PropertyProf Weblog

Immediately we’re delighted to welcome good friend of the weblog Mark Roark (Southern) who lately wrote a ebook 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

E-book Evaluation 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 not stand.” Jesus, Abraham Lincoln, even George Costanza has uttered these phrases to mirror the fact that issues so tightly intertwined can not exist at odds with each other. 

And thus, the South African Structure (together with many different Constitutions world wide) 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 drive? Gustav Muller (College of Pretoria) and Sue-Mari Viljoen (College of the Western Cape) tackle this central query of their complete therapy of South African housing legislation, Property in Housing (JUTA Press 2021).  To wit, Muller and Viljoen’s ebook focuses on a central drawback that housing faces world wide in western democracies: how can a proper to housing co-exist the place rights in property preempt their drive?  In authorized techniques the place property stays the default place for allocating rights to position (together with rights to housing), Muller and Viljoen discover what room stays for housing norms absent direct legislative intervention.  The quick reply by Muller and Viljoen – some.

What makes this drawback so essential is that South African courts have tried to sq. these two rights by finding a proper to housing inside the proper 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 imagine is essentially the most thorough therapy of housing via the lens of property rights out there at this time.  Aligning housing rights targets throughout 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.  Specifically, 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 proper to housing is that its existence can typically 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 type out property claims by house occupiers, homeowners, and neighbors. 

Inside this context, the South African background of Dutch/ British Imperialism and its lingering results via 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 turn into the de facto resort when reasonably priced housing isn’t out there for individuals of shade, and the place established property holders can assert claims to house behind privatized communities.  These glimpses of property legislation on the bottom via 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 advocate this therapy of Housing and Property rights for anybody enthusiastic about understanding the function of property rights and housing in context.  The ebook’s thought experiment efficiently finds some room for housing within the property context, whereas pointing to inadequacies of property to ship a few of the primary options we count on a constitutional proper in housing to hold out.