Tenancy Law Research Articles

The decommodifying capacity of tenancy law: comparative analysis of tenants’ and landlords’ rights in Austria, Germany, and Switzerland

Tenants all over the globe face the challenges of increasing rents and even forced evictions, particularly in the private urban rental sector. Affordable housing shortage and displacement have become severe societal problems for the lower- and middle-income segments. Certain legal institutions, including tenancy law, provide a decommodifying capacity for more tenure security and stability. This paper studies this capacity of tenancy law by comparatively examining the tenants’ and landlords’ rights in Austria, Germany, and Switzerland through the lens of decommodification. The focus is (1) on the rules of access to housing for new residents entering the housing market and (2) the rules of exit that govern the ability of the occupants to continue living in their apartments. Findings show that while tenants’ rights in Switzerland are weakly protected by law, tenants in Austria and Germany receive robust protection. Austrian and German tenants cannot be evicted at short notice, nor are landlords allowed to dismiss them unless they declare legitimate self-usage. Also, tenants remain protected from arbitrary rent increases in case of rental upgrading. Conclusions help practitioners to consider tenancy law as an influential way to counteract the market-driven dynamics in housing and to enhance the protective capacity within renting property.

Examining BA v The King: Can a ‘home’ provide security from domestic violence?

This article examines the High Court decision in BA v The King, which involved the relationship between tenancy law and the criminal offence of burglary. It argues that the Court should have given greater weight to the safety of victims of domestic violence, rather than privileging the rights of the accused under tenancy law.

Overcoming the “tenant-owner dilemma” to foster energy efficiency in residential private rented housing

Purpose The Recast Energy Efficiency Directive 2023 has defined the concept of “split incentive,” also known as “tenant-owner dilemma.” This dilemma refers to the situation where neither landlords nor tenants have incentives to invest in energy efficiency upgrades. Although the Energy Efficiency Directive calls Member States to overcome legal barriers to remove split incentives and to encourage retrofits, the list of possible measures is too vague. This paper aims to discuss tenancy law measures designed to increase the energy efficiency of residential housing and to detect which Member States have already addressed this phenomenon. Design/methodology/approach This paper analyses, from a civil legal perspective, the possible private law barriers arising from the tenant-owner dilemma when performing energy efficiency works in selected countries and proposes legal reforms in tenancy law and related policies to overcome them. To do so, this paper follows a legal-dogmatic and comparative law methodology. Findings This paper concludes that some tenancy law provisions, such as the possibility to increase the rent after energy efficiency renovations and long-term leases, may challenge the tenant-owner dilemma in private rented markets, thus promoting renovations and retrofitting for energy efficiency purposes. It also proposes other policies intended to increase parties’ willingness to undertake works. Research limitations/implications More research on the economic and legal efficiency to regulate some of the civil law measures to challenge the tenant-owner dilemma should be necessary. Practical implications The civil law measures included in this paper may help national policymakers meet the energy efficiency targets, according to what is established in the Recast Energy Efficiency Directive 2023. Originality/value Based on the economic theory of the tenant-owner dilemma, this paper investigates the elements of tenancy law that may contribute to less energy-efficient homes, proposing policies for those countries interested in addressing the energy-efficiency challenge from a private law point of view.

Digital Agriculture: The Future of Indian Agriculture

Agriculture continues to be the dominant economic sector in India in terms of providing a living. Of the population, 58.2% are employed by it. The success of the agriculture sector determines the nation's social change and economic expansion. Although the amount produced by agriculture per person has been steadily increasing recently, the sector's GDP contribution has been declining. The main issue facing the so-called agrarian Indian economy is the slowdown in agricultural growth. Numerous factors contribute to the slowdown, including inadequate public funding for R&D and irrigation, ineffective input delivery, fragmented land, antiquated tenancy laws, a lack of contemporary market and rural infrastructure, unsuitable input pricing policies, and so on. Agriculture has embraced technology as a solution to all of these issues. Information and communication technology (ICT) and agriculture are coming together to create a new growth engine that makes all production, distribution, and consuming processes more efficient. The evolution of Indian agriculture and the concept of digital technology are the main topics of this paper.

Intersections between Precarious Housing and Residential Tenancy Law: A Review of A Complex Exile and Recent Legal Scholarship on Residential Tenancies

Intersections between Precarious Housing and Residential Tenancy Law: A Review of A Complex Exile and Recent Legal Scholarship on Residential Tenancies

Distinguishing German Residential and Commercial Tenancy Law: Are Tenant and Landlord in an Equal Position?

The German housing market, particularly in major cities, is very tight. This situation makes Tenancy Law the issue that has attracted the most attention in local and federal elections. This article presents and illustrates various methods of protecting the individual parties to a lease contract. Besides, it highlights the differences between Residential Tenancy Law and Commercial Tenancy Law and explains why legislation distinguishes between these two types of tenancies. This research establishes arguments and interpretations from relevant laws and regulations, including the German Civil Code and German General Equal Treatment Act, and judicial decisions that clarified the legal relations between tenants and landlords. This article concludes that Tenancy Law in Germany distinguishes in different ways between Residential Tenancy Law and Commercial Tenancy Law from legal, social, and economic perspectives. It also infers that the provisions stipulated in German Tenancy Law protect the tenant's right while remaining attractive for landlords to offer the house(s) for rent.

Covid-19 and Long-Term Contracts

This article takes stock of legal responses to temporary performance impediments in long-term contracts due to the Covid-19 crisis. Are there mechanisms in contract law that can adequately address the disruption caused by the pandemic and by government measures to contain it? And are contract law doctrines able to provide solutions with a long-term view? The article analyses tenants’ protection in commercial and residential lease contracts in England and the Netherlands. The analysis confirms that English contract law provides only a narrow scope for relief based on frustration. Dutch contract law offers broader possibilities for rent discounts on the basis of unforeseen circumstances, good faith and the defects regime in tenancy law. Overall, both systems struggle with two problems: the valuation of rent discounts in times of crisis, and the financial protection of vulnerable parties when payment obligations are revived after the crisis. Long-term changes to contract law should include adjustments of the default rules for long-term contracts to address these issues, linked to a principle of social force majeure.

Social Housing, Homelessness and Human Rights

Social housing is reserved for the most vulnerable tenants, yet social housing tenants are subject to the same residential tenancy laws as private tenants and may even be held to a higher standard of behaviour. As a result, social housing tenants are at high risk of eviction. This article reports on the results of a mixed methods study on eviction proceedings involving social housing tenants. The study involved textual analysis of 98 published judgments and focus group research with 43 tenants’ advocates. It was found that the very factors that make someone eligible for social housing in Australia simultaneously put them at risk of eviction. This research suggests that the law provides limited protection against eviction to homelessness. Despite the importance of individuals’ interests in having a home, rights-based arguments are generally ineffective in this context.

‘The way to end housing problems’: tenant protest in New Zealand in the 1970s

ABSTRACT Private renters in New Zealand during the 1970s paid high rents relative to their incomes and endured poor quality and insecure housing. Protest groups formed across the country in order to protect and promote tenant interests; a rare occurrence in New Zealand’s history. The groups supported tenants through direct action and legal advice and lobbied for policy change. This paper draws on the archives of tenant groups to investigate why these groups arose at this time, what they achieved, and what challenges they experienced. The groups assisted many tenants, contributed to clarifying tenancy law, and, in some cases, evolved into service providers. However, they were challenged by the systemic policy bias toward homeownership and ultimately failed to create a more equitable housing system.

Zur Entwicklung des Zivilrechts in Österreich 1918−1938

The article provides an overview of the development of Austrian civil law in the interwar period. Although the General Civil Code was only slightly amended five times during this period, some provisions were further developed by both legal scholarship and court decisions. This tendency is particularly evident in economic matters. In addition, urgent issues were dealt with by means of special legislation, such as tenancy law. In some areas – such as marriage law – the reform failed completely. In view of the initially similar legal situation in the successor states of Austria‐Hungary, parallel reform efforts and comparative legal justifications of the respective solutions can be observed.

Tenancy Laws in Berlin

Berlin is facing large increases in rent levels over the last decades. To overcome pressure on the market, the Senate of the city has repeatedly introduced rent controls. While the German Constitutional Court has found the latest rent-controlling legislation, the Price Ceiling Act of 2020 to be violating German constitutional law and hence invalid and void, there is strong economic evidence for why rent controls do more harm than good and after all even lead to a decrease in housing provided. To provide for affordable housing, the City of Berlin needs to pursue other measures that stipulate the construction of new housing: the increase and acceleration of the granting of building permits, release of shallow land and actively engage in municipal construction.

Exploring Older Tenants’ Healthy Ageing in Privately Rented Homes

ABSTRACT An increasing focus in aged care policy is supporting older people to age at home. However, there is little recognition of the health and independence of older private renters living in a space they do not own or control. This paper draws on in-depth interviews and assessments undertaken in the homes of 27 older tenants in the Brisbane environs aiming to understand how renting privately influenced their ability to meet their basic needs. An analysis of the findings highlights the disadvantage experienced by many older private renters. Most older private renters were unable to meet their basic needs given unaffordable rent whilst reliant on the aged pension. Further, with limited access to community aged care including home modifications, the health and independence of older private renters was found to be at risk. IMPLICATIONS Community aged care is difficult for older private renters to utilise in Australia, with unaffordable services and tenancy law limiting access to community aged care services including home modifications. It is vital social workers advocate for the community aged care needs of older private renters in practice and policy settings.

MAKING PROPERTY OUTLAWS: Law and Relegation

AbstractDrawing from community‐based research in the Downtown Eastside, the poorest part of Vancouver, Canada, a neighbourhood long demonized as an ‘outlaw zone’, we suggest that what may appear to be illegal property practices in the area's infamous Single Room Occupancy (SRO) hotels are, in fact, harder to detach from formal legality than supposed. We characterize the state's withdrawal of tenancy law from SRO in the 1970s as productive of property outlaws. A form of legal relegation, outlawry places SRO residents in a space of lesser protection, stripping them of rights. A space of decades of systematic legal relegation, the outlaw zone is a product of law, not its antithesis, predicated on organized forms of devaluation and discrimination.

Forced evictions and their social and health impacts in Southern Somalia: a qualitative study in Mogadishu Internally Displaced Persons (IDP) camps

ABSTRACT Background Forced evictions are common in conflict-affected settings. More than 500 internally displaced persons (IDPs) are evicted daily in Mogadishu. Context specific research is necessary to inform responsive humanitarian interventions and to monitor the effective- ness of these interventions on IDPs health. Objective This study explored the causes of forced evictions and their health impacts among IDPs in southern Somalia. Methods We used a qualitative approach, conducting 20 semi-structured interviews, six key informant interviews and four focus group discussions. We used maximum variation sampling to include a wide range of participants and used the framework approach and Nvivo software to analyse the data. Results In this context, landlords often rented land without proper tenure agreements, resulting in risk of forced evictions. Informal tenure agreements led to fluctuations in rent, and IDPs were evicted because tenancy laws were inadequate and failed to protect their rights. IDP settlements often increased the value of land by clearing scrub, and landlords often sought to profit from this by evicting IDPs at short notice if a buyer was found for the land. The effect of eviction on an already marginalised population was wide ranging, increasing their exposure to violence, loss of assets, sexual assault, disruption of livelihoods, loss of social networks, and family separation. Evicted IDPs reported health issues such as diarrhoea, malaria, pneumonia, measles and skin infections, as well as stress, anxiety, psychological distress and trauma. Conclusion Forced evictions remain one of the biggest challenges for IDPs as they exacerbate existing vulnerabilities. Prioritizing implementation of legal protection for IDP tenure rights is necessary to prevent unlawful evictions of IDPs. Humanitarian agencies should aim to respond more effectively to protect evictees and provide support to prevent poor health outcomes. Further quantitative research is needed to examine the relationship between forced evictions and health outcomes.

Key Decisions of the CJEU and the GC for Austria in 2020

The Court of Justice of the European Union (CJEU) decided more than 1.500 legal cases in 2020. 32 cases had a direct link to Austria. The article analyses the most important decisions with Austrian participation and their impact on the national legal system. In addition, it focuses on further landmark judgments with a particular relevance for Austrian law. The most important decisions concern issues in the area of civil respectively civil procedural law, environmental and data protection law as well as social tenancy law for the first time.

Land Law in Chinese History

Although land law or “real property law” is but one of several branches of what scholars commonly call “economic law,” or laws that regulate everyday economic activity, its history has drawn, over the past several decades, an unusually large amount of attention from legal theorists, economists, and comparative scholars of all methodological orientations. This has been especially true within the field of Chinese legal history: few scholars outside the field have any clear sense of pre-modern, early modern, or even modern Chinese family law, the law of personal injury, or even criminal law, but a much larger number will likely have some impression of historical Chinese land law, and may even have an educated opinion about it. This is not because land law was any more important to everyday socioeconomic life than those other bodies of law, but rather because land law has played a much larger role in theoretical and comparative scholarship, particularly in scholarship that seeks to explain global economic divergence—specifically, the divergence between China and the West in the 18th and 19th Centuries. Although this literature has perpetrated its share of myths about Chinese property institutions, much progress has been made over the past few decades, to the point where something approaching an academic consensus on core institutional features has emerged. This chapter outlines these core features of Chinese land law, focusing primarily on the late imperial era, and provides a short summary of how the field arrived at them. Whereas it was once thought that Chinese property rights were comparatively less secure or less alienable than Western European property rights, it now seems unlikely that major differences existed at this general level. They did exist, however, in the finer institutional details of tenancy law and collateralization instruments, and potentially in inheritance law as well. In these latter features, Chinese land law tended to produce institutional incentives that leveled and fractured the pattern of rural landholding, thereby reinforcing the economic dominance of household-level production throughout the late imperial era, and well into the 20th Century. The chapter then discusses relatively recent trends in the academic literature, reaching back to 1970s and 1980s, when the study of Chinese land law became deeply intertwined with debates over economic divergence. It concludes by briefly pondering the costs and benefits of such intertwinement, and what it means to study “the history of Chinese land law” as a consolidated subject.

Understanding the essential principles of landlord and tenant laws in Nigeria through judicial decisions

Tenancy relationships in Nigeria are largely regulated by statutes. Most of the provisions of these statutes to lawyers and other stakeholders are susceptible to inconsistent interpretations. In recent times, the courts in Nigeria have taken steps to look beyond the law books and give flesh to areas in tenancy matters where there seem to be inadequacies in the provisions of the laws. In doing this, the courts have come up with some legal principles that the relevant statutes do not explicitly provide for, but arguably flow from the provisions of such statutes – a good example being the principle that a tenant who contests ownership with the landlord loses right to statutory notice to quit. Terms such as ‘landlord’ and ‘tenant’ are not as simple as they appear, especially considering the statutory definitions given to them by some of the tenancy statutes in Nigeria – particular attention is given in this regard to Tenancy Law of Lagos State 2011. This paper considers the intricacies of the definition of and relationship between the landlord and the tenant as provided in statutes and as interpreted by overtime by courts in Nigeria. The paper analyses the nature of the relationship between the landlord and the tenant as may be conceived and disambiguates the scope of law of a landlord and tenant relationship in Nigeria.

Land Tenancy in India: Need for Reforms and Safeguards

The present era of economic liberalization, has placed small and marginal farmers at a disadvantage when it comes to participating in domestic and foreign markets. Therefore it has been argued that liberalization of tenancy would not only increase the availability of land in the lease market but would also increase the poor people's access to land. Question is whether liberalization of tenancy would lead to the improvement in the condition of poor tenants or whether it would bring back the era of absentee landlordism. In India most of the tenancies being oral and informal, it is very difficult to make an accurate estimate of the incidence of tenancy. Even after passing of tenancy laws by various states, the position of tenants, particularly of share croppers, continues to be precarious in several parts of the country. In the circumstances it is contended that there is need to plug the loopholes in the existing tenancy laws and to better implement enacted laws, rather than liberalizing tenancy and the lease market. The author in this paper advocates that land tenancy should be liberalized ONLY with adequate safeguards to protect the interests of the farmers or it is better to stick to the existing system with minor changes in the law to recognize systems of share cropping and protect the share croppers by giving security of tenure and fixation of equitable share of the crop without conferring the title to land.

Tenancy Transition and the Effect of Liberalisation on Agricultural Land Leasing

This article studies tenancy transition in India during 2002–2012 and critically assesses the proposed Model Agricultural Land Leasing Act, 2016 in addressing the country’s current tenancy problems. The article is based on the National Sample Survey Organisation data of the 59th and 70th Rounds. Tenancy in India during the period studied has seen the increasing dominance of large-size farm holdings which have posed challenges to agriculture in India. The legalisation of leases, without disturbing the ownership rights of land owners, is essential for tenants and ensures them security, institutional credit and other governmental benefits. However, a complete liberalisation of the lease market without any legal stipulation on the duration, amount and registration of the lease, and the legal acceptability of lease documents to access institutional credit, crop insurance and other subsidised inputs may not provide a level playing field to the tenant farmer, especially when the lessor is rich and powerful. These concerns need to be addressed by the Model Act 2016 so as not to impinge on the goals of equity and efficiency enshrined in the Act. These concerns should also be addressed by all state governments as they frame tenancy laws in the future.

„Urbanes” Mietrecht? Der römische Wohnungsmarkt zwischen Preismechanismus und Intervention

Abstract 'Urban' tenancy law? The Roman rental market between price mechanism and intervention. Renting a flat in Roman times did not come cheap. The Roman jurists left the determination of the merces up to the parties to the locatio conductio and permitted them to circumvent each other in the course of the contract negotiations (se invicem circumscribere) – a rule that at first glance seems to privilege the landlord. In this paper, it is suggested that the system of sub-rent of insulae and the standardized Roman rental year, starting each year at the calends of July, contributed to a reduction in asymmetry of bargaining power between landlord and tenant. Only in exceptional cases there were external interventions in the price mechanism: In the perils of the civil war, Julius Caesar and Octavian issued laws remitting the annual rent below 500 sesterces for the inhabitants of Italy and below 2,000 sesterces for those of the city of Rome. In conclusion, these structures and rules show that in this regard, Roman tenancy law was specifically designed with a view to the inhabitants of the city of Rome and thus can be qualified as 'urban' law.