THERE are tens of thousands of empty homes in Scotland, and the Government recently pledged £80 million to help buy them and bring them into use as affordable housing. One tool that could be used is a Compulsory Sales Order – which would force a property owner to sell up. Here, Andy Moseley, the policy and projects manager for the Government-funded Scottish Empty Homes Partnership, considers the human rights case for and against CSOs.
THE recent announcement by the Scottish Government of an additional £80 million being allocated to the budget for acquiring properties to bring back to use as affordable housing underscores the urgency of the housing emergency gripping our nation.
This new money is a welcome step to partly mitigate the £200m reduction to the affordable housing programme in the recent Scottish Budget. It recognises the contribution that some of the more than 28,000 homes in Scotland that have been empty for more than a year can play in addressing the housing emergency.
At the same time, it may raise the question of what can be done to compel owners to bring properties back to use when many of them may have been willingly left empty and allowed to deteriorate for several years.
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Alongside announcing that they will “progress work to reform and modernise Compulsory Purchase Orders” (CPOs), the then deputy first minister Shona Robison also said that they will “continue to consider the justification for, and practical operation of, Compulsory Sales Orders (CSOs)” in the Programme for Government announcement in September last year.
CSOs have been seen by many as a way of alleviating some of the financial and logistical barriers that prevent many local authorities from carrying out CPOs at a significant scale. This is mainly because, with a CPO, the property is being bought by a public body (government or local authority), whereas with a CSO, the sale can also be made to a non–public body, with fewer restrictions on what they can buy and more money to spend on bringing the property back to use.
However, while it may seem like a simple solution, opponents claim that CSOs may be incompatible with human rights, particularly the right to property. Article 1 of the First Protocol of the European Convention on Human Rights (ECHR) says: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions”.
It is worth looking at whether these rights are impacted in greater detail.
As the Equality and Human Rights Commission makes clear: “A public authority cannot take away your property or place restrictions on its use without very good reason. There are some situations in which public authorities can take things you own or restrict the way you use them. This is only possible where the authority can show that its action is lawful and necessary for the public interest.
“If your property is taken away, you should be entitled to compensation. The Government must strike a fair balance between your interests as a property owner and the general interests of society. This right does not affect the ability of public authorities to enforce taxes or fines.”
What this means is that the right to own property is a qualified right, not an absolute one.
It comes with responsibilities – and can also be removed or restricted in some instances where these responsibilities are not complied with.
At the time of a housing emergency, it could be argued that it is both necessary for the public interest and in the general interests of society to provide housing for people.
When we have large numbers of people in temporary accommodation or homeless across the country, can it really be argued that addressing this is less important than safeguarding an owner’s right to enjoy a property “peacefully” by letting it lie empty for several years, deteriorate, and become a magnet for anti-social behaviour? This can sometimes make the lives of neighbours a living hell.
Of course, it is important to consider what the end use of any property sold under a CSO would be if it is to be successfully proven that the sale was in the general interests of society.
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However, it is also worth noting that in their proposal for CSOs, the Scottish Land Commission did not distinguish between housing tenure when they looked at what was required for ECHR compatibility, referring only to a need for “significant unmet housing need in the local area” and “that by keeping the property empty, the owner was exacerbating this need”.
This is not to say that the use of CSOs will not be contentious. It’s almost inevitable that, if introduced, there will be challenges in the courts. Case law will then emerge that may restrict or more closely define how and when they can be used.
There is a balance to be struck between the benefits to society and the rights of property owners, but that balance must be framed within the housing emergency and the rights of every individual to a place they can live in and call home.
Andy Moseley is policy and projects manager for the Scottish Empty Homes Partnership. The Government-funded partnership works with local authorities and third-sector organisations to support work to bring empty homes back to use as affordable housing, where possible.
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