrete or physical, but could be categorized as disturbances, for example, noise, emissions, smells or other forms of interference. These types of disturbances may result in the violation of a person’s right to respect for his/her home if they prevent him/her from enjoying the amenities of the home.120 Permanency. As stated above, the ECtHR has developed the concept of home mainly in relation to an occupant’s sufficient and continuing links. The court’s view on the strengthening factor of lengthy habitation combined with the court’s view of loss of one’s home as ‘a most extreme form of interference with the right to respect for the home’ suggests a notion of permanency in the concept of ‘home’ within the ambit of Article 8.121 When tenants have been obliged to vacate a rental dwelling, the obligation has been regarded as an interference to their right to home.122

7.5

7.5.1

Swedish Tenancy Courts and the Convention-Based Right to 123 Respect for the Home

Cases Where Tenants Have Invoked Their Convention-Based Right to Respect for Their Home

As stated in the beginning of this contribution, the number of cases where the Swedish tenancy courts have had to deal with tenants’ convention-based right to respect for their home is limited. There are only six published decisions from Svea Court of Appeal, accounted for below. The cases are presented in chronological order. RH 2014:45. In RH 2014:45, a couple had taken far-reaching measures with the property in terms of constructions without the landlord’s consent. The Land Code exemplifies the type of renovations a tenant may undertake, for example, painting or putting up wall papers, or equivalent. A tenant is in contractual breach of his/her statutory responsibility to care for the rental dwelling, if he/she takes other measures than those expressively per119 Gillow v. the United Kingdom, § 55. 120 For example, Hatton and Others v. the United Kingdom, § 96; Powell and Rayner v. the United Kingdom (application no. 9310/87), judgement of 21 February 1990, § 40. 121 Zehentner v. Austria (application no. 20082/02), judgement of 16 July 2009, § 59. 122 Cosic v. Croatia (application no. 28261/06), judgement of 15 January 2009, § 18; Stanková v. Slovakia (application no. 7205/02), judgement of 9 October 2007, § 57; McCann v. the United Kingdom, § 47. 123 Only rulings from Svea Court of Appeal (final authority on issues relating to tenure security) are of interest here.

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mitted by law without the landlord’s consent, Land Code 12:24. In this case, the extensive renovations pursued even after the landlord sent them notice to cease. The court concluded that their actions were of that nature that is exclusive to the property owner and that the lease could not reasonably be extended due to their serious breach of their obligations as tenants, Land Code 12:46 sec. 1 item 2.124 Their statutory security of tenure had therefore ended. By the time the Court of Appeal tried the case, the man had moved out. The tenant who still resided in the apartment argued that the court should take into consideration her right to respect for her home under Article 8. The tenant stated that she currently resided there alone with her children and that the dwelling was the place they felt safe and that they would have a hard time finding an equivalent resident. When assessing whether a termination of the lease would violate the tenant and her family’s right to respect for their home, the court made references to Danelius’ commentary on the ECHR. In his comments on Article 8, he writes ‘one who does not own – but rents or leases – has a more restricted right to respect for one’s home’ (my emphasis).125 Danelius further concludes that a termination of a contract upon the end of lease or forfeiture is permissible interference within the scope of Article 8.126 The court thus interprets Danelius’ comments as grounds for dismissing the tenant’s objections to losing the home of herself and her children, without considering a potential interference with the tenant’s right to respect for her home as provided for in Article 8. Continuing, the court reasoned that the grounds for terminating the tenancy were strong enough (within the realm of the Land Code) and that the lease should not reasonably be extended. Considering the severity of the tenant’s actions, a termination of the lease was a proportionate infringement to her right to respect for her home.127 It is unclear how the court took the tenant’s or the children’s interest to remain in their home into consideration. The Nilsson Case.128 A tenant’s main responsibility in a tenancy agreement is to pay rent.129 The tenant’s failure to fulfil this obligation is sanctioned with forfeiture, Land Code 12:42 items 1 and 2. A forfeiture leads to the tenant’s loss of home. The provisions in the Land Code provide protection for the tenant by prescribing that only a delay that is longer than 1 week after the rent is due can lead to forfeiture. A landlord may terminate the tenancy thereafter. The Land Code does, however, provide protection for tenants who have received notice of forfeiture by providing them an opportunity to recover the tenancy. The landlord 124 125 126 127 128 129

See note 73. Danelius 2015 supra note 7, p. 427. Ibid. RH 2014:45. Svea Court of Appeal’s decision of 2014-11-05 in case no. ÖH 9194-14. J. Munukka, ‘Avtalsfrihet i hyresrätten. Om betydelsen av hyresgästs dispositioner’, Skrifter till Anders Victorins minne 200, p. 399.

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has to send a notice of recovery informing the tenant of the possibility to recover the tenancy by paying the delayed rent before a certain date, Land Code 12:44 paragraph 1. The recovery period has to be at least 3 weeks after the tenant has been notified. The landlord also has to notify the local social welfare board about the forfeiture and the reason thereof. The welfare board can recover the tenancy on behalf of the tenant, 12:44 paragraph 1, item 1. A forfeiture does not have a legal effect if the landlord has failed to adhere to the compulsory termination procedures.130 Moreover, there is a possibility for the courts to make a reasonability assessment where the severity of the contractual breach is weighed against the tenant’s loss of home, item 2. The tenant in this case was a man who had been unemployed for 2 years and resided in the apartment with his 12-year-old daughter. Due to his unemployment, he received remuneration equivalent to unemployment benefits for their livelihood. When the landlord terminated the tenancy agreement, the tenant had not paid 6 months’ rent. His debt amounted to at least 100,000 SEK. The tenant had not shown up to the proceedings of the Rental Board of Malmö. The Board had therefore made a decision where it confirmed the termination of his tenancy. When his case was tried by Svea Court of Appeal, the tenant argued that he had applied for assistance on several occasions from the social services, but had been denied assistance. He had also appealed the final decision from the social services to the Administrative Court – who still had not tried the case. His bad credit score would also make it difficult for him to find another accommodation. He further argued that a termination of the lease would violate his entitlement to respect for their home. The court found that the tenant’s considerable delay with payment of rent was a breach of his obligations as a tenant to an extent that the lease could not reasonably be extended. The court observed that the tenant’s objections of personal nature were not ‘legally relevant reasons for extending his tenancy’.131 The court proceeded to address the tenant’s claim that a termination of the tenancy would violate his rights according to Article 8. By referring to Danelius’ conclusions regarding tenants’ more restricted right to respect for their homes and its preceding decision in RH 2014:45, the court concluded that a termination of the contract upon forfeiture complies with Article 8. The court did not address the child’s right to respect for her home. The Victoria Park Case.132 The case concerned the termination of leases for three separate tenants. All three tenants had asked the court to take into consideration their right to respect for their home as provided for by Article 8 in the ECHR. The landlord’s reasons for requesting termination of the leases were in brief: (i) their children’s criminal behaviour 130 RBD 17:81. 131 The Nilsson Case, p. 3 in Svea Court of Appeal’s decision. 132 Svea Court of Appeal’s decision of 2014-11-21 in the combined cases of ÖH 936-14, ÖH 1589-14 and ÖH 1592-14.

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in various forms – allegedly both collectively and separately; (ii) one of the tenant’s disturbing behaviour; and (iii) all tenant’s neglectful payment of rent. The court assessed the various grounds for termination separately and found one of the tenant’s repeated failure to pay rent in combination with his accumulated debts – amounting to 16,846 SEK – was a breach of his obligations as a tenant to an extent that the lease could not reasonably be extended, Land Code 12:46 sec. 1 item 2.133, 134 In its subsequent engagement of Article 8, the court departed from Danelius’ conclusions, followed by a balancing of interests. Continuing, the court found that ‘the grounds for not extending the lease were so strong, the tenant’s interest to remain in his resident should yield in favor of the landlord’s interest in the lease to end’.135 The court considered a termination of the lease to be a proportionate infringement of his right to respect for the home in relation to the severity of the tenant’s breach of his obligations and the landlord’s interest in terminating the tenancy agreement. Unlike the first two cases, the court made a balancing of the parties’ interests in the Victoria Park Case. The Nilgren Case.136 The tenant in this case had been consistently delayed with payment of rent after entering a tenancy agreement by substituting a former partner. She had been delayed even after receiving notice of forfeiture from the landlord. The tenant – who argued that she was not aware of the consequences of her delay – asked the court to take into consideration that she was a single mother of a 12-year-old child in its general reasonability assessment. The court viewed the tenant’s repeated delay combined with her unchanged behaviour after receiving notice of forfeiture to be a severe breach of her obligations as a tenant. Her tenancy would thus end, pursuant to the provisions in the Land Code, unless the tenant had an interest to remain in the rental warranting protection.137 Unlike the other cases where Svea Court of Appeal has tried tenant’s right to respect for the home, the court initiated an engagement of Article 8 of the ECHR as part of its general reasonability assessment. It is also interesting to observe that this initiative was not dependent on the tenant’s claims. 133 See note 73. 134 The court did not find the other two tenants’ delay to make payment to be a breach of obligations as a tenant to an extent that the lease could not reasonably be extended. The court found that the first tenant had been delayed with payment of the rent between 3 to 17 days between July and October 2014, which would be a serious breach of his obligations as a tenant. In a subsequent general reasonability assessment, the court took into consideration that the tenant did not have any remaining debts, as well as his duly payment of the rent prior to the landlord’s termination of the contract, and thus found that the tenant’s lease could be extended. The second tenant had been delayed with payment of 1 month’s rent. The court did not find her breach of her obligations as a tenant severe enough to terminate her lease. 135 Victoria Park Case, p. 13. 136 Svea Court of Appeal’s decision of 2015-12-02 in case ÖH 7189-15. 137 See note 73.

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In its general reasonability assessment, the court addressed the potential negative impact a forfeiture could have on the tenant’s child. Regarding this issue, the court concludes that a tenant lacks the strong protection of home that ownership provides. The court reasoned that a termination of a lease upon forfeiture or expiration does not violate Article 8 of the ECHR with references to Danelius’ commentary and the preceding cases accounted for above. The court therefore concluded that there were no reasons for it to make another assessment in this case. The Gullstrand Case.138 The tenant had been repeatedly delayed with payment of rent in 2014 and 2015, and on several occasions, it had been a matter of considerable delays. The tenant had been delayed even after receiving notice of correction and termination. She had thereby breached her obligations as a tenant to an extent that the lease could not reasonably be extended, Land Code 12:46 paragraph 1 item 2.139 The tenant made an argument for extension of her lease partly on the basis that a termination would violate her children’s right to respect for their home, as provided for in Article 8 of the ECHR. The court of appeal dismissed her argument on the basis of Danelius’ conclusions regarding tenants’ lack of strong protection. The court has seemingly interpreted Danelius’ statement as grounds for dismissal of a tenant’s objection of losing the home of herself and her children without considering a potential interference with the tenant’s right to respect for her home, as provided for in Article 8. The Zein Case.140 In January 2015, the tenant had been sentenced to prison for 8 years. The drug-related crimes do not appear to be connected to the rental dwelling. When the landlord terminated his lease, he had been incarcerated for 2 years. According to the Swedish Prison and Probation Service, the tenant would be released on parole at the earliest 24 August 2019. Whilst serving his sentence, the tenant could be granted periods of absence at the earliest 24 July 2017 but would not be granted special measures to prepare the inmate for life after release, such as increased clearance to leave the prison temporarily. Therefore, the landlord argued that the tenant no longer had need of the rental dwelling as his home or alternatively no permanent use of the dwelling. The landlord’s objective reason for terminating the contract was intention to let to someone else – a reason considered to be of objective nature. The tenant on the other hand argued that a termination of the contract would violate his right to respect for his home under Article 8. He also argued that he was still in need

138 Svea Court of Appeal’s decision of 2015-12-07 in case no. ÖH 4843-15. 139 See note 73. 140 Svea Court of Appeal’s decision of 2016-09-14 in case no. ÖH 6377-16.

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of the apartment during his incarceration and upon release. The Swedish Prison and Probation Service’s decision to not grant special measures to prepare the inmate for life after release could be up for review whilst serving time, provided that he had access to accommodation. Furthermore, he will have need of the rental dwelling upon release in order to meet his children’s need of spending time with their father. In this case, Svea Court of Appeal started with addressing whether a termination of the contract would violate the tenant’s right to respect for home by observing that a tenant has a more restricted right to respect for home, with references to Danelius’ conclusions. The observation appears to be the court’s conclusions and the court’s reasoning on this ground ends there.141 As stated above under Section 7.3.3.3, a tenant is generally entitled to extension of the lease, unless the circumstances of the individual case are such that restrictions should be imposed, Land Code 12:46. Here, the landlord’s objective reason(s) for terminating the contract is balanced with the interest(s) of the tenant warranting protection. The court found the tenant’s need of the apartment at the time of the decision to be small. His future need of the apartment was too far off in the future to warrant protection, in the court’s view. The court thus concluded that the tenant’s contract could not be extended – even when his convention-based right to respect for home had been taken into consideration.

7.5.2

The Higher Swedish Rental Court’s Understanding of the Concept of Home

The account above suggests a conceptual challenge for Svea Court of Appeal when a tenant who no longer enjoys tenure security pursuant to the provisions in the Land Code invokes his/her convention-based right to respect for his/her home. The courts’ understanding of the concept seems to be interrelated with proprietary interests. The courts consistently referred to Danelius, who writes ‘one who does not own – but rents or leases – has a more restricted right to respect for one’s home’ (my emphasis).142 The foundation of the establishment of the occupants’ homes, that is, rental agreements, appears to have been interpreted as grounds for dismissal of or understanding the scope of tenants’ convention-based right to home. As stated above in Section 7.4.1.1, a dwelling can be a ‘home’ for a person who is neither its owner nor its tenant, but resides there because of family connection.143 In almost all cases where tenants have invoked Article 8 of the ECHR in Svea Court of Appeal, tenants were parents who advocated for their children’s right to respect for their home. It is not 141 Svea Court of Appeal’s decision of 2016-09-14 in case no. ÖH 6377-16, p. 3. 142 Danelius 2015 supra note 7, p. 427. 143 Buyse, supra note 32, p. 297.

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possible to arrive at any conclusions on the courts’ understanding of the children’s independent right to home from these decisions as they were not parties in the respective cases. Their right to respect for their home was dependent on the court’s conclusions regarding the parents’ right to respect for their home.

7.5.3

Method Applied by the Higher Swedish Rental Court

A methodological challenge is suggested when the question is the permissibility of an interference with a tenant’s right to respect for his/her home. In all the above-mentioned cases, the termination of the tenants’ leases was in accordance with the provisions in the Land Code. An obligation for a tenant to move from a residential dwelling amounts to an interference with his/her right to respect for his/her home – even if the court’s decision is in accordance with the law.144 As stated above, the ECtHR has held that the loss of one’s home is ‘a most extreme form of interference with the right to respect for the home’.145 Therefore, anyone at risk of ‘an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention’.146 A proportionality assessment has to be made even if the tenant’s right to occupation has expired under domestic law.147 The courts are obliged to explore a proportionality defence when tenants have decided to advance such a defence.148 The proportionality assessment can be understood as a minimum level of protection against the loss of home.149 The minimum level of protection does not take into consideration how the home was established. Svea Court of Appeal has not assessed the permissibility of the interference of the right to respect for home in the majority of the cases. The second paragraph of Article 8 permits interference with the exercise of the right. An interference in the enjoyment of rights protected under Article 8 is permissible as long as it is ‘in accordance with the law and is necessary in a democratic society’ in order to pursue one of the legitimate aims enumerated in the paragraph: the interests of national security, public safety or the economic well-being of the country, for the prevention of

144 For example, Paulic v. Croatia, § 38; Cosic v. Croatia, § 18; McCann v. the United Kingdom, § 47; Stanková v. Slovakia, § 57. 145 Zehentner v. Austria, § 59. 146 Zehentner v. Austria, § 59; with references to McCann v. the United Kingdom. 147 McCann v. the United Kingdom, § 50. 148 M. Vols, P.G. Tassenaar & J.P.A.M. Jacobs, ‘Anti-Social Behaviour and European Protection against Eviction. An Analysis of Dutch Case Law Based on Statistics’, International Journal of Law in the Built Environment, Vol. 7, No. 2, 2015, pp. 148-161, with references to McCann v. the United Kingdom, Orlic v. Croatia (application no. 48833/07), judgement of 21 June 2011 and Brežec v. Croatia (application no. 7177/10), judgement of 18 July 2013. 149 Vols, Tassenaar & Jacobs, supra note 148, p. 2.

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disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The interference also needs to be proportionate to the legitimate aim pursued. The permissibility assessment can be characterized as a procedural protection for the occupier who risks losing his/her home.150 The decision to terminate the tenants’ leases was in accordance with the provisions in the Land Code in all the cases. The first criterion, that is, that a termination has to be in accordance with the law, has thus been met in all cases. The second criterion, that is, the necessity of an interference in a democratic society, concerns with the question of whether an interference is proportionate to the aim pursued. In the case of Connors v. the United Kingdom, the ECtHR expressed that ‘an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need”’ and, in particular, if it is proportionate to the legitimate aim pursued.’151 The initial assessment of the necessity of the interference is made by the national courts or authorities to whom the ECtHR has left a margin of appreciation. The final evaluation as to whether the reasons cited for the interference are relevant and sufficient is subject to review by the ECtHR for conformity with the requirements of the Convention.152 In the context of tenancy agreements, termination of a tenancy agreement in order to protect the rights and freedoms of landlords or to meet society’s interests to satisfy housing needs is an example of legitimate aims. The interference must, however, be proportional to the legitimate aim it seeks to pursue. This could entail a responsibility for the courts to consider the occupier’s personal circumstances.153 In the Nilsson Case, Svea Court of Appeal took the position that the defence the tenant had put forward was of personal nature and thus had no legal relevance. Whilst that is the case under the provisions in the Land Code, the same cannot be said when a tenant has invoked his/her convention-based tenure security. It can be argued that the method the court has applied consistently in all cases does not give room for the procedural tenure protection Article 8 of the ECHR provides. The court’s consistency in connecting the concept of home to proprietary interests, combined with the absence of a permissibility assessment pursuant to Article 8 paragraph 2 of the ECHR, suggests a resistance to tenure security within the human rights paradigm. In the Swedish context in general, in tenancy law in particular, the courts appear to have taken a conservative stance towards introducing a human rights paradigm within the context of tenure security. This approach is problematic to the individuals who risk having their rights interfered with due to the courts’ reception of the convention as a legal source.

150 151 152 153

Fick & Vols, supra note 95, p. 46. Connors v. the United Kingdom, § 81. Ibid. Nield, supra note 101, p. 166.

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7.6

Tenant’s Right to Respect for Home: A Challenge for Swedish Tenancy Courts? Conclusion

After 2014, the Swedish tenancy courts have had to deal with the question of how the right to respect for home Article 8 of the ECHR correlates with the statutory tenure protection the Land Code provides. This appears to have caused both a conceptual and methodological challenge for the courts. The account of the domestic courts’ decisions when tenants have invoked a right to respect for their homes suggests a need of further research on the concept of home: particularly within the context of residential tenure. The study of the decisions also raises the question of whether the doctrinal method the courts have applied can satisfy the procedural protection Article 8 provides.

References Bengtsson, B., Ideella värden i fastighetsrätten, Stockholm, Wolters Kluwer, 2016. Bengtsson, B., Hager, R. & Victorin, A., Hyra och annan nyttjanderätt till fast egendom, 8 ed., Stockholm, Norstedts Juridik, 2013. Bergman, C.G., ‘Hyresgästens hem’, Tiden, No. 2, 1922, pp. 92-112. Bergman, C.G., ‘Hyresfrågan och hemmets rätt: till hyresgästerna inför hemskyddets slut den 1 oktober 1923’, Lund, 1923. Bergman, C.G. & Kuntze, H., ‘Hyresfrågan och samhället. Föredrag hållet å Göteborgs Högre Realläroverk den 27 januari 1924’, Göteborg, Framåt, 1924. Björkdahl, E.P., Hyra av bostad och lokal, Uppsala, Iustus förlag, 2013. Buyse, A., ‘Strings Attached: The Concept of “Home” in the Case Law of the European Court of Human Rights’, European Human Rights Law Review, 2006, pp. 294-307. Christensen, A., Hemrätt i hyreshuset. En rättsvetenskaplig studie av bostadshyresgästens besittningsskydd, Stockholm, Juristförlaget, 1994. Christensen, A., ‘Protection of the Established Position. A Basic Normative Pattern’, Scandinavian Studies in Law, Vol. 40, 2000, pp. 285-324. Dag, V., ‘Svenska domstolars hantering av Europakonventionen’, SvJT 2013, pp. 343-396.

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Danelius, H., Mänskliga rättigheter i europeisk praxis. En kommentar till Europakonventionen om de mänskliga rättigheterna, 5 ed., Stockholm, Norstedts Juridik, 2015. Fick, S. & Vols, M., ‘Best Protection Against Eviction? A Comparative Analysis of Protection Against Evictions in the European Convention on Human Rights and the South African Constitution’, European Journal of Comparative Law and Governance, Vol. 3, 2016, pp. 40-69. Fox, L., ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’, Journal of Law and Society, Vol. 29, No. 4, 2002, pp. 580-610. Fox, L., Conceptualising Home: Theories, Laws and Policies, Portland, Hart, 2007. Fox O’Mahoney, L., ‘The Meaning of Home: From Theory to Practice’, International Journal of the Built Environment, Vol. 5, No. 2, 2013, pp. 156-171. Grabenwarter, C., European Convention on Human Rights. Commentary, München: Hart Publishing, 2014. Harris, D., O’Boyle, M., Bates, E. & Buckley, C., Law of the European Convention on Human Rights, 3 ed., Oxford, Oxford University Press, 2014. Holmqvist, L. & Thomsson, R., Hyreslagen, Zeteo, 2016. Kemeny, J., From Public Housing to the Social Market: Rental Policy Strategies in Comparative Perspective, London, Routledge, 1995. Kjellbom, P., ‘Socialtjänstens hyresrättsliga roller vid risk för påtvingad avflyttning från bostad’, Socialvetenskaplig tidskrift, No. 1, 2013, pp. 13-34, p. 21. Kjellbom, P. & Alexius, K., ‘Socialrättsliga principer vid risk för vräkning – finns det i Sverige en rätt till boende, bostad eller ett hem?’, JT 2011/12, pp. 273-298. Kjellström, K., ‘Den sociala civilrättens framväxt’, JT Jubeliumhäfte 2007, pp. 35-47. Lees, E., ‘Horizontal Effect and Article 8: McDonald v. McDonald’, Law Quarterly Review, Vol. 131, 2014, pp. 34-39.

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Lejman, F., Rättsförhållandet mellan hyresvärd och hyresgäst, Lund, C.W.K. Gleerup, 1951. Lind, A., Sociala rättigheter i förändring. En konstitutionell studie, Uppsala, Uppsala universitet, 2009. Maass, S.M., Tenure Security in Urban Rental Housing, Stellenbosch, Stellenbosch University, 2010. Munukka, J., ‘Avtalsfrihet i hyresrätten. Om betydelsen av hyresgästs dispositioner’, Skrifter till Anders Victorins minne 200, pp. 397-425. Nield, S., ‘Article 8 Respect for the Home A Human Property Right?’, King’s Law Journal, Vol. 23, No. 2, 2013, pp. 147-171. Norberg, P. & Juul-Sandberg, J., ‘Rent Control and Other Aspects of Tenancy Law in Sweden, Denmark and Finland: How Can a Balance be Struck between Protection of Tenants’ Rights and Landlords’ Ownership Rights in Welfare States?’, Paper presented at The European Network for Housing Research Conference, Belfast, United Kingdom, 2016. Sandstedt, J., ‘Utmätning av bostad – och EMK:s tilltagande betydelse’, ERT, 2016, pp. 596-634. Schmid, C.U. & Dinse, J.R., ‘Towards a Common Core of Residential Tenancy Law in Europe? The Impact of the European Court of Human Rights on Tenancy Law’, ZERPWorking Paper 1/2013. Victorin, A., ‘Om kontraheringstvång inom förmögenhetsrätten’, SvJT 1976, pp. 436-451. Victorin, A., Kommersiell hyresrätt, 3 ed., Stockholm, Norstedts Juridik, 2003. Victorin, A. & Dahlquist-Sjöberg, A., Flexibilitet och besittningsskydd, Stockholm, Kungliga tekniska högskolan 2003 (report no. 15, KTH’s Bostadsprojekt, essay no. 23). Vols, M., Kiehl, M.N.F. & Sidoli del Ceno, J., ‘Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany’, European Journal of Comparative Law and Governance, No. 2, pp. 156-181.

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Vols, M., Tassenaar, P.G. & Jacobs, J.P.A.M., ‘Dutch Courts and Housing Related Antisocial Behaviour. A First Statistical Analysis of Legal Protection against Eviction’, International Journal of Law in the Built Environment, Vol. 7, No. 2. 2015, pp. 148-161. Wilhelmsson, T., Critical Studies in Private Law, Dordrecht, Kluwer Academic Publishers, 1992.

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The Right to Housing and the Right to a Second Chance

How Dutch Landlords and Local Authorities Facilitate and Frustrate the Successful Reintegration of Ex-Offenders Stefan van Tongeren & Michel Vols

8.1

Introduction

Having a roof over one’s head is an important aspect of a person’s well-being. Housing has even been recognised by Maslow as one of the most basic human needs, similar to food and water.1 Consequently, housing is an essential element of the reintegration process of ex-offenders;2 without stable housing the ex-delinquent is likely to revert to his criminal habits.3 All delinquents have a right to a second chance after they are released from detention. This resocialisation principle is a fundamental doctrine in Dutch law.4 In the Netherlands, about 40,000 prisoners return to society every year.5 Many of these ex-offenders are temporarily housed in emergency shelters before they find more adequate and permanent accommodation. Although the housing of ex-offenders usually goes without any serious problems, the arrival of an ex-offender in the community sometimes provokes heated protests, especially in cases concerning (paedophile) sex offenders.6 These protests can

1 2

3 4

5 6

A.H. Maslow, ‘A Theory of Human Motivation’, Psychological Review, Vol. 50, 1943, pp. 370-396. See, for example, S.J. Bahr, C. Davis & C. Ward, ‘The Process of Offender Reintegration: Perceptions of What Helps Prisoners Reenter Society’, Criminology and Criminal Justice, Vol. 13, No. 4, 2013, pp. 446449. See, for example, C.G. Roman & J. Travis, Taking Stock: Housing, Homelessness, and Prisoner Reentry, New York, Urban Institute Justice Policy Center, 2004. For instance, Article 2(2) of the Dutch Penitentiary Principles Act (Penitentiaire beginselenwet) provides that ‘[w]hile maintaining the character of the custodial sentence or detention order, the carrying out thereof shall be aimed at preparing the person involved as much as possible for reintegration in the community’. See also, for example, T. Molleman & A.A. van den Hurk, ‘Een kwestie van evenwichtskunst: Over de doelen en taken van het gevangeniswezen’, Delikt & Delinkwent, Vol. 55, No. 4, 2012 and M.M. Boone, ‘Vrije wil en verantwoordelijkheid in de strafuitvoering’, Justitiele Verkenningen, No. 1, 2013, pp. 106-121. Dienst Justitiële Inrichtingen, DJI in getal 2011-2015, Den Haag, 2016, p. 35. Between 2008 and 2015, there have been 21 cases in which residents protested against the arrival or presence of a sex offender in the community: M.C.A. Liem, Herintreding Zedendelinquenten, Den Haag, Campus Den Haag, 2015, p. 8.

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Stefan van Tongeren & Michel Vols include petitions,7 demonstrations,8 the handing out of warning flyers,9 (serious) threats and sometimes even physical violence.10 It is the responsibility of local authorities to secure the quality of life in the municipality by maintaining public order.11 Most local authorities will try to convince the ex-offender that it is in everybody’s interest, including his/her own, to move to another community where his/her presence is less likely to create unease among residents. Research has shown, however, that more often than not the ex-delinquent refuses to cooperate.12 In such cases the local authority lacks the necessary powers to prevent the ex-offender from settling in the community or to force him/her to move to another municipality.13 In the Netherlands, most returning ex-offenders looking for permanent accommodation depend on social housing provided by housing associations. Due to the lack of legal instruments local authorities assign these housing associations with an increasingly important role in the organisation of the housing of ex-offenders. It is, for instance, standard policy of the Association of Dutch Municipalities (Vereniging van Nederlandse Gemeenten) that local authorities should work together with housing associations to provide returning ex-offenders with adequate housing.14 Given the above, this paper presents a first and explorative overview of legal issues concerning the housing of ex-offenders by Dutch housing associations. Using doctrinal legal research methods we describe to what extent local authorities and housing associations not only facilitate but also frustrate the housing of ex-delinquents. Not only do we assess relevant literature and legal policy documents, but we aim to analyse the ‘law in action’ as well.15 Colombi Ciacchi has characterised judicial decisions as ‘the most classical sources

7

8 9 10 11

12 13 14

15

For example, District Court Alkmaar 8 October 2009, ECLI:NL:RBALK:2009:BK1181. Throughout this paper, we refer to all case law using the European Case Law Identifier (ECLI). ECLI is used in the European Union as a uniform identifier for case law produced by European and national courts. It is composed of five elements: the acronym ‘ECLI’, the country code, the code of the court that decided on the case, the year in which the judgement was rendered and a unique identifier number. See also the official website of the European Union on European Union law (eur-lex.europe.eu). For example, District Court Den Haag 6 October 2015, ECLI:NL:RBDHA:2014:12142. For example, District Court Utrecht 15 December 2010, ECLI:NL:RBUTR:2010:BO7295 and District Court Utrecht 24 March 2010, ECLI:NL:RBUTR:2010:BL8577. For example, District Court Noord-Holland 21 January 2013, ECLI:NL:RBNHO:2013:BZ0111. Article 172 of the Dutch Municipalities Act states that ‘[t]he mayor is charged with maintaining public order’. See also J. Brouwer, ‘Wat is openbare orde? Bevoegdheden van burgemeester niet onbegrensd’, Nederlands Juristenblad, Vol. 2016, No. 30, 2016, pp. 2162-2169. M.M. Boone, H.G. van de Bunt & D. Siegel, Gevangene van het verleden. Crisissituaties na de terugkeer van zedendelinquenten in de samenleving, Amsterdam, Reed Business, 2014, p. 79. C.E. Huls & J.G. Brouwer, De terugkeer van zedendelinquenten in de wijk, Amsterdam, Reed Business, 2013. Vereniging van Nederlandse Gemeenten & Dutch Ministry of Safety and Justice, Richting aan re-integratie. Convenant Re-integratie van (ex-)gedetineerden, 2015, available at: (accessed 20 February 2017). R. Pound, ‘Law in Books and Law in Action’, American Law Review, Vol. 44, 1910, pp. 12-36.

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of law in action’.16 Therefore, we systematically collected and analysed all relevant case law published in the database of the Dutch judiciary, www.rechtspraak.nl, up to March 2017, using the following (translated) search terms: ‘sex offender + tenant’, ‘refusing + tenant’, ‘offender + tenant’ and ‘screening + tenant’. This resulted in six cases concerning landlords’ refusals to enter into a tenancy agreement with ex-offenders or concerning evictions of ex-offenders. Whilst centred on Dutch law, the analysis is also relevant for other jurisdictions facing similar issues. Research shows that in many societies the housing of ex-offenders is problematic due to housing shortages and fear of recidivism.17 In most jurisdictions eviction is used to fight anti-social behaviour and ‘quality of life offences’ in residential areas.18 It is, however, interesting to notice that in some jurisdictions the screening of people including ex-offenders can also be observed.19 This paper is organised as follows. The first section briefly describes the relationship between ex-offenders’ right to housing and their reintegration into society. The second section discusses the extent to which Dutch housing associations are able to reject applicants based on a criminal record, particularly if their arrival is likely to provoke protests in the community. This section also considers the screening and excluding of prospective tenants. In the third section we analyse the possibilities of housing associations to evict tenants with a criminal record when their presence threatens the quality of life in the community. The final section concludes the paper.

16

17

18

19

A.L.B. Colombi Ciacchi, ‘Strengthening the Comparative Method in European Legal Research: Three Suggestions’, in C. Godt (Ed.), Cross Border Research and Transnational Teaching under the Treaty of Lisbon: Hanse Law School in Perspective, Nijmegen, Wolf Legal Publisher, 2013, pp. 25-37. See, for example, J.S. Levenson, ‘Hidden Challenges: Sex Offenders Legislated Into Homelessness’, Journal of Social Work, 2016; J. Fontaine & J. Biess, Housing as a Platform for Formerly Incarcerated Persons, Washington, DC, Urban Institute, 2012; Levenson et al., ‘Public Perceptions About Sex Offenders and Community Protection Policies’, Analyses of Social Issues and Public Policy, Vol. 7, No. 1, 2007, pp. 137161; C.A. Carey, No Second Chance: People with Criminal Records Denied Access to Public Housing, New York, Human Rights Watch, 2004, pp. 548-554. J. Flint (Ed.), Housing, Urban Governance and Anti-Social Behaviour: Perspectives, Policy and Practice, Bristol, Policy Press, 2006; C. Hunter, J. Nixon & M. Slatter, ‘Neighbours Behaving Badly: Anti-social Behaviour, Property Rights and Exclusion in England and Australia’, Macquarie Law Journal, Vol. 5, 2005, p. 149; Y. Yau, ‘On the Anti-social Behaviour Control in Hong Kong’s Public Housing’, Housing Studies, Vol. 26, No. 5, 2011, pp. 701-722; M. Vols, ‘Neighbors from Hell: Problem-solving and Housing Laws in the Netherlands’, The Arizona Summit Law Review, Vol. 7, No. 3, 2014, p. 507; M. Vols, M. Kiehl & J. Sidoli del Ceno, ‘Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany’, European Journal of Comparative Law and Governance, Vol. 2, No. 2, 2015, pp. 156-181; M. Vols & S. Fick, ‘Using Eviction to Combat Housing-related Crime and Anti-social Behaviour in South Africa and the Netherlands’, South African Law Journal, Vol. 134, No. 2, 2017, pp. 327-360. See, for example, Carey, supra note 17; H.L. Cain, ‘Housing Our Criminals: Finding Housing for the ExOffender in the Twenty-first Century’, Golden Gate University Law Review, Vol. 33, No. 2, 2003; L.R. Silva, ‘Criminal Histories in Public Housing’, Wisconsin Law Review, Vol. 5, No. 4, 2015, pp. 375-397; D. Thacher, ‘The Rise of Criminal Background Screening in Rental Housing’, Law & Social Inquiry, Vol. 33, No. 1, 2008, pp. 5-30.

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8.2

The Right to Housing and the Reintegration of Ex-Offenders

As mentioned above, housing is identified in Maslow’s hierarchy of needs as a basic physiological requirement, essential to the survival of a human being. The importance of adequate housing for a person’s well-being was first recognised in 1948 by the General Assembly of the United Nations. Article 25, paragraph 1 of the Universal Declaration of Human Rights holds that housing is an important aspect of the right to an adequate standard of living. The right to housing nevertheless remains an internationally contested legal concept.20 The United States of America, for instance, consider housing to be a ‘privilege’ instead of a ‘right’.21 Despite this discussion, many international treaties recognise the right to adequate housing or certain elements of it.22 At least three separate rights can be derived from the right to housing: the right to have access to adequate housing,23 to the undisturbed use and enjoyment of one’s residence (the ‘right to quiet enjoyment’)24 and to have legal protection against forced eviction (the ‘right to stay put’).25 Especially the right to have access and the right to stay put are key elements in the reintegration process of ex-offenders. Many international studies show that homeless ex-delinquents are likely to revert to criminal habits, whereas a stable living situation results in a significant reduction of the recidivism risk.26 A lack of housing also influences other areas of life affecting the reintegration of an ex-offender.27 For instance, ex-offenders who 20 21 22

23 24 25 26

27

J.M. Hohmann, The Right to Housing: Law, Concepts, Possibilities, Oxford, Hart Publishing, 2013. Carey, supra note 17, p. 555. Such as Article 5(e)(iii) of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 14(2) of the Convention on the Elimination of All Forms of Discrimination against Women and Article 2(1) of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms. According to the United Nations Committee on Economic, Social and Cultural Rights the right to housing exists of at least seven aspects Member States should take into account: UN Committee on Economic, Social and Cultural Rights, General Comment No. 4: The Right to Adequate Housing (Art. 11(1) of the Covenant), 13 December 1991, E/1992/23. See also: UN Office of the High Commissioner for Human Rights, Fact Sheet No. 21, The Human Right to Adequate Housing, 2009, Fact Sheet No. 21/Rev.1. Office of the United Nations High Commissioner for Human Rights, The Right to Adequate Housing, Fact Sheet No. 21/Rev.1, Switzerland, United Nations Office at Geneva, Reprinted, 2014. D. Bluth & S. Pallavicini, ‘Quiet Enjoyment: Potentially Serious Implications for Lessors’, Law Society Journal 1999, 37(8), pp. 48-52. C. Hartman, ‘The Right to Stay Put’, in C. Geisler & F. Popper (Eds.), Land Reform, American Style, Totowa NJ, Rowman & Allanheld, 1984, pp. 302-318. E. Baldry et al., ‘Ex-prisoners, Homelessness and the State in Australia’, The Australian and New Zealand Journal of Criminology, Vol. 39, No. 1, 2006, pp. 20-33; S. Metraux & D.P. Culhane, ‘Homeless Shelter Use and Incarceration Following Prison Release’, Criminology & Public Policy, Vol. 3, No. 2, 2004, pp. 139-160; B. McCarthy & J. Hagan, ‘Homelessness: A Criminogenic Situation?’, British Journal of Criminology, Vol. 31, No. 4, 1991, pp. 393-410; R.J. Sampson & J.H. Laub, Crime in the Making: Pathways and Turning Points through Life, Cambridge, MA, Harvard University Press, 1993; C.G. Roman & J. Travis, ‘Where Will I Sleep Tomorrow? Housing, Homelessness, and the Returning Prisoner’, Housing Policy Debate, Vol. 17, No. 2, 2006, pp. 389-418. E. Baldry et al., Ex-prisoners and Accommodation. What Bearing Do Different Forms of Housing Have on Social Reintegration?, Australian Housing and Urban Research Institute, 2003.

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do not have access to permanent housing are less likely to find a job and experience greater difficulties resisting the urge to use drugs.28 Despite the necessity of adequate housing, many ex-offenders leave the detention centre without having a place to go to. In the Netherlands, 48% of the delinquents who did not have access to any kind of housing when they first entered the detention remain homeless upon their return into society.29 This large number raises the question to what extent these returning ex-offenders are actually able to exercise their right to housing and their right to a second chance.

8.3

The Right to Housing: The Right to Have Access

The fundamental principle of Dutch landlord and tenant law is the freedom of contract: Parties are free to enter into an agreement and to decide the content of this agreement.30 A landlord is, in principle, free to rent his accommodation to the most qualified applicant and to reject applicants he deems unsuitable, for instance, because of their poor credit history or criminal convictions. All tenancy agreements are based on this principle, including agreements with housing associations. However, housing associations have a somewhat unique position in Dutch law. As private, non-profit-making organisations they are responsible for building, maintaining and providing social housing. About 75% of the 3 million rented homes in the Netherlands are owned by housing associations.31 They are independent organisations, but do have to comply with specific requirements mentioned in the Dutch Housing Act (Woningwet). The main objective of the housing associations is to house persons who are seeking a home, but have insufficient income or are otherwise experiencing difficulties finding adequate housing.32 Ex-offenders generally have a low socioeconomic status, making them part of the target group of housing associations. It is therefore interesting to assess whether Dutch housing associations are allowed to reject applicants based on their criminal record.

28 29 30 31 32

M. Nelson, P. Deess & C. Allen, The First Month Out: Post-Incarceration Experiences in New York City, New York, Vera Institute of Justice, 1999; C.G. Roman & J. Travis, supra note 3. Beerthuizen et al., Vierde meting van de monitor nazorg ex-gedetineerden, WODC, 2015, pp. 27-28. A.M. Kloosterman, H.J. Rossel & J.P. van Stempvoort, Hoofdlijnen in het huurrecht, Deventer, Kluwer, 2008. J. Lijzenga & D. Boertien, De rol van woningcorporaties op de woningmarkt een WoON 2015-verkenning, Arnhem, Companen, 2016. See, for example, P. Koning & M. van Leuvensteijn, De woningcorporaties uit de verdwijndriehoek, Den Haag, CPB, 2010, pp. 9-13.

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8.3.1

Law in Action I: Case Law Analysis

The freedom of contract on the basis of which housing associations are able to deny prospective tenants with a criminal record is at odds with the objective to provide social housing to people with a low socioeconomic status. Courts have to strike a fair balance between these two factors when assessing the decision to deny an ex-offender. By analysing the available case law, we examine the legal conditions under which Dutch courts allow housing associations to do so. Our case law search on the website of the Dutch judiciary resulted in three important judicial decisions regarding the rejection of ex-offenders by housing associations.33 In all three cases the (possible) arrival of the ex-offender was likely to cause controversy within the community. Although these cases are very similar, we believe the judgement of 1 July 2015 is the most comprehensive and the most illustrative decision.34 We provide this judicial decision with an in-depth analysis. The case revolves around a prospective tenant who has repeatedly been convicted of sexual abuse of minors. Due to the amount of publicity his trial received he experiences great difficulty in finding adequate housing and is even forced to live on the streets for some time. In 2014, the ex-offender applies for a house offered by a housing association and located in a child-friendly neighbourhood. Given the criminal history of the ex-offender and the fact that his case is so well known to the public, the housing association is concerned that his arrival will cause tensions among residents. It refuses to rent the accommodation to the ex-offender, who disagrees with this decision and files a lawsuit. The ex-offender argues that he has been wrongfully denied access to housing and claims compensation for immaterial damages. The court considers that in order to decide whether or not to rent a home to an exoffender, a housing association should carefully weigh all relevant interests, including the interest of the ex-offender to have access to adequate housing and the interests of community residents to live in a safe and secure neighbourhood. The housing association also needs to take into consideration all other relevant circumstances, such as the criminal background of the ex-offender and the possible unease his arrival could create in the community. Although the housing association may take into account the feelings of discomfort expressed by the residents, it is not allowed to let those feelings play a leading role in the decision-making. If the housing association concludes that the interests of the residents weigh heavier than those of the ex-offender, it may refuse to rent the accommodation to him/her. How33

34

District Court Rotterdam 4 April 2016, ECLI:NL:RBROT:2016:2733; District Court Midden-Nederland 1 July 2015, ECLI:NL:RBMNE:2015:4865; District Court Den Haag 12 August 2013, ECLI:NL:RBDHA: 2013:10154. District Court Midden-Nederland 1 July 2015, ECLI:NL:RBMNE:2015:4865.

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ever, it then has the duty to offer the ex-delinquent alternative housing. This follows directly from the legal obligation to provide affordable housing to people with a low socioeconomic status. According to the court, it particularly applies to cases in which the arrival of an exoffender causes unease in the neighbourhood. The obligation ends when the ex-delinquent refuses to cooperate. Only then is the housing association allowed to deny the ex-offender access to social housing without offering alternative accommodation. It follows from this case and the other two very similar judgements that housing associations are in principle free to reject prospective tenants who have a criminal record, as long as the interests of all parties involved are taken into account. In case of a rejection it is also expected from the housing association that it provides alternative housing, unless the ex-offender refuses to cooperate. According to the available case law, Dutch housing associations have a duty to actively provide housing to ex-offenders, but the responsibility ultimately lies with the ex-delinquent him- or herself.

8.3.2

Law in Action II: Screening of Prospective Tenants

The previous subsection examined the legal conditions under which a housing association may deny housing to a prospective tenant with a criminal record. It appeared that housing associations have, in principle, an active but clearly defined duty to provide (alternative) housing. Even though there is not much case law available regarding the frustration of exoffenders’ right to have access to adequate housing, it might be that these judgements are only the tip of the iceberg. Apart from the fact that not all ex-offenders will go to court and, even if they did, that not all case law is being published on the website of the Dutch judiciary, parliamentary documents show that prospective tenants are also more structurally excluded from housing.35 For some years now, people in the Netherlands seeking a home are being screened by local authorities and housing associations, which assess whether the applicant has an income and whether he/she has been involved in criminal or anti-social activities. If the prospective tenant does not meet the criteria, he/she is excluded from housing.36 Contrary to the case law discussed above, local authorities and housing associations who screen prospective tenants may deny them access to housing on the basis of personal information shared with them by third parties such as the police. There is, in principle, almost no balancing of interests; if the prospective tenant does not comply with the set criteria, he/she is not allowed to move into the area.

35 36

Kamerstukken II 2015/16, 34 314, nr. 6; Kamerstukken I 2015/16, 34 314, nr. C, pp. 1-2. See M. Vols, ‘Over nabuurschap en nabuurhaat in het recht’, Nederlands Juristenblad, Vol. 2015, No. 42, 2015, pp. 2926-2934.

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The screening of prospective tenants in the Netherlands used to be based on semi-legal covenants signed by local authorities, police and housing associations. Recent government data show that at least in 19 municipalities, housing associations worked together with the other agencies to screen prospective tenants.37 Table 1 shows that hundreds of rental premises could only be rented to tenants who were screened based on a covenant. Table 8.1 Municipalities in which prospective tenants are or were being screened based on a covenant Municipality

Period

Number of accommodations

Amsterdam (Dichtersbuurt)

Since 2012

396

Arnhem

2010--2014

About 245

Barendrecht

Since 2013

513

Borger-Odoorn

Since 2007

Less than 80

Capelle aan den IJssel

Since 2012

892

Culemborg

Since 2014

1,130

Dordrecht

Since 2016

About 1,500

’s-Hertogenbosch (Hambaken)

Since 2009

916

’s-Hertogenbosch (Barten Zuid)

Since 2005

496

Hoogeveen

Since 2007

Variable

Midden Drenthe

Since 2015

44

Nijmegen

Since 2004

335

Nissewaard

Since 2012

3,550

Ridderkerk

Since 2013

2,523

Rotterdam

Since 2009

200 streets

Utrecht (Geuzenwijk)

1997--2011

900

Utrecht (Zwanenvechtplein)

2011--2014

400

Utrechtse Heuvelrug

Since 2013

70

Zaltbommel

Since 2012

338

Zoetermeer

Since 2015

327

Zwolle

Since 2013

About 400

Investigative journalists of the well-respected Dutch television programme Zembla found out that nearly 100 tenants were refused a rental premise because of a negative screening result.38 Table 2 shows, however, that not all local authorities provided data. Consequently, 37 38

Kamerstukken II 2015/16, 34 314, nr. 6. See (accessed 24 March 2017).

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we expect the actual number of tenants that were refused a rental premise because of previous nuisance or criminal behaviour to be much higher. Table 8.2 The number of people refused a rental premise because of a negative screening result Municipality

Number of people refused

Rotterdam

44

Den Bosch

> 21

Nissewaard (previously Spijkenisse)

14

Utrechtse Heuvelrug

8

Zoetermeer

2

Ridderkerk

2

Barendrecht

1

Amsterdam

1

Capelle aan den IJssel

0

Culemborg

Unknown

Hoogeveen

Unknown

Borger-Odoorn

Unknown

Total

93

Recently, the government ruled that screening practises based on covenants are no longer allowed.39 According to the Minister for Housing (hereafter the Minister) prospective tenants who are rejected on the basis of such a screening procedure may file a lawsuit against the housing association. As far as we know there has been only one such case.40 Although selecting tenants on the basis of covenants is now illegal, applicants are still being screened and excluded from housing. Since 2006, the Urban Areas Special Measures Act entitles local authorities to screen prospective tenants in certain areas. The act aims to improve the quality of life in those areas by preventing (further) economic decline and criminal and anti-social behaviour.41 Although the screening on the basis of the act is not intended to specifically ban ex-offenders from the neighbourhood, it might restrict their right to have access to housing.

39 40

41

Kamerstukken II 2015/16, 34 314, nr. 6. The court concluded, however, that the housing association had not acted unlawfully, since the decision to reject the prospective tenant was based on a concrete and reasonable weighing of interests: District Court Rotterdam 4 April 2016, ECLI:NL:RBROT:2016:2733. Kamerstukken II 2004/05, 30 091, nr. 3.

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The Urban Areas Special Measures Act allows the municipal council to request the Minister to appoint a certain area in which applicants have to obtain a housing permit before they are able to rent a house.42 In order to obtain this permit prospective tenants who have been living in the municipality for less than 6 years need to meet certain income criteria.43 The decision whether or not to issue the housing permit is made by the board of mayor and councillors.44 The scope of the Urban Areas Special Measures Act was extended in 2016. Due to this extension the local authority is now also entitled to demand from the prospective tenant a Certificate of Good Conduct (CGC); in addition, a screening based on police registers is now possible.45 If the board of mayor and councillors has reason to suspect that the housing of the prospective tenant in the area could lead to an increase of anti-social or criminal behaviour in the community, the board will in principle not issue the housing permit. The current Extended Urban Areas Special Measures Act makes it possible to screen and exclude prospective tenants on the basis of income and criminal and anti-social behaviour. This banning of people from certain areas is controversial. The Netherlands Institute for Human Rights (Commissie Gelijke Behandeling) stated that the screening practices constitute indirect discrimination and violate the right to equal treatment.46 The Dutch Council of State even advised the Minister to withdraw the bill extending the Urban Areas Special Measures Act.47 Some politicians and academics also reacted critically on the screening practices.48 However, although the European Court of Human Rights (ECHR) considered the Urban Areas Special Measures Act to restrict the right to freedom to establishment, it found no violation of this human right.49 The screening of prospective tenants on the basis of the Extended Urban Areas Special Measures Act raises the question whether it threatens the right of ex-offenders to a second chance. It follows from the Explanatory Memorandum on the Extended Urban Areas Special Measures Act that the access of ex-offenders to adequate housing needs to be taken

42 43 44 45 46 47 48 49

Article 5 of the Urban Areas Special Measures Act. Article 8 of the Urban Areas Special Measures Act. Article 10b of the Extended Urban Areas Special Measures Act. Articles 5(3) and 10b of the Extended Urban Areas Special Measures Act. Commissie Gelijke Behandeling, Advies Commissie Gelijke Behandeling inzake huisvestingsbeleid van de Gemeente Rotterdam, Advice 2005-3, Commissie Gelijke Behandeling, Utrecht, 2005. Kamerstukken II 2015/16, 34 314, nr. 4. See, for example, A. Duivesteijn, ‘De Rotterdamwet deugt niet’, S&D, No. 10, 2005; W. Doff, ‘Rotterdam zet symboolpolitiek door’, Tijdschrift voor de Volkshuisvesting, No. 5, 2013, pp. 6-16. Garib v. the Kingdom of the Netherlands, ECHR, 23 February 2016, nr. 43494/09. See also M. Vols, ‘Screening and Excluding People with Low Income and Nuisance Neighbours from Housing: Human Rights Proof?’, in J. Sidoli, M. Vols & M. Kiehl (Eds.), Regulating the City: Contemporary Urban Housing Law, Den Haag, Eleven International Publishing, 2016, pp. 127-143.

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into consideration when allowing for prospective tenants to be screened.50 The Minister will only appoint a certain area in which the local authority may screen prospective tenants if the local government can assure him/her that the region offers sufficient alternative housing possibilities. The local authority needs to make sure that this includes adequate housing for returning ex-offenders. If this is not the case, the Minister will deny the request to appoint the area.51 Apart from this, it is also important to note that as far as we know the Extended Urban Areas Special Measures Act is only being applied in parts of three municipalities.52 This means that in 2017 there are 385 Dutch municipalities left in which prospective tenants are not screened based on the Act. Due to the lack of available data the exact number of prospective tenants who have been excluded from housing on the basis of the Extended Urban Areas Special Measures Act remains unknown. In spite of the assurance that there needs to be sufficient alternative housing in the region and notwithstanding the limited application of the Extended Urban Areas Special Measures Act, it remains unclear as to what extent prospective tenants are allowed to be excluded from social housing in these areas. Apart from the decision of the ECHR, that only assessed the ‘old’ Urban Areas Special Measures Act from 2006, there has yet to be a Dutch court to review the screening practices on the basis of the current Extended Urban Areas Special Measures Act. Therefore, it remains to be seen whether prospective tenants are offered protection against the screening and exclusion by local authorities. It is, however, interesting to observe the shift from landlord and tenant law towards (local) administrative law with regard to accepting and rejecting prospective tenants.

8.4

The Right to Housing: The Right to Stay Put

As mentioned in Section 8.2 of this paper, the right to housing includes the right to stay put as well. In the Netherlands, this right is assured by, among others, Article 8 of the European Convention on Human Rights and the Dutch Civil Code (DCC).53 Consequently, Dutch law offers tenants far-reaching protection against forced eviction.54 A tenant can be evicted if the tenancy agreement has been terminated, which is possible in case of any breach of the agreement.55 Under Dutch law, not behaving as a prudent tenant will qualify as such a breach. For example, not paying the rent, causing noise nuisance or selling drugs 50 51 52 53 54

55

Kamerstukken II 2015/16, 34 314, nr. 3. Articles 6(2) and 7(1)(b) of the Extended Urban Areas Special Measures Act. These are the municipalities of Rotterdam, Nijmegen and Capelle aan den IJssel. Vols, Kiehl & Sidoli del Ceno, supra note 18, pp. 156-181. See, for example, Kloosterman, Rossel & Van Stempvoort, supra note 30, pp 219-221; M. Vols, P. Tassenaar & J. Jacobs, ‘Anti-social Behaviour and European Protection against Eviction: An Analysis of Dutch Case Law Based on Statistics’, International Journal of Law in the Built Environment, Vol. 7, No. 2, 2015, pp. 148161. Article 6:265 jo. 7:231 DCC.

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in the premise will be characterised as such. The breach of the tenancy agreement, however, also needs to be sufficiently serious and the termination of the agreement should not have disproportionate consequences.56 If the tenant does not agree with the termination of the tenancy agreement, it can only take place by judicial decision.57 The court will then have to assess whether the tenant behaved as a prudent tenant. If the tenant puts forward a defence, the court will also have to assess the seriousness of the breach and the possible disproportionate consequences of the termination of the tenancy agreement. Once the agreement has been terminated, the court is authorised to issue an eviction order.

8.4.1

Law in Action I: Empirical Data About Evictions in Dutch Landlord and Tenant Law

Given the strict legal conditions under which a tenancy agreement can be terminated, Dutch courts do not lightly terminate agreements and issue eviction orders. Although Dutch law already calls for a balancing of the interests of both landlord and tenant, the European Court of Human Rights also requires national courts to take into account the proportionality and reasonableness of the (possible) loss of a home when a tenant requests so.58 In deciding whether or not to issue an eviction order, courts also have to take into consideration the context of each individual case.59 In this and the following subsection, we analyse whether having a criminal record or just simply living in the neighbourhood could constitute a breach of the tenancy agreement. Before we conduct a case law analysis, we examine the total number of evictions that take place in the Netherlands every year. Data of the umbrella organisation of Dutch housing associations show that Dutch courts issue between 20,000 and 25,000 eviction orders each year.60 In about 25% of the cases the tenant refuses to comply with the eviction order and to leave the rental premise voluntarily. In such cases, the eviction order is executed and the tenant is forced to vacate the premise. Figure 8.1 shows the number of eviction orders and the number of executed eviction orders in the Netherlands.

56 57 58 59 60

Article 6:265 DCC. Article 6:265 jo. 7:231 DCC. See McCann v. United Kingdom, ECHR, 13 May 2008, App. No. 19009/04. M. Vols & N. Minkjan, ‘Huurachterstand, huisuitzetting en rechterlijke besluitvorming’, Recht der Werkelijkheid, Vol. 37, No. 2, 2016. Aedes, Corporatiemonitor 2015. Huisuitzettingen en huurachterstanden, Den Haag, Aedes, 2016.

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Figure 8.1 Number of eviction orders and forced evictions (source: Aedes; Vols & Minkjan 2016)61

30000

25000

20000

15000

10000

5000

0 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 Eviction orders

2013 2014 2015

Executed eviction orders

The data also show that in about 84% of all cases, the eviction order was the result of rent arrears. Nuisance or harassment, illegal subleasing and the production of marihuana are other reasons for courts to conclude that the tenant did not behave as a prudent tenant should and to issue an eviction order.62 It follows from the available data that eviction is used to fight crime and nuisance in a relatively small percentage of all cases. However, the available data on evictions do not provide any insights as to how many ex-offenders were evicted because of their previous crime or because of (the problems caused by) their return to their rental premise. In order to gain a better understanding of this matter we conducted an in-depth analysis of relevant case law.

8.4.2

Law in Action II: Case Law Analysis

After conducting our systematic case law search on the website of the Dutch judiciary, we found three judicial decisions in which the presence of a tenant with a criminal record 61 62

Vols & Minkjan, supra note 59, p. 13. Vols & Minkjan, supra note 59. See also I. van Laere & M. de Wit, Dakloos na huisuitzetting, Amsterdam, GGD Amsterdam, 2005.

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caused unease among neighbours and in which the housing association demanded the termination of the tenancy agreement and the eviction of the tenant.63 In this subsection, we briefly analyse all three cases. The first case revolves around an ex-offender who has been convicted in 2007 of sexual abuse of a then 9-year-old girl living next door.64 After being released from detention, the ex-offender returns to his home where he has lived with his wife since 1972. Although his victim has already moved out of the neighbourhood, the return of the ex-offender provokes protests in the community. The neighbours demand by means of a petition that the housing association remove the ex-offender and his wife from their home. The housing association offers the couple alternative housing, but they refuse to accept this offer. It then requests the court to terminate the tenancy agreement and to authorise the eviction of the ex-offender and his wife. The court, however, decides that the couple are allowed to stay in their home. The court first states that the bare fact that the tenant has been convicted of sexually abusing a minor neighbour is insufficient to terminate the tenancy agreement. According to the court there is no legal rule in Dutch law that holds that committing a criminal offence permits the tenancy agreement to be terminated. In addition, the court takes into account the fact that the couple has behaved as prudent tenants for over 37 years. The court subsequently holds that the refusal to accept alternative housing could under some circumstances lead to the conclusion that the ex-offender did not behave as a prudent tenant. This is especially the case when the ex-offender’s victim lives next door or nearby. In this case, however, the victim no longer lived in the neighbourhood, so the ex-offender was allowed to refuse the offer made by the housing association. Lastly, the court considers that tensions among residents caused by the presence of the ex-delinquent could lead to the conclusion that the ex-offender should cooperate with the relocation to another neighbourhood. In such a case the housing association has the duty to verify that the arrival of the ex-offender does not cause unease in the new community, otherwise he would have to relocate again. The second judgement also concerns the return of a paedophile ex-offender to his home.65 This case differs, however, from the first case in the sense that the ex-offender in this case lives next door to his victim. The victim and his family are confronted on a daily basis with the presence of the ex-offender, causing severe health problems for the mother of the victim. The housing association aims to end this highly unsatisfactory situation by offering the ex-offender alternative housing. However, the ex-offender regards the com63

64 65

District Court Noord-Holland 21 January 2013, ECLI:NL:RBNHO:2013:BZ0111; District Court Alkmaar 8 October 2009, ECLI:NL:RBALK:2009:BK1181; District Court Utrecht 16 September 2008, ECLI:NL:RBUTR:2008:BF0857. District Court Alkmaar 8 October 2009, ECLI:NL:RBALK:2009:BK1181. District Court Utrecht 16 September 2008, ECLI:NL:RBUTR:2008:BF0857.

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pensation he is offered for his relocation as insufficient and refuses to cooperate. This leads the housing association to demand before the court the termination of the tenancy agreement and the eviction of the ex-offender. By refusing to cooperate in reaching a durable solution the ex-delinquent would not have behaved as a good tenant. Again, the court holds that there is no legal rule from which it follows that a criminal offence is sufficient to accept that the ex-offender did not behave as a prudent tenant should. In addition, it finds that this also holds true in case a co-tenant is the victim of this criminal offence. The court recognises that in this specific case a highly unsatisfactory situation has arisen, in which the ex-offender returns to his home located in the same building as that of his victim. Since the ex-offender has brought about this situation himself it can be expected from him that he cooperates in ending it. The court holds that by refusing to accept alternative housing the ex-delinquent did not behave as a prudent tenant. The court rules that there has been a breach of the tenancy agreement. The third case involves a tenant who has been convicted of sexual abuse of in total four minors.66 When the local authority is notified about the convictions of the ex-offender, it organises a meeting with the community residents in order to inform them about the sexual offences the ex-offender has committed. This information leads to heated protests, including physical violence. The housing association, however, also receives information about provoking, threatening, intimidating and violent behaviour of the ex-offender. After about a year, it receives a letter from local residents requesting measures to be taken against the ex-offender, since it has become impossible to live with him in the same neighbourhood. The housing association requests before the court the termination of the tenancy agreement and the eviction of the ex-offender. The court considers that the situation in the neighbourhood has become intolerable and that although there is no legal rule that holds that a criminal conviction is sufficient to terminate the tenancy agreement, the ex-offender does need to take into account the consequences of his criminal behaviour being known to his neighbours. In this case the ex-delinquent does the opposite: He even behaves aggressively towards the other residents. He, for instance, destroyed the garden gnomes of the neighbours’ children with a baseball bat. The court rules that the nuisance the ex-offender causes to his neighbours is so severe that the right of the other residents to a safe and secure neighbourhood should prevail over the ex-offender’s right to stay put. The court therefore allows the tenancy agreement to be terminated and the ex-delinquent to be evicted. The analysed case law shows that Dutch courts do not lightly judge that the behaviour of an ex-offender violates the obligation to behave as a prudent tenant. Having a criminal record or just simply living in the neighbourhood does not easily constitute such a breach 66

District Court Noord-Holland 21 January 2013, ECLI:NL:RBNHO:2013:BZ0111.

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of the tenancy agreement, not even when a (minor) co-tenant is the victim of the criminal behaviour. However, it is also clear that the right to stay put is not absolute in the Netherlands. The presence of an ex-offender could constitute reasonable ground to terminate the tenancy agreement when the ex-delinquent lives closely near his victim. The housing association then needs to offer the ex-offender alternative housing, similar to the situation in which an applicant is rejected as described in Section 8.3.1. Although the housing association has to provide the ex-delinquent with adequate housing as best as possible, it shares this responsibility with the ex-offender him- or herself.

8.5

Conclusion

With this paper we provided a first overview of the facilitation and frustration of the housing of ex-offenders by Dutch housing associations and local authorities. Having a roof over one’s head is not only recognised as a basic human need, but it is also essential for ex-delinquents in order to enjoy their right to housing and to be able to successfully reintegrate into society. Without adequate housing, ex-offenders are likely to revert to criminal habits, whereas a stable living situation significantly reduces the recidivism risk. We gathered and studied all relevant published case law in the Netherlands. A total of six judicial decisions were examined: three cases regarding the right to have access to housing and three cases concerning the right to stay put. This limited amount of case law suggests that although the housing of ex-offenders seems to be causing some legal problems, it is not frequently occurring. However, these few judicial decisions may only be the tip of the iceberg. As follows from the screening of applicants by local authorities and the possible restraint exercised by these prospective tenants to go to court, it might be that the exoffenders’ right to housing is restricted and maybe even violated on a larger scale. The analysis above demonstrates that the decision on whether or not to accept a prospective tenant lies increasingly with the local authorities instead of the housing associations. However, in areas where local authorities do not screen prospective tenants the contrary can be observed: Local authorities are ever more relying on housing associations to provide returning ex-offenders with adequate housing. So not only can a shift from private to public law be recognised in regard to the accepting and excluding of people with a criminal record in certain areas, the opposite can also be observed, with housing associations taking over responsibility from local authorities in organising the housing of exoffenders. The rejection and exclusion of prospective tenants based on their criminal record offers a clear restriction of their right to housing, but is seems that it does not constitute a violation of this right. However, empirical research is needed in order to determine the actual pressure the right to housing is under. Further research is also necessary to fully compre-

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hend the scale on which ex-offenders in the Netherlands and elsewhere are being excluded from (social) housing and whether these practices violate the right to housing. Hopefully, this paper will serve as a building block for further studies.

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Studies in Housing Law A series of peer-reviewed papers on the topic of housing law broadly conceived including doctrinal, jurisprudential, theoretical and socio-legal contributions from scholars of housing law based globally. Published by Eleven International Publishing, The Hague, The Netherlands Editors Michel Vols – University of Groningen Julian Sidoli – Pendragon Chambers, Swansea Editorial Advisory Board Gregory Bull QC – Pendragon Chambers, Swansea Jan Brouwer – University of Groningen Maria-Olinda Garcia – University of Coimbra Jane Ball – University of Newcastle Christoph Schmid – University of Bremen Margot Young – University of British Columbia Elena Bargelli – University of Pisa Lucy Finchett-Maddock – University of Sussex Cheri Young – University of Cape Town Helen Carr – University of Kent Martin Gallié – Université du Québec à Montréal Gerald S. Dickinson – University of Pittsburgh School of Law

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