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Housing as a Right

by Dr Edward CY Yiu Associate Professor

Dept of Geography and Resource Management, Chinese University of Hong Kong

Housing Issues and Policy, Urban Studies Programme, CUHK

URSP3100

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Equal Share of Land?

• All solid surface areas (land) on

Earth = 153 million sq. km

• Total inhabitants = 7 billion

• i.e. theoretically each of us could

share 22,000 s.m./person of land

or 2.2 ha. (Davy, 2012)

• But do you know how much land

you are possessing now?

• How about the next generations,

if we share them all now?

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Unequal Share of Land?

• A Hker (#234) shares 148 sm (NOT own).

• A Chinese (#158) occupies 7,000 sm;

• A Greenlander (#1) occupies 38,000,000 sm of land.

• These are only simple average figures (dividing country

size/population);

• They neither represent any use rights nor ownership, because most

land are privately owned, even within your living city;

• Do high rise developments increase “land” areas?

• Are public space shared equally by the citizens? (Ma Wan case)

http://ecyyiu.wordpress.com/2013/10/12/theoretical-and-actual-per-capita-land-area-on-earth/

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Should private ownership of land a right? Why?

• The protection of private property rights (including land) is

considered to be one of the major economic incentives for

saving, investment and hardworking;

• Most countries’ constitutions (including the UN conventions

and the Basic Law of HK) protect private property rights;

• “Libertarians … present private ownership as a right that a

government with respect for individual liberty and economic

efficiency, may limit only under exceptional circumstances

(von Hayek, 1973, Posner, 2007).” (Davy, 2012)

• Principle:

– If a property is produced / created by your efforts, then it shall be

protected from being stolen or damaged, so as to encourage production

and creation.

– But how about land?

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Mill’s (1848) Land Rights • But John Stuart Mill (1848) raised the following hardship of land rights:

– “No man made the land. It is the original inheritance of the whole

species. Its appropriation is wholly a question of expediency. When

private property in land is not expedient, it is unjust. It is no hardship to

any one to be excluded from what others have produced…But it is some

hardship to be born into the world and to find all nature’s gifts previously

engrossed, and no place left for the new-comer.” (p.233)

– “landed property [is] a different thing from other property”

• How to protect non-landed property over landed-property?:

– “the exclusive right to the land for purposes of cultivation does not imply

an exclusive right to it for purposes of access; and no such right ought to

recognised, except for the extent necessary to protect the produce

against damage, and the owner’s privacy against invasion.” (p.235)

– Some organic farms in HK (such as Ma Po Po) is open to the public for

access.

– The HSBC HQs at Central let the public access the ground floor freely

(except Occupy Central, see court case report), shall we compensate

the bank for the “loss”?

– Property Strata is nowadays a land use concept for polyrationalities.

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Social Obligations of Landlords

• If the protection of private landed property is not the same as the protection

of other private properties (such as your efforts, talents, or savings), then is it

a hegemony?

– “When land is not intended to be cultivated, no good reason can in

general be given for its being private property at all; and if any one is

permitted to call it his, he ought to know that he holds it by sufferance of

the community, and on an implied condition that his ownership, since it

cannot possibly do them any good, at least shall not deprive them of

any, which they could have derived from the land if it had been

unappropriated. (p.235)

• So private landowners should not feel free from social obligations:

– [A landlord] is not entitled to think that all this [land] is given to him to

use and abuse, and deal with it as if it concerned nobody but himself.

The rents or profits which he can obtain from it are at his sole disposal;

but with regard to the land, in everything which he does with it, and in

everything which he abstains from doing, he is morally bound, and

should whenever the case admits be legally compelled, to make his

interest and pleasure consistent with the public good.” (p.235)

• Article 14, para. 2, German Grundgesetz (federal constitution), demanding

from landowners to use their land in a way that is also beneficial to the public

interest.

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Land Ownership Rights

• res communis Concept:

• Some parts of the Earth are not subject to territorial sovereignty, they are the common heritage of mankind:

– The high seas, the seabed and ocean floor, Antarctica, non-territorial airspace, or the moon must not be appropriated by individual states.

• These are spatial commons governed by international bodies:

– International Seabed Authority, founded 1982.

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Land Rights

• In Common Law, 6 typical land rights (Davy, 2012):

– Property (dominium): full private property rights

– Easement (servitudo): a right to use over the property of another (right of way)

– Right to usufruct: the right to using land

– Right to pre-emption: the right to purchase land to the exclusion of all other applicants

– Land charge: the right to receive rent from the landowner

– Mortgage: the right to dispose land for securing debt payment

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A Right to Housing • International Covenant of Economic, Social

and Cultural Rights (ESCR), 16 Dec 1966 – Article 11 recognizes the right of everyone

to an adequate housing: • The right to live somewhere in security, peace and

dignity; • It requires adequate privacy, adequate space, adequate

security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost. (CESCR Comment 4)

– What is a reasonable cost? • Is 15 times of the median salary a reasonable

price of housing?

– Is it the right to own (buy) or to rent? • Why?

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A Right to Housing • International Covenant of Economic, Social

and Cultural Rights (ESCR), 16 Dec 1966 – Article 11 recognizes the right of everyone

to an adequate housing: • The right to live somewhere in security, peace and

dignity; • It requires adequate privacy, adequate space, adequate

security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost. (CESCR Comment 4)

– What is a reasonable cost? • Is 15 times of the median salary a reasonable

price of housing?

– Is it the right to own (buy) or to rent? • Why?

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What is Adequate?

• The Committee (CESCR, 1991, para. 8) takes into account the following elements of adequate housing : – The legal security of tenure, – The availability of services, – Materials, – Facilities, and – Infrastructure, – Affordability, – Accessibility, – Location, and – Cultural adequacy.

• OHCHR (2006, para. 153-170) confirms the above in the human rights approach to poverty reduction.

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Why it matters?

• If housing is a RIGHT, then the government (who signs the Covenant) shall provide housing to all citizens, charging a reasonable cost;

• When the market cannot provide housing at a reasonable cost, then – Public housing shall be provided? – There should not be any eligibility tests

for public housing? – And it have to provide 100% public

housing to all citizens? • Who pay for the costs? • Can it be economically sustainable?

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What is a Reasonable Housing Rent / Price?

• UN (2001) – In Asia-Pacific – The median

rent-to-income ratio = 34.4%

– The Median price-to-income ratio = 11.3%

• Intl std: – RTI <= 30% – PTI <= 6

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Why the market rent would exceed the reasonable level? • Logically, the market rent would not exceed the

reasonable level in the long run; • Because when the renters cannot afford, then

demand drops. • But why housing rent in HK can stand at an

“unreasonable level” for decades? – Statistical Errors (median income) due to public housing – Renters from outside who can afford much higher rent – Decade is a short term – 30% is not a good benchmark for reasonableness – People can squeeze money to bear the high rent:

• Unreported income • Savings (for short term only) • Borrowings (for short term only) • Spend less on others

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A Right to Housing on Earth or in a specific territory?

• Why the market (free movement) fails? – Why people do not leave to other lower rent

country / city? – Why some people even move into a city which

they cannot afford to rent adequate housing? • The International Covenant on Civil and Political

Rights (UN 1966): – Article 13 of the Universal Declaration of

Human Rights; – Everyone … within that territory, have the right

to liberty of movement and freedom to choose his residence.

• Why NOT outside the territory? – Is it a human RIGHT to choose anywhere to live and

work? Why working visa or citizenship?

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A Right to Housing within a specific territory

• Article 2, para. 4, Charter of the United Nations (1945): – All Members shall refrain in their international relations

from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

• It is merely because of the avoidance of battles and wars?!

• It implies that a population policy must be adopted in a small territory, if the right to housing is enforced.

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A Right to Housing = A New Welfare State?

• Public rental housing – Can it be sustainable? – Shall it be subject to eligibility test?

• Public subsidized housing: – Shall it be profitable? – Why taxpayers shall subsidize people to invest?

• Any other alternatives? – Public rental or subsidized housing for 10 years? i.e. 10-

year rental subsidy, cannot sell to earn profit. – Jointly owned with the Government (govt pays for land) – Housing coupons – direct money subsidy to rent private

housing

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References

• Housing and the New Welfare State: Perspectives from East Asia and

Europe (Social Policy in Modern Asia). Ashgate Pub Co.

• CESCR (Committee on Economic, Social and Cultural Rights) (1991)

General Comment No. 4: the right to adequate housing [CESCR (1992)

Report on Sixth Session, E/C.12/1991/4. Annex III: 114-120]

• OHCHR (Office of the United Nations High Commissioner for Human Rights)

(2006) Principles and guidelines for a human rights approach to poverty

reduction strategies, drafted by Paul Hunt, Manfred Nowak and Siddiq

Osmani, Geneva: OHCHR.

• Mill, J.S. (1848) Principles of political economy, with some of their

applications to social philosophy, Fairfield: New Jersey (1987 reprint)

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The End

comments are welcome. Enquiries to:

ecyyiu@cuhk.edu.hk