Thread by @MalcolmCombe

"Hullo" from Southampton, where your correspondent is currently attending the Association for Law, Property and Society conference #ALPS23. We began on Thursday with a trip to the New Forest (which is actually quite old), then returned to the uni for a nice reception.

Presentations started today, and yours truly was up first. I decided to push myself a bit and present on homelessness law. Scotland has a much vaunted system, but there are issues with it in practice notwithstanding the strong rights of applicants. #ALPS23

https://twitter.com/MarcLaneRoark/status/1656929944067244033

Sue-Mari Viljoen gave a talk entitled "Housing in Public", which gave an overview of a South African case where a municipality was stopped from selling land for money (that could then be deployed elsewhere by it) when the land could have been used for e.g. housing. #ALPS23

This was a fascinating talk, and turned in part on the South African constitution's commitment to land reform (redistribution) and housing provision (in terms of sections 25 and 26). The municipality had not made out this particular site was underused and needed sold. #ALPS23

Carin Tunåker presented on "Seen/unseen and Poverty/wealth Dichotomies: Tolerance, Shame and Stigma in Housing and Homelessness in Rural England", following her and her colleagues' survey of various stakeholders across the UK. Basically, read her important report. #ALPS23

To add from Carin's talk, a key takeaway was rural homelessness tends to be more "hidden" v urban rough sleeping, which may lead to less resource being pushed rurally. There was also discussion of who is homeless, comparing those from the area but priced out, and incomers #ALPS23

To explain the #ALPS23 structure, there are various parallel sessions and occasional plenaries. After my panel I went to the parallel session "From Individual to Cooperative Property Paradigms". I thought this might be community ownership-related, but not necessarily... #ALPS23

Nena van der Horst & Eva Vermeulen spoke about "Individualist Institutions" in the context of Dutch residential property, with consideration of recent expansion of private sector rent control and means to facilitate social sector, positing two new citizen models on Singer #ALPS23

The Dutch private rent controls are very much trying to drive down rent costs in places like Amsterdam, but rather than applying to all rented properties instead they only apply to those up to a certain benchmark (based on characteristics, e.g. 2 gardens, 5 bedrooms) #ALPS23 >

> Recent reforms in the Netherlands have caught mid-level rental properties too. From a Scottish perspective, this is interesting, as our current emergency measures apply to ALL rental properties, irrespective of how salubrious. #ALPS23

Also, I of course asked if there had been a human rights (ECHR A1P1) challenge to these measures. Not yet, apparently, but those implementing the new measures are apparently alive to the possibility. #ALPS23

Non-#ALPS23 aside (although it may also be of interest to ALPS colleagues), I wrote about the ECHR challenge to the current Scottish rent and eviction controls on my WordPress blog basedrones.wordpress.com/2023/05/11/jud…

I've let my #ALPS23 thread slide. I'll try to pick it up again. The 2nd speaker in that panel was Sally Zhu, on "Negotiating the Paradox between Private & Collaborative Property". She spoke on the sharing economy & how to make that work for owners/others (e.g. with risk transfer)

The 3rd speaker was by Elizabeth Elia, who spoke of her experience as a Tenant-Purchase Lawyer in DC in light of the application of TOPA (giving tenants in a building the right to buy it out when it's sold). Some tenants have managed to finance acquisitions, but... #ALPS23

...others have entered into arrangements with a purchaser to get either guaranteed low rental of a redeveloped building for life, or arranged to get a payout and then moved elsewhere. This might be transformational for them, but still gentrifies a neighbourhood. #ALPS23

There was then a lunchtime plenary on "Alternative Property". Alison Clarke started proceedings with a deliberately conventional intro, followed by great, varied panel of Amanda Byer, Estair Van Wagner, Frankie McCarthy, Luke McDonagh, and Paddy Ireland. #ALPS2023

Right, I'll finish my thread about the ALPS event tomorrow. Official proceedings have finished but we're in social mode now.

Okay, #ALPS23 is now safely over, and I'm safely on a train heading north. I also managed to catch up with my aunt as I was passing through London, which was a bonus. Anyway, I won't finish my conference thread today (leaving you on tenterhooks) but here's a few more tweets. >

The #ALPS23 plenary brought in ideas about the place of non-owners (and how we need a better word for those actors, whether human or non-human), and other ways of rethinking property, including a wee critique of Scotland's reforms for operating in a conventional system.

I then attended the panel "(Re)Possession & Property Law". It started with Jenny Russell on "Vulnerability, FCA Regulation and Mortgage Possession Law". This put UK regulatory rules in MCOBS, and Principles 6 & 12 to the fore. Fascinating for secured lending enforcement. #ALPS23

Second up in this #ALPS23 session were Caroline Hunter and Ed Kirton-Darling, on "Reforming the Law on Illegal Eviction and Harassment in England". Interesting contrast with Scotland, where police rather than local authorities pursue, but same issues with underuse of powers!

Next was Lisa Whitehouse, explaining her (and Cecily Crampin's) paper "Missing in Action? Mortgage Enforcement Under Section 126 of the Consumer Credit Act 1974". Shamefully I did not take a photo of this #ALPS23 presentation, but happily Irene did. >

https://twitter.com/Visser__Irene/status/1657024443040907269

Section 126 CCA 1974 is to the effect that "land mortgages" that fall within the statute's ambit should always come before a court, and since 2008 this basically means any secured lending. They note this provision is a tad overlooked, including in textbooks and teaching.> #ALPS23

The joy of open access means their paper - in Legal Studies - is already online. [For Scottish purposes, this provision applies both sides of the Anglo-Scottish border, although since 2010 reforms all resi enforcement should go before a sheriff.] #ALPS23 cambridge.org/core/journals/…

Here's Lisa describing the work in her own words, adding the important clarification that it relates to *possession* proceedings. I think it's okay for me to add that I know she's keen to hear from anyone who has any further insights on s 126. #ALPS23

https://twitter.com/LisaLawSoton/status/1656923497510084608

Finally in this session Lerato Ngwenyama considered the provision of alternative accommodation and an unlawful occupiers’ preference for that in light of the RSA case Grobler v. Phillips. Here an occupier had no right of habitatio to the original place, but... #ALPS23

...the owner of that site was able to offer another place to the unlawful occupier, albeit in a more urban area than she was used to. Lerato argued any burden should properly fall on the state rather than the private occupier in terms of accommodating any preference. #ALPS23

I'll finish this mega-thread tomorrow; this time I will, honest. We'll start with Professor Sue Bright's keynote (on the aftermath of the Grenfell disaster and leasehold/building safety reform in England & Wales), then move to the various day 2 panels.

Further #ALPS23 tweets then, starting with the words of the keynote speaker (and a delegate who - quite rightly - noted it was a fantastic presentation.

https://twitter.com/suejbright/status/1657454086919430144

Sue has worked hard on post-Grenfell regulation. She began her talk with an explanation of how the disaster happened, examples of how aftermath is affecting buildings now (where residents can't live there owing to safety), or mitigations (e.g. expensive "waking watches"). #ALPS23

She spoke about how Grenfell was - amongst many other things - a property moment (i.e. a shock to the system like climate change or a natural disaster), and considered the resilience of property law (making reference to the work of Feinman). #ALPS23

Most of these shared living [condominum- or tenement-type] buildings in England and Wales are held on a leasehold basis, with freeholders having the reversion right and leaseholders having a [time-limited] legal estate, paying an ongoing service charge to the freeholder. #ALPS23

Also, the freeholders in most of these situations were not actually obliged to meet the costs of remediation works to remove dangerous cladding (of the type that made Grenfell so deadly). Hence many passed down - crippling - service charge costs to leaseholders. #ALPS23

Sue though drew attention to an irony that, for all its flaws, the fact English law had so many buildings like this with freeholder and leaseholders did at least provide the government the chance to hook the freeholder with costs under the new Building Safety Act 2022. #ALPS23

That being said, this legislation is still bedding in and there are some quirky exceptions, meaning there may be some niggles remaining. I'll give the final word on Sue's great #ALPS23 keynote to another attendee.

https://twitter.com/Siurtain/status/1657055294059343872

That was the end of day 1 of substantive proceedings (although there was a nice reception at the John Hansard Gallery, for both the conference and to launch a new property law centre at the uni). We then somehow managed to squeeze over twenty academics into a Chinese restaurant.

Day 2 began for me with a further "Alternative Property" panel. My main reason for attending was to hear Sarah Nield's presentation, "Right to Roam, Wild Camping or Whatever…". This explored the recent Dartmoor UK Supreme Court case on the (lack of) right to wild camp. #ALPS23

This involved chat about relevant laws which might have afforded recreational access (LPA 1925 for commons, CROW 2000, a Dartmoor specific statute), but none did. This left the landowner as what Katz might call the agenda setter. #ALPS23

There was some cracking discussion afterwards, including on interaction of access takers (at which point modesty did not prevent me flagging my 2014 Juridical Review article "Get Off That Land...", about non-owner regulation of land use). #ALPS23

Someone from the floor - I think it was Charlotte Woodhead from Warwick - then made a great point about responsible access, namely it is not so much what you do, rather it's more about what you leave behind. On that, she mentioned cyclists, metal detectorists, and dogs. #ALPS23

Martin is quite right, I've upgraded the court here for absolutely no sensible reason. Definitely not UKSC. I knew this, but I'm off to stand in the corner in penance.

https://twitter.com/martingeorge/status/1658070072039022592

Good to have confirmation of the appeal to the Court of Appeal though. That will be juicy. Here is the first-instance judgment. judiciary.uk/judgments/darw…

Next in this #ALPS23 panel was Luke McDonagh, on “ownership” of Irish traditional dance music (i.e. heritage or property). I hadn't come for this paper, I confess, but I really enjoyed it. Chat ranged from the provenance of reels (🏴󠁧󠁢󠁳󠁣󠁴󠁿) to Blurred Lines to Ed Sheeran's court cases.

I can't decide whether I enjoyed this paper more as a piper or as a fan of many things Scots Gaelic and Irish. There was also chat about who might own something "traditional" if it was the next best thing, leading me to mention the whole sea shanty and Wellerman thing. #ALPS23

That panel then concluded, only to be followed by this amazing moment, when Malcolm met Martin. [I hope this is suitable acknowledgement, @martingeorge.]

https://twitter.com/martingeorge/status/1657871600509657095

I've made a mess of my own #ALPS23 order here, in that I've recalled I took a photo of Sarah in front of her slideshow. (Luke spoke without slides.) Some of the points in the column on the right on how to share and regulate chime with Scottish experience. As I say, a great panel.

Looking back on my notes, I've just recalled another great comment made (I think by Alison Clarke) in this session: property is culturally specific, but it's not static. #ALPS

The next panel was "Property and Political Change". This began with Mark Jordan, on how constitutional change was affecting the property paradigm in the UK. He highlighted just how organised and effective tenant unions were in Scotland as compared to the rest of the UK. #ALPS23

Next came the presentation with hands down the best slides of #ALPS23; well, if you like your memes. Who knew land reform in Chile could lead to such banter? Also, who knew some of these slides might be applicable in Scotland? Thanks for the lols, Eduardo Villavicencio-Pinto. >

Eduardo's paper was entitled, "The Persistence of Memory. Evidence for a New Narrative on the Problem of Rural Property in Chile". Concentration of land ownership is apparently an issue there. Also of interest is its recent constitutional reform of its property clause. #ALPS23

Next was Ting Xu, on "Propertisation in Post-Mao China: A Scaled Analysis of State Governance and the Resilience of Property". I've worked with Ting on communal property stuff in the past but I'm definitely not up to speed on this. She highlights LURs of 40, 50 or 70 yrs. #alps23

LUR = Land Use Rights, with a 70 year interest being possible for residential urban land. Anyway, Ting had lots of great slides, including one where she explained different nuances of state or collective ownership in China. Here's another slide. #ALPS23

https://twitter.com/JessicaOwley/status/1657341769904951296

Lastly a bonus paper on land value capture and how to do it, by Rachelle Alterman. This considered ways to account for land betterment, with consideration of places that have rules for this (like Poland), before highlighting methods to do it (often dependent on the place) #ALPS23

Then came the next panel, and Marc Roark on Low-Income Housing Tax Credit Covenants. Marc had hoped to consider community development & resilience gaps between neighbourhoods, but he hit data gathering issues. Much of his talk was (cathartically?) explaining this. #ALPS23

> Marc explained that there were apparent issues of under-declaration by owners of how long a property was to be committed to affordable renting (this being something that LIHTC Covenants entail). Looking into this might be a different or even a new project. #ALPS23

Brandon Weiss considered "The Case for National Rent Stabilization & Tenant Protection". In his engaging talk he detailed a trend away from "mom & pop" landlords and instead towards corporate landlord entities (including for mid-sized units); a marked change since 2011. #ALPS23

Turning to rent, he made reference to the catchy line of Walter Williams: "Short of aerial saturation bombing rent control might be one of the most effective means of destroying a city." He then quickly offered Duncan Kennedy's critical response to that argument. #ALPS23 >

He also noted not having rent controls can be characterised as not neutral: it allows for continuation of the status quo. Reference was also made to work by Michael Lens. Mind you, he noted ~30 US states have pre-empted the matter, so rent controls can't be introduced. #ALPS23

Emma Laurie's paper was called "Regulating Rents in English Private Rental Housing: Thinking the Unthinkable". She began with a recent Gov. acknowledgement that the PRS provides "the most expensive, least secure and lowest quality housing", so surely ripe for action? > #ALPS23

Apparently not. This really was thinking the unthinkable as it's highly unlikely to be brought in, despite illogicalities of current system (whereby in not funding unaffordable PRS with central social security, homelessness costs transferred to local authorities). #ALPS23

At various points in this panel I felt like some kind of alien presence: eg in Brandon's talk he made reference to being unable to find out who your corporate landlord even is, so I told him of Scots landlord regulation scheme (not something he envisages happening in US). #ALPS23

Mind you, for Emma's talk, rent controls were probably unthinkable for Scotland not so long ago too (and see my earlier tweets about Mark's session on tenant organisation in Scotland), plus we have that ongoing legal challenge to temporary rent regulation. #ALPS23

One final session to tell you about, namely the "From Securities to Servitudes: Problems for Property in the Modern World", which was moderated by one Malcolm Combe.
This (admittedly not onerous) role may affect the quality/quantity of my tweets from this. #ALPS23

First, Paula Drabant refreshingly took us all back to personal/mov[e]able* property, with her talk "The Recognition of Proprietary Security Rights in Movables within
the Cross-Border Movement of the European Union". #ALPS23

*Moveable has two es for us Scots.

Paula considered where a court in one EU jurisdiction is faced with a security claim based on a right constituted in another which has more lenient rules (e.g. no possession/registration), including reference to an Austrian case, then possible reforms (harmonisation?). #ALPS23

Next was Kate de Contreras, on her study into the tribunal jurisdiction to modify or discharge covenants restricting development in England and Wales (n.b. not easements). She's number crunched the cases and I'm looking forward to her analysis being published. #ALPS23

Finally (yes, the final talk!), Joshu Majima returned to the debate around positive covenants in English land law, considering both the 2011 Law Commission report and a relatively forgotten paper from the 60s. It's fair to say reform has stalled so good to see this work. #ALPS23

Okay, that's your Combe's eye view of my #ALPS23. There was soooooo much on though and I missed many great sessions when I narrowly favoured one panel over another, when I was talking myself, or when I was moderating. Hopefully it gives a decent flavour though.

Speaking of flavour, the all important Chinese restaurant revelation was the turnip mousse. Amazing. I'm not sure if my fellow dim sum delegates were ready for it, or indeed my reaction to it. (Yes, great to meet you too, Irene!)

https://twitter.com/Visser__Irene/status/1658156826293051392

I'm pretty sure I've covered all I needed to cover in this #ALPS23 thread. I hope it's been of interest and, if not, I hope you learned how to mute "@MalcolmCombe" and "#ALPS23" either electronically or psychologically before it got too overbearing. Anyway, some final remarks: >

Thanks to the team at Southampton, and thanks also to all on the various #ALPS23 committees. I tried to thank those I saw in person, but a special shout out as well to Jess who was unable to make it. I hope my thread provided something of a fix!

https://twitter.com/ShoemakerJess/status/1658146291753398272

All those involved with the field trip deserve a mention too. I failed to take any photos, but here are some from Dean (who was also instrumental organising proceedings at Southampton).

https://twitter.com/D_ATaylor/status/1656680099586899968

And my last planned #ALPS23 tweet is this, being a quick snap of Professor Sue Bright's keynote that I forgot to include earlier. This should serve as a suitable bookend though!

Actually, maybe this is the photo that should be the conclusion, namely Marc and I rocking the bus trip look. And with that, I will (I think) once and for all draw this mega thread to a close. #ALPS23

https://twitter.com/MarcLaneRoark/status/1656644957636050944

@threadreaderapp unroll, please. Tapadh leibh!