Advanced Property 1: Vulnerability Flashcards
Landlord-tenant legislative mechanisms
- Rent protections, protecting against increases, and providing measures as to what is good rent
- Eviction protections - Governs how easy it is to get a tenant out where they aren’t paying rent, or even where they are
- Fit for habitation protections - How do we slice up the flat or house where we try to fit more people into an existing space?
Grenfell issue: Landlord’s responsibility
Flammable cladding on outside of the building (which is the freeholder’s responsibility).
Landlords typically do not wish to invest in such shared areas.
Legislative action taken - Building Safety Act 2022 - putting some responsibility on the developers.
Share of freeholds
Company buys a property and holds the freehold, then gives out long leases to the shareholders.
The shareholders each own a share of the company, so they effectively have a share of the freehold for the land and building - does this help to solve the Grenfell issue of landlords not caring about shared areas?
Commonhold
Shared spaces are managed by commonhold associations (of which freeholders are members)
You then have freeholder 1, freeholder 2, freeholder 3 - essentially provides freehold ownership for flats and multi-occupant buildings.
Renters’ Rights Bill
Should we place more limitations on the landlord ending a tenancy where they are using the flat as an investment, versus where they are using it because they need it? Things as things vs things as wealth.
- Suggests scrapping no-fault evictions - This is controversial - many landlords in the UK, who have an interest in being able to use their property for the uses they want.
- Reforming structure of tenancies - making it so that almost every tenancy is a periodic one
- Limiting rent increases to once per year, must have 2 months notice, increase at market rent, tenant can dispute increases above market rent to the First Tier Tribunal
- Create a new private sector rental database for key info
on landlords, tenants and local authorities
What else could we suggest?
- Greater fit for habitation protections:
- Fire
- Wiring
- Wifi?
- Water
- Do we limit foreign investment, creating diverse housing stock and taking away from developers?
- Create a legal standard for property conditions - decent homes standard
- Create a landlord redress scheme - Ombudsman service landlords would need to join, who can make orders.
Essert vs Jenkins and Brownlee - views on homelessness
Essert focuses on our need to have property rights recognised by the legal system and the stability this provides.
Jenkins and Brownlee focus on our social needs, need to belong and have meaningful control over our environment.
Borderline cases of homelessness - from Jenkins and Brownlee
Isolated Joyce - lives alone in a home she owns, no friends. She dies, it takes years for anyone to come across her body.
Scrooge - tenant in multiple houses, but other tenants do not like him.
Roofless Adam - good job, but prefers sleeping outside, objects to owning or renting property. Excellent connections with friends and family, at whose houses he washes himself, his clothes and stores his things.
In some ways, Adam has more of a home than Joyce even though Joyce has the property right.
However, Essert counter-argues by saying that all of Adam’s rights are dependent upon his friends and family - he cannot host a dinner party without the express permission of his friend who owns the place - your extent of social control is thus limited. Even if his friend allows him, that degree of requiring permission is a constant reminder he does not have control and is not free to use his home to socialise and be free.
How is homelessness worsened by regulation of public spaces?
Increasing regulation of streets, subways, parks and other public spaces restricts the activities which can be performed there - creating a state of affairs where a million or more citizens have no place to perform elementary human activities.
Waldron - should improve pub toilets, wash facilities, less regulation over use of parks/streets
Defensive architecture also problematic - benches that stop people laying, spikes on ground or surfaces etc.
What legal rights do the homeless have and how are these caveated?
Universal credit - requires address + generally a bank account
Housing Act 1996 - duties on public auths to provide housing, subject to priority system
Homelessness Reduction Act 2017 - statutory duties on pub auths to provide help to those threatened with homelessness or newly experiencing it
HRA 1998 - right to respect for one’s home, right to peaceful enjoyment of one’s possessions BUT no right to housing.
Homeless have rights in tort and property but difficult accessing these rights without funds/legal support.
Vagrancy Act 1824
s3 - Beggars are deemed idle and disorderly persons
s4 - anyone lodging in the open air or under a tent shall be deemed a rogue and vagabond
Max sentence - 1k fine
Campaign to scrap the act, but it is still being used - 1300 people prosecuted under it in 2018.
REPEALED in 2022 BUT THE REPEAL ONLY COMES INTO EFFECT ONCE REPLACED.
Arguments against Vagrancy Act
- Criminalises conduct which is not morally wrong, with few alternatives
- Contributes to stigma by criminalising this conduct, and using language like idle, disorderly, rogue, vagabond
- Fines people who have few or no resources
- Lack of compassion
- Erodes homeless community’s trust in the state, reducing the likelihood they will engage with public services offering support
What reasons do they have for keeping Vagrancy Act?
- Begging harms individuals involved
- Harms wider communities, impact on high streets and community cohesion
- Causes unease
- Can be exploited by organised criminal gangs
- Barrier to vulnerable individuals entering a pathway to stability off the street, eg sustained substance abuse
Housing Act 1996 duties
Duties depend on applicant’s circumstances.
1. Need right to be in the UK
2. Threatened with homelessness (gives rise to assessment duty and prevention duty)
3. Is applicant homeless? Assessment duty then comes, with possible further duties.
- Is the app in priority need AND not intentionally homeless? - Yes - duty to provide accomodation.
- Priority need but intentionally homeless? - Yes - duty to provide temp accom
- No priority need - reasonable steps to help find accom
When does a person have priority need?
- Pregnant women and persons with whom they reside/might reasonably reside
- Person with whom dependent children reside/might reasonably
- Vulnerable people + people with whom they might reside/reasonably reside
- Person who is homeless/threatened due to emergency (eg flood, fire, disaster)
- Children between 16-17
- 18-20 year old care-leavers (those who were fostered, accomodated, looked-after between 16-18)
Intentional homelessness
s191 - They cease to occupy, it would have been reasonable for them to continue occupying, applicant performed deliberate act/omission which caused ceasing of occupation
How has vulnerability been theorised - FINEMAN
We can all, at any point in our lives, become vulnerable to harm, injury or misfortune due to our embodiment.
State facilitated institutions create opportunities and support for individuals, but also gaps and potential pitfalls.
They can lessen and compensate for vulnerability, and provide us with assets to cushion us when we are facing misfortune. These assets provide us with resilience.
Fineman - How does resilience manifest?
Physical resilience:
Money, but also the things you can buy with money ie property.
- Property law is the mechanism through which the state aids in this (ie through housing authority duties under Housing Act).
- Another example is in lenders’ rights under the LPA - s87, 101 and 103 - provides lenders with resilience against vulnerability to financial losses.
- However, the measures in s126, s129, s135 CCA + s36 AJA 1970 provide mortgagors in arrears with resilience against vulnerability to home loss.
- We can also see it in protections for leaseholders - need 2 months notice before quitting, assured statutory tenancies, ability to enforce their right against third parties.
- Priority rules - Actual occupation raises resilience of 3rd party beneficiaries who aren’t involved in transaction - means their property cannot be sold and they cannot be displaced unless overreached, acquisition mortgage, waiver/consent or TOLATA.
- TOLATA itself reshaped the resilience argument - used to strongly favour lenders, now its more equal (Shaire)
- FCA guidelines, MCOB, MPAP aim to give reassurance and resilience to borrowers by encouraging things like forebearance, making sure possession is last resort etc.
- Trespass raises resilience of individuals who own property from being interfered with and impeded with.
Lorna Fox and O’Mahony - Property outsiders argument
All our laws and regulations are geared towards those with property rights, and have more money and resources, more effective lawyering - these are property insiders.
Property aims to make these people the winner, rather than more marginalised groups.
Link to Numerus Clausus - Merrill and Smith - parties with effective lawyering can exploit the fixed menu to get the outcomes they want through complex loopholes and workarounds - vulnerable parties left at their mercy, or unable to manipulate property in this way and exploit it to create wealth in the same way, creating perpetual cycle.
Ie TOLATA, lenders’ powers which generally aren’t very limited if they can get priority.
Are the state vulnerable? They are subject to conflict and crises, and need to shore up their own resilience too - ie with FCA guidelines to prevent dodgy mortgages and prevent future market crashes.
Grenfell as an example of resilience + Bright
After tower fire, govt had to act, as they could not leave buildings cladded in unsafe materials but also could not burden only leaseholders.
BSA 2022 - Govt and Parliament built up resilience of leaseholders and its own resilience by looking after the state’s pocket and putting burden on developers.
Pros and cons of Fineman’s view
- Destigmatises vulnerability
- Argues for change and reform to property law
- Unlocks diff perspectives on property law
- Limited actual value? How do we make change - she doesn’t tell us who the state should prioritise - tenants? homeless? lenders? landlords? If everyone is vulnerable who do we protect in particular?
- Paternalistic? Big state could pose risk to individual freedoms and liberties.
- S189 priority need and Hotak defines vulnerable for the statute as ‘significantly more vulnerable than ordinarily vulnerable’ - this doesn’t fit well with Fineman’s idea thinking we are all vulnerable.
Vulnerability Taxonomy (Mackenzie, Rogers & Dodds):
Two states of vulnerability: Dispositional (potential/future risk, e.g., mortgage holders) and Occurrent (present/active risk, e.g., mortgagors in arrears).
Types of vulnerability:
- Inherent: Universal human condition (e.g., from Housing Act 1996).
- Situational: Arises from specific contexts (e.g., imbalanced relationships).
- Pathogenic: A harmful form of situational vulnerability (e.g., abuse).
Purpose: To identify who is “more than ordinarily vulnerable” and guide ethical responsibilities/interventions.
Evaluating Mackenzie, Rogers and Dodds
- Understanding of vulnerability aligns with common usage
- Can use their theory to describe legal engagement with vulnerability precisely
- Justifies prioritising responses to those who are pathogenically and occurrently vulnerable
Cons:
- Distinction between inherit/situational vulnerability is not clear cut
- Less clear as to who ought to respond to vulnerability
