Working with legal pluralism: widowhood, property inheritance and poverty alleviation in urban Senegal

This article explores the role of women's inheritance and ownership of property in urban Senegal. It shows how being able to inherit and own property promotes the economic and emotional security of widows and their children in urban areas, and discusses the challenges posed by legal pluralism in working on poverty alleviation and social protection in the city.

Heritage property, tourism and the UK Disability Discrimination Act

Heritage tourism depends on a physical resource based primarily on listed buildings and scheduled monuments. Visiting or staying in a historic building provides a rich tourism experience, but historic environments date from eras when access for disabled people was not a consideration. Current UK Government policy now promotes social inclusion via an array of equal opportunities, widening participation and anti-discrimination policies. Historic environments enjoy considerable legislative protection from adverse change, but now need to balance conservation with public access for all. This paper discusses the basis of research being undertaken by The College of Estate Management funded by the Mercers Company of London and the Harold Samuel Trust. It assesses how the 1995 Disability Discrimination Act has changed the legal obligations of owners/operators in managing access to listed buildings in tourism use. It also examines the key stakeholders and power structures in the management of historic buildings and distinguishes other important players in the management process.

Intellectual property law on architectural design in collaborative design communication as digital assets

Digital Economy is one of the crucial elements promoted by the Digital Britain Report June 2009 and its Implementation Plan August 2009 in order to maintain and further the UK’s position as one of the world’s leading digital knowledge economies. Therefore, the application of Digital Technologies is high in the agenda. As pervasive digital technologies become more widely available, it becomes increasingly important to understand the legal implications of digital assets produced via digital technologies in collaborative design communication. Architects and engineers depend on intellectual property law to protect their original works. Copyright protection is automatic once a tangible medium of expression in any form of an innovative material, conforming the Copyright Designs and Patents Act 1988, is created. Although copyright law provides automatic protection to all original architectural plans, the limitation is that it only protects the expression of ideas but not the ideas themselves. The purpose of this research is to explore how effective the UK’s copyright law regime is for protecting the rights and interests of architects and engineers in their works as digital assets. The UK’s copyright law is ripe for modernisation not only to protect the rights of designers but also to further UK’s position in digital economy.

Commercial property loan valuations in the UK : the changing landscape of practice and liability

This paper is the first of two which aim to examine the major legal liability implications of changes to the commercial property loan valuation process caused by the recession in the UK property market and to make recommendations to valuers and their professional institutions to improve the quality of the process and the result. This paper identifies the market background to commercial property lending and discusses the implications of the falls in value for lenders and valuers. These include two major strands; first, the outcome of discussions between the representative bodies of these two groups and, second, the increasing litigation caused by lenders suing valuers for professional negligence. The discussions between representative groups have driven a debate on the valuation process leading to a number of reports and guidance notes. This paper discusses the outcomes paying particular attention to the basis of valuation for loan purposes and the provision of additional information in valuation reports. This paper also reviews the legal framework which influences the relationship between the lenders and valuers and discusses the duty of care. The role of instructions in the valuation process, the significance of the identity of the person to be advised and the possibility of a conflict of interest arising are all considered. The paper also addresses the issue of the standards required of a commercial loan valuer, including how this is interpreted by the courts and the legal status of professional guidance notes. The paper concludes by identifying potential areas for dispute within the loan valuation process and raising a number of research questions concerning the operation of this process which are addressed in a following paper.

Commercial property loan valuations in the UK : implications of current trends in practice and liability

This paper is the second of two papers which aim to examine the major legal liability implications of changes to the commercial property loan valuation process caused by the recession in the UK property market and to make recommendations to valuers and their professional institutions to improve the quality of the process and the result. The objectives of this paper are to address a number of the practical implications of changes to the loan valuation process within the context of legal liability. The results of an interview survey of lenders and valuers are reported and analysed. The survey examined the loan valuation process including the selection and instruction of valuers, bases of valuation and valuation reporting. In the selection and instruction process, the findings of the survey reveal two potential problems within the valuer/lender relationship. First, valuers still occasionally accept instructions from borrowers and this could lead to a conflict of interest as lenders may rely on the survey. Second, the occasional lack of formal instructions prior to the delivery of reports casts doubt on the valuer’s ability to correctly identify the needs of clients. Regarding the basis of valuation, it was found that valuers are providing valuations on bases which they do not think are appropriate. Valuers may be legally liable if they do not inform clients of their reservations and this situation must be urgently addressed. The survey also confirms previous research that valuation reports are considered to be light on contextual information concerning markets. The paper concludes by making a number of specific recommendations concerning possible improvements to the commercial property loan valuation process.

Building communities: reducing energy use in tenanted commercial property

Reducing energy use in tenanted commercial property requires a greater understanding of ‘buildings as communities’. Tenanted commercial properties represent: (1) the divergent communities that share specific buildings; and (2) the organizational communities represented by multi-site landlord and tenant companies. In any particular tenanted space the opportunity for environmental change is mediated (hindered or enabled) through the lease. This discussion draws on theoretical and practical understandings of (1) the socio-legal relationships of landlords, tenants and their advisors; (2) the real performance of engineering building services strategies to improve energy efficiency; (3) how organizational cultures affect the ability of the sector to engage with energy-efficiency strategies; and (4) the financial and economic basis of the relationship between owners and occupiers. The transformational complexity stems from: (1) the variety of commercial building stock; (2) the number of stakeholders (solicitors, investors, developers, agents, owners, tenants and facilities managers); (3) the fragmentation within the communities of practice; and (4) leasehold structures and language. An agenda is proposed for truly interdisciplinary research that brings together both the physical and the social sciences of energy use in buildings so that technological solutions are made effective by an understanding of the way that buildings are used and communities behave.

Fenced in: Common property struggles in the management of communal rangelands in central Eastern Cape Province, South Africa

This paper takes as its starting point the assertion that current rangeland management in the central Eastern Cape Province (former Ciskei) of South Africa, is characterised primarily by an ‘open access’ approach. Empirical material drawn from three case-study communities in the region is used to examine the main barriers to management of rangeland as a ‘commons’. The general inability to define and enforce rights to particular grazing resourses in the face of competing claims from ‘outsiders’, as well as inadequate local institutions responsible for rangeland management are highlighted as being of key importance. These are often exacerbated by lack of available grazing land, diffuse user groups and local political and ethnic divisions. Many of these problems have a strong legacy in historical apartheid policies such as forced resettlement and betterment planning. On this basis it is argued that policy should focus on facilitating the emergence of effective, local institutions for rangeland management. Given the limited grazing available to many communities in the region, a critical aspect of this will be finding ways to legitimise current patterns of extensive resource use, which traverse existing ‘community’ boundaries. However, this runs counter to recent legislation, which strongly links community management with legal ownership of land within strict boundaries often defined through fencing. Finding ways to overcome this apparent disjuncture between theory and policy will be vital for the effective management of common pool grazing resources in the region.

The relevance of context in property law: a case for judicial restraint?

A distinction between the domestic and commercial context is commonly drawn in property law discourse and has been brought into focus by three recent House of Lords' decisions. The thesis of this paper is that while the distinction is a useful explanatory tool, it runs into difficulties when given legal effect by the courts. There is a definitional problem in understanding what is included within each context. Indeed, the distinction assumes the existence of a dichotomy when, in fact, the domestic and commercial spheres are better seen as a continuum. In Stack v Dowden, the majority of the House of Lords gave legal effect to context and considered that different rules should apply to determine ownership of the home. This paper locates its decision in the broader debate on judicial restraint and creativity. By analogy with current discussion of due deference in public law, it is suggested that, in light of the policy issues involved and the broader ramifications of the decision, insufficient justification was given for the approach adopted by the majority.

Human rights and mortgage repossession: beyond property law using Article 8

Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.

Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers 'subject to' rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

Housing or property? The dynamics of housing policy and property principles in the right to buy

This paper examines the interplay and tension between housing law and policy and property law, in the specific context of the right to buy (RTB). It focuses on funding arrangements between the RTB tenant and another party. It first examines how courts determine the parties' respective entitlements in the home, highlighting the difficulty of categorising, under traditional property law principles, a contribution in the form of the statutory discount conferred on the RTB tenant. Secondly, it considers possible exploitation of the RTB scheme, both at the macro level of exploitation of the policy underpinning the legislation and, at the micro level, of exploitation of the tenant. The measures contained in the Housing Act 2004 intended to curb exploitation of the RTB are analysed to determine what can be considered to be legitimate and illegitimate uses of the scheme. It is argued that, despite the government's implicit approval, certain funding arrangements by non-resident relatives fail to give effect to the spirit of the scheme.

Low cost home ownership: legal issues of the shared ownership lease

Analysis of the decision in Richardson v Midland Heart Ltd (formally Focus Homes Options) [2008] L&TR 31