Law

This article compares French and English tenancies, with their varied legal bases in property, collective or social rights, human dignity, consumer law or simply statute. This article was written on the occasion of proposed reform by the Law Commission - a long overdue tidying up of English law. This particular article is here because this tidying is still long overdue and never more urgent with the promotion of European harmonization through the Draft Common Frame of Reference.

The Vestibular Housing System
The Comparative Legal Topography of Transitional and Substandard Housing

For the conference of the ENHR working group on “Mobility, Poverty, Insecurity and Hospitality: The Past and Future of Precarious Housing in Europe”, on 29th-30th September 2005 at Nanterre University in Paris

Jane Ball

If housing is not affordable, if there is not sufficient decent housing or if people cannot obtain access to homes, there is stress in the housing system. Symptoms of this are increasing numbers of homeless people or people who are badly housed. Desperate people may occupy inferior, insecure or non-standard housing. They may also use public of voluntary provision to access hostels or social housing. This is the “vestibular housing system”, where, like a hall or vestibule, people wait for something better.

Every country has a vestibular housing system. The form of the vestibular system is strongly shaped by the law. In the United Kingdom homeless people may pass directly into normal social housing stock, because statute provides that priority categories of homeless people must be immediately housed by the local Council. If this does not happen a homeless person who should have been housed will be able to complain to a court. In France such homeless people are more likely to be housed in intermediate housing provided by the state or by voluntary bodies.

This paper is primarily concerned with private housing and deals with the types of vestibular housing. These types include institutions and forms of occupancy that are created to take advantage of forms of law exempt from the strongest tenancy security, although both. The UK and France have laws designed to prevent unlawful eviction generally Some landlords use this to provide property with overcrowding, poor conditions and high rents, or where vulnerable people are easily evicted or will not defend themselves if evicted.

This paper also compares the law of squatting. Squatters in France may ask for their home to be requisitioned, although this it little used. Squatters in the UK have suffered a setback because they cannot become owners of their home by prescription unless they give the owner two years’ notice.

In this way the worst and most insecure housing is shaped by the law, and we should be seeking the most useful general definitions.

Fragmenting property for affordability: Shared ownership or new tenures in England and France

Jane Ball, University of Sheffield, School of Law

Paper delivered at the conference, L’Acces à l’Habitage en el Context de Crisi,
at the University of Rovira i Virgili, Tarragona, 13-14 May 2010

Rising house prices make it difficult for young people to buy homes, even after the fall in prices in the credit crunch last year.  There is always a problem as to how public authorities can intervene in housing to assist.  Shared ownership seeks to bridge the gap between ownership and letting by allowing the occupants to buy part of the value of the home, whilst at the same time occupying it. Shared ownership arrangements or new tenures have been created in England and France, in partnership with social landlords.

This paper looks first at the law which allows these arrangements are achieved, in the UK by manipulating the existing basic elements of the property system, long leases, fragmentation, trusts and mortgages.  This means explaining the history of land management by fragmentation in the UK compared to France.  These are not technically new tenures, but have had government backing for some decades.

Next, it is showed how France has created essentially similar arrangements by using companies to create an entirely new kind of tenure, occupation by virtue of a share. The English devices cannot be directly used, because absolute property does not allow the kind of flexibility in land interests that exists in England.  In Finland a device similar to the French has existed for some time.  The parallel to England can only be understood by comparing trusts and companies

There similarity of these arrangements is more striking than their differences.  There are problems with these arrangements in both countries, in the distribution of these benefits, in their complexity and perhaps dangers from their newness.  It has to be asked what is wrong with much simpler arrangements.  Despite this it is clear that fragmentation of property has social benefits provided public policy objectives of proper control of land and taxation are met.

Social housing appears to offer a solution for the housing of poor and disadvantaged people, The French right to housing offers poor and disadvantaged citizens priority in social housing allocation, and now a legal action against the State to obtain a social home. Despite this, France is suffering a long-lasting housing crisis with disadvantaged people having difficulty accessing social housing, often despite the best efforts of local housing actors. French debates about who should be housed now have European implications, as the EU and the European Court of Human Rights move to limit diverse national housing and rental policy.

Between historic French revolutions and the modern riots, negotiated solutions to social dilemmas emerged. Despite progress in constitutional principles, complex local negotiations still ultimately determined who was housed. Local social landlords, mayors and tenants’ or employment organizations used their privileges to house their insiders: existing tenants, locals and employees, with rent insufficiently subsidized.

Insider outsider theory is used for an economic analysis of exclusion in social housing allocation: its processes, institutional context and stigmatizing effects. The empowering of very local insider representatives had spatial effects of nimbyism, excluding outsiders, and concentrating them in particular areas. Simultaneously, urban regeneration reduced affordable housing stock and ‘social mix’ became a reason to refuse a social home, particularly affecting the disadvantaged and ethnic minorities.

History, comparative law, economic theory and local interviews with housing actors give a not-technical but detailed picture of what happens in and around French social housing allocation for a general policy audience. Constitutional principles appear in unfamiliar guise as negotiating positions, with the right to property supporting landlords and solidarity supporting tenants. These debates about who should be housed are echoed across Europe and reflected in European policies concerning rights. This book aims to improve international understanding before further European regulation of a diverse field

The UK has approached the problem of finding intermediate housing between expensive purchasing and cheap but insecure renting by a series of schemes known as shared ownership. The object is to give buyers secure access to a home at an affordable price, and at the same time to buy a share in the home. This paper looks at the experience and varied mechanisms of shared ownership in England, to see if they can be adapted to Catalonia, a very different legal system. This means looking at the under-researched English, French and European principles involved to find commonalities in fragmentary ownership and to argue that this is a common heritage and can be positive and useful, although with problems too.

"European rights have different meanings in different countries. In France many legislative texts create rights in favour of disadvantaged people and a new "opposable" right to housing allows legal action against the State.  France was recently still found in breach of the European Social Charter, article 31 (the right to housing). There is still generally difficulty in access to social housing for the disadvantaged. This view is based on a recent socio-legal qualitative study in France. There are problems both with the new court remedy and insufficient changes to support the new right. The EU Competition Commission also disputes funding for French social housing intended for everyone, an important European debate.

The nature of housing rights differs in the UK and Ireland.  There are language problems and only remedies class as rights.  French rights are objectives for the future but English lawyers understand rights as those that can be immediately delivered, so English rights are relatively grudgingly expressed, with much detailed qualification.  The justiciable entitlement of English homeless people to obtain accommodation is not classed as a right.  Generally access to social housing for those in need are provided by responsibilities imposed on local government.  The UK still provides more social housing for the disadvantaged than France.

France has moved towards providing a remedy to the disadvantaged, but trying to implement strong existing rights statements representing future objectives present a problem of chronology.  It would be politically and legally unacceptable to backtrack on rights statements but they probably cannot be delivered in their current form.  Harmonized law can thus be worse than the original law.   
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The author conducted an empirical study of social housing allocation in France in three regions after a protracted period of study of French law, to see how this worked in practice.  This was originally intended to be a fully comparative study of French and English law, but a whole series of theoretical and practical limitations within comparative law mean this will now be classified as a socio-legal single country study.

Some of these problems lie in limitative descriptions of what constitutes comparative law, many of which are found in statements by Zweigert and Kötz (1998).  Firstly, it should be presumed that the function of the law should be similar in both countries, which pre-empts any empirical conclusions without any evidence.  Secondly there is ambivalence about empirical study generally. Thirdly, some comparative lawyers require that two countries should be compared, which make large scale studies difficult because of an accumulation of difference.  Fourthly, things that are not similar should not be compared, which poses serious difficulties in legal disciplines that have no real European counterpart of which present important differences, such as equity an trusts, housing law and empirical studies.  These and other difficulties might have serious effects in harmonization of European law which is based on comparative studies, not sufficiently taking into account difference.

"This question approaches an English problem, but inspired by French small land companies. In the last 20 years international property scholarship has accelerated, producing not isolated legal transplants, but a menu of possibilities. Using these ideas, English law could be transmuted mostly using existing national law.

This paper is concerned for the need for democratic arrangements for the governance of small collectively owned buildings such as London terraced houses. It experiments with the example of groups of young adults today forced to buy homes together for affordability.  In these circumstances, flat blocks, smaller homes or shared space all have similar legal governance requirements.  Their ownership should be stable and thus sustainable. 

There is a general English shortfall in home-ownership by groups whether condominiums, mutuals, co-operatives or clubs. Group property ownership in England automatically uses a trust, good for families but not terribly democratic for small groups or mutuals.  There cannot be more than four trustees, and English companies are not a real option.  Alternatively, English companies are designed for business, thus cumbrous in form, registration and governance.  Times have changed.  People are more literate and legal determination of their rights is expensive. Surely there should be a democratically governed option? The new flat law, the Commonhold is probably also too cumbrous for small-scale use.

In France, there are democratic additions to joint ownership and there is also a small land company or partnership, the société civile immobilière.  This paper looks at this French partnership and how it remains relatively informal, more like an English partnership with legal personality. A similar English partnership for business has already created, the Limited Liability Partnership since 2000, effectively a European rapprochement.  Why is this not available for residence? This could be transmuted and simplified for multiple home ownership drawing on French and international ideas, although still essentially an English device, but one which is compatible with other European legal systems. 
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This paper considers the future of European property law and the law of residential tenancies after two important and rather contradictory recent cases.  In, Hutten-Czapka v Poland the Grand Chamber of the European Court of Human Rights ruled in favour of landlords in Poland who sought to recover their property after communism.  The decision disapproves strong rent control, proposes government compensation for landlords and requires an effective eviction law. In contrast, FEANTSA v Slovenia is a decision of the European Committee on Social Rights, concerning the Revised European Social Charter.  This supports Slovenian tenants who did not benefit from the extensive right-to-buy extended to most former tenants.  This time the state must support tenants and the homeless, paying compensation to tenants

These judgements amount to a major pronouncement on property law in Europe and this paper looks at some questions that arise.  The first is concerns whether the decision is likely to have any effect within the EU, after ratification by the EU of the ECHR.  The second is what the major effects of the decisions are in national constitutional terms. Is this exceptional or the foundation of a new European property law?  The third is a concern for English lawyers about whether these new judgements accommodate UK ways of doing things that are really quite different from within Europe.

These judgements might be a compromise within their national factual contexts, but the doctrinal basis of the decisions is much more unclear with an extremely wide power of appreciation for national governments.  Heavy state responsibility is a common theme and one which might be unsustainable, particularly if one jurisdiction supports tenants and the other landlords.

There is increasing European regulation of tenancies based on relatively little comparative study. Rented property can be governed by contract law, property law, or consumer law, supported by statute, with a variable tendency to increased protection of tenants. Property concepts have changed over time, with tenants supported by apparently opposing principles in England and France.

This paper surveys the history of legal doctrinal divergence in residential tenancies and property between the civil law and common law in France and England from Roman law to today. Problems in mutual understanding are exacerbated by English use of French legal terms after the Norman invasion, followed by 800 years of divergence in legal doctrine and language.

A brusque break in legal doctrines and language came when revolutionary France abolished feudalism and enshrined the enlightenment idea of absolute ownership, an apparent monopoly of land rights. This was influential across Europe and tended to exclude strong tenants’ rights, contributing to the mobilization of workers and tenants against property to obtain social rights.  In England, fragmentary feudal property rights were continually reformed, bestowing quasi-property rights on tenants, providing security without importing the schism between capitalism and socialism into property doctrines.  English property law historically expanded, not because the English are capitalists but because the property system accommodates the rights of tenants and other weaker parties.

This important difference affects later European developments in consumer law, and in EU, The European Convention of Human Rights and the European Social Charter, and still causes misunderstanding, particularly with shifts in legal meanings and misunderstandings in use of English by civil lawyers.  Both legal traditions have advantages, and this paper provides a framework for study to improve mutual understanding.

"Solidarity appears in the preamble and body of the Draft Common Frame of Reference but has no legal meaning in the UK. What does it mean in France? The English researcher has to try to forget national political implications to understand some workaday uses of the concept in special contracts, particularly those related to property. French solidarity has different uses in public law, private law, commercial law, social law and as a general enforcement device for moral obligations.

This paper shows the historical development of French solidarity or solidary responsibility, in its applications rather than its moral content, particularly in family and tenancy law.  Solidarity in family law long pre-dates socialist theory. It was then harnessed to contract law in the revolution and found impetus as the basis for social rights in Bourgeois’ social contract.  Tenants’ collective rights mirror those of employees.

Solidarity is different from rights principles or equity or property in England can operate below the level of constitutional principle to facilitate enforcement of public policy or re-arrange property rights in small and large ways.  If this equivalence can be recognized, then more informed research becomes possible with English approaches being a European exception rather than the norm.
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It is understandable that civil law countries should seek a common civil code, but there is a problem with property for the UK (except Scotland) and Ireland. England offends the civil law principle of unitary property because of fragmented property rights:  tenants’ rights, beneficiaries’ rights and equitable interests generally.

Using primarily French law, this paper considers where equity and these fragmentary rights would belong in such a code. There are substantial problems of definition and of content but studying this problem is can improve transnational understanding. English property rights could be exceptions to rules in such a code or could continue to exist outside it. Failure to provide such exceptions could require either a complete redraft of much English legislation or loss of English property rights. England is not the only country to need such exceptions. The first step to deciding the correct approach is to understand the differences and commonalities in property law.

"There are some serious problems in categorizing residential tenures across Europe. Describing all rented property as leases is misleading.  European statistics  compare the most insecure tenancies in England with indefinite German tenancies lasting for generations.  This causes difficulty in classification for the purpose of describing housing rights of individual in comparative housing studies and law. Are we all talking about the same thing? A better topology can be found.
The object of this article is to look at the major problems of comparison of residential tenures, to produce a new topology, using the criteria of security of tenure and value. At the level of rights, private law or categorization, there are mismatches of principle between European countries. The divergencies, path dependencies and misunderstandings can be traced and understood through history. However, help can be found from comparative law, from grouping countries into families, from identifying the components of ownership using Honoré and recognizing the pitfalls using Twining.
It is possible to identify a fourfold categorization of European rights of residence. In general, each country will have very secure tenures but also a range of limited property rights, tenancy rights and insecure rights of occupancy. This is the case regardless of the land rights system used. The advantage of using security of tenure as a basis for comparison is that it correlates strongly to value and to price. It is therefore important both to the sociological comfort of residents, to labour mobility and to assessing accurately how residential markets work
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Militant squatters protesting about their housing need have a peculiar status. Like Foucault’s madman, there is a duality to their position. They might seek to appear as lone voices telling truth to a capitalist society or they can be stigmatized or criminalized as outsiders. Nonetheless, they can acquire social or property rights by political protest or the passage of time, a rocky journey to becoming insiders in society. Squatters are thus not powerless, particularly in a mass squat.

This paper arises from observing a long tradition of protest against housing conditions by militant squatters in France and elsewhere, but this is not so commonly seen in England. There are a series of possible reasons for this such as: housing crisis; a particular history of urbanisation and collective action; and a moral or economic view of their function.

The law contributes to this situation and this paper reviews the transaction costs of different kinds of regulation: the barriers to access to and means of exit from land. An example is eviction or squatting as a means to acquire land ownership by adverse possession in England and prescription extinctive in France.  Good faith is necessary to acquire ownership of land by occupation in France but not England. This means that squatters in France and similar systems can never obtain title to land in this way and must obtain satisfaction by political means, but there are other factors. 
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