By Ben D’Alessio
Ben D’Alessio is the author of the novels Binge Until Tragedy, Lunchmeat, and The Neon God. Visit his website to learn more. 15% of royalties are donated to the The Kitty Krusade. Follow him on facebook, twitter, and instagram.
After the general public had witnessed the atrocities of man in the aftermath of the Second World War, a progressive wave for the expansion of rights took hold in the budding free nations of the world. The United States, the ultimate champion of the war, assumed the role as the leader of the movement.
In his 1944 State of the Union address, President Roosevelt declared that the United States had adopted a “second Bill of Rights.” This Bill became the Bill of Economic Rights that President Roosevelt envisioned existing commensurate with the Bill of Political Rights guaranteed by the Constitution. Within this “Second Bill” was the right to a good education, the right to adequate medical care and the opportunity to achieve and enjoy good health, the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment, and the right of every family to a decent home, among others. Only through the assurances of economic rights, in tandem with the guarantees of constitutional political rights, could Americans fully realize their “pursuit of happiness.”
The United States would go on to sign the Universal Declaration of Human Rights (UDHR) in 1948 — wherein housing is recognized as a human right — which was subsequently codified in the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1966. It appeared as if the path was being forged for an unprecedented body of rights to deliver the country — and with it, the world — from a century marred in the darkness of perpetual warfare and economic tragedy, into a new world order.
However, FDR’s grandiose plans for progressive expansion were quickly reduced to feel-good theories. In 1949, when Congress enacted the Housing Act, the “right” the President had asserted five years prior had morphed into a “goal”. In fact, the section of the Act that includes this language is located in a larger paragraph, encouraging the destruction of blighted and substandard housing. After the inadequate housing is destroyed, Congress placed the largest share of responsibility on private enterprise to realize affordable and quality housing: “The policy to be followed in attaining the national housing objective established shall be: (1) private enterprise  encouraged to serve as large a part of the total need as it can[.]” In practice, especially in the age of “reverse white flight” where higher wage earners are moving back to cities and urban centers, private enterprise has done exactly what it is supposed to do: turn a profit. A dearth in regulation and growing incentives for higher priced units has caused a shortage of affordable housing in traditionally low-income neighborhoods.
Despite its initial involvement in drafting and playing a key role for global human rights, the United States has largely disengaged from the human rights system. The “heating up” of the Cold War in the 1950s and 60s caused the US to oppose creating a common standard that could leave the hegemon open to criticism from its ideological enemies.Further, the disharmony within the country between races and classes further stalled American involvement in human rights efforts. While the situation has improved in the past fifty years, the United States has yet to ratify the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW), the Convention on the Rights of the Child (1989) (CRC), the Convention on the Rights of Person with Disabilities (2006) (CRPD), et al. In some instances, such as the CEDAW and CRC, the United States is the only industrialized country that has yet to ratify the treaties.
As the titles of the aforementioned treaties suggest, human rights are a broad term and ever expanding in a rapidly progressing world. In order to discuss the human right to housing, we must first determine what exactly such human rights would entail.
What is the Human Right to Housing?
The right to housing is malleable and may shift depending on who is providing the definition, as is the case with most human rights. A comprehensive articulation of the human right to housing can be found in Article 11 of the International Covenant on Economic, Social and Cultural Rights. In the Covenant, the United Nations has indicated freedoms, entitlements, conditions for adequacy, safeguards, common misconceptions concerning the right to housing, and the link between the right to adequate housing and other human rights.
Freedoms include protection against forced evictions and the arbitrary destruction and demolition of one’s home; the right to be free from arbitrary interference with one’s home, privacy and family; and the right to choose one’s residence, to determine where to live and the freedom of movement.
Entitlements include security of tenure; housing land and property restitution; equal and non-discriminatory access to adequate housing; participation in housing-related decision-making at the national and community levels.
Conditions for adequate housing require “more than four walls and a roof.” At a minimum, the housing must meet the following criteria: Security of tenure (guarantees of legal protection against forced evictions, harassment, and other threats), availability of services, materials, facilities, and infrastructure (i.e. safe drinking water, sanitation, energy for cooking, heating, etc.), affordability, habitability, accessibility (needs of disadvantaged groups must be met), location, and cultural adequacy.
Safeguards in the case of evictions, wherein the eviction is justifiable, the State must ensure that it is carried out in a lawful, reasonable and proportional manner, in accordance with international law. Further, evictions should not result in individuals becoming homeless or vulnerable to other human rights violations. Moreover, human rights law requires governments to explore all feasible alternatives before carrying out any eviction, so as to avoid the need to use force and mitigate its effects. These alternatives include: an opportunity for genuine consultation, adequate and reasonable notice, availability of information on the proposed eviction in reasonable time, presence of government officials or their representative during an eviction, the availability of legal remedies and legal aid to those in need to seek judicial redress.
There are also common misconceptions to the right to housing. The right to adequate housing does not require the state to build housing for the entire population. Rather, the right covers measure that are needed to prevent homelessness, prohibit forced evictions, address discrimination, focus on the most vulnerable and marginalized groups, ensure security of tenure to all, and guarantee that all housing is adequate. These measures can require government intervention at various levels, including: legislative, administrative, policy, or spending priorities. The government can play the role of facilitator between private parties or direct housing provider. Further, these measures must be enacted as soon as possible, making every possible effort, within their available resources, to realize the right to adequate housing and to take steps in that direction without delay. Notwithstanding resource constraints, some obligations have immediate effect, such as the undertaking to guarantee the right to adequate housing in an equal and non-discriminatory manner, to develop specific legislation and plans of action, to prevent forced evictions or to guarantee a certain degree of security and tenure to all.
Moreover, the right to adequate housing does not prohibit development of projects which could displace people. There are inevitable needs for redevelopment of certain areas and for public agencies to acquire land for public use and infrastructure. Therefore, the right does not prevent such development from taking place, but imposes conditions and procedural limits on it. Far too often these projects are carried out with little or no consultation with those affected, have limited consideration of their needs and little attempt to develop solutions which would minimize the scale of the disruption caused. The right to adequate housing, like other rights, enables procedural checks and gives the potentially displaced bargaining power to not become mere products of unregulated development.
Lastly, the right to adequate housing is not the same as the right to property or land. The right to adequate housing does not threaten the right to property. In fact, the right to own property is enshrined in the Universal Declaration of Human Rights and other human rights treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination (art. 5 (d)(v)) and the Convention on the Elimination of All Forms of Discrimination against Women (art. 16 (h)). The right to housing is broader than the right to own property and is intended to ensure that everyone has a safe and secure place to live in peace and dignity, including non-owners of property.
Where Has the Right Been Upheld in the World?
The world forerunner of practical implementation of the right to housing is Scotland. The Homelessness, Etc. (Scotland) Act of 2003 (“Act”) is the comprehensive legislative product of housing advocates that is making a real change in the Celtic nation. As a result of the Act, local authorities have a duty to find permanent accommodation for all applicants who are unintentionally homeless. This ambitious law has been described as “the best homelessness law in Europe”.
To begin, the Scots have significantly expanded their definition of “homeless”. According to the act, homeless persons and persons threatened with homelessness are those “without any accommodation in which they can live with their families, who can’t gain access to their accommodation or would risk domestic violence by living there, whose accommodation is “unreasonable”; or is overcrowded and a danger to health, and those whose accommodation is a caravan or boat and they have nowhere to park it.” Further, the definition has included, if not specifically stated, those who are roofless (without shelter of any kind), houseless (living in emergency or temporary accommodation), staying in institutions because there is nowhere else to stay, and those in insecure accommodation (on the cusp of eviction, short-term permission to stay, and the homes of friends and relatives). This definition is a far cry from the common conception of solely those who are living on the street.
But the expanded definition is only one aspect of the Act. For instance, the local authority (“LA”) has an affirmative duty to provide support to those who are intentionally homeless. This includes providing the appropriate programs, in both social and financial areas, with a specific focus on whatever behavior was deemed to be the cause of their “intentional” homelessness. Moreover, the LAs are required to consider where the applicant wishes to reside, not in so far as simply desirable areas, but, perhaps that the applicant desires to leave an abusive partner or can find work easier in a specific location.
Critical aspects of the Act include Justiciability and Eviction/Foreclosure protections. Under section 35A of the Act, there is a right to review assessments made by the LAs as to the eligibility of the households for benefits and assistance. The Scottish Executive released a code of guidelines and practices for furthering implementation. Additionally, the LAs must be transparent during the review process (including disclosing that a right to review exists) and that the decision will be made within 28 days.
Additionally, Scotland provides multiple protections to those who may be facing foreclosure and eviction. Before issuing a re-possession order to a private sector tenant, or a foreclosure for homeowners, courts are required to examine to the extent to which the conduct of third parties is a contributory factor. This also requires the party entering the re-possession order to notify the relevant LA of the application for eviction or foreclosure. These processes put the LA on notice of the procedures and catalyzes their duty to consider what assistance could be provided to prevent the eviction and avoid homelessness altogether.
Lastly, the Scottish Model includes a “mortgage to rent” scheme. This innovative plan, although not codified in legislation, is integral to the country’s efforts to reducing homelessness. In short, Registered Social Landlords (RSLs), which are usually housing associations, co-ops, and/or companies registered with the Scottish Housing Corporation, work closely with the Scottish Executive to buy property that is in danger of foreclosure and then rent it back to them. There are numerous requirements a household must meet to qualify for the program — like assurance that all owners agree to the plan, the home is the sole property, and there are no other pending legal actions — but it is still a viable option for many. An important part of the scheme is that households have advice regarding their larger financial position so they do not fall into a vicious cycle. The scheme is proof that Scotland has identified “stability,” or the lack thereof, as a key contributor to society’s larger issues and is putting forth comprehensive plans to bolster it. Scotland’s legislature and housing advocates have adroitly bought into the concept of “Housing First,” whereby priority is placed on the home — and the stabilizing effects that come with it — and then address the complex and interconnected needs of the person.
The Scottish Model in Practice
In the years directly after the passage of the Homelessness Act 2003, the number of Homelessness applications rose. This rise has largely been attributed to access to increased services and rights, and therefore should be considered a positive effect of the Act. However, as applications rose and duties of LAs increased, there was a narrowing effect on who received benefits. This has allowed for LAs to meet their deadlines in the early 2010s, wherein less need is being met, and those that are being helped are spending more time in temporary accommodation than permanent housing. But it is pertinent to remember that Scotland’s model for tackling homelessness is possibly the most comprehensive and courageous in the world, and therefore the positive effects must be addressed.
Overall numbers for statutory homelessness have sharply declined. Moreover, applicants who have not been placed in permanent housing are placed in temporary housing, thereby off the streets and out of the parks–what the Scottish dub “rough sleep”. While the large numbers in temporary housing falls short of the ultimate goal of stability, it should be recognized that Scottish temporary housing is safe, sanitary, and of high quality. Further, the LAs can only place applicants in housing that actually exists, and the government’s goal of building 50,000 new, affordable units is currently in motion.
Practices from Around the World
While Scotland is widely considered the most comprehensive nation regarding housing rights, other countries have either also recognized housing as a right or have interesting practices and/or laws boosting housing.
France, which has not recognized housing as a right in its constitution, has however, passed numerous laws strengthening different aspects of the right. For instance, the Besson Law of 1990 states — in the Franco quintessence of Liberté, égalité, fraternité — that “the right to housing is a duty for the entire nation arising from solidarity.” Similar to the language of the UN Charter supra, this law does not mean that the nation is obliged to provide housing to anyone who requests it, but rather that it must provide assistance, in conditions defined by the law, to people who satisfy specific conditions. Moreover, according to the Loi Duflot, a government run insurance program will help landlord-tenant relations, wherein if a tenant defaults on rent, the landlord applies to the fund for reimbursement instead of chasing the tenant for payment. If the tenant has defaulted due to unemployment, illness, or low income, he or she will receive rent relief. If the tenant was just negligent or taking advantage of the system, the courts will pursue a lawsuit. By taking the burden off of landlords, the hope is that they will consider low income tenants who they perceive as more of a risk. Lastly, “le 1% logement” (the one percent for housing) is a practice wherein large companies, typically consisting of 20 employees or more, pay 1% of their earnings into public sector housing.
Notable tenant rights in France include the right to privacy, wherein a landlord cannot come into the unit without prior permission, and need to provide advance notice if showing up to make repairs or show the unit to a possible future tenant. Also, landlords cannot require a deposit that exceeds an amount equivalent to one month rent nor may a landlord charge different deposit amounts to different tenants — if a landlord demands a larger deposit than the neighbor, the tenant has the right to know why. Further, unfurnished units, which are given the most tenant protections (furnished properties have a little less protection because they are typically not considered a primary residence), are usually rented on three-year leases, wherein the tenant has an automatic right of renewal — if the landlord does not wish to renew the lease, they must give six months’ notice. Lastly, under the trêve hivernale, a landlord may not evict a tenant from a unit between November 1st to March 15th — even for non-payment of rent — to ensure that people do not end up homeless during the coldest part of the year.
Unlike France, the right to housing in Sweden is codified in both the constitution and in regulations. In Chapter 1, Article 2 of the Swedish constitution, it is mentioned that it shall be incumbent upon the public administration to secure, inter alia, the right to housing. The state defines the broad principles and main priorities of housing policy, while municipalities are charged with providing flexibility depending on their own specificities. Legislatively, in Chapter 4, Article 1 of the Social Services Act, any individual who is unable to provide for his needs or to obtain provision from them in any other way, is entitled to assistance from the social welfare committee towards his livelihood and for his living in general. Moreover, according to Chapter 4, Article 1 of the same Act, individuals who have objections to a decision made by the social services concerning the Article can appeal the decision to the administrative courts. Lastly, an interesting practice in Sweden concerns the Hyresgästföreningen, or the Swedish tenants’ union. Created in 1923, it represents 90% of the Swedish rental stock in negotiations. Tenants unions are financed by their members, but also by contributions from lessors. Sweden’s housing rights are similar to Scotland’s in that they offer a multi-layered approach with due process protections, but also have this added element of solidarity with the formation of a tenants’ union.
Notable tenants’ rights in Sweden include the ability of the tenant to make a reasonable reduction of rent for the time the apartment has defects or if there are impediments to the tenancy. Here, the landlord’s liability is strict, wherein the tenant is entitled to an equitable reduction of rent regardless of who or what caused the defect or if it occurred by accident. In addition to these rights, tenants can apply to rent tribunals, which are specialized regional mediators in housing matters, to hear the issue and/or ask for a remedial injunction. Sweden offers a more state-led, tenants’ rights approach to housing that empowers the tenant and keeps people in their homes while addressing any issues that arise.
Lastly, the unique situation of Germany should be discussed, especially as a potential model for the United States. The economic powerhouse of the European Union and one of the most prosperous countries in the world, Germany has one of the lowest home-ownership rates among developed nations. This flies in the face of conventional wisdom, which asserts that homeownership is the key to prosperity. In fact, the four nations listed at the bottom of the home-ownership list (Switzerland, Germany, Denmark, and Austria) all shouldered the 2008 global crisis exponentially better than the three nations at the top (Spain, Ireland, and Greece). Without diving into the tumultuous history of 20th century Germany, the reasons for why such a large proportion of Germans rent is the product of a few essential factors.
The first factor is how Germany approached the reconstruction of their nation. The Germans adopted a moderate policy that struck a balance between private, market oriented rebuilding, which was then checked with “heavy-handed [state] intervention” when necessary. This could be contrasted with the U.K., a nation whose housing stock, especially in London, was also decimated during the Second World War, and thereby adopted a purely state-oriented system, and with the USA, who can be criticized for letting the market run wild without any checks from the government. Germany’s moderate approach gave incentives to landlords to maintain properties and improve quality, without letting the market go completely uncontrolled. Moreover, the German government does not encourage homeownership like the United States, Spain, and Ireland, and therefore is more risk-averse on mortgage lending and tax deductions on mortgage payments. The effects of these policies go both ways, as Germans buy fewer homes, there is more quality rental stock, and where there is more quality rental stock, there is less of an incentive to buy a home, as a main factor of doing so is to hedge against rising rents. Yet another effect — in a “chicken or the egg” form of logic — is that the high proportion of renters created pseudo-tenant unions and laws that slant favorably to the tenant, such as rent fixes or slow increases and strict justifications for evictions. For instance, if there are any unknown defects to the tenant at the time of contracting, or if a defect arises during the tenancy which is not the fault of the tenant, the landlord is required by law to remedy the defect or reduce rent. Additionally, “defect” is defined broadly in Germany, and therefore includes anything which impairs or reduces the suitability of the dwelling that a reasonable person would take issue. Examples include: noisy neighbors or noise from a nearby construction site, mold, and humidity. Lastly, a tenant is also entitled to damages where (1) the landlord does not remedy a defect before the tenancy is entered into, (2) a defect arises later due to the fault of the landlord, or (3) the landlord is in default in remedying a defect in general.
While the incongruity between American and German housing is upsettingly clear, the German model of decentralized, province-oriented housing needs could be adopted in the United States — where it may already be happening organically.
American Cities and Our Step Forward
Americans are returning to the city — more precisely, some Americans, especially young professionals and retiring Baby-Boomers who left the cities to start families. Meanwhile, those who already have urban roots are waiting longer to get married, have children, and then possibly leave for the suburbs. Moreover, urban-suburbs, especially in areas of the Northeast/Mid-Atlantic, West Coast, and Texas, are giving yesterday’s suburbs a more urban feel — offering the benefits of city living (transportation, services, nightlife, etc.) without the issues (congestion, pollution, crime). While there definitely are inherit problems with this trend, I will argue that this could be a catalyst for improving housing rights for all Americans.
Of course, ideally the United States would codify the human right to housing in the Constitution or by Congressional statute, followed by the ratification of the international treaties supra, thereby joining the rest of the developed world, but in the current political climate these ideals feel quixotic. Therefore, the best strategy for developing a human right to housing in the United States is through state, county, or city-wide activism, working through local governments.
This strategy is already taking place in cities from coast to coast. In Madison, Wisconsin, the movement to recognize housing as a human right was led by grass-roots activist groups. In 2011, the Madison City Council voted and passed a resolution declaring “that housing be recognized as a human right and that all people who desire a place of shelter and stable long-term housing be prioritized to have this basic need met both temporarily and permanently.” To ensure implementation, the resolution calls for an assessment of affordable and accessible housing needs and the creation of a staff position to oversee the assessment, as well as a responsive housing strategy. Moreover, the resolution calls for public funds to augment the number of affordable units and improve existing affordable housing.
Madison’s Affordable Housing Initiative, begun in 2015, has shown excellent results. With at least 835 of the 1,000 low-cost units, including 250 for the homeless, planned to be completed by 2020, the city’s community development director has said “I think by almost any measure, it’s been successful.” As recently as April 2018, the good news continues in what has been called “a major surprise,” the state of Wisconsin is delivering another $13.4 million in federal tax credits to complete an affordable housing project consisting of 89 units for families, and include 23 apartments with support services for households at or below 30 percent of the county’s median income. In a country where more and more people are getting squeezed out of affordable housing and put on seemingly endless wait-lists, Madison has adopted an approach of pumping resources into its community to foster growth and well-being. There is no denying that the city’s declaration of housing as a human right served as the impetus for this progress.
In fact, many cities, including the country’s three largest — New York, Los Angeles, and Chicago — have all passed legislation declaring housing as a human right. Last year, Mayor of New York, Bill De Blasio, signed into law an act that guarantees representation to any tenant facing eviction who is at or below 200% of the poverty line. New York City’s law will take five-years to phase in, but the city Council had passed the act with a veto-proof majority, committing $155 million over that time to fulfill the promise. Projections show that an increase in legal representation will actually save money for the city, citing frivolous cases that might have previously gone unchallenged will not waste time in the justice system and fewer households will experience transitional homelessness. The Right to Counsel NYC Coalition predicts that $320 million per year will be saved by implementing the act — far above the program’s cost. The step toward “Civil Gideon” in housing cases is crucial to fortifying the right to housing.
Lastly, the tri-Bay-Area cities of San Francisco, Berkeley, and Oakland have passed resolutions affirming the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights and opposing any legislation or action that infringes on those rights.
It seems that as Americans continue to gravitate toward major metropolitan areas, thereby creating more of an emphasis on housing — in turn, creating more activist groups — successful policies and resolutions will spread and take hold throughout the country. The expectation is that this will continue to bolster the human right to housing while subsequently covering more people.
The human right to housing is comprehensive and lacks quick fixes or easy solutions. However, the rising homelessness rates in the wealthiest nation in the world is appalling, and other countries — those with far less resources and infrastructure — have made progressive leaps in shaping a human right to housing, whether it be codified in law or realized in practice. While the right is being declared and upheld in pockets of the country, a national movement for creating the human right to housing is essential for widespread proliferation. Not only is creating and upholding the right the ethical thing to do, it promotes stability, which is directly linked to a more prosperous nation, a more harmonious America.