PropertyProf Weblog

Immediately we’re delighted to welcome pal of the weblog Mark Roark (Southern) who not too long ago wrote a e-book evaluation about Gustav Muller and Sue-Marie Viljoen‘s new title, Property in Housing (Juta 2021):

Can a Home Divided Stand? A Thought Experiment in Housing and Property Rights

Guide Overview of Gustav Muller and Sue-Marie Viljoen, Property in Housing (Juta 2021) 

Reviewer: Marc L. Roark

The proverb is Gospel: “A home divided in opposition to itself can’t stand.” Jesus, Abraham Lincoln, even George Costanza has uttered these phrases to mirror the truth that issues so tightly intertwined can’t exist at odds with each other. 

And thus, the South African Structure (together with many different Constitutions around the globe) current us with a conundrum.  If housing is a subset of property does a proper to housing strengthen the legislation of property or problem is normative pressure? Gustav Muller (College of Pretoria) and Sue-Mari Viljoen (College of the Western Cape) tackle this central query of their complete remedy of South African housing legislation, Property in Housing (JUTA Press 2021).  To wit, Muller and Viljoen’s e-book focuses on a central downside that housing faces around the globe in western democracies: how can a proper to housing co-exist the place rights in property preempt their pressure?  In authorized methods the place property stays the default place for allocating rights to put (together with rights to housing), Muller and Viljoen discover what room stays for housing norms absent direct legislative intervention.  The brief reply by Muller and Viljoen – some.

What makes this downside so necessary is that South African courts have tried to sq. these two rights by finding a proper to housing inside the correct to property. What has emerged is an advanced framework the place rights to housing are handled on their “property-ness” or their “non-propertyness” for figuring out how courts allocate claims by potential housing occupiers.  In answering that query, Muller and Viljoen have delivered what I consider is essentially the most thorough remedy of housing by way of the lens of property rights out there at present.  Aligning housing rights targets inside the South African Structure, they analyze whether or not courts pin accessibility, habitability, service provision, habitability, affordability, geographic location, or cultural adequacy as constitutional claims that may stand as much as the challenges of personal property legislation or as co-rivalrous claims that require a sorting of pursuits.  Particularly, the theme of fragmentation emerges as a dominant idea within the constitutional software of those attributes of a housing proper.  In lots of circumstances, Muller and Viljoen’s evaluation of the correct to housing is that its existence can usually be discovered within the liminal areas between the place property legislation and housing legislation don’t fairly meet up, forcing jurists to account for human rights in housing as they kind out property claims by dwelling occupiers, homeowners, and neighbors. 

Inside this context, the South African background of Dutch/ British Imperialism and its lingering results by way of apartheid stay current as background context for the best way property legislation continues to reaffirm previous harms.  The seen remnant of those insurance policies stay on the panorama of South Africa because the nation stays a spot the place casual settlements change into the de facto resort when inexpensive housing isn’t out there for individuals of coloration, and the place established property holders can assert claims to area behind privatized communities.  These glimpses of property legislation on the bottom by way of eviction actions and a physique of South African property legislation lays open the panorama of what human rights to housing in battle with property legislation faces as much as. Muller and Viljoen present the authorized context wanted to know how property legislation can proceed to memorialize unjust regimes a few years after its formal finish.

Briefly, I extremely suggest this remedy of Housing and Property rights for anybody interested by understanding the position of property rights and housing in context.  The e-book’s thought experiment efficiently finds some room for housing within the property context, whereas pointing to inadequacies of property to ship among the fundamental options we anticipate a constitutional proper in housing to hold out.