Abstract
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.
1 Introduction
As of April 2023, 171 states ratified the International Covenant on Economic, Social and Cultural Rights (hereafter icescr).2 For decades, state reporting has been the main instrument to monitor the implementation of the human rights norms laid down in the icescr.3 In 2008, however, the Optional Protocol to the icescr (hereafter op- icescr) was adopted, introducing an individual complaint mechanism.4 After a state party to the icescr has ratified the Optional Protocol, individuals under the jurisdiction of that state party are entitled to submit a communication to the Committee on Economic, Social and Cultural Rights (hereafter cescr). In this communication, individuals can claim to be victims of a violation of any of the economic, social and cultural rights outlined in the icescr by the state party.5 After examining the communications, the cescr will transmit its views on the communication and recommendations to the concerned parties.6 As of April 2023, forty-six states parties have signed the Optional Protocol, and twenty-six states parties have ratified it.7 Some states parties are hesitant to sign or ratify the Optional Protocol because of the (unforeseen) consequences.8 For example, the Netherlands has questions on the implications of ratification and will most likely wait for the results of the review of the United Nations (hereafter UN) human rights treaty body process that currently takes place.9
This paper analyses the published jurisprudence of the cescr to reveal possible implications of ratifying the op- icescr. It builds upon a growing body of literature on the cescr’s decisions.10 However, these excellent previous studies did not analyse the latest decisions of the Committee but focused on a small number of views or focused on one specific element in the jurisprudence (e.g. the meaning of the concept of proportionality in the cescr’s views). The analysis in this article includes all decisions of the cescr up to its 72nd session in Sept. and Oct. 2022. It shows that three-quarters of the decisions deal with the right to housing (Article 11 icescr), specifically about evictions. Section two of this paper will discuss the views of the cescr in these eviction cases in more detail. More specifically, it will focus on the meaning of the cescr’s requirement that an eviction should not leave individuals homeless and that alternative housing should be available. This requirement may give an incentive not to sign or ratify the Optional Protocol to states parties that have not signed or ratified the Optional Protocol yet. States parties may believe this alternative housing requirement will result in a moral hazard. The meaning of the term moral hazard is debated in the literature, but this paper defines it as ‘the danger that, in the face of insurance, an agent will increase her exposure to risk’.11 In other words, the cescr’s jurisprudence may incentivise residents to default and stop paying rent or mortgage strategically because they do not have to fear homelessness due to eviction. This paper assesses empirical evidence to see whether this hypothesis is valid. Section three discusses three case studies of jurisdictions that established alternative housing requirements or eviction moratoria. These case studies will show that there is ground to believe that the alternative housing requirement, as recognised by the cescr, will result in residents withholding payments for their housing.
2 The cecsr Decisions and the Right to Housing
Article 11 of the icescr states that everyone has the right to an adequate standard of living, including adequate housing. In General Comments 4 and 7, the cescr has given its interpretation of this right.12 Earlier publications have discussed Article 11 and the General Comments on the right to housing in much detail.13 This paper does not aim to repeat what has been established in these other papers extensively but focuses on the op- icescr communications and views and testing the moral hazard hypothesis.
Table 1 shows that up to the seventieth-second session in 2022, 106 decisions of the cescr have been published on the UN Human Rights Office of the High Commissioner website.14
In sixty-three decisions, the cescr decided to discontinue its consideration of the communications.15 Most of these decisions (at least fifty-six) dealt with the right to housing and all concerned Spain. The Committee decided in twenty-five of all published decisions that the communication submitted by the individual was inadmissible.16 In twenty-four cases of which, the communication concerns Spain, and one involves France. In eleven of these cases, the communication discussed a complaint of the violation of the right to housing.
In fourteen of the 106 decisions, the cescr has adopted views concerning communications submitted by individuals. The right to housing played a role in eleven of these decisions. Of these eleven decisions, ten views concerned Spain, and one dealt with Belgium. Lastly, the Committee published four reports on follow-ups to earlier communications in which it has adopted views. Three reports deal with the right to housing, and all concern Spain.
This basic quantitative analysis of the cescr’s decisions shows that the right to housing is the dominant theme in the published views. The remainder of this section analyses the decisions in which the cescr adopted views on the communications concerning the right to housing.
2.1 cescr’s Views on the Right to Housing: General Requirements
The published decisions of the cescr clearly show that the protection offered by Article 11 icescr is tenure neutral, meaning that it protects owner-occupiers, tenants, and squatters. It is applicable in cases concerning evictions due to mortgage or rent arrears and in cases in which the residents have no title to reside in the property lawfully.17 The icescr applies to horizontal relationships, meaning that the treaty extends to relations between private individuals.18 Nevertheless, the protection only applies to persons evicted from their primary residence. The Covenant does not protect people against eviction from property that is only a real estate investment.19
States parties should meet several requirements to make an eviction compatible with the icescr. If these requirements are not met, the eviction is considered a forced eviction and, consequently, a violation of Article 11 icesr. First, the eviction needs to be determined or provided for by law.20 Second, there need to be legitimate reasons for the eviction, and it should promote the general welfare in a democratic society.21 Third, the eviction should only be carried out as a last resort. No less onerous alternative means or measures should be available, and authorities should choose the least restrictive measure.22 This obligation stems from the requirement that authorities carry out an eviction in accordance with the ‘general principles of reasonableness and proportionality between the legitimate objective of the objection and its consequences for the evicted persons’.23
Fourth, the cescr stipulates some procedural requirements. There should have been a real opportunity for genuine consultation and prior constructive dialogue between the authorities and the persons involved.24 The affected persons should be given reasonable notice before the scheduled eviction date.25 Besides that, the persons concerned should have had prior access to an effective and appropriate judicial remedy.26 The persons involved should be able to object to the eviction or lodge an appeal ‘so that the judge might consider the consequences of eviction and its compatibility with the Covenant’.27 A ‘judicial or other impartial and independent authority with the power to order the cessation of the violation’ should analyse the proportionality of the legitimate objective of the eviction to its consequences for the evictees.28 The rights and interests of the party or person with the right to seek an eviction (e.g. a landlord) should also be considered.29
Crucial factors in the proportionality analysis are the ‘availability of suitable alternative housing, the personal circumstances of the occupants and their dependants, and whether they have cooperated with the authorities in seeking solutions.30 The cescr holds that the ‘advisability of postponing an eviction while the competent authorities negotiate with the persons concerned regarding the available alternatives’ should also be part of the proportionality analysis.31
2.2 Specific Requirement: Alternative Housing Should be Provided
Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.34
The remainder of this paper analyses this potentially far-reaching ‘adequate alternative housing’-requirement (hereafter aah requirement). What are the implications of this requirement? An analysis of the views of the cescr shows that the Committee is not always consistent in expressing what the obligation entails. For example, in some views, the cescr speaks of ‘alternative accommodation’, ‘alternative residence’, and ‘alternative dwelling’ instead of ‘alternative housing’.35 It is uncertain if the cescr uses accommodation and dwelling interchangeably for housing.
However, in its decisions, the cescr offers guidance on understanding the aah requirement. From the text of the decisions, it is clear that the requirement only applies to evicted persons ‘who need’ alternative accommodation.36 If the evicted persons have the means to acquire alternative housing themselves, the aah requirement does not play an essential role in the procedure. The evicted person should have to ‘provide documentation that, as a result of the eviction, she has been deprived of her right to adequate housing – for example, by having been made homeless or finding herself in a dwelling that does not meet the minimum requirements for housing suited to her needs’.37 Evictees may also have to provide information on their income and financial situation.38 If they do not provide the necessary information, the cescr may declare the communication inadmissible.39 Evicted persons may also need to justify why they did not apply for emergency or social housing or demonstrate that the requirements for such an application ‘were excessive or unnecessary or that they had a discriminatory effect’. If the evicted persons fail to do so, the communication may be declared inadmissible, or the cescr may decide that Art. 11 icescr was not violated.40
A state party should meet the aah requirement in all eviction cases, irrespective of whether the eviction is initiated by its authorities or by private entities such as the lessor or the owner of the property.41
According to the Committee, governments have a ‘duty to take reasonable measures to provide alternative housing to persons who are left homeless as a result of eviction’.42 The State party ‘must take all necessary steps, to the maximum of their available resources, to uphold’ the right to housing.43 Governments may pick a range of strategies to attain this goal, ‘including the establishment of housing subsidies for those unable to obtain affordable housing’.44 The measures adopted should be ‘deliberate, concrete and targeted as clearly as possible toward fulfilling this right as swiftly and efficient as possible’.45
The cescr holds that governments should adopt consistent and coordinated actions ‘to resolve institutional shortcomings and structural causes of the lack of housing’.46 According to the Committee, the lack of housing is frequently the result of systemic patterns of social exclusion and structural problems, such as high unemployment, growing inequality, and housing market speculation.47 It is the responsibility of the government to resolve these patterns and problems ‘through an appropriate, timely and coordinated response, to the maximum of their available resources’.48
The governmental policies on adequate alternative housing ‘should commensurate with the need of those concerned and the urgency of the situation and should respect the dignity of the person’.49 Nevertheless, there can be a need to rationalise resources and set criteria/conditions that evictees should satisfy to receive alternative housing.50 These criteria should be communicated to the evictee in a transparent, timely, and complete manner.51 Besides that, they need to be ‘reasonable and very carefully designed so as to prevent not only any stigmatisation but also that the mere behavior of a person in need of alternative housing be used to justify his or her application’.52 Applying and interpreting the rules of access to alternative housing ‘must avoid perpetuating the systemic discrimination and stigmatisation of those who live in poverty and who occupy property without legal title do so out of necessity and in good faith’.53 It is not allowed to automatically exclude evictees occupying a house without a legal title because they are in a situation of necessity.54 Governments should take the appropriate steps to guarantee that all individuals have equal access to the social housing stock ‘by removing any unreasonable condition that might exclude persons at risk of indigence’.55
Authorities should pay special attention to evictions involving vulnerable people such as women, children, the elderly, people with disabilities, or individuals or groups exposed to systemic discrimination.56 Besides that, authorities must provide families with the widest possible protection. A family unit needs to be protected, especially when the evictees are responsible for the care and education of dependent children.57 Members of a family have a right not to be separated.58 If families need to be split up, the authorities must explain why no other options were available to the evictees.59 Concerning the elderly, the cescr holds that ‘national policies should help older persons to continue to live in their own homes as long as possible, through the restoration, development and improvement of homes and their adaptation to the ability of those persons to gain access to and use them’.60
If the authorities do not meet the aah requirement, they should first convincingly demonstrate that they have considered the case’s specific circumstances.61 Next, the authorities should convincingly demonstrate that they have been unable to uphold the right to housing of the person concerned, despite having taken all reasonable measures to the maximum of their available resources.62 Lastly, the authorities should provide information to the cescr for the Committee to evaluate the reasonableness of the measures taken in accordance with Article 8 (4) of the Optional Protocol.63 The duty to justify the outcome is more significant in cases where minor children are affected by an eviction.64
The cescr gives examples of what could be sufficient arguments to demonstrate that aah -requirement could not have been met. A state party could, for example, explain that denying an evictee social housing was ‘necessary because it was putting its resources towards a general policy or an emergency plan to be implemented by the authorities with a view to progressively realising the right to housing, especially for persons in a particularly vulnerable situation’.65 The state party may also have to explain why it was necessary to adopt retrogressive measures, which may reduce the amount of social housing.66
According to the cescr, courts should be able to suspend an eviction until alternative accommodation is available for the person concerned.67 They should also have the authority to order other authorities, such as social services, to take coordinated measures to prevent an evicted person from becoming homeless.68
2.3 Specific Requirement: Standards of Alternative Housing
The Committee’s views tell us something about the standards the alternative housing should meet. The cescr acknowledges that the level of development of states parties and the resources available to them vary and that the conditions of alternative housing compatible with the icescr differ from one State party to another.69 It considers, for example, the per capita income in the state party while determining whether the request for a specific alternative accommodation of an evictee is reasonable.70
The alternative housing must be adequate. Several features, such as social, economic, cultural, climatic, ecological and other factors, are used to determine adequacy.71 Some aspects should be considered, including the legal security of tenure. Shelters or hostels that provide temporary alternative housing do not constitute adequate housing.72 Other aspects mentioned in the cescr’s views are the availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, location ‘which allows access to social facilities (education, employment options, health-care services)’, and cultural adequacy, ‘such that expressions of cultural identity and diversity may be respected’.73
Authorities should first try to offer permanent, alternative housing to evictees who need alternative accommodation.74 If this is not possible, temporary accommodation that does not fully satisfy the standards may be employed.75 The government must ‘endeavour to ensure that the temporary accommodation protects the human dignity of the persons evicted, meets all safety and security requirements and does not become a permanent solution, but is a step towards obtaining adequate housing’.76
The concepts of dignity and safety cover, among other things, stability and certainty, notwithstanding the temporary nature of the housing in question. They also cover hygiene conditions at the alternative housing and a reasonable level of privacy available to individuals according to their needs.77 A constant threat of being evicted, overcrowded housing, poor sanitation, a lack of privacy, and alternative housing far away from the school of affected children are conditions that may violate the dignity of the evictees and their children.78
Evictees that claim to need adequate alternative housing should not decline offered temporary alternative accommodation too quickly. The cescr may require them to indicate that the offers of temporary accommodation would be incompatible with human dignity, unsafe or otherwise unacceptable. If the evictees fail to do so, the Committee may rule that the eviction did not constitute a violation of Article 11 icescr.79
In the vast majority of the decisions in which the cescr has adopted a view, the Committee concludes that the state party’s arguments are insufficient to demonstrate that it has made all possible efforts, using all available resources, to meet the aah requirement.80 Nevertheless, it is not impossible to meet the requirements stemming from Article 11 icescr. In two views, the cescr concludes that the state party meets the requirements and does not violate the right to housing.81
3 op- icescr and Moral Hazard: Some Empirical Evidence
The aah requirement offers substantive protection against homelessness to evictees. Yet, the requirement may result in a backlash too. States parties might argue that fully complying with the aah requirement will result in people behaving strategically and stopping paying for their housing (the moral hazard thesis). The aah requirement implies that evictees should be offered adequate alternative housing in case of eviction due to rent or mortgage arrears. If the state party cannot offer adequate alternative housing and wants to comply with the aah requirement stemming from the icescr, the defaulters will not be evicted at all, and the rights of property owners and financial institutions will be at risk. This reasoning might be a strong driver for governments not to sign the op- icescr.
This section analyses whether this thesis has any validity. Three case studies are presented to determine whether the protection against eviction prescribed by the cescr (including the aah requirement) results in strategic rent and mortgage defaults. All three case studies analyse the experiences with far-reaching national protections against eviction. The first case study discusses the experiences in Poland (section 3.1). The second case study analyses the protection against eviction offered by the South African Constitution (section 3.2). The last case study deals with eviction moratoria established during the Covid-19 pandemic and the financial and economic crisis starting in 2008 (section 3.3)
3.1 The Case of Poland
The first case study deals with the protection against eviction offered by Polish law. After the fall of the Communist regime and the transition to a market economy in the 1990s, Poland’s main share of publicly owned housing was privatised.82 However, Polish law still provides extensive protection against eviction and rent increases. Article 75 of the Polish Constitution obliges public authorities to pursue policies conducive to satisfying citizens’ housing needs, in particular combatting homelessness. Besides that, Article 30 of the Polish Constitution obliges public authorities to respect and protect the dignity of persons. Furthermore, Article 71 of the Polish Constitution gives families in difficult material and social circumstances a right to special assistance from public authorities.83
Other Polish legislation also provides extensive protection against eviction. According to Article 14 of the Tenants Protection Act, some tenants are entitled to a new social housing unit after eviction. Even when tenants are not entitled to such a unit and the court orders that they vacate their home, they have the right to remain in their rental premises for six months before they must go to a shelter provided by the municipality. Lastly, an eviction moratorium (a ban on evictions) is established during winter.84
In a number of judgments, the Polish Constitutional Court ruled that evicting tenants without providing alternative accommodation was unconstitutional.85 It is beyond the scope of this paper to discuss all the legal details of the Polish legislation and case law, but one of the main elements was the ban on “sidewalk evictions” or “evictions to nowhere” (eksmisją na bruk). Local authorities must provide vulnerable tenants with alternative (temporary) accommodation before an eviction can occur.86
The reviewed literature does not discuss empirical evidence on large-scale strategic behaviour and massive defaults in Poland due to this prohibition of sidewalk evictions and the requirement to provide alternative social housing. However, it should be taken into account that the Polish courts interpreted the protective measures narrowly, and protection is only offered to a limited group of (vulnerable) tenants. The Polish equivalent of the cescr’s aah requirement does not apply to tenants that reside in their rental home with an “incidental lease”. In such a lease, the tenants contract out the constitutional protection against eviction by indicating a dwelling ‘where they can be evicted to, should they end up subject to eviction, with the written consent of the dwelling’s owner’.87 Besides that, the Polish protection does not go as far as the aah requirement because it does not require the local government to provide alternative accommodation to evicted squatters.88 Lastly, human rights scholars doubt whether the implementation of the ban on sidewalk evictions was enforced consistently.89
Nevertheless, no research on the Polish protection against eviction was found that proves the moral hazard hypothesis that large groups of tenants will stop paying their rent if they know that the government offers alternative accommodation after eviction.90 Still, some scholars have criticised protective measures from a property rights perspective. The combination of rent regulation and the protection against eviction mentioned above is considered ‘excessive’.91 Habdas labels the protection as a ‘policy of intense state intervention and overregulation in the interest of only the tenants’.92 Panek states that a court eviction order often ‘marks the beginning of a long and winding road’ before the landlord retains the property.93 The combination of protective measures stigmatised the private rental sector and resulted in ‘informal contracts which greatly undermined the tenant’s security’.94 As a result, it restricted market choice and access to residential leases and paradoxically hurt potential tenants.
The critique resonated with national and international courts. The Polish Constitutional Court and the European Court of Human Rights (ECtHR) concluded that the Polish legislation violated the right to property as laid down in Article 1 of Protocol Number 1 to the European Convention on Human Rights (echr).95 As a result, the Polish legislator decided to take steps to deregulate the rental markets.96 Property owners can claim compensation if eviction of a tenant is impossible because local authorities do not offer alternative housing.97
3.2 The Case of South Africa
The second case study concerns South Africa. The country’s Constitution adopted in 1996 can be seen as a direct response to Apartheid. It aims to provide robust protection against eviction, one of the ‘cornerstones’ of the Apartheid regime.98 Authorities used evictions to oppress people of colour in South Africa.99 Nowadays, Article 26 of the South African Constitution holds that everyone has the right to have access to adequate housing. The third section of the article stipulates that no one may be evicted from their home or have their home demolished without an order of court made after considering all the relevant circumstances.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereafter pie) outlines the constitutional requirements. It requires courts to consider all relevant circumstances and to assess whether it is just and equitable to grant an eviction order.100 Courts need to consider the availability to the unlawful occupier of suitable alternative accommodation or land.101 This South African protection is not as extensive as the protection offered by the aah requirement. For example, the South African Constitutional Court has found no ‘unqualified duty’ on the state to ensure that alternative accommodation is available before seeking an eviction order.102 However, it holds that courts should generally be ‘reluctant’ to order the eviction of ‘relatively settled occupiers’ without the availability of at least temporary housing.103
A finding that no alternative housing is available counts substantially in favour of the unlawful occupant, implying that a court is hesitant to evict unlawful occupiers if the removal leaves them homeless. As a result, when authorities report that no alternative housing is available, the South African courts frequently find that an eviction under certain circumstances would be unjust and equitable, constituting a violation of the constitutional right to housing.104
There are no indications that South African protection validates the moral hazard thesis under review in this article. No evidence was found that financially stable residents in South Africa have opportunistically ceased paying for their house (i.e. rent or mortgage) because of the protection offered by Article 26 of the Constitution and pie. The requirements seem most relevant in cases where vulnerable people have occupied dilapidated buildings and cannot rent or buy alternative housing after eviction. When an evictee is financially able to get housing elsewhere, constitutional protection does not usually play an essential role in court proceedings. As a result, the requirements stemming from the Constitution and pie do not play an important role in cases concerning mortgage or rent arrears. Nevertheless, if a financially stable evictee has health issues or is an older person, the constitutional safeguards may play a more critical role in the proceedings.
Still, the protection offered by the Constitution may result in another type of strategic behaviour, namely land grabbing and squatting. Pieterse correctly stated that South African protection against eviction is only provided to ‘those people who are already housed’ and does not help those ‘who lacked such a foothold to begin with’, such as the street homeless.105 Although systematic (empirical) legal research on the reasons for squatting is lacking, anecdotal evidence shows homeless people might grab land or squat a building to become a “housing insider” that enjoys the protection provided by the Constitution. For example, in Sept. 2020, a group of people rented a luxurious Airbnb property and refused to vacate it because they lacked a safe place to live.106
3.3 The Case of Eviction Moratoria
The third and final case study concerns eviction moratoria established during the global Covid-19 pandemic. In the United States of America, several states enacted eviction moratoria that forbid court hearings in eviction proceedings or the execution of eviction orders during the pandemic.107 Besides that, the Center for Disease Control and Prevention (cdc) enacted a federal eviction moratorium in Sept. 2020.108 The objective was to keep people in their houses while giving tenants and landlords time to apply for rental assistance. In Aug. 2021, the American Supreme Court struck down the federal moratorium because the moratorium harmed landlords’ interests. The Supreme Court considered the cdc unauthorised to enact such a moratorium.109 Although the moratoria did not require that evictees were given alternative housing after eviction, it reassured residents that they would not lose their homes due to arrears. Desmond’s Eviction Lab estimates that landlords filed at least 1.55 million fewer eviction claims than usual.110
Many other countries established moratoria during the pandemic.111 The moratoria differ from the aah requirement stemming from the cescr’s jurisprudence or the obligations arising from the Polish and South African Constitutions, as discussed above. Eviction moratoria usually do not cancel rent or forbid evictions before residents have acquired alternative housing but delay the date courts consider eviction claims and bailiffs execute eviction orders.112
Nevertheless, the experience with eviction moratoria allows us to test the moral hazard thesis and see whether financially stable residents act strategically or opportunistically and withhold payment for their housing while the moratoria are in place. Manville et al. found no evidence that many residents stopped paying for housing because of the assurance of not losing their homes during a moratorium. Their research suggests that ‘renters who can pay will’.113 Still, these researchers believe cancelling rent ‘could, at least on the margins, introduce moral hazard and strategic behaviour by tenants, and encourage landlords to exit the rental market’.114
No large body of research focuses on this type of strategic resident behaviour during the pandemic moratoria (yet). A study concerning landlord perspectives on eviction moratoria in the United Kingdom during the pandemic shows landlords experience deliberate non-payment and advocate harsh penalties for this abuse.115 How serious the problem of this type of strategic free-rider behaviour was, remains unclear. Yet, research on eviction moratoria enacted during the financial and economic crisis between 2008–2014 shows mixed results.
Some studies did not find evidence for increased defaults after enacting an eviction moratorium. Collins and Urban analysed data related to a foreclosure moratorium in New Jersey (USA) in the first half of 2011. Their analysis shows that this moratorium was associated with increased rates of payments of borrowers in default. According to the authors, ‘the moral hazard incentive is not strong enough to encourage defaults among borrowers who are current, likely since the long run costs of default are high’.116
Other researchers, however, have found that borrower-friendly changes to foreclosure procedures and policies ‘may, at the margin, lead to more default, which may partially defeat the intent of the legislative and regulatory measures’.117 Artavanis and Spyridopoulos analysed data related to an almost universal foreclosure moratorium on primary residences established in 2010 and lasted until the end of 2013 in Greece. They found that 37% of the defaults were strategic.118 The highest concentrations of strategic defaulters worked in the law and finance industries and were highly educated. The researchers found relatively low percentages of strategic default in financially vulnerable groups.119 The researchers argue that this Greek ‘foreclosure moratorium was costly and deprived funds from other targeted provisions that could provide relief to truly over-indebted households’.120
Similar results have been found in other research. Andreis et al. demonstrated that legislation in Romania that offered relief to property owners in financial distress ‘incentivized (some) borrowers to default strategically’.121 In a research project concerning an Irish legal ruling that halted home foreclosures, O’Malley found that ‘decreasing repossession risk reduces the cost of mortgage default, which encourages strategic defaults for both equity- and liquidity-based reasons’.122
This review of research on moratoria has extended our knowledge of the effects on the behaviour of residents. Other than the analyses of Polish and South African protection, it demonstrates that moratoria and other measures that protect large groups of residents against eviction may result in strategic defaults and moral hazard behaviour. The evidence is not conclusive, and the context will differ in each jurisdiction and for each protective measure, but the cescr and states parties should consider this potential effect when interpreting the requirements arising from the icescr.
Conclusion
This article has revealed that over 75 per cent of the cescr’s jurisprudence under the op- icescr deals with the right to housing as laid down in Article 11 of the icescr. These cescr’s views deal with people who lost their homes due to evictions. The analysis of the views shows that the Committee has developed and consistently refined detailed requirements that states parties should meet. Requirements such as the need to have the proportionality of an eviction assessed by an independent court have been developed in other (regional) human rights instruments such as the echr.123 Other requirements do arise only from the icescr. An example is the obligation of genuine consultation and prior constructive dialogue between the authorities and evictees.124
Another example is the obligation of states parties to take all appropriate measures, to the maximum of its available resources, to ensure adequate alternative housing after an eviction. This aah requirement is the most far-reaching obligation stemming from Article 11 icescr and the cescr’s jurisprudence. In most of its decisions in which it has adopted views, the Committee ruled that a state party violated the Covenant because it did not meet this aah requirement.
This article critically analysed whether this far-reaching protection against eviction will result in moral hazard. The empirical findings in this study provide a new understanding of the adverse effects of extensive protection against eviction. Research shows that enacting a universal eviction moratorium may result in strategic defaults. In other words, some financially stable households may act strategically and stop paying their mortgage or rent because they know they will not be homeless because of their arrears. The aah requirement stemming from Article 11 icescr may cause a similar effect if interpreted so that every evictee should be offered adequate alternative housing after an eviction.
However, this broad interpretation does not necessarily follow from the cescr’s jurisprudence. In its views, the Committee holds that the aah requirement only applies in cases where the evictee ‘needs’ alternative housing after an evictee. The cescr did not elaborate on this criterion, and it could shed some light on the precise meaning of it in upcoming views or a General Comment. The views of the cescr indicate that the Committee does not hold that all evictees need alternative housing because it decided that the aah requirement does not have to be fulfilled in cases where the eviction concerns a house that is not the primary residence.125
The aah requirement provides more protection than South African and Polish law. Still, the experiences in these two jurisdictions may provide inspiration for how (not) to develop a restrictive, reasonable interpretation of the aah requirement that aims to prevent moral hazard behaviour such as strategic defaults. The research on the protection in these jurisdictions discussed in this paper shows that authorities and courts narrowly interpreted the obligations similar to the aah requirement. In Poland, the requirement to offer alternative accommodation only applies to a relatively limited group of tenants and, therefore, is too narrow to align with the current cescr’s views on the aah requirement. In South Africa, the government should only provide alternative housing to financially or otherwise vulnerable evictees, which seems to align with the approach of the cescr.
A restrictive, reasonable interpretation of Article 11 icescr will not give an incentive for strategic defaults. This interpretation of the extent of protection offered by Article 11 icescr will ensure that adequate alternative housing is offered only to the (relatively large group of) evictees who actually need protection.
Besides strategic default, however, the case study on South Africa shows that the aah requirement may also result in more people (strategically) squatting buildings. To profit from the protection against eviction provided by the icescr, one needs to be a housing insider, meaning that one needs to have a house. It is unlikely that the cescr will narrow down the protection against eviction provided by the icescr to evictees with a valid title to reside in their homes. In several of its views, the cescr made clear that the aah requirement should also be fulfilled in case of the eviction of squatters.126 They are often among the most vulnerable in society and deserve protection by international human rights law.
Nevertheless, the potential incentive to squat buildings stemming from the aah requirement may be a reason for States parties not to sign or ratify the op-icesr. They will argue that property owners’ property rights will be violated and that – just as happened in Poland and South Africa – the government needs to compensate these owners. Moreover, it may be argued that the housing market as we know it will destabilise or collapse because squatters need to be rehoused after eviction.127 It depends on one’s normative perspective to determine whether this collapse of the present housing market is desirable. One might argue that the collapse of a housing market that allows people to be homeless is not bad. Still, it is most likely that governments are reluctant to support the destabilisation or collapse of housing markets and, as a result, will not be open to ratifying the op- icescr.
Excluding squatters from the protection provided by the aah requirement is no human rights-based approach to this problem. The cescr should, however, shed some light on the extent of protection stemming from the cescr and the aah requirement to prevent a Pyrrhic victory for the op- icescr and the human right to housing.
Michel Vols is Professor of Law at the University of Groningen. He is the Principal Investigator of the evict project (www.eviction.eu), funded by the European Research Council. The research presented in this article has received funding from the European Union’s erc Research Grant under grant agreement No 949316. The author would like to express his sincerest gratitude to Michelle Bruijn, Roxani Fragkou, Andrei Quintiá Pastrana, Emma Sweeney and Stefan van Tongeren (all University of Groningen) for their valuable feedback and to Professor Magdalena Habdas (University of Silesia), Professors Sue-Mari Viljoen and Sarah Fick (University of the Western Cape), Professor Gustav Muller (University of Pretoria), Professors Juanita Pienaar and Professor Zsa-Zsa Boggenpoel (University of Stellenbosch) for providing excellent help on Polish and South African law.
United Nations Treaty Collection, 3. International Covenant on Economic, Social and Cultural Rights, United Nations Treaty Collection, <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en>, accessed 14 April 2023.
Marco Odello & Francesco Seatzu, The UN Committee On Economic, Social And Cultural Rights (Routledge 2013); Jasper Krommendijk, The Domestic Impact And Effectiveness Of The Process Of State Reporting Under Un Human Rights Treaties In The Netherlands, New Zealand And Finland. Paper-Pushing Or Policy Prompting (Intersentia 2014); Jasper Krommendijk, ‘Less Is More: Proposals For How UN Human Rights Treaty Bodies Can Be More Selective’ (2020) 38 Netherlands Quarterly of Human Rights 5.
Kitty Arambulo, Strengthening the supervision of the International Covenant on Economic, Social and Cultural Rights (Intersentia 1999); Michael J. Dennis & David P. Stewart, ‘Justiciability Of Economic, Social And Cultural Rights: Should There Be An International Complaints Mechanism To Adjudicate The Rights To Food, Water, Housing, And Health?’ (2004) 98 The American Journal of International Law 462; Claire Mahon, ‘Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2008) 8 Human Rights Law Review 617; Caterina de Albuquerque, ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights—The Missing Piece of the International Bill of Human Rights’ (2010) 32 Human Rights Quarterly 144; Arne Vandenbogaerde & Wouter Vandenhole, ‘The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights: An Ex Ante Assessment Of Its Effectiveness In Light Of The Drafting Process’ (2010) 10 Human Rights Law Review 207; Krommendijk 2014 (note 3) 156; Malcolm Langford et al. (eds.) The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A commentary (Pretoria University Law Press 2016); Sandra Liebenberg, ‘Between Sovereignty And Accountability: The Emerging Jurisprudence Of The United Nations Committee On Economic, Social And Cultural Rights Under The Optional Protocol’ (2020) 42 Human Rights Quarterly 48, 51–55.
See Article 2 op- icescr.
See Article 9 op- icescr.
United Nations Treaty Collection, 3. A Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, United Nations Treaty Collection, <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3-a&chapter=4&clang=_en>, accessed 14 April 2023.
See, for example, Beth A. Simmons, ‘Should States Ratify? – Process And Consequences Of The Optional Protocol To The icescr’ (2009) 27 Nordisk Tidsskrift for menneskerettigheter 64; Stein Evju, ‘Should Norway Ratify The Optional Protocol To The icescr? – That Is The Question’ (2009) 27 Nordisk Tidsskrift for menneskerettigheter 82; Inge L. Backer, ‘Ideals And Implementation – Ratifying Another Complaints Procedure’ (2009) 27 Nordisk Tidsskrift for menneskerettigheter 91; Hilde Reiding, ‘The Netherlands Gradually Changing Views On International Economic And Social Rights Protection’ (2012) 34 Human Rights Quarterly 113, 134–138; Frans Viljoen & Nicolas Orago, ‘An Argument For South Africa’s Accession To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights In The Light Of Its Importance And Implications’ (2014) 17 Potchefstroom Electronic Law Journal 2554; Koldo Casla, Politics Of International Human Rights Law Promotion In Western Europe (Routledge 2020), 100–109; Md. A. I. H. Mollah, ‘Assessment Into Feasibility Of Ratifying The op – icescr From The Context Of Justiciability Of Economic, Social And Cultural Rights In Bangladesh’ (2020) 9 International Human Rights Law Review 118.
See The Netherlands, Seventh Periodic Report Submitted By The Netherlands Under Articles 16 And 17 Of The Covenant, Due In 2022, U.N. Doc E/C.12/nld/7 (1 July 2022), 21; Raad van State, Voorlichting Over De Facultatieve Protocollen Bij Het VN-Verdrag Handicap En IVESCR en het 3e Protocol Bij Het IVRK, <https://www.raadvanstate.nl/actueel/nieuws/juli/samenvatting-voorlichting-protocollen/@128426/w13-21-0367-iii-vo/>, accessed 14 April 2023. See about the review of the UN treaty body process: Jeremy Sarkin, ‘The 2020 United Nations Human Rights Treaty Body Review Process: Prioritizing Resources, Independence And The Domestic State Reporting Process Over Rationalizing And Streamlining Treaty Bodies’ (2021) 25 The International Journal of Human Rights 1301.
See for earlier discussions of the cescr’s views: Juan C. Benito Sánchez, ‘The UN Committee on Economic, Social and Cultural Rights’ Decision in I.D.G. v. Spain: The Right to Housing and Mortgage Foreclosures’ (2016) Journal Européen Des Droits De L’homme 320; Liebenberg 2020 (n 4), 58–82; Stuart Wilson, ‘The Right To Adequate Housing’, in Jackie Dugard et al. (eds.), Research Handbook on Economic, Social and Cultural Rights as Human Rights 190–193 (Edward Elgar 2020); Michel Vols & Erna Dyah Kusumawati, ‘The International Right To Housing, Evictions And The Obligation To Provide Alternative Accommodation. A Comparison Of Indonesia And The Netherlands’ (2020) 21 Asia Pacific Journal on Human Rights and the Law 237, 247–250; Zdzisław Kędzia, ‘The Committee On Economic, Social And Cultural Rights – The Power Of Subjective Rights?’ (2022) 14 Journal of Human Rights Practice 50; Nils-Hendrik Grohmann, ‘Tracing the Development of the Proportionality Analysis in Relation to Forced Evictions under the icescr’ (2022) 22 Human Rights Law Review 1.
Benjamin Hale, ‘What’s So Moral About The Moral Hazard?’ (2009) 23 Public Affairs Quarterly 1, 5. See also David Rowell & Luke B. Connelly, ‘A History Of The Term “Moral Hazard”’ (2012) 79 The Journal of Risk and Insurance 1051.
General Comment No. 4, The Right To Adequate Housing (Art. 11(1) F The Covenant), adopted 13 Dec. 1991, cescr, U.N. Doc. E/1992/23 (1991); General Comment No. 7, The Right To Adequate Housing (Art. 11(1) F The Covenant): Forced Evictions, adopted 20 May 1997, cescr, U.N. Doc. E/1998/22 (1997).
See, for example, Scott Leckie, ‘New United Nations Regulations On Forced Evictions’ (1999) 21 Third World Planning Review 41; Fons Coomans & Miguel Ruiz Díaz-Reixa, ‘Effectiveness of the icescr Complaint Mechanism—An Analysis and Discussion of the Spanish Housing Rights Cases’, in Claire Boost et al. (Eds.), Myth or lived reality 17–47 (TM.C. Asser Press 2021); Wilson note 10 181–202; Jessie Hohmann, ‘Housing As A Right’, in Katherine Young & Malcolm Langford (eds.), Oxford Handbook on Economic, Social and Cultural Rights (Oxford University Press 2022).
For the data collection <https://juris.ohchr.org/search/documents> issued. We applied the filter “cescr” under “Filter by bodies, Articles or issues’. The cescr decisions of the 71st and 72nd session, are collected via <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=2521&Lang=en> and <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=2550&Lang=en>. In March 2023 <https://juris.ohchr.org/search/documents> is not available anymore, but <https://juris.ohchr.org/SearchResult> should be used. Interestingly, using the new search engine only 104 cescr documents can be found. In this analysis we analyse the 106 cescr documents we found in our search.
The cescr takes such a decision when the reasons for the submission have become moot, when the author of the communication has withdrawn it, when all attempts to contact the author have failed, when the author has ceased all communication with the cescr, or on other relevant grounds. See Rule 17 of the Provisional rules of procedure under the Optional Protocol to the icescr (2013) and Rule 18 of the Rules of procedure under the Optional Protocol to the icescr (2022).
See Article 3 op – icescr for the admissibility requirements.
I.D.G. v. Spain, Communication No. 2/2014: Views Adopted by the Committee at its Fifty-Fifth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 55th Sess, deals with a case of eviction due to mortgage arrears. Ben Djazia & Belili v Spain, Communication No. 5/2015: Views Adopted by the Committee at its Sixty-First Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 61st Sess concerns an eviction due to rent arrears. Several views also concern evictions of families with no title to lawfully reside in their home: S.S.R. v Spain, Communication No. 51/2018: Views Adopted by the Committee at its Sixty-Sixth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 66th Sess; López Albán v Spain No. 37/2018: Views Adopted by the Committee at its Sixty-Sixth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 66th Sess; El Ayoubi & El Azouan v Spain No. 54/2018: Views Adopted by the Committee at its Sixty-Sixth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 69th Sess.
Ben Djazia & Belili v Spain (n17) 14.2.
Pankka & Pérez v Spain, Communication No. 9/2015: Views Adopted by the Committee at its Sixty-Fifth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 65th Sess, 8.4.
This requirement follows from Article 4 icescr. See Ben Djazia & Belili v Spain (n 17) 15.1 & c. 16.1; Gómez-Limón Pardo v Spain, Communication No. 52/2018: Views Adopted by the Committee at its Sixty-Seventh Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 67th Sess, 9.4; El Ayoubi & El Azouan v Spain (n17) 11.2; Naser v Spain, Communication No. 127/2019: Views Adopted by the Committee at its Seventy-First Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 71st Sess, 8.3; Hernández Cortés & Rodríquez Bermúdez v Spain, Communication No. 26/2018: Views Adopted by the Committee at its Seventy-second Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 72nd Sess, 8.3.
This requirement follows from Article 4 icescr. See Gómez-Limón Pardo v Spain (n20) 9.4; Ben Djazia & Belili v Spain (n 17) 16.1.
Ben Djazia & Belili v Spain (n 17) 15.1; Gómez-Limón Pardo v Spain (n 20) 9.4.
López Albán v Spain (n17) 8.2. See also Ben Djazia & Belili v Spain (n17) 13.4.
Ben Djazia & Belili v Spain (n17) 15.1; López Albán v Spain (n17) 17 (d); Moreno Romero v Spain, Communication No. 48/2018: Views Adopted by the Committee at its Sixty-ninth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 69th Sess, 10.3; Hernández Cortés & Rodríquez Bermúdez v Spain (n20) 8.4. See Sandra Liebenberg, ‘Participatory Justice in Social Rights Adjudication’ (2018) 18 Human Rights Law Review 623.
I.D.G. v. Spain (n 17) 11.2 & 13.3.
I.D.G. v. Spain (n17) 11.4; Ben Djazia & Belili v Spain (n17) 15.1.
Ben Djazia & Belili v Spain (n17) 21.
López Albán v Spain (n17) 11.5 & 11.7; Gómez-Limón Pardo v Spain (n 20) 9.4; Naser v Spain (n 20) 10.3; Hernández Cortés & Rodríquez Bermúdez v Spain (n 20) 8.3.
Gómez-Limón Pardo v Spain (n 20) 9.5. See also López Albán v Spain note 17 11.5. See also El Ayoubi & El Azouan v Spain (n 17) 14.5.
Gómez-Limón Pardo v Spain (n 20) 9.5.
Gómez-Limón Pardo v Spain (n 20) 9.6.
Ben Djazia & Belili v Spain (n 17) 15.1; López Albán v Spain (n 17) 9.1.
Ben Djazia & Belili v Spain (n 17) 15.2.
See Ben Djazia & Belili v Spain (n 17) 15.2; López Albán v Spain (n 17) 9.1: El Ayoubi & El Azouan v Spain (n 17), 12.1; Moreno Romero v Spain (n 24), 11.1; Naser v Spain (n 20) 9.1. See for a slightly different formulated requirement Walters v Belgium, Communication No. 61/2018: Views Adopted by the Committee at its Seventieth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 70th Sess, 10: ‘Where those affected do not have the means to acquire alternative housing, States parties must take all appropriate measures to ensure, where possible, that adequate alternative housing, resettlement or access to productive land, as the case may be, is available’.
Ben Djazia & Belili v Spain (n 17) 15.5 & 16.5 & 16.6; López Albán v Spain (n 17) 9.4.
Ben Djazia & Belili v Spain (n 17) 15.2 & 15.4; López Albán v Spain (n 17) 9.1: ‘those affected [that, mv] are unable to provide for themselves’. Cf. the Spanish wording of the requirement in the view in the case of Hernández Cortés & Rodríquez Bermúdez v Spain note 20 9.1: ‘los afectados por el desalojo no dispongan de recursos’.
S.S.R. v Spain (n 17) c. 6.4.
Stitou & Ben Hmdou, Communication No. 86/2018: Views Adopted by the Committee at its Seventy-second Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 72nd Sess, 6.4.
See M.B.B. v Spain, Communication No. 6179/2018: Views Adopted by the Committee at its Sixty-eight Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 68th Sess, 9.3; A.M.O. & J.M.U. v Spain, Communication No. 45/2018: Views Adopted by the Committee at its Sixty-eight Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 68th Sess, 10.3; Chila v Spain, Communication No. 102/2019: Views Adopted by the Committee at its Seventieth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 70th Sess, 6.5–6.6; Stitou & Ben Hmdou (n 38).
Ezqouihel v Spain, Communication No. 56/2018: Views Adopted by the Committee at its Sixty-ninth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 69th Sess, 6.5–6.6. See also Sariego Rodríguez & Dincă, Communication No. 92/2019: Views Adopted by the Committee at its Seventieth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 70th Sess, 7.7–7.8; García v Spain, Communication No. 39/2018: Views Adopted by the Committee at its Seventy-first Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 71st Sess, 6.3–6.5; El Mourabit Ouazizi & Boudfan v Spain, Communication No. 133/2019: Views Adopted by the Committee at its Seventy-second Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 72nd Sess, 9.2–9.3 & 10.2–10.3.
Ben Djazia & Belili v Spain (n 17) 15.2; López Albán v Spain (n 17) 9.1.
Ben Djazia & Belili v Spain (n 17) 15.2; López Albán v Spain (n17) 9.1.
Ben Djazia & Belili v Spain (n17) 15.2.
Ibid 15.3.
López Albán v Spain (n 17) 9.2; El Ayoubi & El Azouan v Spain (n 17) 12.2. In Ben Djazia & Belili v Spain (n 17) 15.3 the cescr holds that the measures should be ‘deliberate, specific and as straightforward as possible’.
Ben Djazia & Belili v Spain (n 17) 15.2; López Albán v Spain (n 17) 9.2; El Ayoubi & El Azouan v Spain (n 17) 12.2.
Ben Djazia & Belili v Spain (n 17) 17.2; López Albán v Spain (n 17) 10.2.
Ben Djazia & Belili v Spain (n 17) 17.2.
Ben Djazia & Belili v Spain (n 17) 15.2; López Albán v Spain (n 17) 9.2.
Ben Djazia & Belili v Spain (n 17) 17.2; López Albán v Spain (n 17) 10.1
Ben Djazia & Belili v Spain (n 17) 17.2; López Albán v Spain (n 17) 10.1.
Ben Djazia & Belili v Spain (n 17) 17.2–17.3; López Albán v Spain (n 17) 10.1.
López Albán v Spain (n 17) 10.1.
Ibid 17 (c).
Ibid.
Ben Djazia & Belili v Spain (n 17) 15.2; López Albán v Spain (n17) 17 (d).
Ben Djazia & Belili v Spain (n 17) 15.4.
López Albán v Spain (n 17) 9.3.
Ben Djazia & Belili v Spain (n 17) 17.7.
Walters v Belgium (n 34) 11.6. See also cescr, General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, adopted 8 Dec. 1995, cescr, U.N. Doc. E/1996/22, 33.
Ben Djazia & Belili v Spain (n 17) 15.5. See also Ben Djazia & Belili v Spain (n 17) 16.6; López Albán v Spain (n 17) 9.1.
Ben Djazia & Belili v Spain (n 17) 15.5, 16.6; López Albán v Spain (n 17) 9.1 & 12.1–12.2.
Ben Djazia & Belili v Spain (n 17) 15.5; López Albán v Spain (n 17) 9.1.
Ben Djazia & Belili v Spain (n 17) 16.6.
Ibid 17.5.
Ibid. See also: El Mourabit Ouazizi & Boudfan v Spain (n 40) 10.1.
Ben Djazia & Belili v Spain (n 17) 16.5 & 21(b); Gómez-Limón Pardo v Spain (n 20) 9.6. However, continuously suspending an eviction without providing alternative accommodation could also result in a violation of Article 11 icescr: Hernández Cortés & Rodríquez Bermúdez v Spain (n 20) 10.4.
See Ben Djazia & Belili v Spain (n 17) 16.5 & 21(b); López Albán v Spain (n 17) 11.5.
Walters v Belgium (n 34) 12.6.
Ibid 12.6.
López Albán v Spain (n 17) 9.3.
Ibid 13.2; El Goumari & Tidli v Spain, Communication No. 85/2018: Views Adopted by the Committee at its Sixty-ninth Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 69th Sess, 11.1.
López Albán v Spain (n 17) 9.3.
Ibid 9.4.
Ibid.
Ibid; El Ayoubi & El Azouan v Spain (n 17), 12.4.
El Goumari & Tidli v Spain (n 72) 11.2.
Ibid 9.4 & 11.2; Walters v Belgium (n 34) 10.4. On the issue of overcrowded housing, the cescr relies on definitions of the Department of Economic and Social Affairs of the United Nations Secretariat. As a result, the limit is three persons per room. See El Goumari & Tidli v Spain (n 72) 11.4.
Moreno Romero v Spain (n 24) 12.6. See also Walters v Belgium (n 34) 12.7.
Ben Djazia & Belili v Spain (n 17) 17.5.
Moreno Romero v Spain (n 24) 12.3; El Mourabit Ouazizi & Boudfan v Spain (n 40) 10.4.
See Grzegorz Panek, National Report For Poland (Tenlaw 2015) 84–89; Magdalena Habdas, ‘Poland’in Christoph Schmid, Ways out of the European Housing Crisis (Edward Elgar 2022) 240–241.
See <https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm>, accessed 14 April 2023.
See Panek 2015 (n 82) 186–187.
See, for example, Polish Constitutional Court Judgment of 4 Apr. 2001, ref. K 11/00 otk; Polish Constitutional Court Judgment of 18 Oct. 2017, ref. 2017/74 otk; Polish Constitutional Court Judgment of 15 Nov. 2017, ref. 2017/75 otk.
See Adam Polszka, ‘Czy Polskie Prawo Chroni Przed Eksmisją Na Bruk?’ (2015) 42 Kwartalnik O Prawach Człowieka 42; Witold Borysiak, ‘Evictions in Poland’ in Padraic Kenna et al. (eds.), Loss Of Homes And Evictions Across Europe (Edward Elgar 2018) 239, 242 & 259–261; Dorota Fleszer, ‘Prawo Do Lokalu Z Gminnego Zasobu Mieszkaniowego Na Gruncie Orzecznictwa’(2018) Samorząd Terytorialny 45.
Alina Muziol-Weclawowicz & Magdalena Habdas, ‘Poland: Gradual Growth Across Barriers’ in József Hegedüs et al. (eds.) Private Rental Housing in Transition Countries (Palgrave 2018) 275.
See Borysiak (n 86) 247.
See Polszka (n 86).
Yet, local authorities seem to have claimed that the requirement to provide alternative accommodation makes eviction ‘a fiction’. See Borysiak (n 86) 261.
Panek 2015 (n 82) 197; Magdelena Habdas, ‘The Tenant’s Home And The Landlord’s Property’ in Helen Carr et al. (eds.) Law And The Precarious Home (Hart 2018) 115.
Habdas (n 91) 135.
Panek 2015 (n 82) 198.
Habdas 2018 (n 91) 134.
See, for example, the judgment of the Polish Constitutional Court of 4 Nov. 2010, K 19/06, otk-A 2010/9 and the judgments of the Grand Chamber of the European Court of Human Rights of 19 June 2006, Application no. 35014/97 (Hutten-Czapska v Poland), paragraph 224. See a detailed analysis of this case law: Habdas 2018 (n 91).
See Habdas 2018 (n 91).
See Panek 2015 (n 82) 188; Borysiak (n 86) 59.
See South African Constitutional Court, Port Elizabeth Municipality v Various Occupiers 2005 (1) sa 217 (cc) at 9.
Sarah Fick & Michel Vols, ‘Best Protection Against Eviction?’ (2016) 3 European Journal of Comparative Law and Governance 40, 53.
Port Elizabeth (n 98) para 24.
Ibid para 25.
Ibid para 28.
Ibid.
For the fact that courts consider this the most important factor and the effect of this, see, for example, Port Elizabeth (n 98) para 4; South African Constitutional Court, Residents of Joe Slovo Community, Western Cape v Thubelisha Homes (Centre on Housing Rights and Evictions, amici curiae) 2010 (3) sa 454 (cc) para 148; South African Constitutional Court President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd 2005 (5) sa 3 (cc) para 64; South African Constitutional Court City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) sa 104 (cc) para 40. See Sarah Fick & Michel Vols, ‘Horizontality and Housing Rights’ (2022) 9 European Journal of Comparative Law and Governance 118; Gustav Muller & Sue-Mari Viljoen, Property In Housing (Juta&Co 2021) 244–275; Marius Pieterse, ‘Towards a Right to the City?’ (2022) 11 International Human Rights Law Review 36.
Pieterse 2022 (n 104) 54.
See Jenni Evans, ‘Camps Bay Airbnb Taken Over By Cape Town Group Seeking Safe Space’ (Sep 22, 2020), <https://www.news24.com/news24/southafrica/news/camps-bay-airbnb-taken-over-by-cape-town-group-seeking-safe-space-20200922>, accessed 14 April 2023.
See Emily A. Benfer et al., ‘Covid-19 Housing Policy: State And Federal Eviction Moratoria And Supportive Measures In The United States During The Pandemic’ (2022) Housing Policy Debate 1.
See Jasmine Rangel et al., ‘Preliminary Analysis: 11 Months Of The cdc Moratorium’ (Aug 21, 2021), <https://evictionlab.org/eleven-months-cdc/>, accessed 14 April 2023; Benfer et al. note 107.
See Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al., 594 U.S. (2021); Connor S. Roberts, ‘Covid Evictions: The Legality Of National Eviction Moratoriums’ (2021) 23 Loyola Journal of Public Interest Law 1; Charles Kausen, ‘Taking One For The Team: Covid-19 Eviction Moratoria As Regulatory Takings’ (2022) 59 San Diego Law Review 345.
See Jacob Haas et al., ‘Preliminary Analysis: Eviction Filing Trends After the cdc Moratorium Expiration’ (Dec 9, 2021), <https://evictionlab.org/updates/research/eviction-filing-trends-after-cdc-moratorium/>, accessed 14 April 2023.
See Katharina Allinger & Elisabeth Beckmann, ‘Use Of Loan Moratoria By Cesee Households: Who Are The Users And How Vulnerable Are They?’ (2021) Focus on European Economic Integration 7; Lisa Whitehouse, ‘Housing Possession In The Time Of Pandemic’ (2021) Conveyancer And Property Lawyer 197; Chris Martin, ‘Australia’s Incipient Eviction Crisis: No Going Back’ (2021) 46 Alternative Law Journal 134; Muller & Viljoen (n 104) 275–282.
Benfer et al. 2022 (n 107); Kausen 2022 (n 109).
Michael Manville et al., ‘Renter Nonpayment And Landlord Response: Evidence From Covid-19’ (2022) Housing Policy Debate 1, 26.
Ibid 26.
Andrew R. Watson & Nick Bailey, The Pandemic Arrears Crisis: Private Landlord Perspectives On The Temporary Legislation Impacting The Private Rented Sector (UK Collaborative Centre for Housing Evidence 2021) 45.
J. Michael Collins & Carly Urban, ‘Mortgage Moratoria, Foreclosure Delays, Moral Hazard And Willingness To Repay’ (June 20, 2014), <https://www.irp.wisc.edu/newsevents/workshops/2014/participants/papers/4-Collins_UrbanIRP2014.pdf>, 2, accessed 14 April 2023.
Shuang Zhu & R. Kelley Pace, ‘The Influence Of Foreclosure Delays On Borrowers’ Default Behavior’ (2015) 47 Journal of Money, Credit and Banking 1205, 1221.
Nikolaos T. Artavanis & Ioannis Spyridopoulos, ‘Determinants Of Strategic Behavior: Evidence From A Foreclosure Moratorium’ (Sept 28, 2022) <https://ssrn.com/abstract=2946595>, accessed 14 April 2023.
Nikolaos T. Artavanis & Ioannis Spyridopoulos, ‘Foreclosure Moratorium And Strategic Default’ (Sept. 1, 2017), <https://www.atlantafed.org/-/media/documents/news/conferences/2017/1201-real-estate-industry-forum/papers/Artavanis_Foreclosure_Moratorium_and_Stategic_Default.pdf >, accessed 14 April 2023.
Artavanis & Spyridopoulos note 119 24–25.
Alin M. Andries et al., ‘Recourse And (Strategic) Mortgage Defaults: Evidence From Changes In Housing Market Laws’ (2021) 727 dnb Working Paper 1, 32.
Terry O’Malley, ‘The Impact Of Repossession Risk On Mortgage Default’ (2021) 76 The Journal of Finance 623, 648.
See Fick & Vols (n 104); Grohmann (n 10).
See Liebenberg (n 24).
See Pankka & Pérez v Spain (n 19). Nevertheless, the cescr does not engage with the argument of the Spanish government that the aah requirement should not apply to evictees with financial resources well above the minimum wage: see El Mourabit Ouazizi & Boudfan v Spain (n 40) 8.3; Stitou & Ben Hmdou (n 38) 6.3–6.4.
See, for example, López Albán v Spain (n 17) 17 (c); El Ayoubi & El Azouan v Spain Communication No. 54/2018: Follow-up progress report on individual communications; Views Adopted by the Committee at its Seventy-second Session, U.N. escor, Comm. on Econ., Soc. & Cult. Rts., 72nd Sess, 6; Hernández Cortés & Rodríquez Bermúdez v Spain (n 20) 10.5.
See this argument raised in the context of judicial proportionality testing in eviction proceedings: Michel Vols, ‘European Law and Private Evictions: Property, Proportionality and Vulnerable People’ (2019) 27 European Review of Private Law 719; Koldo Casla, ‘Unpredictable and Damaging? A Human Rights Case For The Proportionality Assessment of Evictions in the Private Rental Sector’ (2022) European Human Rights Law Review 253.