Guest editorial

Citation

Christudason, A. and Kenna, P. (2010), "Guest editorial", International Journal of Law in the Built Environment, Vol. 2 No. 2. https://doi.org/10.1108/ijlbe.2010.41102baa.001

Guest editorial

Article Type: Guest editorial From: International Journal of Law in the Built Environment, Volume 2, Issue 2

This special issue features key analyses of contemporary developments in housing-related laws and policies. It is truly international in its focus. The featured articles address international housing rights and their applicability to housing systems, compares implications of the mortgage systems in Britain and France, the transposition and incorporation of European Union (EU) anti-discrimination law into Catalan legislation, the development of a new Housing Law for Romania and the legal basis of apartment management systems. These offer the reader a wide range of valuable perspectives and references.

The increasing prevalence and influence of housing and mortgage markets on the wider economy of many societies has created enormous changes in housing. Although institutional and economic policies may signal synchronicity in segments of housing markets, there is much incongruity in social and income mix, resulting in segmentation and exclusion. In light of this, the theme of this Special Issue is “Housing for All” and it features several papers which were presented at the recent European Network for Housing Research held in Prague in July 2009. The papers raise important matters which are of increasing concern in the face of changing housing markets. Thus, for example, can any emerging “European approach” be discerned for housing and housing rights? What is the stance of banks towards financing housing purchase and how can the twin concerns of income polarization and housing market segmentation be best addressed? What is the best way to manage multi-owned housing and deal with the the complex issues it poses?

In the above context, the first article by Padraic Kenna examines the growing corpus of housing rights. This is through a consideration of the principal instruments and commentaries on housing rights as developed by the United Nations, regional and other bodies. He assesses their relevance (as well as applicability) to complex contemporary housing systems. Kenna’s findings suggest significant gaps in the conceptual framework of housing rights, and indeed, human rights generally. He detects a preoccupation with one particular element of housing systems – that of subsidized or social housing. Contemporary housing market systems encompass at least five essential elements, sub-systems or regimes relating to property rights and registration, housing finance, residential infrastructure, regulation and housing subsidies or public housing. In particular, he posits that without an understanding of these, there are major obstacles for the effective implementation of such rights. He therefore suggests that the effective implementation of housing requires application at meso-, micro- and macro-levels of modern, dynamic housing systems, recognizing the dynamics of the five elements outlined. Epistemic communities of housing professionals, with their recognized expertise and competence in a particular domain, as well as authoritative claim to policy-relevant knowledge, can be instrumental in integrating housing rights within housing law and policy in these domains. While Kenna recommends that the housing rights paradigm must be further refined to suit contemporary housing systems, he also suggests that housing rights advocates and housing systems should move away from doctrinal approaches. Instead, they should move towards placing housing rights within international regulatory frameworks, within policy implementation and in the training of professionals in the housing field.

Jane Ball addresses an issue that is central to that of homeownership, namely, institutional lending. She examines how national attitudes to public intervention by banks and eviction in the UK and France are deeply rooted in national institutional history and considers their differing approaches towards bank ownership and regulation, residential lending and eviction. She points out that in both countries, the common feature was that public policy encouraged mass home ownership (often due to public demand) and a variety of tax reliefs, benefits and incentives were utilized. However, the demand for credit was met in rather different institutional and moral environments, with different treatment of borrowers. Ball then considers the interconnectedness of these factors and their effects in the credit crunch, pithily summarizing the issue as follows: “The test of a home-loan system is the extent to which it maximizes housing ordinary people, whilst minimizing the problems of those in difficulties”. Her premise is that the non-interventionist stance of lending institutions in the UK stems from a history of private banking. She infers therefrom that while competition produced plentiful finance, this also meant that borrowers bore higher risks. While this gave rise to the high probability of fairly quick and certain eviction for defaulting borrowers, this was not necessarily disastrous within a flexible system. On the other hand, the French history of post-war interventionism for reconstruction and cautious banking culminated in large-scale special loans to lower-income borrowers. This improved lending liquidity and stability. Ball concludes that an awareness of the interplay between the various factors and effects through comparative research could lead to concrete measures that would assist lending to lower income groups.

The article by Juli Ponce considers, from a legal perspective, the problem of housing discrimination. In light of recent waves of immigration, this has become an issue of increasing importance in Spanish – as in other European cities. Albeit specifically centred on the legal framework in Catalonia, Ponce’s article reveals the international legal influence of American and the European legal frameworks for housing and anti-discrimination. Ponce commences his article with an analysis of international regulations concerning discrimination, and those of the USA with regard to residential discrimination (contained in the Fair Housing Act). He then proceeds to consider the impact of the EU anti-discrimination directives; his particular focus is on one of the most modern and complete implementations of EU directives – the Catalan housing legislation of 2007. The legislation includes several articles which define direct and indirect discrimination, harassment (which is considered a form of discrimination) and positive action. The Catalan legislation is addressed from the perspective of a national and sectorial application of the EU anti-discrimination directives, specifically the Race Directive. Ponce’s article reveals how EU anti-discrimination directives can be transposed and incorporated into the domain of national housing. The Catalan law is one of the first and most comprehensive national legislations using EU principles and techniques to combat housing discrimination, Ponce therefore concludes that it could be used as an inspiration for future new national legislations.

Wolfgang Amann and Alexis Mundt describe the new legislative measures adopted by Romania to stimulate and regulate rented housing production and management in the context of the wholesale privatization of housing in the 1990s and the scarce resources available to the government.

The article provides an analysis of research conducted at the Austria-based Institute for Real Estate, Construction and Housing to support the Romanian Government in redesigning its national housing law. A particular objective of this research was to suggest measures to cope with specific problems on the Romanian housing market, such as the absence of tenure choice and affordable and tenure-secure rental housing. Against the general backdrop of the deficiencies within the rental housing system in Central Eastern European and South East European countries, the situation in Romania is examined. This leads to Amman and Mundt’s rationale for the proposed new housing law for Romania comprising a the new rental law and the public-private partnership housing law. What is particularly enlightening is the explanation of how European best practices influenced the legal propositions. The compatibility of the recommended laws within EU regulations was a key consideration for any proposed legal changes since Romania’s accession to the EU in 2007. Amman and Mundt conclude that the design of the proposed legal changes can foster the development of a functional long-term private and social rental market in order to meet the housing needs of the Romanian population.

The final article by Martti Lujanen examines an important issue pertaining to the management of housing, in this case in the form of apartments (or condominiums). Effective legal models for the management, ownership and administration of apartment blocks have been of growing concern in EU states. This is particularly important because of the mass privatization and sale (or granting) of apartments to former tenants in Central and Eastern Europe and Russia. In this context, inadequacies in the present legal frameworks to ensure the continued maintenance and renovation of common parts have emerged. These include areas such as the roof, walls, stairwells and lifts, and utilities, such as water, sewage and electrical systems. In addressing the legal implications of apartment ownership, Lujanen considers related issues pertaining to the decision-making process for governance, how to finance repairs using ownership as collateral, and how to enforce payment of charges for current and future repairs to common parts and facilities. Such problems were solved in Finland with a special ownership model for apartment blocks and terraced houses. According to this legal model, the property is owned by a housing company, which is a limited liability company. The company constitutes a separate legal entity, and shareholders (apartment owners) are obliged to pay all monthly payments and fulfil other obligations. Such an arrangement ensures that the monetary streams to the company are stable, as compared with housing cooperatives which are the norm in other countries, such as Sweden. Lujanen proposes the Finnish model as a template to resolve difficult issues pertaining to apartment ownership and management in different jurisdictions.

The contributions to this special issue on “Housing for All” in the International Journal of Law in the Built Environment provide rich and varied coverage. The issues raised will, no doubt, inform and stimulate the reader, perhaps even triggering debate and dissent, while simultaneously provoking critical reflection. All said, the contributions to this issue promise an impressive and engaging insight into some of the current developments internationally and nationally on a matter very dear to everyone’s hearts – housing.

Alice Christudason, Padraic KennaGuest Editors