Property Law in times of crisis, what happens next?

by: in Law

Every year in November, one of the Faculties that forms part of the Ius Commune Research School organises the annual Ius Commune Conference. In this context, a selection of plenary sessions and workshops are held, which allow panellists to present their research and discuss topics closely related to the School’s fields of research. On the 26th and 27th of November, Maastricht University had the honour of hosting (online) the Ius Commune Conference 2020, which included the Property Law Workshop held on a Friday afternoon.

With panellists tuning in from three different continents, it was the occasion to devise whether property law is immune to global crisis, with a particular focus on the ongoing pandemic, but also institutional racism and discrimination. The workshop was therefore devoted to bringing research and research ideas together, in order to collectively discuss responses to the challenges that have arisen in the United Kingdom, South Africa or the United States, for instance, in recent times of crisis. It was also the opportunity to honour the upcoming retirement of Prof. Sjef van Erp, coordinating programme leader of the Ius Commune research programme on property law and future Emeritus Professor at Maastricht University (January 2021).

Who owns the data in the corona apps on your phone?

After a brief opening by Dr. Bram Akkermans, the plenary session kicked off with the very topical question of who owns the data in the corona apps on our phones, delivered by Prof. van Erp. 

After brief remarks on the data economy becoming a Commons and the increasing cogeneration of data, he turned to the functioning of the app and the underlying notion of ‘ownership’.

The app uses a decentralised privacy preserving system through proximity tracing (unlike a tracing app!), which is an anonymous process in principle. However, when combining datasets, it is easier to find out who the data belongs to, thereby pointing to the growing problem of reverse engineering. This was the occasion to highlight an interesting paradox: does privacy go that far that it ought to interfere with the interest of public health?

He next turned to the meaning of ownership. From a comparative law viewpoint, there are several approaches as to what ownership means (civil vs common law). Prof. van Erp therefore likened this ‘ownership’ to a legal status, or management right, rather than a property right in the traditional meaning. In that sense, data ownership is de facto data management, which can be declined in different ways: there is a data owner (the citizen using the corona-app), the data steward (the government), and data users (health care providers, researchers, pharmaceutical industry).

Due to the dynamically evolving nature of private law, who is a data manager depends on the stakeholders involved who change over time. In that regard, he suggested that common law was better equipped than civil law, due to the differentiated approach to ‘ownership’ and varying degrees of ‘ownership’, of relative nature. He also suggested looking into IT solutions (Digital Management Rights) and to keep an eye on IP law developments. However, when asked by Dr. Parise which part of the world was the most avant-garde on the topic, he was confident in the EU’s ability to deal with the intersection of property law and data, between ‘what is already here and what is to come’.

For the first panel, Dr. Bram Akkermans proceeded to deliver a more conceptual and abstract presentation on the need for property and planetary flourishing with his starting question: how do we come out of the COVID-crisis without returning back to our old status quo?

Drawing on the works of Piketty, Pistor, Hayes, Mansfield, Mettei & Quarta, Alexander, Steger, and Holdhaus, he contemplated the true meaning of ownership and put forward the idea of ownership as not absolute, which could and should be conceptualised differently.

By bringing in key concepts of sustainability or return to the Commons, he highlighted the need to move from extractive ownership to regenerative ownership; stressing the necessity of property not only to give power to hold property for oneself, but also for future generations. The obligations of ownership, with our social imaginary as guiding principle, would therefore demand a balance between humankind and the nature around us.[1]

The second panellist, Dr. Jill Robbie (University of Glasgow), presented her research in Scotland about how to consider groups (already) marginalised during and after COVID-19. By focusing on three vulnerable groups, namely homeless people, the Travellers community, and tenants, she shared her perspectives on groups with extra vulnerabilities, and presented the impact of economic downturn on those already relying on charity of others. She underlined the need to reconsider homelessness in the context of the pandemic and highlighted the importance of resources being made (and remaining) available way beyond the pandemic – ‘a marathon to run for many years’. Concluding with remarks on how the coronavirus has changed the way the world functions, the subsequent discussion evolved around how to maintain momentum in light of cut budgets in the after-COVID and how to cope with priorities of public sector spending.

The third panellist, Dr. Elsabe van der Sijde (Stellenbosch University) offered a South African insight into COVID-19 and property law. Indeed, she threw light on some of the challenges already present in South Africa, which we have just started to uncover with COVID. She shared insights about her project dedicated to property law effects due to COVID (SARCPL: Property and Pandemics) and some of the key topics which it covers: namely housing, the concept of ‘home’, homelessness, people living in informal settlements, tenants/owners, neighbours, or sectional title schemes. She successfully shone light on the unique challenges South Africa faces: Apartheid legacy power-relationships that underpin property law, the revoking of safety nets, and the insufficient pre-COVID status quo in South Africa, i.e. there is no acceptable ‘normal’ to return to. The subsequent discussion evolved around central themes such as resilience theory, climate change, or sustainability.

In the second panel, Prof. Lorna Fox O’Mahony (University of Essex) spoke about ‘twisting the kaleidoscope in property law’ in the wake of the COVID-crisis. Looking into property responses to crisis in the UK, she likened the global pandemic to an extreme shock event. In her presented research, she considered four elements: the different nature of this property crisis compared to earlier crises, the drivers of a very different response (strong involvement of the state: role of state in mitigating impact on citizens?), rebalancing ideology and pragmatism in property law, and rebalancing the needs of individuals and collective needs. She concluded with the pertinent observation that political legitimacy turned on ability to manage the crisis.

Prof. Mark Roark (Baton Rouge Law School) then brought in an American perspective to the discussions by sharing property law experiences of tenants in several US States. He commented on how property law was rarely just private, with COVID-19 highlighting how public spaces intervened. In his discussion, he considered seven types of State responses in the US (especially moratoriums and federal relief), in order to provide a State by State landscape.

The final panellist, Prof. John Lovett (Loyola Law School) spoke about both national and global responses, building on Prof. Mark Roark’s overview of the landscape of COVID responses on evictions and those behind on their rent. He stressed the need for the communicative capacity of property law or default rules and underlined the strong discrepancies in tenant protection across states, thereby justifying the urgency of the federal response. Drawing on empirical research, he showed a correlation between vulnerability to pandemic and vulnerability to evictions. To tackle these issues, he discussed both short-term solutions such as rent relief and long-term solutions, namely the right to counsel in eviction proceedings. In the subsequent discussion, he also advocated for allowing people to represent tenants without being a qualified lawyer and recalled the need for stronger due process rights in evictions.

Overall, in the words of Dr. Bram Akkermans, the speakers had ‘uncomfortable but necessary conversations’, which really stressed the crucial yet overlooked role of property lawyers: look beyond the rules, look at what they are protecting, and challenge their application. The debate did not offer immediate solutions to tackling COVID-19, nor did it aim to. The essence of the discussion was that property lawyers should use this momentum to create the reform that is needed for systemic change, while reconceptualising property law differently in the future. Instead, it serves to remind us all that if the system reverts back to its old form, it does not mean we have to.

 Written by Alexandra Laplante more blogs on Law Blogs Maastricht

[1] For those further interested, Dr. Bram Akkermans is involved in ProSus (a property and sustainability research network) along with Dr. Jill Robbie and Dr. Elsabe van der Sijde.