Reclaiming the Right to Housing

It is time to affirm the radicality of the right to housing. In light of today’s commodified and financialised paradigm, where housing has become dehumanised and defined by its exchange rather than its use value, the right to housing offers a powerful space within which to rethink our approach to housing issues. This means placing the right to housing at the core of our attempts to solve housing problems. In particular, it entails overcoming the predominant consumer protection approach that can be observed with regard to housing issues in Europe.

The right to housing has a relatively well-defined configuration at the international and European levels. In addition to being enshrined in various human rights instruments, its content and limits have been clarified by treaty-monitoring bodies and international courts. Complying with the requirements arising from the right to housing is not a political choice, but a legal obligation. Yet, as the latest Report of the UN Special Rapporteur on adequate housing, Leilani Farha, reflects, it appears that the dominant narrative is one of deregulation and state-sponsored housing financialisation, to the detriment of the citizens’ right to housing.[1]

States must ensure that housing policies are non-discriminatory and do not increase existing inequalities. By contrast, ‘policies and legislation should be designed to bridge inequality gaps and to ensure access to affordable housing for the poor and marginalized.’[2] The right to housing thus entails a mandate for public authorities to take into account the specific needs of the most vulnerable when designing and implementing housing policies. What is more, they must ensure that such policies do not indirectly discriminate against certain groups by having a disproportionate impact on them without a reasonable and objective justification. Protected groups include notably, in this context, the socioeconomically disadvantaged.[3]

However, the right to housing has, paradoxically, not been put at the centre of the efforts to tackle the ongoing housing crisis. The discourse appears to have shifted to other frames of reference, particularly consumer protection law. When housing issues are addressed through the prism of consumer law, attention is diverted from the conceptual implications of the right to housing. In other words, the focus is shifted from housing as a place to live in, as a home and part of the community, towards a market paradigm of tradable commodities and the rules governing such exchanges. In Lefebvre’s terms, the discourse moves from the ‘social space’ or the notion of ‘to inhabit’—that is, how people think about the place where they live—towards the ‘abstract space’ or the notion of ‘habitat’—that is, how government and real estate actors view space for their political or economic gain.[4] The notion of adequate housing as ‘the right of every woman, man, youth and child to gain and sustain a safe and secure home and community in which to live in peace and dignity’[5] becomes subservient to a private law examination of contractual terms in inter-individual agreements. The dweller is assimilated to the consumer.

Framing housing issues in terms of consumer protection entails an additional risk: a consumer is ultimately defined by their ability to consume in the market. Whilst economic, social, and cultural rights broadly protect socioeconomically disadvantaged groups, consumer law protects consumers—those who have sufficient economic resources to participate in the market. Even though consumer law might result in an indirect protection of housing rights, its underlying logic is not one of fundamental rights, but one of restoring the contractual balance between private parties. This reinforces those models of supply and allocation of housing that are structured around markets, possibly exacerbating issues such as housing exclusion, commodification, and financialisation.

The Court of Justice of the European Union seems to embrace this logic. For instance, in none of the nearly ten cases examined by the Court of Justice regarding Spanish mortgage law, some of them very recent,[6] has the right to housing been explicitly mentioned. These cases have been considered strictly on the basis of Council Directive 93/13/EEC on unfair terms in consumer contracts, that is, as a matter of EU consumer protection legislation. Yet most of them concerned the lack of sufficient judicial protection in the context of foreclosure and eviction procedures.[7] It is clear that the right to housing, as protected inter alia by Article 7 of the Charter of Fundamental Rights of the European Union, is engaged here. The Court of Justice recognised as much in its 2014 judgment in Kušionová, where it ruled that ‘under EU law, the right to accommodation is a fundamental right guaranteed under Article 7 of the Charter that the referring court must take into consideration when implementing Directive 93/13.’[8] Nevertheless, short of extending this reasoning to subsequent cases, the Court has decided to mobilise the more familiar language of nullity and unfair terms, without any reference to the right to housing. Whereas these judgments may have improved in practice the situation of right holders, it is argued that such an approach obscures the potential of the right to housing to drive change.

The Spanish legislator could choose a similar path to bring its legislation in line with international and European human rights standards.[9] Instead of amending existing consumer protection norms as a reaction to these judgments, a proactive legislative move towards a right to housing framework would be welcomed. Several of the regional statutes enacted by the Spanish Autonomous Communities to secure the social component of housing have advanced interesting proposals in this regard.[10]

In conclusion, a human rights based approach must be reclaimed for policy discourse and housing rights adjudication. Otherwise, we risk perpetuating a commodified and financialised understanding of housing, reducing it to an object to be traded in the market or a reservoir of excess global capital, and failing to embrace its social function. When public authorities design and implement housing policies, the specific situation of vulnerable groups must be taken into account, especially with regard to those who face housing exclusion. Potential justifications for prima facie indirectly discriminatory housing policies must be always assessed in light of the normative content of this right. Last, when legislators or national and supranational courts are drawn to examine housing issues, the right to housing must be explicitly embedded in their reasoning. The claim that the right to housing must undergird our approach to housing problems is not a tautology. On the contrary, if we do not come to its defence, the radicality of the right to housing will remain thwarted.

The author would like to thank Housing Rights Watch for publishing this short article.