Let’s redesign our (legal) relationship to home
Unpacking ownership, of its freedoms, rights and obligations, reveals the values of a society.
Everybody needs a home to live in.
At the moment our public & private sectors in the developed world are desperately failing to provide us with the means to create a home. But it is not just housing that we are failing at.
As Jeremy Till eloquently states in his lecture Architecture after Architecture the current modus operandi of the design of human settlements as we know them, simply cannot address the complexity of the issues we face today such as rising inequality in cities, climate breakdown, health deterioration and a housing crisis. This insight led me to instigating a research residency with Open Systems Lab to dig a little deeper and learn more about redesigning our land system based on their ongoing project ‘Affordable Land’.
So what is land tenure and why should we be talking about it? Land tenure, or ‘ownership’ is a legal term which describes ones relationship to a piece of land. i.e. the rights and obligations of use, one has to a place, which is upheld by the law.
When we refer to land, or property today, what we actually mean, is the ability to access a ‘stream’ of benefits and connections to education, well-paid jobs, culture, social diversity, social mobility, wellbeing, health etc but also practical essentials for living — shelter, access to food, electricity, roads, transport infrastructure etc, from a given set of resources.¹
Our legal relationship with the place that we live, defines the power we have in the world, and affects almost every aspect of our lives. It affects whether we have the right to put down roots in a place and become part of a community, it affects our ability to adapt a space to our needs to support our personal growth and wellbeing. It also affects our ability to make a living and earn money in the world through access to jobs, education, the ability to set up a business in the place that we live, or in the Covid-19 era, the ability to set up a home office.
Most of us are familiar with the distinct relationship between tenant and landlord, or landlord and tenant — a distinct, designed, social contract which defines certain rights of use, which is upheld by the law.
If we are the freeholder or home owner, we have more rights around adapting the space to our needs, subject to local planning regulations, but we are in the driving seat, compared to someone who is renting. More importantly, we have the right to put down roots in a place — we have security of tenure. Also if we are a freeholder, we have the right to extract rent from the property, so this could also create a stream of income for ourselves, based on extracting rent from other peoples labour. This is a very powerful right and must be used carefully to prevent widespread tenant oppression.
If we are in a rental, or house-sharing, we don’t legally have these rights. We may be able to make minor adjustments to adapt the space to our needs, subject to consent from the landlord, but we don’t get compensated for improvements to the property, and are very vulnerable to being uprooted, in legal terms this is known as a lack of security of tenure. If the landlord decides to sell the home, or if there is another reason why it would benefit the landlord for us to move out, we do not have the right to stay there.
Our prevailing legal contracts, freehold/leasehold vs private renting, are both imbalanced power relationships to the places that we live which dominate our society. Freehold, holds rights to benefit the individual, bearing little or no obligation to the wider social context. For example, as a freeholder there is no obligation to keep a property in use or maintained — this is why we see many vacant or derelict buildings from absentee owners.
On the other side of the coin, private renting, has an inadequate set of rights, which don’t provide for the fundamentals of a home, which are the ability to put down roots in a place, the ability to access work or a livelihood, and the ability to adapt the space to ones needs.
Legal Context of Ownership
So legally, how did we get here?
Common Law originated in the practices of the courts of the English kings in the centuries that followed the Norman Conquest in 1066 led by William the Conqueror, and was a key mechanism in the transformation of England from a collection of tribal chiefdoms to a centrally governed structure. This legal system was primarily designed to uphold the particular economic system of feudal land tenure, by maintaining social order.² The king granted a set of lords each their own territory, along with a legal contract, which gave them the right to extract rent from the farmers for living and farming on that land. The lords could define the amount of rent charged, and the peasants or serfs had no choice but to pay it. So the lords became ‘landlords’, and in return they provided the king with military aid. To become free from paying rent to the landlord one could buy their way out and become a ‘freeholder’, a much more powerful form of ownership.
To become free of the oppression of ones landlord, if you obtain enough wealth it is possible to buy your way out of this power dynamic by becoming a ‘freeholder’. The demand for this personal security and autonomy, coupled with the deregulation of mortgage credit in the 1980’s in the financial sector, has been a key driver in the trend in recent decades where the price of housing has vastly outstripped wages.
When you buy land, you buy a collection of distinct rights connected to it, the rights to mine its minerals, lop its trees and hunt its game, to extract rent etc. These bundled rights, the ‘perks’ of property ownership emerged in the legal system in 17th century in England, and were being sold or rented as individual commodities.¹⁵
Therefore, ownership today in western society is framed in both Common Law and Civil Law, as a bundle of rights, or separate ‘perks’ to the individual.³
Common Law | Bundle of 5 Rights
- Possession | Legal ownership
- Control | Legal Use
- Exclusion | Limit Access
- Enjoyment | Pleasurable activities
- Disposition | Transfer ownership
Civil Law | Bundle of 3 Rights
- Bare Property| Abusus — Right to give, sell, neglect, destroy
- Usufruct | Usus — Right to use freely
- Usufruct | Fructus — Right to make profit
The legal contract of private property was used as key mechanism of European colonialism, as a powerful tool to harness capital along with its supporting legal system.³ This map of the legal systems of the world illustrates how common law and civil law are the prevailing global legal systems today.
By contrast, customary systems of land tenure, are generally associated with indigenous, native communities and are upheld with their localised customs and laws. The singular shared attribute of indigenous/customary tenure systems, is that they are community-based as opposed to individually based forms of ownership. There are 2 billion people today, 25% of the worlds population, indigenous groups around the world who live on land governed by customary tenure and other community agreements.¹ These people have no legal protection to protect their rights to the land that they live on, and this leaves them extremely vulnerable to external forces, such as land acquisition for agriculture, infrastructure developments and extractive industries.
Ancient Ireland
Before literacy arrived to Ireland via Christianity in 5AD, the laws and customs of the social structure in place there was held and passed down, by the oral traditions through story and myth and the Celtic druids held this responsibility. These stories are now known as Irish mythology.
Relationship was at the heart of Celtic Christian society and religion. Justice was based on and derived its authority from an appreciation of right relationships, not from legalism. To live well required that one be in right relationship with oneself, with other people, with the earth, with all the worlds, and with the Divine.⁶
For these Celtic people, the natural world was the ground of their being, the only place where they could have a physical existence. They perceived themselves and their lives to be inextricably linked with the natural world.
- Dolores Whelan
When right relationship was forfeited or ignored, a breach of justice occurred. Resolving the issue involved an acknowledgement of the breach and taking an action that led to a return to right relationship. We can later see this idea within the laws of land ownership in Brehon Law, if a tenant did not pay his rent on tribe land within the tribe or túath — there was no such thing as eviction, instead another action would be taken that led to a return of social harmony within the tribe.⁵
Sovereignty and the land
Sovereignty is related to the life-giving power of the land, to neart, to the fertility of the land itself. It is also related to authority, a word whose root meaning is “to author life”. For the Celts and pre-Celtic people, true authority comes from the spirit of sovereignty held within the land, represented as a feminine principle, and often named as a particular goddess, who reflected the divine nature held in the land in a specific location.⁶
The Goddess Ériu, of the Tuatha Dé Danann, which existed in the otherworld, was the chief goddess of Ireland in Irish mythology. The English name for Ireland comes from the name Ériu and the Germanic word land.
Sacred Wedding
Dolores Whelan documents the story of the sacred wedding, which depicts a specific relationship to the land that was held in ancient Ireland during the Celtic early Christian era, 1000 BCE — 10C.
When a king was chosen to rule, part of his inauguration ceremony was a ritual marriage to the local goddess who represented the life giving force, or the fertility of the land. It was through this marriage that he could claim his right to rule, his authority. There is, in fact, no word in the Irish language for inauguration. The kingship ritual was known as ‘Bainis Rí’; the sacred wedding of the king with the goddess of the land.⁶
A similar ritual also existed in ancient civilisations in the Near East and India.⁵
If the reign of the king was a just one, then the goddess of the land gave forth in abundance. If the king acted unjustly during his rule, then the land withheld its bounty and, consequently, the king’s rule was seen as unsuccessful, and he was deemed unfit to remain in the role of king.
If the fertility and life-giving force of the land was compromised, the king lost his authority and his right to rule.
- Dolores Whelan
We can identify a very different relationship to the land within this story, one where the ruler, or king was given his privilege to rule along with the responsibility of upholding the ecological health of the land. His position of power, to manage resources within the tribe & personal ambition had to be held in a harmonious balance with the needs of the wider social structure — the fertility of the land and the social harmony of the people. If he was too greedy and extracted too much, he would lose his position as ruler.
Brehon Laws and Landholding
Literacy arrived into Ireland with Christianity in the fifth century and Brehon Law was eventually written down in 7AD.
Brehon Law held very specific rules around landholding, and is a key example of customary tenure, which we know existed in Ireland since 1000 BC¹⁴ but possibly earlier, until it was eventually abolished in the 17th century and replaced with the British Legal system, Common Law.⁷
In Ireland a judge was called a brehon from where the native Irish law is commonly known as the ‘Brehon Law’: but its proper designation is Fénechas, the law of the féine, or free land-tillers.⁴
Contemporary legal scholar, Dr Noelle Higgins, describes some incredible insights of how this legal system was embedded into the social structure in her paper The Lost Legal System: Pre-Common Law Ireland and the Brehon Law:
One of the most fascinating characteristics of the Brehon law system was that fact that it was essentially self-enforcing. The public administration of justice was not highly developed and no police system existed. In addition, there was no equivalent of a prison system, and judgments were left in the hands of the ordinary people to enforce, although, sometimes a noble person would be asked to help enforce a judgment, such as a payment of a fine. Brehon justice was almost exclusively based on a fine / compensation system.
In Brehon society, Ireland was made up of approximately 50 tribes, or túath, each which held permanently a definite district of the country and acted as a self-governing modern state. Within the tribe, ruled by the chosen king, the land was divided into smaller groups of clans which were permanently settled on separate portions of the land. The type of land tenure one had was related to their social status within the tribe.
The Kings, Nobles and non-noble Freemen with property made up the privileged classes; and a person belonging to these was an aire or chief. All three had some part in the governance of the country and held a position of authority. It was possible under certain conditions for a person to step up to the class above, through a balance of industry and ancestry, provided that their character and the character of their ancestors was undoubtedly trustworthy.
The freemen, are those who enjoyed all the rights of the tribe, and most importantly, was the right to the use of a portion of the tribe-land and commons.
There were 5 classes of people within the tribe which made up the social structure, listed below:
- Kings of several grades
2. Nobles, Flaiths There were several ranks of nobles, the rank depending mainly on the amount of land he owned. These people held a certain responsibility within the tribe. Tradesmen of certain crafts, were considered noble.
3. Non noble Freemen with property A person belonging to this other class of aire, did not own land, and his property consisted of cattle and other movable goods, hence he was called a Bo-aire, meaning ‘cow-chief’. He should rent a certain amount of land, (from the king or a noble) and possess a certain amount of property in cattle and other goods, to entitle him to rank as an aire. If a person belonging to the highest class of bo-aires could prove that he had twice as much ‘movable goods’ as was required for the lowest rank of noble, he could become a noble of the lowest rank.
4. Non noble Freemen without property (or with some, but not sufficient to place them among the class next above) — Free tenants
Freemen was the status given to those who enjoyed all of the rights of the tribe, i.e. the use of tribe land, and of the commons land. The fourth class differed from the bo aires or cow-chiefs only in not being rich enough to rank as aires of chiefs. A man of this class could become a bo aire if he accumulated enough wealth (cattle) — the amount being prescribed in the Brehon Law. These céiles or free tenants, formed the great body of the farming class. The land held by the free tenants, or féine, was either a part of the tribe-land, or was the private property of some noble, from whom they rented it.
‘Everywhere in the literature, especially in the laws, the féine or free farming classes are spoken of as a most important part of the community — as the foundation of society, and as the ultimate source of law and authority.’⁴
Tradesmen formed another very important class of freemen, and most of them belonged to this class.
The ancient rights of the free men of the Túath⁵:
- A right to some portion of the arable or tribe-land, and to the use of the commons
- A right to pay no more than a fair rent, which, in the absence of express agreement, was adjusted by the Brehon Law
- A right to own a house and homestead, and (with certain equitable exceptions) all unexhausted improvements.
- Among the freemen who held farm land there was no such thing as eviction from house or farm, for there was a universal conviction that the landlord was not the absolute owner, so that all free tenants had what was equivalent to fixity of tenure. If a man failed to pay the rent, it was recovered, like any other debt, for example a cow would be seized for a period, never by process of eviction.
“Fair rent — this concept occupied a tremendous amount of the legal thinking, and needless to say, it resulted in, fair rent. So there was a great sense of fairness, and everybody accepted it. For example, if you had the use of a paddock for the grazing of ten cows, as a fair rent, after a year/season, you would leave a cow behind. There were no coins or money system. The cash system came later with the english in the 17th century.”
- Pat Flannery of the Brehon Law Academy⁸
5. Non Free Classes The non free classes were not given the same rights as the free men. They had no access to the tribe land, but they were permitted under strict rules to have little plots to provide themselves with mere subsistence. This was by far the most serious of their disabilities. Their status varied, some being absolute slaves, some little removed from slavery, and others far above it. We know that slavery existed in Ireland in early times from the law-books as well as from history. It was common for English children to be sold to the Irish for slaves, Bristol being the main port for the trade, but a greater amount were native Irish, who from various causes had lost their freedoms and had been reduced to a state of slavery.⁵
The 5 types of Land Tenure:
- Mensal Land
The king, or rí, of the Túath, held an area of ‘Mensal’ land, for as long as he held the role. The amount of land varied in size according to his rank. The honour of the role came with a lot of obligations, including the responsibility to use the income derived from the estate to maintain a body of historians, musicians, poets, and learned people, which included the Brehons — judges. The land held by the king as mensal estate descended, not to his heir, but to the person who succeeded him in the kingship. This is what is known as descent by Tanistry. This land tenure model was quite clever, as instead of funding the learned people through taxing the citizens labour, the kings land assets provided this.
2. Private Property
Within the tribe, a small amount of land was held as private property, meaning rent did not have to be paid for it and it was inheritable. This land tenure was held by the flaiths, or noble people, the privileged classes.
3. Leasehold
Land was rented on a 7 year fixed-term lease from those who owned it as private property, or portions of the mensal land of the king. The land may be sublet to other tenants. Sometimes wealthier freemen who worked as farmers, the bo-aires, or tradesmen held this type of land tenure. Rent was always paid ‘in kind’ *explain this.
4. Tribe Land
The rest of the arable land, the ‘Tribe land’ formed by far the largest part of land within the tribal territory. This land was occupied by the free members of the tribe, usually farmers or tradesmen, who were owners for the time being, each of his own farm. Once a person had livestock, they qualified as a free member, and they had a right to his or her fair share of the arable land, and a homestead. The reason for this, was so that the animal dung would replenish the arable land, to regenerate the soil for future generations, also that the livestock would carry out the tilling. This is a concept which today we understand as a stewardship obligation. Free members were owners for the time being, each of his own farm. Every free man had a right to his share — a right never questioned. When a tenant needed livestock it was custom for the king to give him as much as he wanted at certain rates of payment.
Every farmer and tradesman on tribe land had to give his chief a yearly or half-yearly rent, mainly food supplies — cows, pigs, corn, bacon, butter, honey, malt for making ale, the amount derived on the quantity of land he held and the amount of stock he hired. Some tenants were obliged to host the king, at the house of the tenant, who was to lodge and feed them for the stay, an easily corruptible custom known as coinmed.⁵
Those who occupied the tribe-land did not hold the land for any fixed term, for the land of the clan or sept was liable to gavelkind, or gabhailcine — redistribution from time to time — once every three or four years. Occupiers of tribe land could not be disturbed till the time of gavelling; even then each man kept his crops and got compensation for unexhausted improvements; and though he gave up one farm, he always got another.
Mensal Land and Private Property were exempt from Gavelkind. The redistribution by gavelkind on each occasion extended to the clan or sept — not beyond.
We can compare this idea of redistributing land to concepts in urban policy today, such as ‘Meanwhile Use’, which the UK Government have adopted in response to an increase in empty property:
Meanwhile Use allows under-used property to be more easily redistributed on a short term basis to prevent vacancy, ensure occupancy and efficient use of resources. The ability to change between property uses is made feasible through a revision of the 1987 Use Classes Order. This aims to have the effect of lowering barriers to start-up enterprises by providing flexibility in how property is used.
- Nick Finney, Arup
5. Commons Land The non-arable areas of the túath: mountain, forest, bog, sea was Commons-land. This was not taken and used for a purpose by individuals; but every free man had a right to use it for grazing, for procuring fuel, or for hunting and fishing. There was no need of subdividing the commons by fences, for the cattle of all grazed over it without distinction.
“The land beneath me is what England’s welfare system used to look like. With its old community-based customs, it offered a winter fuel allowance and food banks without the stigma of social shame. When these lands were enclosed, self-subsistence was criminalised into poaching, and common ground, like the welfare state today, was presented as a nursery of idleness”
- Nick Hayes, Tresspass
Hugh O’Neill, the Earl of Tyrone
Hugh O’Neill, the Earl of Tyrone, drafted a set of principles in 1559 to Elizabeth, setting out the old order of land-ownership, requesting to keep the existing mechanism Gavelkind. Gavelling, was a very powerful concept, as it was a mechanism for transferring land:
“The Irish tradition of ‘Gabhailcine’ protected the rights of underage children, in the event of their parents death — it was not a seizing. If the father to a child, was killed in a battle or otherwise (which was quite common as battles between tribes happened regularly over border disputes) his land passed back to the ‘adult members of the clan who maintained responsibility for it, until his children came of age, when it was apportioned back out to his children, through gavelling.
An extraordinarily fair and far thinking concept. This ‘concept’ or process, proves these people’s commitment, to providing for eventualities, and it proves two things: the fundamental theory of sovereignty of the tuath, that it is ‘the people’ that own the land, and that they get to decide who ‘owns’ it, and that this is usually obtained by merit and tradition.”
— Pat Flannery, Brehon Law Academy
Hugh O’Neill fought to have it retained, and immediately Elizabeth had it removed.⁸ This indicates that it was a very powerful way of preserving ownership of the land within the túath.
Homeruskwartier, Almere
Limitations on Transfer, Right to Develop
We now fast forward to the 21st century, to look at the Almere tenure model. In 2009, after the global financial crash, the building activity of developers had come to a standstill, but private individuals continued to build. The municipality owned a large area of land, and decided that instead of waiting for the developers to start building again, why not sell plots directly to families who would live there. A masterplan for the area was drawn up, incorporating a wide diversity of plot sizes, and characteristics, to suit a wide spectrum of incomes and lifestyles, and plots were put to the market in phases, at a public ‘plot shop’.
Plots were sold along with freehold tenure model with strict legal limitations on the rights of transfer — a 10 year clawback covenant. This means that any uplift in the value of the property, i.e. the plot, would be recaptured by the original owner, i.e. Almere Municipality, for up to ten years after the plot was sold. This legal binding prevents speculative interests from purchasing the plots, ensuring their accessibility to people who will actually live there, or genuine place-maker interests.²¹
Plots were sold along with a ‘plot passport’ which defined the building guidelines (eg height restrictions) through pre-approved planning consent.This meant that so self-builders would not have to apply for planning permission before building, that the plots were sold along with rights to develop, saving people huge amounts of time and money spent on design fees.²¹
This tenure model is a variation on the typical freehold model, keeping the good parts of freehold, such as security of tenure, but adapting the certain rights and limitations within the legal and planning contracts, specifically the rights of transfer and rights to develop to facilitate people who want to build homes and not financial assets, i.e. citizen-led development. The legal contract and planning mechanisms were redesigned, to ensure that the plots were only allocated to people who would actually live there, thus ensuring inhabitants the opportunity to co-create and live in a vibrant, sustainable and affordable neighbourhood.
Coin Street Housing Cooperative
Community, Stewarding
Coin Street is an interesting case study, as its tenants have a different ownership model to typical social renting tenure, especially when it comes to rights and responsibilities around maintaining the property, and also how the homes are allocated. It would appear that the inhabitants at Coin Street, are much more active in the co-creation of their neighbourhood, through their employed mechanisms for allocating new members into the community, and stewarding.
Stewardship responsibility Typically, the leaseholder whether social renter or private renter, has no responsibility to maintain the environment of their neighbourhood¹⁰. For the purposes of the ownership genome, we are defining stewardship, as taking responsibility for looking after a property, and maintaining it to a good standard. Holding the responsibility to take care of ones home, is an essential part of ownership. When one is dependent on someone else to fix things etc, or if they don’t have the right to make certain adjustments to the space, it creates a relationship of dependency and disempowerment for the individual.
Typically in an assured tenancy, a landlord is responsible for carrying out repairs, however the tenants at Coin Street take on these responsibilities.
“The co-operatives foster a collective commitment to the homes. The management is the responsibility of the co-operatives, who can respond quickly to the needs of people living there. New tenants are not expected to have previous knowledge of housing management but can take part in decision making for their communities and help manage the properties.”¹⁰
This responsibility of stewardship is built into their allocations process:
“New tenants are required to complete training which gives them a sense of responsibility and the skills required for this stewardship role.”
- Coin Street Community¹⁰
Stewardship can vary greatly depending on the context. In a high density, housing cooperative sited in an urban context, such as Coin Street, a stewardship obligation entails a daily managing of
“Removing litter, rubbish and graffiti, cutting grass, planting, pruning, weeding and maintaining 200 trees, maintaining walkways, fences, railings, seats and lighting, repairing and redecorating buildings and services, working with contractors on larger and specialist projects including cyclical maintenance, pest control and servicing lifts, directing rough sleepers to support services and helping lost tourists, & ensuring our site remains safe for everyone”
- Coin Street Oxo¹¹
Native Title, Bundjalung People
Rights of Use (without the right to put down roots)
On the 30th April 2019, rights and interests of the Bundjalung People of Byron Bay were formally recognised, through orders of the Federal Court of Australia, twenty years after a claim had been lodged, through a ‘Native Title’. The Bundjalung people are the original custodians of the northern coastal area of New South Wales, located approximately 550 kilometres (340 mi) northeast of Sydney, an area that includes the Bundjalung National Park.
So what rights of ownership does the ‘native title’ create for the Bundjalung community?
Native title is a recognition of native people’s rights and interests in lands and waters.¹²
The title means that the rights of the native people to practice sustainable fishing, and land management practices, in a non-exclusive way, are now legally recognised, i.e. other commercial activity will continue to occur.
The native title, has provided many new job opportunities, and many aboriginals are now in management positions at Arakwal National Park and Bunjalung National Park. However the native people who now work there cannot afford to live in the affluent coastal area, and have to commute up to 3 hours to get to work.
It strikes me that this native title has a gaping hole in it — giving the Bundjalung people the right to live on these lands, close to their jobs which are so connected to the land and waters. Perhaps doing that wouldn’t fit with the prevailing economic and legal model we operate on, where a place to make home is allocated based on the highest financial bidder, and having rights of use to a natural resource is a completely separate legal right to actually living there.
Sometimes all it takes is having an extra perspective, from someone neutral, to point out the common ground and to help you think and act in new ways, not from habit but from the heart. We all know how important Bundjalung of Byron Bay Aboriginal Corporation is, and we all want to find our way back to a place of strength as a community.
— Annette Kelly¹⁶
In the western model view of land and property, ‘commercial use’, i.e. livelihood from the land and waters is very separate to ‘residential use’, or ‘home’. However for many indigenous groups, the two are interconnected. For the Bundjalung people, in this example, they have been given certain rights of use to the place where they have proved themselves to be connected to, and these rights of use have allowed them to create livelihoods there which are so connected to place, yet they haven’t been given the right to actually put down roots and have homes there.
This disconnection between people and the earth, I would argue, is a massive contributor to climate change in a global market, as the earths resources — seas, rivers, forests, soils in arable areas, become a commodity and are completely disconnected from the people who depend on it.
St. Minver Community Land Trust, Rock, Cornwall
Transfer mechanism
The case study at St Minver, is similar to the Australian example previous, in that it’s location is also in a highly sought after place to go on holidays, due to its outstanding natural beauty, it attracts affluent visitors from all over the world to holiday which has the consequence of pricing the less affluent locals out of having a home. Over the years, houses in the village have been snapped-up as second homes and holiday properties and this has driven prices out of reach of many local people, particularly young people unable to afford a home in the area. St Minver Community Land Trust CLT was formed in 2008 to help residents of Rock buy a home in their village.
St Minver CLT have developed 24 self-build homes in their Cornwall village since 2006. The land was acquired through a sale from a local farmer, who also paid for the planning application design fees.¹³ The tenure model is Freehold tenure (with some legal amendments) sold to self-builders. The homes have been made available at under 1/3 of open market value. A zero interest loan was utilised through the local authority to finance the development.¹⁷
What is interesting about this tenure model, is that the community had particular limitations added to the freehold contract, within the rights of transfer. The CLT also have ensured control over the future purchasers through a pre-emption agreement, which ensures that if one of the homeowners wants to sell up, that the rights of transfer will be assigned to the Community Land Trust, and they will be able to control who buys the home. In essence, this means that that the house will be protected from going onto the open market. Also, a resale price covenant on future sales mechanism was written into the legal contract, to sustain the affordability of the homes. This means that the house can only be sold for what it was originally bought for, so that making profit on the sale of the home is not possible.¹⁷
The Ownership Genome
By deconstructing different forms of land tenure and ownership throughout time and space, through an interrogation of key case studies, a diversity of key mechanisms for are revealed, for transferring property, stewarding land and property & developing rights. It is within these mechanisms that we find where the power lives within a society, and can clearly see, how the legal rights are being distributed, to develop places to live & to put down roots. Deconstructing ownership reveals these normally invisible power structures.
We have begun to do this and The Ownership Genome Project is emerging as a mini online library to house and share all of this information.
Compiling this library of other ways of doing ownership, from all over the world and throughout history, expands and ignites our imaginations to imagine new legal relationships to the places we live, supporting the idea of land as a platform for society.
Classifying Ownership — The Genome
We are attempting to develop a universal classification system that makes it possible to describe any model of land ownership or tenure of unbundled rights and obligations, independently of the legal or cultural mechanisms used to implement it.
We aim that these classes speak to our existing planning systems in the UK and Ireland, but that they also include the essential social aspect of the new contract.
- Community — what is the social status of the person within the community, what role do they play, what responsibilities do they hold that could influence their legal land rights?
- Security of tenure — the right to put down roots in a place with adequate protection from eviction
- Steward — the responsibility and obligation to take care of the property, managing resources in the short term, with a care for future generations (this will vary depending on context)
- Develop — the right to adapt the space to ones need or the community need, through interventions to the built and natural landscape (again this will vary depending on context and social status)
- Use — What is this property used for, what is it’s primary purpose? Who has the right to use it for a particular use?
- Access — Who has the right to legally access this property? (dependent on use)
- Transfer — Who can this property be transferred to?
- Rent — Do you have the right to extract rent from this property, do certain social obligations to the community accompany this right?
Historical Significance of Land Ownership
Jeremy Till says that for architects, to really understand the ground upon which they are working on (i.e. the neoliberal project, late capitalism) we must unpick the modern project, in order to be spatial agents. As this chapter of the work is ‘wrapped up’ it feels like the unbundling of ownership, is a really key part of this ‘unpicking’ of the modern project.
Becoming espoused to habits of convention can take away our freedoms.
— Guy Ritchie, filmmaker
As the late anthropologist, Andro Linklater recalls in his book ‘Owning the Earth’, the need to find a moral basis for private property, and indeed for any society, requires its history to be faced, and an argument made to justify the facts that have been created on the ground. Without that moral basis, a private property society is inherently unstable.⁷ It is clear, that this mechanism holds the capacity to harness huge amounts of capital, which was essential in funding military campaigns which made colonisation possible.
Ireland illustrates the earliest example of a society who transitioned from a tribal structure where most of the land was held in the collective to, a private property society, a change which happened over a number of centuries but 17th century marked a key turning point, when Brehon Law was eventually abolished and replaced with the English Common Law.
Approximately 200 years after this transition, Ireland suffered from one of the worst humanitarian crisis in the world at the time, due to a complete restructuring of its society, which was done through eradicating the native land ownership models held by Brehon Law. The result? Imploding poverty, centuries of civil unrest, mass emigration and in the west of the country up to 50% of the population died from hunger.
History has proven that this model eventually eats itself up.
We are all feeling this tipping point at the moment, locally and globally, it is manifesting through a housing crisis, ecological crisis, and a health crisis.
Soon there will be no resources left.
“Who are businesses really responsible to? Their customers? Shareholders? Employees? We would argue that it’s none of the above. Fundamentally, businesses are responsible to their resource base. Without a healthy environment there are no shareholders, no employees, no customers and no business.”
— Yvon Chouinard, Founder of Patagonia
I must also highlight the positives of this extremely powerful, creative force:
Without private property which began in England in the 16th/17th century and as a model was globally exported through colonialism, it is unlikely that enough capital through labour and food products would have been harnessed and concentrated to catalyse the Industrial Revolution and subsequent technological revolutions. So industry, business and private property are inextricably linked.
Ironically, unfettered individualism has provided us with the technology to connect as a global community through the internet.
The commons are physical, but ‘the Commons’ is metaphysical. In practice, before enclosure, the Commons were a paradigm of social ties and community values that were used to regulate a particular local resource.
The philosophy of commoning has thrived on the internet just as it has died on the land. It encourages a system of social interaction that foregrounds co-operative, inclusive values, sharing, over the ideology of privatised profiteering.¹⁵
- Nick Hayes, Tresspass
When we don’t see the essence of the underlying forces that shape our built environment, and our lives, we can become slaves to conventional mechanisms, whose purpose was designed for a radically different set of values. We are fighting an uphill battle. In the context of the housing crisis, we are currently still using a mechanism of ownership that was designed for the extraction of labour and natural resources. Another attribute of private property is that it enacts total freedom to the individual without any legal obligation to the surrounding community and ecology. The contract of private property ownership was designed to bestow the individual owner complete personal freedom without any obligation to its surrounding community and ecology.
The indigenous groups around the world who today are vulnerable to external mining companies buying up their land, where they hold customary land rights are in the same situations of the Irish peasant farmers in the 17th/18th century and also generation rent today, rising demographic of young and middle aged people who will never be able to buy a home. What all of these groups hold in common is a lack of basic land rights — no security of tenure, no ability to put down roots, and totally vulnerable to their landlord future landlord uprooting them for a higher price.
Things must fall apart before they can be rebuilt.
At this pivotal point, in 2021, in the midst of a global health pandemic, an ecological crisis & a housing crisis, it is an era of old systems collapsing.
As we move forward I fully support Fairhold: an innovate legal contract for home ownership:
Fairhold is a proposed new form of home ownership that would allow anyone who wants to own their own home at an affordable price to do so, but on fair terms, which include environmental stewardship and fair economic use. It represents a kind of gradual opt-in pathway to a more successful, prosperous economy and society, potentially freeing millions of people from poverty and debt, releasing billions to reinvest back into the real economy, community infrastructure and public services, and providing land as an affordable platform for millions of families and communities to build or upgrade-to zero carbon homes.
— Open Systems Lab
I direct you over to Alastair Parvin speaking about this new contract here.
It’s time to restore our legal relationship to land, beginning with home, as a global community.
References / Further Reading:
- USAID Land and Resource Governance| What is land tenure |Accessed on 10th May 2021
- Description and History of Common Law
- Dark Matter Labs | Property Rights / Property Wrongs: Micro-Treaties with the Earth | Accessed 8th Feb 2021
- Janis Alcorn | Tenure and Indigenous Peoples; The Importance of Self-Determination, Territory, and Rights to Land and Other Natural Resources | Accessed 10th May 2021
- Joyce, P.W. | A smaller social history of ancient Ireland, treating of the government, military system, and law; religion, learning, and art; trades, industries, and commerce; manners, customs, and domestic life, of the ancient Irish people
- Dolores Whelan | Ever Ancient Ever New Celtic Spirituality in the 21st Century
- Andrew Linklater | Owning the Earth, The Transforming History of Land Ownership
- Brehon Law Academy | Pat Flannery Lecture on Land Ownership in Irish History
- Joseph Rowntree Foundation | Tenure rights and responsibilities | Accessed 5th March 20219.
- Community Led Housing London | Coin Street
- Coin Street Community Builders | Passionate about our neighbourhood
- ABC North Coast | Byron Bay’s Bundjalung people celebrate long-awaited land and sea native title determination
- The Self Build Guide | St Minver Community Land Trust
- Dr Noelle Higgins | The Lost Legal System: Pre-Common Law Ireland and the Brehon Law | Accessed 20th May 2021
- Nick Hayes | The Book of Trespass: Crossing the Lines that Divide Us
- Australian Government Office of the Registrar of Indigenous Corporations | Walking a long road for Arakwal
- National CLT Network | The CLT Handbook
- Wikipedia | Hieros Gamos
- Kim Mckee, Adriana Mihaela Soaita &Jennifer Hoolachan | Housing Studies ‘Generation rent’ and the emotions of private renting: self-worth, status and insecurity amongst low-income renters
- University of Illinois Extension | Introduction to Property Rights: A Historical Perspective
- Jacqueline Tellinga | Lecture at CoHousing Here! Conference 2019
- Alastair Parvin | Affordable Land
Unbundling Ownership, conducted through a short-term research residency with Open Systems Lab and building on their existing project ‘Fairhold’ aims to collect, categorise and unbundle, case studies of alternative forms of land ownership; some of which are mainstream and relatively well-known, but also to investigate the lesser known examples from old indigenous cultures.
