Aspects of Housing Law

Jill Morgan

• Publisher: Routledge-Cavendish
• Year: 2020
• ISBN:
  9781000159363
• Edition: 1
• Topic: History
• Subtopic: British History
• Index: History

Aspects of Housing Law provides a comprehensive, up-to-date and readable account of what is often regarded as a complex and technical area of the law. It is essential reading for students of housing law and those taking courses in housing studies.

With comprehensive coverage of all areas covered in an undergraduate course on housing, this concise and clear text covers:

• homelessness
• owner-occupation
• regulation of rents
• repairs and disrepair
• succession to tenancies
• private rented sector
• social housing
• anti-social behaviour.

Part I

An overview of housing tenure

Chapter 1

An introduction to housing policy and housing law

The functions of housing policy

Housing policy has best been described as consisting of ‘measures designed to modify the quality, quantity, price and ownership and control of housing’ (Malpass and Murie, 1999: 7). The ways in which policy is put into practice are inevitably matters of political concern. The main objective of housing policy is generally considered to be the provision of ‘sufficient affordable housing so that every household enjoys real choice between housing options, each of which offers good physical standards, security of possession, an attractive neighbourhood, convenient location and all at a price or rent that the household can afford’ (Merrett, 1992: 48). It is clear, however, that housing policy need not be designed to improve security or affordability or housing conditions and that governments sometimes deliberately withhold investment in housing for the benefit of other services such as health and education (Donnison and Ungerson, 1982: 13) or to maintain or reduce levels in the taxation of income.

It is important therefore to recognise that housing does not exist in a vacuum but is affected by – and may be subservient to – other policy areas such as economic policy and personal taxation, the labour market, social security, and social exclusion. Moreover, despite the different political persuasions of successive governments, there is evident a certain commonality and continuity in the rhetoric of their housing policy, its key themes and much of its substance (Cowan and Marsh, 2001: 261). Central government formulates policy and, through legislation, can provide the powers and the financial means for its implementation. However, within the context of housing, the major responsibility for translating policy into action is borne by local authorities, housing associations, building societies, builders, private landlords and others which, as decision- and sometimes policy-making bodies in their own right, are likely to modify central government policy at local level. As a result, ‘the impact of new policies is rarely as dramatic as either their advocates hope for or their critics fear’ (Donnison and Ungerson, 1982: 161). In addition, the legislation passed to give effect to housing policy will be interpreted and further refined by the courts (which may also point the way for the reform of housing law and a consequent rethinking of housing policy). Over the years, therefore, by a process akin to ‘Chinese whispers’, an effect quite different from that anticipated by policy-makers and the promoters of the legislation may be produced.

The determinants of housing policy and law

Housing policy (and, therefore, housing law) depends on how housing itself is viewed. At one extreme it can be regarded as a commodity subject to the laws of the market place. As such it will be supplied if and when the supplier anticipates the probability of securing a reasonable return and it will be bought by those able and willing to pay the price which will yield that return. Accordingly, it is given no special treatment to differentiate it from any other commodity; state intervention is limited to ‘general regulation guaranteeing the right of ownership and … freedom of exchange in a capitalistic economy’ (Bengtsson, 2001: 262) and no provision is made to give landlords and tenants or lenders and borrowers any rights or obligations over and above those which are contractually agreed (Donnison and Ungerson, 1982: 1). Such a state of affairs has not existed in England and Wales since the middle of the nineteenth century, in recognition of the fact that although housing is indeed something which can be bought and sold, it possesses a number of features which distinguish it from other commodities. First, the housing market differs from other markets insofar as houses and households can move between the ownership market (in which the houses themselves are bought and sold) and the rental market (where only the use of house room is bought and sold). Secondly, the multiplicity of interests which can exist in land is unparalleled compared with other commodities (see Gray and Gray, 2005: 1.13–1.189) and can give rise to complicated property relations. Thirdly, although the law regards the ownership of land as extending up to the heavens and down to the depths of the earth,¹ land is of course non-renewable and there are no new frontiers to explore. Fourthly, because a house is fixed in one place, a person who buys or rents housing is also buying or renting accessibility to employment opportunities, city centre services, the countryside, and so on (Holmans, 1987: 5, 6). Fifthly, houses take a comparatively long time to build, are expensive to produce and, unlike other commodities, they cannot be imported from abroad, even if they can be produced more cheaply overseas (Ivatts, 1988: 198). Sixthly, their durability means that houses retain their value over many years and in real terms their value may actually grow. The heterogeneous nature of housing means that one unit cannot easily be substituted by another (Bengtsson, 2001: 258). Finally, and most importantly, housing serves one of the most basic human needs. Whether taken separately or together, these factors mean that housing warrants special treatment and its provision should not be left simply to the vagaries of an unregulated market because it would not then be available to all citizens at an acceptable price and quality or with an adequate degree of security (ibid.).

A modified market model has underpinned British social policy for most of the past century under both Labour and Conservative governments, although it has been particularly marked since 1979. Market competition rather than state action has been promoted as the most effective mechanism by which resources can be most efficiently distributed and choice exercised. Adherents of the market model expect people to be self-reliant or, if necessary, to rely on the market, their families, and the generosity and support of other members of their communities, rather than the state. The prevailing liberal economic view has been that the state should confine itself to protecting private property and wealth, enabling people to fend for themselves and creating conditions which help the market to run smoothly. As Bengtsson points out, ‘housing policies in most Western countries are best perceived as the state providing correctives to the housing market’ with housing being regarded as ‘an individual good which, as far as possible, should be distributed in accordance with individual consumer preferences’ (Bengtsson, 2001: 257). Voluntary contracts formulated within the market – between buyer and seller, between landlord and tenant, and so forth – serve as the main mechanism for distributing housing, while state intervention takes the form of correctives defining the economic and institutional setting of those contracts (Oxley and Smith, 1996: 2–3). Because housing provides opportunities for profit-making and wealth creation, and a system of private property rights lies at the core of capitalist societies, state intervention in housing tends to be regarded as something which should be imposed only in exceptional circumstances when market provision proves defective and then only for particular groups. Direct state support is acknowledged as necessary therefore for the elderly, disabled or very poor, who lack the capacity to compete effectively in a market system but, even then, there is pressure to keep it to a minimum. Such a market philosophy identifies private property with individual freedom and has an overriding aim of minimising public spending in favour of low rates of taxation and the stimulation of enterprise and effort. State incursions on grounds of social protection and equality are viewed with suspicion (see Friedman, 1962). The growth of a large market sector in housing is widely recognised as a reason for depicting housing as part of the welfare state. If so, it occupies a distinct position therein,² one which since the late 1970s has been changing in ways which imply a retreat from other, more entrenched, services which comprise the welfare state. Now, because council housing has come to be seen as the tenure of last resort, it is considered inferior to housing provided by the market. Until recently, a contrast could therefore be drawn with the National Health Service (NHS) and state education which – because they are used by the bulk of the population (even those who can afford to pay for private medical provision, and to send their children to fee-paying schools) – enjoy a level of political (and popular) support that ensures a relatively higher quality service than would be the case if they were used only by the poor. In certain respects, however, housing – no longer to be considered as a major public service – is emerging as a model for the reduction of public spending and the wider restructuring of public services with its emphasis on ‘markets, choice, individual responsibility and a strong regulatory role for the centre’ (Malpass, 2004: 224). Thus, the past 15 years have witnessed the development of the internal market within the NHS, the introduction of trust status for hospitals and devolved decision-making in schools. Such developments, including what we shall see is arguably the ‘privatisation’ of council housing, have not, however, meant a withdrawal of the state. Indeed, they have been made possible only by extensive legislative intervention from the centre.

In contrast with the above picture, those broadly on the political left, who subscribe to the social democratic model, take the view that homelessness, overcrowding, disrepair and so on stem from the fundamental inability of the market to produce enough satisfactory housing, especially for the poorer sections of society (Clapham et al., 1990: 28–31). It is argued that ‘in all countries of advanced capitalism … state housing has been introduced after conditions in the private sector have reached the level of human degradation’ (Karnavou, 1981: 50–53, 52). Because of the inequalities inherent in, and engendered by, market society, state intervention is regarded as necessary to ensure that there is ‘an adequate supply of suitable accommodation at a price which the poorest can afford’ (Malpass and Murie, 1999: 4). The provision of housing is thus regarded as a social service, the state deciding how much to supply and how it is allocated. Moreover, the choice offered by the market is viewed as illusory. It may work ‘rather more satisfactorily for the better off’ but ‘tends to establish a close link between poverty and poor housing’ (ibid.).

It has been observed that ‘discussions on housing policy generally either ignore … [the] law or regard it as a passive instrument for policy implementation’ (Goodchild, 2001: 75). Indeed, there may be conjecture as to whether ‘housing law’ is in the strictest sense a distinctive area of the law at all, or merely a convenient umbrella term for elements of contract law, landlord and tenant law, tort law and public law as they relate to housing. While the grouping together of legal principles in a certain way may be informative, it will not necessarily reflect any ‘penetrating analytical insight into the materials so arranged’ or of ‘any coherent project that the law self-consciously pursues’ (Coyle and Morrow, 2004: 1). The question therefore is whether housing law possesses the ‘doctrinal coherence’ or ‘philosophical underpinning’ to exist as an established, free-standing body of law (ibid.). Certainly, housing policy and law have developed in a piecemeal fashion (rather than in terms of dominant motivation and ideologies), moulded by a gradual acceptance that some interference with the free market is necessary. However, although ‘the present legislative position has been reached more through a series of political responses to particular social pressures than the acceptance of any statement of principle … this does not mean … that the present position cannot be justified in principle’ (Law Commission, 2002a: 1.20).

There is much to be said for the application to housing law of the three ideologies identified by McAuslan as competing against each other in the context of planning law. The first – the traditional common law approach to the rule of law – holds that the law exists for the purpose of protecting private property and its institutions. Its roots can be found in the principles developed by the courts in the late nineteenth and early twentieth centuries to provide protection for urban landowners against government action to improve the terrible living conditions of the new urban working classes. McAuslan explains that because, well into the nineteenth century, the lawful exercise of political power was inextricably linked with the possession and ownership of land, the protection of private property also involved a defence of the constitutional order. Moreover, ‘it was the property owners who used the courts and it was in the resolution of their disputes that the common law was formed’ (McAuslan, 1980: 3). In contrast to nuisance law and the law on easements and restrictive covenants, housing law (much of which originates in statute) has not grown organically ‘through the courts’ response to changing social conditions’ and can be vulnerable to interpretation in such ways as interfere as little as possible with the interests of the land-owner.

The basis of the second ideology – the orthodox public administration approach – is that the law exists and should be used to advance the public interest, if necessary against ‘the selfish interests of the private landowner’ (McAuslan, 1980: 4). It manifests itself in laws which confer extensive powers on administrators to do as they see fit. Traditionally they either provided no redress or appeal or redress within the administrative system only, e.g. an appeal from a lower administrator to a higher one, the presumption being that public officials act in good faith and ‘in the final analysis [are] accountable to Parliament for their actions and policies’ (ibid). The housing legislation which proliferated throughout the twentieth century was largely motivated by and constructed in accordance with the public interest ideology but the courts have constantly oscillated between ‘their desire to reassert the rights of private property against the all-pervading bureaucracy and their sense of obligation to uphold the lawfully constituted authority of government’ (ibid.: 5). Moreover, so far as housing law is concerned, particularly that which concerns the control and allocation of council housing (including the law on homelessness), the presumption that ‘public officials act in good faith’ has often operated to the detriment of applicants, with the courts being reluctant to interfere with the decisions which local authorities have reached.

The third ideology – the radical or populist approach – envisages the law as a vehicle for the advancement of public participation in the housing system, ‘not by virtue of the ownership of property but by virtue of the more abstract principles of democracy and justice’ (McAuslan, 1980: 5). It involves greater attention being paid to ‘social, community and ecological factors in decision-making and less attention paid to economic and technological factors which assume or are geared to reproducing the same kind of society that exists at present’ (ibid.: 6). So far, there are few such examples in housing law (despite the attempts during the 1980s and 1990s to achieve tenant empowerment). Yet it may be that the Law Commission’s proposals as regards the simplification and reform of the law relating to existing forms of housing tenancies may pave the way for a radical rethinking of the basis on which housing is occupied, given its attempt to move away from the property-based perspective of the landlord and tenant/occupier relationship.

Housing law, house and home

A ‘consumer perspective’ of rented housing (or, at least its legal regulation) lies at the heart of the Law Commission’s proposals. This involves the conceptualisation of housing law as a branch of consumer law with the contract as the key component of the landlord-occupier relationship. While such an approach would appear to signal a return to the pre Rent Acts position and to leave occupiers vulnerable to exploitation by landlords, the Commission emphasises that the terms of the contract will be mediated by provisions on unfair terms. Thus all landlords and occupiers will have a written statement of their contract, setting out their rights and obligations, including those provided for by the Rented Homes Bill (Law Commission, 2006). The intention is to make a break with past ‘legislative strategy’ that has involved landlords and tenants entering into contractual arrangements which are then substantially ignored ‘as details in the agreement are overridden by statute’ (Law Commission, 2002a: 1.33). The development of legislation over the last 30 years to ensure the fairness of the terms on which consumers contract means that there can now be ‘a much clearer focus on ensuring that the terms on which homes are rented are fair from the outset, rather than suspecting that they may be unfair and creating statutory provisions to enable them to be ignored’ (ibid.).

There are a number of jurisdictions (notably Canada, Australia, and New Zealand) in which the courts have been prepared to apply contract rules to leases, albeit within a property paradigm, and the question of whether – and, if so, to what extent – the landlord and tenant relationship should be confined to property law principles has been the subject of extensive debate for a number of years. However, consumer-based arguments have failed to bear much fruit in the context of housing law. Thus, in Dunn v Bradford Metropolitan District Council [2003] HLR 15, in holding that s. 13 of the Supply of Goods and Services Act 1982 did not place a duty on a local authority to carry out repairs which it was not...