• Journal of Property, Planning and Environmental Law

Publisher:
Emerald Group Publishing Limited
Publication date:
2019-03-18
ISBN:
2514-9407

Latest documents

  • The residential leaseholder’s interest in construction operations

    Purpose
 The owner of residential long leasehold can be significantly affected by construction operations to the building, whether during its initial construction or its subsequent repair, renovation or improvement. This paper aims to consider how a leaseholder has an interest in such construction operations and the extent to which this is taken into consideration in their procurement.
 Design/methodology/approach
 The paper is a general review of how construction law interfaces with property law interests, rights and obligations in the case of a residential leaseholder. The first part of the paper outlines the issues raised by construction operations. The second part of the paper queries the efficacy of any right of redress the leaseholder might have in respect of construction defects. The third part considers the limited nature of the leaseholder’s right to be consulted about construction operations. The paper is predominantly doctrinal in approach, although it references socio-legal research. The paper also contrasts the English law position with Australia.
 Findings
 The paper concludes that leaseholders have limited input into the procurement of construction operations despite their interest in them. Property law can be used to regulate construction law operations.
 Originality/value
 To date, the literature dealing specifically with the position of leaseholders, consultation obligations and construction operations has been limited. This paper brings together property law and construction law in analysing the findings of the Hackitt Report into the Grenfell Tower disaster.

  • Reverberations in the Torrens system: a new Land Transfer Act in New Zealand

    Purpose
 On 12 November 2018, New Zealand's Land Transfer Act 2017 came into force. The purpose of this paper is to pinpoint some of the significant changes in the Act that challenge the fundamental concepts of the Torrens system of registration.
 Design/methodology/approach
 The paper addresses three significant reforms: a definition of land transfer fraud; the concept of immediate indefeasibility with limited judicial discretion and its impact on volunteers and the Gibbs v. Messer anomaly; and the compensation regime. Case studies illustrate the effect of these changes.
 Findings
 The limited legislative definition of fraud reflects the common law and allows for any necessary flexibility. The new Act reiterates the principle of immediate indefeasibility but qualifies it with the introduction of some judicial discretion. This is a novel concept for the courts and will undoubtedly be dealt with cautiously. The author voices some disquiet with regard to some of the guidelines set out in s 55(4) of the Act. The compensation provisions introduce an element of an owner's culpability. An owner now runs the risk of reduced compensation if there has been a lack of proper care.
 Research limitations/implications
 The implications of this research are fundamental for New Zealand's land transfer system.
 Practical implications
 The limited judicial discretion will challenge the courts of New Zealand. The new compensation provisions will ensure that an owner's carelessness will be accountable.
 Originality/value
 This study is one of the first to analyse the Land Transfer Act 2017 (New Zealand). Its value extends beyond New Zealand shores as it has implications for global land transfer systems.

  • Compensating regulation of land: UK and Singapore compared

    Purpose
 The paper aims to analyse and compare how UK and Singapore deal with compensation with respect to regulation of land (short of a physical taking). The purpose is to determine whether the non-compensation in each jurisdiction is justified.
 Design/methodology/approach
 A comparative method using case law, statutes and secondary material across both jurisdictions (as well as some US case law) is adopted.
 Findings
 Both the UK and Singapore do not provide compensation when land is affected by regulation, so long as a physical taking has not occurred. Partly because of the abolition of development rights in the UK since 1947, this position may be justified. Conversely, Singapore’s Master Plan seeks a great deal of public reliance and advertises development potential, and non-compensation is not defensible.
 Originality/value
 There is very limited analysis on regulatory effects of land in the UK, and virtually none in Singapore. This would also be the first attempt to compare this aspect of the UK and Singapore’s planning regime.

  • A coalition of the (un)willing?. The convergence of landlord and renter interests in the “right to rent”

    Purpose
 The Immigration Act (2014) at Part 3 established a new regime with private landlords incurring penalties (and potentially criminal liability from 1 November 2016) if they allow a person disqualified, by reason of migration status, to reside in a property as their only or main home. Known colloquially as the “right to rent”, the provisions restrict access to accommodation and impose onerous duties on landlords to check tenants’ migration status. The purpose of this paper is to consider how a change in the emphasis of regulation introduced by the provisions, resulted in the coalescence of opposition by landlords and renters in a way that historically would have been unthinkable.
 Design/methodology/approach
 Using the lens of Foucault’s governmentality, it is possible to see how Government sought to shift the locus of control from itself to the landlord, which through its legislative and policy stance resulted in such fierce opposition as evidenced by the first instance challenge to the provisions in R (Joint Council for the Welfare of Immigrants) v SS for the Home Department [2019] EWHC 452 (Admin).
 Findings
 The focus of regulation introduced by the provisions resulted in the coalescence of opposition by landlords and renters in a way that historically would have been unthinkable. Landlords and renters are usually thought of as being in opposition, but not so here. This may offer hope for more productive regulatory outcomes where both parties work together. It may also suggest that encroaching on the notion of private rights and interests in law could result in counterproductive consequences.
 Research limitations/implications
 Unlike Foucault’s notion of surveillance and control, governmentality shifts the emphasis from a hierarchical conception of government to practices including self (imposed) governance - with here, the landlord being required to act as a proxy for border agents. This suggests that there may exist boundaries beyond which, in a given context, it might be unwise for Government to step without adverse consequences. Foucault’s ideas provide a starting point, but do not give us all of the answers.
 Practical implications
 The coalescence of opposing actors can be a significant force to challenge government given the extent of their knowledge of the given context. It may also suggest a route to a more collaborative form of regulation.
 Originality/value
 A novel theoretical take on an issue of concern raised by practitioners and interest groups alike.

  • Privatising land in England

    Purpose
 This paper aims to analyse the extent to which privatising - or denationalising land - has legal and policy effects.
 Design/methodology/approach
 It applies the law in context scholarship to the question of land privatisation.
 Findings
 Of all the recent privatisations in England, the most valuable, and yet least recorded, is of land. According to one estimate, two million hectares or 10 per cent of the Britain landmass, left the public sector for private ownership between 1979 and 2018. Privatisations include land that is sold, leased or where a public body changes its status. This paper aims to explore these privatisations, considering them as denationalisations, concluding that the effects are most significant in housing where the differences between social and private renting in relation to rents, the security of tenure and housing quality are striking. Moreover, although other public law restraints on the state-owned property are often limited, they are also still significant, facilitating scrutiny, particularly in combination with the public sector equality duty or site-specific duties for libraries, allotments or playing fields. All the sites disposed of to private developers, landlords and companies have lost these protections.
 Originality/value
 This is the first time this question has been considered in this way from a legal perspective.

  • Guest editorial
  • Right of public ownership of land plots in the Russian Federation: discussion issues

    Purpose
 This paper aims to substantiate the existence of the form of ownership of natural resources (land) in the Russian law, unknown to European legal systems.
 Design/methodology/approach
 Dialectical method, historical method and system analysis method have been used.
 Findings
 The conducted research allows drawing a conclusion that non-delineated state form of ownership of land plots is a unique legal phenomenon caused by the specificity of the transition period of Russia from a totally state economy to a market economy. This inevitably leads to emergence of legal structures unknown to European systems of law and order. This issue has not only a theoretical but also practical nature.
 Originality/value
 Studies of this problem have never been conducted, neither in Russia nor in European legal science.

  • Towards a new EU regulatory law on residential mortgage lending

    Purpose
 The measures enacted so far at European level to address the global financial crisis are likely to have limited effects as they are still market efficiency oriented. Accordingly, this study aims to explore how the EU Charter on Fundamental Rights may be useful to achieve a more human right dimension in EU regulatory law.
 Design/methodology/approach
 The work departs from the current commodification of housing worldwide and the limited capacity of EU to tackle new housing challenges. The work takes the link already established by the CJEU between EU consumer law and the EU Charter on Fundamental Rights one step further and addresses the potential implications concerning residential mortgage lending.
 Findings
 The main finding is the potential influence that the EU Charter of Fundamental Rights may have on EU regulatory mortgage lending, as there are indicators of a bifurcation of mortgage law regimes at the EU level, separating home loans from other mortgages.
 Social implications
 The influence of the Charter of Fundamental Rights on EU regulatory law, mainly consumer law treated in a human rights dimension, could be a first step to treat housing as a social good and not as a commodity in the EU. This could lead to a completely new approach concerning the traditional rules governing residential mortgage loans.
 Originality/value
 The potential constitutionalisation of consumer law and the impact of the CJEU cases on national procedural rules have already been addressed by scholarship. The present work goes one step further as it addresses the potential implications of the EU Charter of Fundamental Rights on EU regulatory law in terms of the potential bifurcation of EU rules on mortgage lending.

  • Tackling rogue landlords and substandard housing. Local authorities’ legal instruments and their effectiveness

    Purpose
 In 2011, Dutch municipalities requested supplementary legal enforcement instruments to tackle rogue landlords and substandard housing. The national government implemented new legislation granting municipalities’ local authorities more legal instruments in 2015. The purpose of this paper is to evaluate the application and effectiveness of these instruments.
 Design/methodology/approach
 Using both quantitative and qualitative (legal) empirical research methods, this study establishes the frequency these instruments are used and the manner they are applied in practice to determine their role in limiting abusive practices of rogue landlords.
 Findings
 By comparing legislation and policies with their enforcement, the authors pinpoint differences between the law in the books and the law in practice and argue that the legal instruments have a stronger effect on the informal power than on formal power of local authorities. Moreover, the paper shows that the shift of responsibility from the Public Prosecutions Office to local authorities has left the Public Prosecutions Office disinterested, feeling that it no longer has to deal with substandard housing violations at all, therefore leaving the repeat offenders free to continue their activities with minor consequences.
 Originality/value
 The paper presents original data on the ways governments address substandard housing and rogue landlords. This is the first study that analyses the fight against substandard housing in the Dutch context. Although centred on legislation and procedures in The Netherland, the paper’s findings are relevant in other jurisdictions facing similar issues.

  • Premises recovery through adoption of alternative dispute resolution (ADR) techniques. Experiences from Lagos, Nigeria

    Purpose
 This paper aims to explore the use of alternative dispute resolution (ADR) techniques as a legitimate means of ejection of recalcitrant tenant in property. This is with a view of providing information that will improve property investment and management.
 Design/methodology/approach
 The paper adopts a case study approach using five selected case studies where ADR approach was used to recover premises.
 Findings
 The experience from the case studies shows that the use of ADR in premises recovery is effective but has its challenges. In the five case studies, consent judgment, mediation and negotiation were used to recover premises in less than three months compared to an average of 18 months using litigation. Also, the cost in all the cases were lower where they exist at all than when litigation are used. The paper provides useful information to practitioners on the use of the effective alternative approach to recover premises from recalcitrant tenants.
 Originality/value
 The paper provides practical ways through which recovery of premises could be achieved through non-adversarial technique in developing property markets, which hitherto was not available in literature.

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