Thursday, February 3, 2022

Book Review: Property in Housing by Gustav Muller & Sue-Marie Viljoen (Guest Blog)

Screen Shot 2022-02-03 at 10.24.33 AMToday we're delighted to welcome friend of the blog Mark Roark (Southern) who recently wrote a book review about Gustav Muller and Sue-Marie Viljoen's new title, Property in Housing (Juta 2021):

Can a House Divided Stand? A Thought Experiment in Housing and Property Rights

Book Review of Gustav Muller and Sue-Marie Viljoen, Property in Housing (Juta 2021) 

Reviewer: Marc L. Roark

The proverb is Gospel: “A house divided against itself cannot stand.” Jesus, Abraham Lincoln, even George Costanza has uttered these words to reflect the reality that things so tightly intertwined cannot exist at odds with one another. 

And thus, the South African Constitution (along with many other Constitutions around the world) present us with a conundrum.  If housing is a subset of property does a right to housing strengthen the law of property or challenge is normative force? Gustav Muller (University of Pretoria) and Sue-Mari Viljoen (University of the Western Cape) take on this central question in their comprehensive treatment of South African housing law, Property in Housing (JUTA Press 2021).  To wit, Muller and Viljoen’s book focuses on a central problem that housing faces around the world in western democracies: how can a right to housing co-exist where rights in property preempt their force?  In legal systems where property remains the default position for allocating rights to place (including rights to housing), Muller and Viljoen explore what room remains for housing norms absent direct legislative intervention.  The short answer by Muller and Viljoen – some.

What makes this problem so important is that South African courts have attempted to square these two rights by locating a right to housing within the right to property. What has emerged is a complicated framework where rights to housing are treated on their “property-ness” or their “non-propertyness” for determining how courts allocate claims by potential housing occupiers.  In answering that question, Muller and Viljoen have delivered what I believe is the most thorough treatment of housing through the lens of property rights available today.  Aligning housing rights objectives within the South African Constitution, they analyze whether courts pin accessibility, habitability, service provision, habitability, affordability, geographic location, or cultural adequacy as constitutional claims that can stand up to the challenges of private property law or as co-rivalrous claims that require a sorting of interests.  In particular, the theme of fragmentation emerges as a dominant concept in the constitutional application of these attributes of a housing right.  In many cases, Muller and Viljoen’s analysis of the right to housing is that its existence can often be found in the liminal spaces between where property law and housing law do not quite meet up, forcing jurists to account for human rights in housing as they sort out property claims by home occupiers, owners, and neighbors. 

Within this context, the South African background of Dutch/ British Imperialism and its lingering effects through apartheid remain present as background context for the way property law continues to reaffirm past harms.  The visible remnant of these policies remain on the landscape of South Africa as the country remains a place where informal settlements become the de facto resort when affordable housing isn’t available for people of color, and where established property holders can assert claims to space behind privatized communities.  These glimpses of property law on the ground through eviction actions and a body of South African property law lays open the landscape of what human rights to housing in conflict with property law faces up to. Muller and Viljoen provide the legal context needed to understand how property law can continue to memorialize unjust regimes many years after its formal end.

In short, I highly recommend this treatment of Housing and Property rights for anyone interested in understanding the role of property rights and housing in context.  The book’s thought experiment successfully finds some room for housing in the property context, while pointing to inadequacies of property to deliver some of the basic features we expect a constitutional right in housing to carry out.

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