Innovative, New Public Policies that Work to Protect Homeowners

Map of Foreclosures in Baltimore, 2006-2007 (Source: NPR)

For low and middle-income Americans, the last few weeks have been gloomy, especially given that more states have jumped onto the anti-collective bargaining bandwagon initiated by Governor Scott Walker of Wisconsin, whose vision may preclude many from gaining access to affordable housing.  Amidst this climate, the foreclosure crisis continues to ravage communities, as thousands of vacant properties remain in Baltimore alone.

Here, however, we present two potentially innovative new policy proposals that have surfaced in recent weeks, both of which could indeed encourage access to affordable housing.  The first is the New York’s proposal to provide an attorney to each of the state’s 80,000 foreclosure victims.  While the right of a criminal defendant to retain a lawyer has remained an integral part of the American legal fabric for decades, The Empire State’s idea would (perhaps) mark the first time in history where defendants in civil matters can gain access to counsel, free of charge.

Interestingly, this idea didn’t originate from the state’s legislature; rather, New York’s Chief Judge, Jonathan Lippman, was behind the proposal.  To back up this idea, legally speaking, Judge Lippman cited the landmark 1963 Supreme Court decision, Gideon v. Wainwright, which held that states are obligated to provide counsel to all criminal defendants.  Lippman said that this was the right moment to extend this provision, reasoning that “today it is an equally obvious truth that people in civil cases dealing with the necessities of life can’t get a fair day in court without a lawyer.”

The proposal makes sense for a number of reasons.  For one, as the Times points out, because of the recent revelations that several of the country’s most prominent banks had used “improper” methods to accelerate the foreclosure process, the court have increasingly become a the pivotal battle field for the fight between victims and banks.  Access to counsel, even if it’s minimal, could make a tremendous difference for foreclosed families, as “simply responding to a foreclosure notice in court” could delay the process for months.  Furthermore, the idea would certainly enhance courtroom efficiency, as lawyers would be able to both advocate and settle on behalf of clients, making sure that cases move through the courts during this overburdened time.

The Times doesn’t mention the more far-reaching effects of this proposal.  By keeping families in their homes—potentially for years after the initial notice of foreclosure—they continue to pay their utilities bills, maintain their yards, make necessary fix-ups, and so forth.  This would increase property values throughout neighborhoods, delivering more wealth and spending power to nearby families, which would help strengthen the economy.  The idea, in this sense, serves to bolster the work of Max Rameau and Take Back the Land, the subject of our last post.  It would also facilitate Mayor Rawlings-Blake’s strategy “Code Enforcement” strategy to curtail blight, which was mentioned at the city’s recent Vacants to Values Summit.  (And by the way, it would also, I suppose, help alleviate the crumbling legal industry).

The idea is expensive: Judge Lippman has asked the legislature for (an additional) $100 million that could be distributed to legal aid groups and other non-profits, and in a political climate obsessed with savings, his request is no sure bet.  However, given the severe economic effects of letting vacant homes stand—something Baltimore, over the last several decades, has had to learn the hard way—that money should be perceived as an investment with the potential for enormous returns.

It should be noted that Maryland has already taken an important step in the right direction: Last Summer, Governor O’Malley signed the a promising foreclosure mediation bill, giving Maryland families the right to undergo mediation with lenders before they face eviction.  Hopefully, Maryland will follow in the footsteps of New York, by taking the additional measure of ensuring legal services.

Here at St. Ambrose, we take pride in the fact that we retain a skilled and dedicated group of legal services professionals, who have help countless Baltimore families stave off foreclosure and retain their homes.  I hope that other members of the judiciary, as well as legislators around the country, will follow Judge Lippman’s lead and adopt the notion that adequate housing is a “necessity of life,” and that indigent foreclosure victims deserve representation.

On Thursday, I will discuss the new mortgage modification demands sought by states attorneys general.

Common Myths about Housing Rights

Part four of a four part series on the developing housing rights movement

From the Centre on Housing Rights and Evictions:

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 and the UN Committee on the Elimination of All Forms of Racial Discrimination have directly considered housing rights issues in their case law or jurisprudence. COHRE’s publication Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies outlines a range of housing rights cases and litigation experiences and can be downloaded here.

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: The State must build housing free of charge
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. Rather, 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 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, and that a failure to do so will lead them to be classified as human rights violators.

Reality: Of course, it would be ideal if States could fulfil 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.

For more housing rights myths from COHRE, click here.

* * *

Unfortunately, we cannot cover all the myths about housing rights in one post. However, I just wanted to include one final myth or controversy not mentioned above. That controversy is the incompatibility of positive and negative liberty.  The right to housing and other social, economic, and cultural rights (often referred to as positive liberties), are often pitted against civil and political rights (often referred to as negative liberties).

Read more about this controversy here, and share your thoughts with us!

I. Housing as a Human Right: Introduction

II. Why Take a Rights-Based Approach to Housing Issues?

III. Housing as a Human Right: Possibilities for Legal Advocacy

IV. Common Myths about Housing Rights