European law and private evictions: property, proportionality and vulnerable people

An eviction is a most extreme form of interference with the right to respect for the home. European case law pushes towards more protection of (vulnerable) residents in housing law relationships, and limits property rights and the freedom of contract of property owners. This has resulted in intense debates about the horizontal effects of human rights law and the impact of human rights in landlord-tenant relationships. This article deepens our understanding of the meaning and the influence of human-rights based proportionality enquiries in eviction cases in the rental sector. It assesses how the right to advance a proportionality defence is implemented and whether any indications exists that human-rights based proportionality enquiries improve the legal position of tenants. Doctrinal research and comparative legal analysis show that this is not the case in a large share of the contracting states due to the unwillingness of national judges and lawmakers. Besides that, a quantitative case law analysis shows that there are no indications for a true paradigmatic shift. Although tenants do put forward proportionality defences, no significant differences are found between cases in which the tenant raise a proportionality defence and cases in which they do not advance such a defence. Yet, the European law’s push for more protection of vulnerable people might in the end lead to some systemic as well as practical changes. Proportionality enquiries may influence property owners’ litigation strategies, and as a result, have an impact in the stages before and after the court procedure too.<br/

The Optional Protocol to the ICESCR, Homelessness and Moral Hazard:The Alternative Adequate Housing Requirement in the CESCR's Jurisprudence – an Incentive Not to Pay for Housing?

Over 75 per cent of the jurisprudence under the op-icescr deals with the right to housing as laid down in Article 11 of the icescr. States parties should provide adequate alternative housing after evictions. However, this far-reaching requirement may lead to moral hazard. The study presents a new understanding of the adverse effects of extensive protection, such as universal eviction protection, which may cause strategic defaults. The study suggests that a restrictive and reasonable interpretation of Article 11 icescr may reduce the incentive for defaults but may not prevent land-grabbing or squatting.<br/

Horizontality and Housing Rights Protection against Private Evictions from a European and South African Perspective

In the recent decision of fjm v. the United Kingdom, the ECtHR made a decision on the required protection against private evictions that threatens to water-down the protection of housing rights offered by the echr. This article sets out to determine the effect of the fjm judgment on the protection provided by Article 8, especially in matters concerning private evictions. The analysis of the case includes a discussion on whether the decision of the ECtHR was correct, considering both its previous decisions, as well as the sa Constitutional Court’s findings in similar matters. It analyses the recent European and South African case law with the help of a number of concepts developed in legal theory. These concepts concern vertical and horizontal relations between actors involved in housing law cases, as well as direct and indirect effect of human and constitutional rights