Common Myths About Housing Rights

Though it is now generally accepted that the right to housing exists under international, regional and domestic laws, there remain a number of misperceptions regarding the content and implications of this right. Many of these are similar to the misperceptions associated with economic, social and cultural rights. To assist our readers in better understanding the content and implications of housing rights, we have outlined some of the common myths about housing rights followed by a refutation of these myths, followed by more realistic views of what housing rights really mean. There are many false myths about housing rights, but the following five are perhaps the most common:

Myth: The courts cannot protect housing rights. This is one of the most common myths propagated about the right to housing and other economic and social rights. The notion that housing rights are non-justiciable is usually based on a comparison with civil and political rights. Proponents of this myth believe, among other things, that unlike civil and political rights, economic, social and cultural rights, such as the right to housing, are too vague and too cost-intensive (requiring government action rather than inaction) to be litigated, and can only be implemented in a piecemeal fashion on the basis of policy, but not on law and justice.

Reality: Not only is the right to housing one of the most developed economic, social and cultural rights in terms of content, but a number of the constituent elements of the right to housing are adjudicated in courts of law, tribunals and other legal and quasi-legal forums on a daily basis. For example, in many countries Landlord-Tenant relations are regulated by legislation and enforced in courts or tribunals; discrimination with respect to accommodation is prohibited in national human rights legislation in countries across the world and land claims are commonly brought before adjudicators. Moreover, almost all countries have passed legislation on various aspects of housing, much of which can be brought before the courts. Concurrently, regional and international human rights bodies, such as: The European Court of Human Rights ; The UN Committee on Economic, Social and Cultural Rights ;The UN Committee on the Elimination of All Forms of Racial Discrimination have directly considered housing rights issues in their case law or jurisprudence. General Comment No. 4 adopted by the UN Committee on Economic, Social and Cultural Rights, identifies six specific areas within the right to housing that are capable of judicial scrutiny: legal appeals aimed at preventing planned evictions through the issuance of injunctions; legal procedures seeking compensation following an illegal eviction; complaints against illegal actions carried out or supported by landlords in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination; allegations of any form of discrimination in the allocation and availability of access to housing; complaints against landlords concerning unhealthy or inadequate housing conditions; and class action suits in situations involving significantly increased levels of homelessness.

Myth: Housing rights require the State to build housing - free of charge - for the entire population. Opponents of housing rights have often argued that recognising housing rights would require governments to build housing for the entire population - an entirely State-based, State-determined and State-driven approach to housing. Presumably, this myth came about based on literal interpretations of the term “right to housing”, and the notion that if the right to housing is granted to all, individuals would demand housing from the State despite the limited resources of the State to meet such demands.

Reality: The right to housing has never been interpreted under international law to mean that States must provide housing, free of charge, to all who request it. Under international law, once a State accepts the obligations attached to the right to housing, it agrees to endeavour, by all appropriate means possible, to ensure that everyone has access to housing resources adequate for health, well-being and security. Upon assuming legal obligations, States are required to undertake a series of measures which indicate policy and legislative recognition of each of the constituent aspects of the right to housing, thus creating the necessary conditions so that all residents may enjoy the full entitlements of the right to housing within the shortest possible time-frame. This is both reasonable and realistic. Although international law may not require States to provide housing for everyone who requests it, some countries have voluntarily taken on this responsibility. Legislation in Finland, for example, makes it mandatory for local government to provide housing resources for the severely handicapped under certain circumstances. In other contexts, homeless children in South Africa, homeless families in the United Kingdom, victims of natural disasters or others with acute housing needs in many countries do have rights to immediate housing relief. The Committee on Economic, Social and Cultural Rights has also provided some insight into whether States have to construct housing for all upon demand. The Committee has indicated that the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires States parties (that is, States which have ratified the ICESCR) to provide minimum subsistence rights for everyone regardless of the level of economic development of the country. This means that States parties must ensure, at the very least, minimum essential levels of each of the rights in the ICESCR, including the right to housing. Thus, a State party in which any significant number of individuals is deprived of basic shelter and housing would be failing to discharge its obligations under the ICESCR. In meeting their obligations under the ICESCR, States are required to give due priority to those who are most vulnerable and disadvantaged and consequently least able to achieve the right to housing themselves. In other words, State parties should provide housing or access to housing resources to those people who are homeless, inadequately housed or incapable of acquiring the bundle of entitlements that correspond with housing rights.

Myth: The State must fulfill all aspects of the right to housing immediately. Many States are fearful of the right to housing because they mistakenly believe that the right to housing requires them immediately implement all housing rights obligations to comply with international law.

Reality: Of course, it would be ideal if States could fulfill all aspects of the right to housing immediately. International law has recognized the impracticality of this and has responded by interpreting this right to mean that States parties will have some legal obligations that must be undertaken immediately and others that are more long-term or progressive in nature. In other words, protecting and enforcing the right to housing will involve some immediate action and some future action, all of which will eventually lead to the full, society-wide, enjoyment of this right. The immediate action required by State parties to the ICESCR arises out of article 2(2) of the ICESCR which stipulates that States parties “undertake to take steps … by all appropriate means, including particularly the adoption of legislative measures”. In its General Comment No 3, the Committee on Economic, Social and Cultural Rights has interpreted this phrase to mean that State parties are obliged to immediately begin to adopt measures towards the full enjoyment by everyone of the right to housing. While the full realization of the right to housing might be achieved progressively, steps toward the goal must be taken within a reasonably short time after the Covenant is ratified by the State. The means by which this must be accomplished include - but are by no means limited to - the adoption of legislation. The Covenant also recognizes that some aspects of the right to housing may not be capable of immediate realization. In turn, according to the Covenant, States are obliged to undertake to achieve progressively the full realization of the rights contained in the ICESCR. The use of the term “progressive realization” is a recognition that full realization of all economic, social and cultural rights, including the right to housing, will generally not be able to be achieved in a short period of time. This does not mean, however, that States can indefinitely defer efforts to ensure the enjoyment of the rights in the Covenant.

Myth: Housing rights are only necessary in developing countries. There is a tendency to discuss view housing rights as an issue solely affected developing countries where housing rights are denied to often massive portions of society.

Reality: Every nation in the world faces at least some housing rights challenges, including the countries making up the European Union, the United States, Canada and Australia. For example, in its 1998 review of Canada, the Committee on Economic, Social and Cultural Rights stated that they were “gravely concerned that such a wealthy country as Canada has allowed the problem of homelessness and inadequate housing to grow to such proportions that the mayors of Canada’s ten largest cities have now declared homelessness a national disaster”. While it may be true that the housing conditions in affluent countries are relatively better than in non-affluent countries, this is an inappropriate comparison. The proper comparison is intra-State. That is, how do the housing conditions of disadvantaged groups compare with those of more advantaged groups in a particular society? Both developed and developing countries share a number of housing problems including rapidly growing homelessness, domestic violence, discrimination in the housing sector, particularly against the poor, illegal evictions, harassment of tenants and an increased reliance on market mechanisms to fulfil housing needs without a corresponding alteration of State policy to provide access to accommodation for those unable to access private housing.

Myth: Squatters are criminals. Throughout the world squatters (those who live on property to which they do not have legal title) are often treated as criminals, social deviants and lazy. In some instances, they are perceived as greedy free-loaders who want to get something (land, property) for nothing. In many countries squatters are arrested, physically abused, beaten, and sometimes even shot. Rarely are squatters provided with what they really need: security of tenure, housing, and to be treated with dignity and respect.

Reality: Treating squatters as criminals turns a blind eye to the economic and social circumstances that make squatting necessary. Think of it this way, without the buildings or lands they occupy, squatters would be homeless. While there are certainly exceptions, the overwhelming majority of the world’s hundreds of millions of people living in informal settlements (e.g., ’squatters’) want nothing more than to live in a safe and secure home which they can afford. The world’s homeless and inadequately housed population does not squat to break laws or get a free-ride, rather they are simply creating housing solutions when the legal housing sector fails to provide housing to all persons from all income groups. Squatting is an expression of desperation, but also of hope. If they had the means, most squatters would choose to live in adequate housing with secure tenure - just like everyone else. - COHRE

Defining Housing Rights

While the majority of the world’s population lives in some form of dwelling, roughly one-half of the world’s population does not enjoy the full spectrum of entitlements necessary for housing to be considered adequate. According to international human rights law, in order for housing to be adequate it must provide more than just four walls and a roof over one’s head; it must, at a minimum, include the following elements:

Security of Tenure. Security of tenure is the cornerstone of the right to adequate housing. Secure tenure protects people against arbitrary forced eviction, harassment and other threats. Most informal settlements and communities lack legal security of tenure. Hundreds of millions of people do not currently live in homes with adequate secure tenure protection. Security of tenure is a key issue for all dwellers, particularly women. This is particularly so for women experiencing domestic violence who may have to flee their homes to save their lives and for women who do not have title to their homes or lands and thus can be easily removed, especially upon marriage dissolution or death of a spouse.

Availability of Services, Materials, Facilities and Infrastructure. Adequate housing requires access to potable drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, food storage, refuse disposal, site drainage and emergency services. When one or more of these attributes of adequate housing are not available, the right to adequate housing is not fully in place.

Affordability. The housing affordability principle stipulates simply that the amount a person or family pays for their housing must not be so high that it threatens or compromises the attainment and satisfaction of other basic needs. Affordability is an acute problem throughout the world and a major reason why so many people cannot access affordable formal housing, and are forced as a result to live in informal settlements. The lack of affordable housing is also a major problem in affluent countries where individuals and families living in poverty find it increasingly difficult to find affordable adequate housing. In many developed countries, when rental housing is unaffordable, tenants’ security of tenure is threatened as they can often be legally evicted for non-payment of rent.

Habitability. For housing to be considered adequate, it must be habitable. Inhabitants must be ensured adequate space and protection against the cold, damp, heat, rain, wind or other threats to health or structural hazards.

Accessibility. Housing must be accessible to everyone. Disadvantaged groups such as the elderly, the physically and mentally disabled, HIV-positive individuals, victims of natural disasters, children and other groups should be ensured some degree of priority consideration in housing. Both housing law and policy must ensure their housing needs are met. In many parts of the world, laws and policies do little to address the housing needs of the most disadvantaged but instead focus on already advantaged social groups. Additionally, in rental and housing markets, discrimination against disadvantaged groups is common and poses a significant barrier to housing access.

Location. For housing to be adequate it must be situated so as to allow access to employment options, health care services, schools, childcare centres and other social facilities. It must not be located in polluted areas. When communities are evicted to forced eviction section from their homes they are often relocated to remote locations lacking facilities or in polluted areas, near garbage dumps or other sources of pollution.

Culturally Adequate. The right to adequate housing includes a right to reside in housing that is considered culturally adequate. This means that housing programmes and policies must take fully into account the cultural attributes of housing which allow for the expression of cultural identity and recognise the cultural diversity of the world’s population. - COHRE

Women & Housing Rights

COHRE believes that the promotion and protection of women’s right to housing is essential to women’s well-being and will only become increasingly important this century. As the primary users of housing, women often have the most at stake when possible eviction looms, and women also have very particular housing requirements. Beyond basic shelter needs, for many women housing is a place of employment and social interaction, and a place to care for children. The many ways housing rights can protect women’s rights are included in COHRE’s Sources 5 Women and Housing Rights, available in our library section.

Despite the obvious importance and significance of housing rights to the overall enjoyment of women’s rights, women often face discrimination in many aspects of housing. This can occur in terms of policy development, control over household resources, rights of inheritance and ownership, community organizing or even the construction of housing.

It is difficult to provide a global overview of the key housing rights challenges facing women, for many of these issues vary depending on the region or country. While recognizing the multiplicity of issues confronting women, the overriding feature of women’s relationship to housing is women’s lack of security of tenure. There are a number of ways in which security of tenure can be denied to women including gender-biased law, customary laws, tradition and dominant social attitudes, domestic violence and financial barriers. Each of these can threaten women’s security of tenure by preventing women from owning, inheriting, leasing, renting or remaining in housing and on land so that at any time a woman can be forced to leave her home and vacate her lands. Security of tenure - or lack thereof - is particularly relevant to women, as household economic security often rests on women’s shoulders. Despite the need for security of tenure, women’s overall social and economic disadvantage and inequality and the frequent exclusion of women from many vital aspects of the housing process has left women across the world lacking security of tenure. In fact, in some parts of the world being a woman guarantees insecure tenure.

The United Nations human rights system has started to take notice of the importance of these issues to women by adopting a number of human rights resolutions designed to strengthen women’s housing rights. These are important tools in the struggle for women’s housing rights and should be used in conjunction with all of the other legal resources legal recourses subsection pertaining to housing rights found on this site. The key UN web links to resolutions pertaining to women’s housing rights are:

Commission on Human Rights, Resolution 2000/13, Women’s equal ownership of, access to and control over land and the equal rights to own property and to adequate housing

Sub-Commission on the Promotion and Protection of Human Rights, Resolution 1999/15, Women and the right to development (1999)

Sub-Commission on the Promotion and Protection of Human Rights, Women and the right to land, property, and adequate housing (1998)

Sub-Commission on the Promotion and Protection of Human Rights, Women and the right to adequate housing and to land and property (1997)

Commission on the Status of Women Resolution 42/1 Human rights and land rights discrimination (1998)

COHRE