Condominium Governance and Law in Global Urban Context

Randy K. Lippert, Stefan Treffers, Randy K. Lippert, Stefan Treffers

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000335828
• Edition: 1
• Topic: Arquitectura
• Subtopic: Arquitectura residencial

This book examines condominium, property, governance, and law in international and conceptual perspective and reveals this urban realm as complex and mutating.

Condominiums are proliferating the world over and transforming the socio-spatial organization of cities and residential life. The collection assembles arguably the most prominent scholars in the world currently working in this broad area and situated in multiple disciplines, including legal and socio-legal studies, political science, public administration, and sociology. Their analyses span condominium governance and law on five continents and in nine countries: the United States (US), China, Australia, the United Kingdom (UK), Canada, South Africa, Israel, Denmark, and Spain. Neglected issues and emerging trends related to condominium governance and law in cities from Tel Aviv to Chicago to Melbourne are discerned and analysed. The book pursues fresh empirical inquiries and cogent conceptual engagements regarding how condominiums are governed through law and other means. It includes accounts of a wide range of governance difficulties including chronic anti-social owner behaviour, short-term rentals, and even the COVID-19 pandemic, and how they are being dealt with. By uncovering crucial cross-national commonalities, the book reveals the global urban context of condominium governance and law as empirically rich and conceptually fruitful.

The book will appeal to researchers and students in socio-legal studies, law, sociology, political science, urban studies, and public administration as well as journalists, social activists, policymakers, and condo owners/board members.

Part I
Conceptualizing condominium property, governance, law, and influence

Introduction to part I

Part I features five conceptual contributions to understanding condominium property, governance, and law from several countries. Much previous work has tended to be descriptive rather than explicitly engaging with concepts. Yet the condominium domain is fertile ground for conceptual engagement and these five chapters most fully embrace this opportunity. Deploying concepts of property and narrative, homeownership, legal avoidance, and surveillant assemblage lends understanding to complex and changing condominium governance and law arrangements. Contributors provide unique perspectives on this property form and explore how law and other means are used to regulate and ostensibly deal with tensions and conflicts that arise in collectively governed spaces in these contexts. At the crux of the first three of this part’s analyses is the mixed nature of condominium property ownership, which combines individual unit ownership with an undivided share of common elements and spaces. Most condominium complexes are no longer run or occupied by a small group of resident owners, as early statutes presumed. This raises issues related to the growing involvement of corporate interests that provide services to and otherwise maintain influence in condominiums. Thus, the last two chapters of this part point to how external actors are influencing the community of owners and condominium governance through complex strategies of avoidance or surveillance.

In the first chapter, Sarah Blandy explores leasehold reform, self-governing residential contexts, and property narratives in the UK. The English leasehold system has been the primary legal framework for residential buildings but is undergoing reform. Drawing on interviews with developers, residents, and management committee members, she finds that English leasehold’s issues are very similar to those in condominium buildings elsewhere. She asserts this similarity challenges the widely held assumption that legal reform can resolve the issues that commonly arise in self-governed developments. Blandy argues that the individual property narrative needs to be changed to one of intentional sharing to permit the new ways of living in these residential developments.

Douglas Harris next takes on property directly in his chapter, arguing that condominium ‘embeds’ private property in an owner community. Drawing examples from statutes and case law in Canada and Australia, he discerns the spatial, political, and temporal dimensions of this embedding. The chapter concludes that this embedding of property is changing the meaning of owning an interest in land.

The following chapter by Cathy Sherry contrasts condominium governance and that of homeowner associations in the US with governance of counterparts elsewhere in the world. The US has permitted positive obligations on freehold land, allowing the development of private communities and consideration of their rules in the courts. In contrast, most common law jurisdictions needed statutes to facilitate condominium development, which occurred only later in the 20th century. She argues that it is unfortunate that other countries are enacting condominium statutes to facilitate large-scale developments, seemingly unaware of the implications of giving private citizens the power to make rules for residential neighbours.

Lippert and Treffers deploy the concept of legal avoidance to show how condominium developers employ innovative strategies to undermine laws and related regulation requiring the transfer of building control to owners following construction or conversion. This legal avoidance enables developers to circumvent the spirit and letter of law or legal regulation for private benefit. Drawing on interviews with Toronto and New York condominium board directors and owners and survey responses from Toronto directors and owners, five types of developer influence made possible by legal avoidance are discerned.

In the final chapter of this part, Garfunkel contributes to the understanding of condominium governance and to rethinking privacy norms in this hybrid private-public arena by focusing on video surveillance as emblematic of complexities of property and other surveillance forms in condominium governance. She does so by drawing on interviews, judicial decisions, and informal conversations with relevant actors. Her findings indicate that condominiums are gradually becoming highly controlled and monitored spaces. Property theories traditionally situate private ownership and the home at the core of individual autonomy, control, and privacy. But owners and renters embrace these surveillance practices due in part to the benefits they promise. This new reality enhances property managers’ power in relation to boards and contributes further to the commodification of condominium governance.

1
Narratives of property and the limits of legal reform in the English leasehold system and its counterparts in other jurisdictions

Sarah Blandy

Introduction

Leasehold provides the legal framework for most multi-owned housing developments in England and Wales.¹ Some of these leasehold sites are self-governed by a company formed of the leaseholders which owns the freehold title, sharing some features with condominium and strata title. However, in the majority of leasehold developments the power to manage rests with a separate freeholder. Recent revelations about exploitative practices by developers, freeholders and their lawyers have added to the existing, decades-old pressure for reform of the leasehold sector. The UK government now favours a move from leasehold to commonhold, the English equivalent of strata or condominium title in which each unit is owned on freehold, and the unit owner automatically becomes a member of the Commonhold Association which owns and manages the whole site. This new form of tenure was introduced by the Commonhold and Leasehold Reform Act 2002 but was not made mandatory. The key reforms put forward in the Law Commission’s consultation paper, Reinvigorating Commonhold (2018), include simplifying the process for converting from leasehold to commonhold and the compulsory use of standardised documents.² Launching Reinvigorating Commonhold on December 10, 2018, Law Commissioner Nick Hopkins declared that “[t]he time is right for commonhold… It involves a culture change, moving away from an ‘us and them’ mindset, towards ‘us and ourselves’.” “Us and them” refers to the traditional freeholder/leaseholder structure, whereas “us and ourselves” is intended to convey a new narrative for self-governed multi-owned housing in the form of commonhold.

The theoretical framework adopted in this chapter is based on the concept of narrative, by which I mean a story or explanation, following Carol Rose’s influential work on property as persuasion (1990, 1994). The proposed reforms to leasehold and commonhold are not discussed in detail here; the chapter focuses on what an analysis of property narratives may offer for understanding problematic issues associated with self-managed housing. In my previous empirical socio-legal projects researching English self-governed leasehold sites and commonhold sites, I found some deep-seated difficulties which mirror those revealed by international research: owner apathy, lack of community, and low levels of participation in governance (see overview in Easthope 2019, chapter 6). The strikingly similar findings from jurisdictions where legal frameworks have been supposedly tailored to the needs of self-governed residential developments challenge the confidence that legal reform alone can resolve these issues. In using the lens of narrative to explore the underlying reasons for these problems found in multi-owned housing sites across the world, this chapter’s innovative approach makes a significant contribution to the international research literature.

Two types or levels of narrative are considered here: the abstract or the “meta-narrative,” and the everyday or “ontological” narratives which concern how people experience reality (Somers and Gibson 1994). Narratives have a powerful influence on our experiences, our understanding of how the world works and therefore how to live in it. Rose (1994, 5–6) argues that property narrative and “community norms” combine to maintain “the common beliefs, understandings and culture that hold property regimes together.” Both types of narrative are constantly evolving, and so is the relationship between them. As Macpherson (1978, 1) explains, the concept of property “is both cause and effect of what it is at any time… changes in what is there are due partly to changes in the ideas people have of it.” A major change since the mid-20th century has been the growing acceptance in the developed world of a narrative of property as exclusionary dominion (derived from Blackstone 1978 [1768], 2). It is rarely pointed out that Blackstone’s 18th-century exposition of property law and relationships also acknowledged “that common ownership… and communal rights were commonplace, so to speak” (Schorr 2009, 112). The powerful meta-narrative of property as individual, exclusive, sovereign control over territorial space has taken hold across both civil and common law jurisdictions. As Rose (1990, 54) points out, “the dominant story-teller can make his position seem to be the natural one,” and so the narrative of property as cooperation has been displaced by that of exclusionary, individual dominion.

A number of factors, including legal discourse, have combined to create this successful meta-narrative of property which provides an unquestioned, universal explanation of how things are in the world. Although “ownership” is not a legal concept in the common law world, it carries a powerful charge. Research has found that owning property, particularly one’s own home, is associated with security, privacy, control, and financial value (see Saunders 1990), and that the home is a particular type of property, in which residents invest time, effort and emotions (Mallett 2004). Government encouragement of homeownership over the past decades has added political force to the idea of property as individual possession, which is powerfully associated with raw feelings, existing interests and familiar values.

Over the same time period when a narrative of property as individual dominion became established, multi-owned housing has emerged as a major form of residential accommodation. But the individualistic meta-narrative is clearly inadequate to explain property relations at multi-owned housing sites where there are no physical or legal boundaries to separate one share in the common property from another, and which are managed collectively. These sites combine individual with collective property, and that property is bound up with governance and community.³ Owners must cooperate to make multi-owned housing work successfully, but as Perin (1988, 77) pointed out in her anthropological study of relations between suburban neighbours in the US, “Common ownership, predicated on Cooperation and Sharing is incongruent with American ideals of Individuality and Independence.”

At the everyday level of narrative, individuals and groups of owners therefore struggle to make sense of their experiences in self-governed housing. In this chapter, the interactions between the abstract and ontological narratives of property are illustrated by examples drawn from qualitative interviews I carried out with owners at a range of English self-governed multi-owned sites. These show that the currently dominant individualistic, exclusionary narrative of property fails to take account of the new ways of living, managing and sharing space in self-governed residential developments. Owners articulated a range of everyday property narratives, from insisting that their home is their castle and therefore resisting the need to participate in collective governance, to embracing a counter-narrative of property that is based on intentional sharing.

Urbanisation and multi-owned housing

The term “multi-owned housing” encompasses master-planned housing estates, gated communities, apartment blocks and large houses converted into apartments – or flats as they are known in England. This kind of residential accommodation has become increasingly commonplace across the world as a response to increased pressure on urban space (OECD 2012). Simultaneously, homeownership rates have grown, while renting has declined in many (although not all) developed countries. Over the past half century or so, state policies have emphasised individual choice and personal responsibility, while levels of trust in community and neigh-bourhood have declined (Atkinson and Blandy 2016). The idea that owning your home is natural and normal (see Gurney 1999, in relation to the UK) has been fostered over time by a range of Western states described by Ronald (2008, 162) as “ideologically convergent.” These concurrent adjustments in both the provision and ideology of housing have led to tensions in property narratives. As explored further in subsequent sections of the chapter, the individually owned “home as my castle” metaphor does not sit easily with the reality of homeowners sharing space, responsibilities and governance arrangements with their neighbours.

In multi-owned housing, the owners hold rights in common over the shared spaces. A fur...