The meaning of home: from theory to practice

• Author: Lorna Fox O'Mahony
• Position: Durham Law School, Palatine Centre, Durham, UK

1 Introduction

This paper critically analyses the application of the conceptual framework within which housing scholars think, talk about and advocate for “Home”. The title re-iterates in part the title of an article I wrote ten years ago for the Journal of Law and Society, when I asked whether the concept of home was – from a legal perspective – chimerical, or merely one which presented a set of challenges which legal scholarship could, and should, engage with ( Fox, 2002 ). I was driven to this question by the apparent lack of consideration given, in property law at least, to the fact that a house delivers the functions and qualities of home. While it was possible to identify instances where the fact that property served as a home was taken into account, the absence of any coherent scholarly account of the meaning of home in law made it all too easy for home interests to be dismissed, trivialised or ignored when they proved less than convenient. For example, the state's interest in focusing immigration policies on the “problem” of alleged “pull factors” linked to housing for asylum seekers, to discourage the creation of home attachments or affiliative bonds in the UK, and to incentivise voluntary return by asylum seekers and failed asylum seekers, has a powerful obfuscating influence over the human claim for housing and home ( Fox, 2006 ). Other examples of strong policy claims that pull against the meaning of home include cases in which home interests come into conflict with competing claims with commercial clout, especially relevant in the current world economic crisis, which has resulted all too often in conflicts between creditors and occupiers of domestic property after the debtor has defaulted, and when the lender is seeking to repossess or foreclose against the home.

If the meaning of home is brought into sharp relief by the threat of losing the roof overhead, then the most recent housing market crisis, with all its adverse economic consequences, has underlined the universal significance of home meanings and their significance for law and housing policy; and perhaps even more crucially of the risk of displacement and dispossession for individuals as well as for broader economic stability. In their 1981 book “Real Property and Real People”, Gray and Symes wrote that:

All of us – even the truly homeless – live somewhere, and each therefore stands in some relation to land as owner-occupier, tenant, licensee or squatter. In this way land law impinges upon a vast area of social orderings and expectations, and exerts a fundamental influence upon the lifestyles of ordinary people ( Gray and Symes, 1981, p. 4 ).

Housing has been widely recognised as a key social determinant of health ( Shaw, 2004, p. 397 ) and a raft of studies have demonstrated that – beyond the obvious need for adequate shelter ( Hyndman, 1988 ; Matte and Jacobs, 2000 ) – the embeddedness of occupiers in their homes is linked to health and well-being ( Bratt, 2002 ; Brown and Perkins, 1992 ; Clapham, 2011 ; Jackson, 2003, p. 1382 ; Libman, 2011 ; Srinivasan et al., 2003, p. 93 ). Conversely, the disruption of home has been demonstrated to have adverse effects on physical and mental health ( Lawrence, 1995 ; Fried, 1963 ; Porteous, 1998 ; Nettleton, 1998  l; Nettleton and Burrows, 2000 ). It is this relationship between the person (the occupier of the home, the “consumer” of housing) and the property (the material physical structure that provides the roof overhead) which marks “home” out as different from other types of property. And it is this concern with the relationship between the person and the property that sets “home” studies apart from property or land law, on the one hand, and even to some extent from housing, with its emphasis on provision, on the other.

Conventional property law has traditionally focused on the competing claims of individuals; with the “object” of property represented as “space” rather than “place”¹. The emphasis on cadastral mapping as a solution to the administration of land, and the bureaucratic regimes underpinning registration systems, most recently, in the name of progress towards e-conveyancing, have tended to edge out representations of land as social space². In contrast, debates within the “housing paradigm”, while often sensitive to the social value of the roof overhead, remain characterised by the concern for managing “stock” in a world of limited resource. While Padraic Kenna's work has done much to emphasise the importance of incorporating social and personal home meanings within housing rights discourse, ( Kenna, 2008, 2011 ) as concepts (“housing” and “home”) they remain, if not wholly distinctive, not yet synonymous.

My intention, in the first article I wrote on meanings of home, was to issue a call to arms (the working title was “An argument on behalf of the concept of home”) for legal scholarship to tackle the conceptual difficulties in pinning down an experiential, intangible and seemingly un-proveable phenomenon; the authentic relationship between a person and their place of residence. The motivation for making the argument was simple: homes matter. They matter to the people who have them, and to those who do not; they matter to those who have lost a home through displacement or dispossession; even the threat of losing a home has been shown to trigger major stress reactions ( Fox, 2006 ). Yet, as Porteous has explained:

[…] the problem lies with the fact that we are dealing with environmental intangibles – attachment, grief, loss – which are immeasurable, difficult to articulate, and thus easy to ignore by the cost-benefit brigade ( Porteous, 1998 ).

The challenge for home scholarship is to persevere in our efforts to articulate the meanings and values of home. Our homes are the foundations for our lives and – crucially for lawyers to engage with these arguments – we can prove this. In my book, Conceptualising Home, I sought to marshal the empirically-based and theoretically informed research that home scholars across the social sciences and the humanities have produced to support this intuitively obvious proposition in ways that can achieve purchase within legal and policy domains. The challenge for scholarship is to build the bridges that can make the reality of home's meanings count where it matters most: in the governance of the real issues and challenges of property law and housing.

And indeed, it is encouraging that major progress has been made in the state of the scholarship on the meaning of home, as well as in the application of this scholarship as an organising framework to interrogate specific legal doctrines and decisions. For example, ten years ago I problematised home as “essentially a subjective phenomenon […] not easily quantifiable […] not readily susceptible to legal proof”, ( Fox, 2002 ) but, for example, in a recent issue of Child and Family Law Quarterly, Beverley Searle has drawn on data from the British Household Panel Survey to develop quantitative evidence of the impact of loss of home on subjective well-being ( Searle, 2012 ). It is due to this type of work that the idea that home has a special meaning for occupiers – a specific “use value” – can no longer be dismissed as “purely phantasmal” ( Merritt, 2002, p. 65 ). As the global financial crisis that started in 2007 moved displacement and dispossession from home to centre stage, critiques of repossession and foreclosure procedures, decisions, frameworks and reform proposals drew heavily on the meaning of home for occupiers to temper conventional economic analyses with a growing awareness of the individual and societal costs of losing home, ( Bright, 2010 ; Davidson and Dyal-Chand, 2009 ; Davidson and Malloy, 2010 ; Dyal-Chand, 2010 ; Jacoby, 2010 ; Levitin, 2009 ; Mikhlenko, 2011 ) and underline the structural risks that expose vulnerable populations to disproportionate risk of loss of home meanings ( Fox O'Mahony, 2008, 2012 ; Roberts, 2012 ).

As legal scholarship has begun to grapple with the concept of home, the experiential phenomena of occupying a property as a home – distinct from other types of property use – is beginning to take hold within the UK's legal discourse ( Fox O'Mahony, 2011 ). One need only look to the line of case law that has developed in the content of the Article 8 right to respect for home – from the House of Lords' decision in London Borough of Harrow v Qazi in 2003³, to the decision of the Supreme Court in Manchester City Council v Pinnock in 2010⁴; from blatant denial that respect for home had any meaningful content in eviction cases, to a recognition that the processes and procedures by which evictions are sought must strike a proportionate balance between respect for home and any justification for interference, within the meaning of the European Convention on Human Rights⁵.

There is obviously still work to be done in mainstreaming the concept of home, through the application of the Article 8 right to respect for home as well as in property theory and practice more broadly, but it is valuable to recognise that in recent years there has been a discernible shift in the way we talk about housing issues through the language of home. This has been prompted, in part at least, by the ways that the changing economic climate has brought home to many of us the risks of displacement and dispossession. While housing issues are always central to human lives, there could not be a more apposite moment to examine the home issues that our societies are currently facing. From persistently high levels of mortgage repossessions to asset-based welfare policies pressing...