Advanced Property 1: Vulnerability Flashcards
(21 cards)
Landlord-tenant legislative mechanisms - Rent, eviction, fit for habitation
- 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, property, lenders, borrowers, renters, trespass
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 - squatters, numerus clausus, CI trusts, homeless, lenders, landlords
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. This is often due to a perception of a need for certainty, and therefore the ‘rightful owner’ should be allowed to exercise their claim, vilifying those who infringe upon this.
For example, squatters are a group of people who are marginalised and criminalised for making effective use out of property which has fallen out of use - is this fair?
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.
Those who are unemployed or stay-at-home mums are pretty much excluded from being protected by a common intention constructive trust - which requires a direct financial contribution to the purchase price of a home, without considering the non-financial but still material contributions they might have made. This is an example of property favouring the already-propertied vs those who don’t have any. It also indicates how property values certainty, and leaves fairness and justice to family law, statute or other means of protection.
Pre-nups - decision in Radmacher favours propertied parties (who are more likely to want to enforce an agreement), over non-propertied parties, who are usually coming from less wealth and may make substantial non-financial contributions to the marriage, yet the law chooses to give effect to the intentions of the propertied.
Homeless - They are property outsiders on the extreme side. They have no property. Having property is essential to social progression and ascending the social ladder - ie you need a home address to get universal credit and social security benefits. You need a home to shower and have clean clothes to apply for jobs. You need personal assets which are subject to being stolen if you live on the streets and have nowhere to store them (ie a phone). Whilst remedies exist, such as conversion, they are largely difficult to access for the homeless.
Despite all these downsides, the law continually kicks them down - eg vagrancy act, the limited protections in the ‘priority need’ framework for local authority support, anti-homeless architecture - seems the law is reluctant to help the homeless and wants to keep them as an outsider.
TOLATA - lenders’ powers are generally not very limited if they can get priority. TOLATA only helps where they cannot and even then, sale is often ordered. Where lenders have priority, the limitations on them are fairly weak - MCOB and MPAP are merely considerations, and s101 and s103 don’t impose really significant barriers - only question then is whether the borrower can mount a defence under s36 administration of justice act or s135 CCA.
Are lenders themselves vulnerable? Perhaps - they have their own needs to look after, they aren’t charitable organisations and seek to make a profit - if they are overly restricted then they will become unwilling to lend, which makes it more difficult for us to buy homes. Owners are free to negotiate as autonomous consumers - so unclear that they deserve particularly massive protection when they run up debt, and we should then prejudice the bank.
However, since 2008, more people-centred approach - realised mortgagors aren’t so responsible and consumers are vulnerable to the riskiness of financial markets - thus FCA and regulations exist.
Landlords also arguably perpetuate the cycle of keeping renters renting. The property system since LPA 1925 encourages investment in property as an asset. Landlords are able to take out a mortgage on property, get a renter in and have the rent effectively pay off their own mortgage so that all they really had to pay is the deposit, meanwhile the renter gets nothing and is unable to save much due to the unbelievably high costs of renting, particularly in London (even though wages have not risen proportionally).
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 - What was the issue, problems in statute + CL, how did BSA help, could we do anything further?
After tower fire, govt had to act, as they could not leave buildings cladded in unsafe materials but also could not burden only leaseholders.
Grenfell exposed systemic issues in property system - Building Act 1984 was insufficient - thousands of buildings didn’t meet quality requirements, and so people couldn’t sell since lenders wouldn’t lend.
The Defective Premises Act was limited to a 6 year limitation period, and excluded liability for Pure Economic Loss (Murphy) - Dodgy?
Bright notes inadequate response - first attention shifted to the landlords but they didn’t have the will nor the capacity/money to fix the defects.
Then attention turned to the developers who are truly the wrongdoers. They also have far more resources available.
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.
Increased limitation period to 30 years looking back.
Also extends liability to those who are fair and just.
Limits landlord from passing on costs related to fixing defects.
Should public authorities be liable? Perhaps - vulnerability, finances, risk of homeless all affect the innocent tenant. State has deep pockets - redistributive justice?. However, in Murphy, said it is for the legislature to decide this.
Further reform? Homes (Fit for Habitation) Bill - would require all landlords to keep their homes fit for human habitation.
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.
