Rethinking housing law: A contribution to the debate on tenure

Ending Security of Tenure for Social Renters: Transitioning to ‘Ambulance Service’ Social Housing?

“…(Bright & Hopkins, 2011, p. 387). Ball (2010, p. 15) is of course right to argue that 'Security of tenure is not offered in other important aspects of life, such as employment' (see further below), but decades of statutory interventions reflect an understanding that the asymmetry in the relationship between landlord and tenant is rooted only in part in the latter's (assumed) relative economic weakness (Stewart, 1994). Government regulation also reflects the fact that the tenant has a very great deal more 'at stake' in this particular contractual relationship than does the landlord, consequent on the special significance of stable housing to what is often now termed an individual's 'ontological security' (Easthope, 2004;Hiscock et al, 2001).…”

“…But the more fundamental flaw in the above argument is its failure to acknowledge the intrinsic importance of the de jure position from the user perspective. This is mistaken because the de jure position is critical in defining power relationships within housing (Stewart, 1994), as has long been understood:…”

“…(Davis, 1948, p. 454, quoted in Robertson, 2006 Modern socio-legal scholars have continued to demonstrate the key role the law plays in constructing power relationships within housing (Blandy et al, 2006;Stewart, 1994), and that, crucially, the power implied by these legal relationships 'exists' whether it is acted upon in practice or not. As Steven Lukes (2005) makes clear in the new edition of his classic analysis: 'Power is a capacity not the exercise of that capacity (it may never be, and never need to be, exercised)' (p. 12).…”

Secure Occupancy: A New Framework for Analysing Security in Rental Housing

“…In an early volume of Housing Studies, Stewart (1994) examined the law's contribution to the construction of power relationships within the housing sector, referring to English law. She made an important distinction between individual property relations within the realm of property law and based on assumptions of freedom of contract and equal bargaining power (referring to leases between property owners and occupiers); individual statutory relationships deriving from legislation which attempts to adjust power relations between parties to a lease to protect the weaker party; and the regulatory sphere which regulates providers of rental housing within a wider set of power relations, such as regulation of the activities of different types of social landlords (Stewart, 1994, pp.…”

“…Tenure in this context is not 'housing tenure' but refers more generally to the terms and conditions under which people hold land and property (Blandy & Goodchild, 1999, p. 33). These terms and conditions derive from property rights which relate to acquisition, use/occupancy and disposal of real property and which have a different history in the Anglophone countries, where they are derived Secure Occupancy 639 from (English) common law with its basis in precedent (Stewart, 1994), than for many of the countries in continental Europe, where they are established in codified civil law (de Decker, 2001). Property rights relate to housing tenure in that owner occupiers are considered to have a fuller range of rights, whereas, in rental arrangements, the owner retains acquisition and disposal rights whilst rights in relation to use/occupancy are allocated within a legislative/regulatory framework between the property owner and the tenant.…”