Michel Vols

Best protection against eviction? A Comparative Analysis of Protection against Evictions in the European Convention on Human Rights and the South African Constitution

This study focuses on two legal instruments that grant robust protection against eviction: the European Convention on Human Rights ( ECHR ) and the South African Constitution ( SA Constitution). It compares the protection offered by these two instruments to ascertain which of these instruments offer the most comprehensive protection to unlawful occupiers. This is done so as to determine whether and to what extent these instruments should adopt the protections and approaches offered by the other. It is concluded that, although prima facie the instruments offer similar protection, the implementation of the protections under the SA Constitution offers greater protection. While this can be justified by the socio-economic realities in South Africa, some recommendations regarding the implementation of protections under the ECHR are made.

Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany

The European Court of Human Rights requires that any person at the risk of losing their home should be able to have the proportionality of the eviction determined by an independent tribunal in the light of the relevant principles under Article 8 echr. Consequently, member states of the Council of Europe are obliged to implement a minimum level of protection against the loss of the home. This paper analyses how the requirements are implemented in Dutch and German tenancy law with a focus on eviction cases concerning anti-social behaviour. With the help of a comparative analysis several methods of implementing the European requirements are identified. The Netherlands and Germany seem to comply technically with the requirements because of national built-in proportionality checks. However, it is questionable whether the European requirements really improve the position of tenants or whether they should be characterised primarily as a procedural hurdle that courts have to meet.

Anti-social behaviour and European protection against eviction

Purpose – The purpose of this paper is to assess the implementation of the minimum level of protection against the loss of the home that arises from Article 8 of the European Convention on Human Rights in The Netherlands. The paper focuses on anti-social behaviour-related cases in which the landlord requests the court to issue an eviction order. Design/methodology/approach – The paper is based on a statistical analysis of nearly 250 judgements concerning housing-related anti-social behaviour. Findings – A significant difference is found in the court’s attitude against drug-related anti-social behaviour and other types of nuisance. Moreover, it is found that in two-thirds of the cases, the tenant advanced a proportionality defence. Although the European Court stresses the need of a proportionality check, the Dutch courts ignore the tenant’s proportionality defence in 10 per cent of the cases and issue an eviction order in the majority of all cases. Advancing a proportionality defence does not result in any...

Balancing tenants’ rights while addressing neighbour nuisance in Switzerland, Germany and the Netherlands

Tenants that suffer from neighbour nuisance regularly turn to the owner of the property from which they rent: the landlord. If neighbour nuisance is addressed by landlords, they have to balance the rights of the nuisance tenant and the rights of the suffering neighbours. This paper analyses the way in which Swiss, German and Dutch law deal with the conflicting obligations in case of addressing neighbour nuisance. The following questions are addressed: 1) If tenants are victims of neighbour nuisance can the suffering tenants legally oblige their landlord to comply with his/her positive obligation that arise from the tenants’ rights and, consequently, tackle the nuisance? 2) If a tenant causes neighbour nuisance, could that behaviour eventually result in the eviction of the problem tenant? 3) In the case a landlord wishes to evict the nuisance tenant, which substantive and procedural legal requirements protect the tenants from the termination of the tenancy agreement and/or eviction?

Adjudication in tenancy deposit scheme disputes: Agents’ perspectives

Purpose – The purpose of this paper is to examine empirically the operation of tenancy deposit protection within England and Wales. The paper consciously focuses solely on the views and perspectives of letting agents operating in the various schemes. Design/methodology/approach – The paper is based on a series of semi-structured qualitative interviews with lettings agents in two distinct geographical urban areas, Birmingham and South Wales. Participants were selected for their market presence within a given area and the fact that they were all members of approved regulatory schemes. Findings – Overall, most agents were broadly happy with the process and considered adjudication to be an appropriate form of resolution for tenancy deposit disputes given the often small monetary value of the disputes and the large volume of cases. Concerns were raised, however, regarding the heavy bureaucratic burden placed on agents and on the perceived evidential burden on the landlord. There being a widely held view that a...