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  • S Blandy, S Nield and S J Bright, 'Real Property on the Ground: the Law of People and Place’' in H Dagan, B Zipursky (ed), Research Handbook on Private Law Theories (Edward Elgar Publishing Ltd 2020) (forthcoming)
    The focus of this chapter is property in land. Property theorists have been unable to agree on a definition of property in land, that intrinsically material category of property. We argue that the dominant image of property as a bundle of rights has deflected our gaze away from the idea that real property is about the physicality of place and people’s relationships with land and each other. This chapter aims to revive interest in the lived uses of land. In developing a perspective of real property on the ground we draw on both legal doctrine and empirical studies, as well as a close analysis of court judgments, to explore the connections between law and the lived experiences of property. The insights of other scholars into real property on the ground are brought together in this new approach, which reveals that real property cannot be defined solely in terms of conceptual entitlements; it is concerned also with the factual reality of how people relate and interact, both individually and collectively, to particular places. This chapter builds on ideas that we first explored in our writings on the Dynamics of Enduring Property Relations in which we identify that the relationships between people and land are derived from a variety of sources. These sources can extend beyond formal legal and regulatory sources to encompass understandings that evolve from peoples’ use of space over time, and which the judiciary seek in some measure to accommodate within the discretionary spaces available to them.
    An earlier version of this paper is available through the Housing After Grenfell blog.
    The second anniversary of the Grenfell Tower fire has come and gone, and yet it has been estimated that as many as 200,000 people in the UK are still living in buildings with major fire safety defects. Some of these blocks are wrapped in flammable cladding, as was Grenfell Tower, but many blocks have other fire safety risks, both known and unknown, for which we have only limited data. With inadequate recourse through private law for most of those affected, this paper asks whether human rights law offers an effective avenue for redress. This paper illustrates the UK government’s failure to implement an effective regulatory system for the building and refurbishment of high-rise buildings (especially in relation to combustible cladding systems) and considers whether this failure constitutes an ongoing violation of various rights under the European Convention on Human Rights: Articles 2, 3, 8 and Article 1 Protocol No. 1 (“A1P1). In doing so, it is submitted that current remediation measures and piecemeal reforms do not go far enough to discharge the state’s positive obligation to preserve life.
    ISBN: 2059-8092
  • L. Whitehouse, S J Bright and M. Dhami, 'Improving Procedural Fairness in Housing Possession Cases' (2019) 38 Civil Jutice Quarterly 351
    This article offers an insight into the context and practice of housing possession hearings in which a social landlord seeks a possession order against a tenant who is in rent arrears. Drawing on the findings of the authors’ empirical research, supplemented by insights from the psychology of decision-making, this article questions whether judges are able to exercise discretion in a manner consistent with the fundamental demands of ‘procedural fairness’. We find that while the legal process requires judges to engage in rational decision-making, and while judges believe that this is what they are doing, the reality is very different: judges are likely to be relying on intuition. It is not that judges eschew engaging in more deliberative decision-making but rather that they are constrained by limits of the human mind as well as the conditions under which they make their decisions. In particular, the practice of housing possession is characterised by information deficits, low levels of occupier engagement and time constraints, and this does not facilitate decision-making that meets accepted standards of fairness. In response, we propose ways in which to enhance the consistency, transparency and accountability of decision-making while recognising the current climate of reform and diminishing resources within the legal system.
  • S J Bright and P Morrison, 'Varying Long Residential Leases: When, Why and Reform' (2019) The Conveyancer (forthcoming)
  • S J Bright, D Weatherall and R Willis, 'Exploring the complexities of energy retrofit in mixed tenure social housing: a case study from England, UK ' (2018) Energy Efficiency
    DOI: 10.1007/s12053-018-9676-y
    Abstract Article 19 of the Energy Efficiency Directive requires EU member states to address split incentives for energy efficiency between the multiple owners of build- i ng s. But, building governa nce has been relatively neglected by researchers and policy makers working on Europe’s trajectory to a highly energy-efficient build- ing stock. Taking a socio-legal approach, this paper illustrates the complexities that occur with retrofit of mixed tenure (social and private) apartment blocks and, more broadly, how building governance is a deter- minant of t he costs a nd outcomes of refurbishmen t projects. Forty-two percent of Europeans live in apart- ments and mixed tenure apartment blocks and neighbourhoods have become more prevalent in Europe in recent decades. The paper focuses on a detailed study of a large refurbishment project of five tower blocks by Oxford City Council, involving external wall insulation and other energy efficiency measures. In addition to the Council’s social tenants, these blocks house significant numbers of private owners who have challenged the Council’s attempt to recover from them a share of the ref ur bish me nt costs. T he exper ie nce of the Oxford project raises questions about aspects of property law, allocation of project costs and benefits, and issues of communication, engagement and decision-making. The paper also presents qualitative data gathered from social housing providers thr ough a survey and roundtable meeting to provide an indication of the extent to which these issues are affecting energy efficiency refurbish- ment projects across England.
  • F McCarthy, S J Bright and T Fawcett, 'Building Governance and Energy Efficiency: Mapping the Interdisciplinary Challenge ' in C Foulds, R Robison (ed), Advancing Energy Policy: Lessons on the Integration of Social Sciences and Humanities (Palgrave Macmillan 2018)
    Improving the energy efficiency of multi-owned properties (MoPs) – commonly known as apartment or condominium buildings – is central to the achievement of European energy targets. However, little work to date has focused on how to facilitate retrofit in this context. Drawing on inter-disciplinary Social Sciences and Humanities expertise in academia, policy and practice, this chapter posits that decision-making processes within MoPs might provide a key to the retrofit challenge. Existing theories or models of decision-making, applied in the MoP context, might help to explain how collective retrofit decisions are taken – or overlooked. Insights from case studies and practitioners are also key. Theories of change might then be employed to develop strategies to facilitate positive retrofit decisions. The chapter maps the issues and sets an agenda for further research in this novel area.
  • S Blandy, S J Bright and S Nield, 'The Dynamics of Enduring Property Relationships in Land ' (2018) 81 Modern Law Review 85
    This article proposes a new way of looking at property relationships that will enrich our understanding of how they operate. It focuses on property rights in land which are consensual in origin, although this approach could usefully be applied both to non-consensual property relationships and to other property types. Recognising both the temporal and spatial dimensions of land, the dynamics approach reflects the fact that most property relationships are lived relationships, affected by changing patterns and understandings of spatial use, relationship needs, economic realities, opportunities, technical innovations, and so on. Although evolving responsively to accommodate changing uses and new rights-holders, these relationships are nevertheless sustained and enduring. The dynamics lens acknowledges the diverse range of legal, regulatory, social and commercial norms that shape property relations. Our approach also explores how far the enduring, yet dynamic, nature of property relations is taken into account by a range of decision-makers.
  • S J Bright, D Weatherall and R Willis, A case study of deep retrofit in mixed tenure (rented and owned) UK social apartment blocks , paper presented at ECEEE Summer Study 2017
  • S J Bright and D Weatherall, 'Framing and Mapping the Governance Barriers to Energy Upgrades in Flats' (2017) 29 Journal of Environmental Law 203
    DOI: 10.1093/jel/eqx017
    It is important for climate change mitigation, and to address fuel poverty, that multi-owned properties (MoPs) containing flats are refurbished with energy and carbon saving technologies (energy upgrades). This article explains how the ownership and management (governance) arrangements of MoPs can limit or inhibit energy upgrades. A building governance framework is adopted to examine the energy efficiency gap in MoPs through two lenses: an organisational lens that focuses on complex decision-making, and a ‘law and technology’ lens that explores the role of title deeds. Although the problem is particularly acute in England and Wales, where flats are sold on a leasehold basis, there is a broader issue whenever there is co-ownership of buildings containing apartments, and policy measures designed to improve energy efficiency in homes must pay particular attention to the complexity created by governance arrangements.
  • D Weatherall, F McCarthy and S J Bright, 'Property Law As A Barrier To Energy Upgrades In Multi-Owned Properties: Insights From A Study Of England And Scotland' (2017) Energy Efficiency
    DOI: 10.1007/s12053-017-9540-5
    Is the law of ownership a barrier to energy upgrades in apartment blocks? Co-owners in multi-owned properties face challenges in reaching agreement to implement energy -upgrades that owners of single family residences do not encounter. At the European level, this difficulty is recognised in Article 19 of the 2012 Energy Efficiency Directive, by which governments are obliged to address barriers to improvements which arise in the specific context of multi-owner properties. Despite this, the position of apartment owners remains mostly invisible in the policy discourse. The small quantity of literature examining the difficulties of group decision making around energy efficiency in apartments has so far focused on mapping the issues. This paper begins the process of ‘colouring in’ the existing outlines by providing an in depth delineation of the governance barriers to energy upgrades presented by the law of ownership and management in two European jurisdictions: England and Scotland. A doctrinal analysis is employed to ascertain the relevant legal issues and identify how property law constitutes a barrier to energy upgrades within the framework of existing behavioural models. A theoretical inquiry is then used to suggest that reconceptualising property law in the context of multi-owner properties to focus on collective responsibilities rather than individual rights may help to minimise this effect of the law. The paper concludes with recommendations for further research to identify the range of issues property law presents across EU member states. This data is needed to fully test the reconceptualisation hypothesis presented here.
  • J Patrick and S J Bright, 'WICKED insights into the role of green leases' (2016) Conveyancer 264
  • Janda, K. B, J. Patrick, R. Granell and S J Bright, A WICKED approach to retail sector energy management, paper presented at ECEEE Summer Study, 1-6 June 2015 (Presqu'île de Giens, France). Vol. 1 - Foundations of Future Energy Policy, European Council for an Energy-Efficient Economy: Stockholm, Sweden.
    The UK retail sector is vital to the economy, diverse, and facing a number of challenges. Retailers range from multinational corporations to small independent stores, selling everything from antiques to frozen yoghurt. Stakeholders include landlords, tenants, and owner-occupiers. Across the sector, energy costs and requirements for understanding, displaying, and reporting energy use are increasing. Meanwhile organisations face competing pressures to “go local”, support staff development, and keep prices down. Because of this diversity, retail energy management creates a “wicked” problem, where solutions to challenges are contentious and multi-faceted. The Working with Infrastructure Creation of Knowledge and Energy strategy Development (WICKED) project provides energy solutions for different retail market segments. Through cooperative research, WICKED investigates clusters of technical, legal, and organisational challenges faced by retail groups, including those with smart meters and energy managers (the “data rich”) and those without (the “data poor”). In partnership with energy suppliers, retailers, landlords, SMEs, and Oxford University, WICKED develops actionable energy and business insights by combining (1) top-down big data analytics, (2) middle-out organisational research, and (3) new bottom-up data. Building on this interdisciplinary evidence base, WICKED co-designs market-ready energy strategies to fit the retail sector’s diverse needs. The project uses a segmented socio-technical model to explore challenges faced by six different types of stakeholders in the retail market: data rich and data poor owner-occupiers, landlords, and tenants. This paper presents data from three different organizations: a European electronics retailer; a multi-national full-service department store; and a budget shopping centre with 91 units. These cases show that one size does not fit all: the data rich and poor will need different energy management solutions. Smart meters will not solve everything: further analysis is necessary to turn numbers into knowledge. Changes to legal infrastructure (e.g., leases) will be needed to assist tenants and landlords in sharing data to enable both groups to monitor, measure, and report energy use. Additionally, how organisational cultures frame employee duties, behaviours, and expectations requires further investigation.
  • S J Bright and S Blandy, Researching Property Law (Palgrave 2015)
  • Kathryn B. Janda, Julia Patrick, Ben Thomas and S J Bright, The evolution of greener leasing practices in Australia and England, paper presented at RICS COBRA AUBEA 2015
    Improving the environmental performance of the built environment is a ‘super wicked’ problem, lacking a simplistic or straightforward response. This is particularly challenging where space is rented, in part because the relationships between the various owners, users and managers of the space is regulated – at least in a formal sense - through the lease. Traditional leases largely ignore environmental considerations and present barriers to making energy efficient upgrades. Leasing practices are evolving to become greener. Evidence from a Sydney Better Buildings Partnership (BBP) study, Australian leasing experts, a UK commercial lease study and a case-study of a major UK retailer, Marks & Spencer (M&S), suggests an increasing, trend towards green leases in most of these markets and opportunities for improving environmental performance through green leasing. Further research is needed in both countries to understand the impact that greener leasing has on environmental performance of buildings.
  • S Blandy and S J Bright, 'Editors' Introduction and Survey Findings, Research Methods in Property Law' (2014) 3 Property Law Review 139
    Guest Editors Sarah Blandy and Susan Bright explain the background and inspiration for this Special Issue of the Property Law Review journal. They present the results of their 2013 cross-jurisdictional survey on property law scholarship, which sought to discover which methods of research are most common and to explore whether dominant approaches vary between jurisdictions, revealing a diversity of property law research approaches.
  • S J Bright and Dr L Whitehouse, Information, Advice and Representation in Housing Possession Cases ( 2014)
    The research for this report was conducted using research methods including legal analysis; interviewing decision-makers involved in housing possession cases and observing court possession days. The initial research aim was to evaluate the extent to which non-financial considerations (such as the welfare of children, exacerbation of health problems, loss of community networks, etc.) are taken into account in possession cases. Surveys were conducted to obtain detailed information about case management and the legal process of possession including the amount of advice and support available to defendants at court premises. In the full report suggestions for improvement are made, including a review of court forms, changes to the use made of the rent and mortgage pre-action protocols, and that consideration should be given to whether the adoption of a less formal process would improve attendance rates whilst reducing demands on the judiciary and other court resources.
  • L Whitehouse and S J Bright, 'The empirical approach to research in property law' (2014) 3 Property Law Review 176
    This article offers an account of the unique characteristics, challenges and benefits of empirical legal research. The authors explain that empirical legal research involves the collection and observation of data through a variety of research techniques, such as interviews, observation and surveys, and how it differs from some of its close neighbours, in particular socio-legal research. While the challenges posed by empirical legal research are acknowledged, this article argues that it enriches property law scholarship by enabling researchers to weave together the law learned in books with the law understood and applied in practice.
  • S J Bright, 'Manchester City Council v Pinnock' in N Gravells (ed), Landmark Cases in Land Law (Hart 2013)
    This chapter explores what the case of Manchester CC v Pinnock means In terms of the rhetoric of ownership and our doctrinal thinking about property rights. It is argued that it heralds a much more contextualised understanding of what it means to assert ownership of land and of how claims for the recovery of land should be resolved. It is these dimensions that are explored in this chapter
    ISBN: 9781849462570
  • S J Bright and H Dixie, 'Evidence of Green Leases in England and Wales' (2013) 6 International Journal of Law in the Built Environment 6
    DOI: 10.1108/IJLBE-07-2013-0027
    This paper reports on research that investigates the use of green clauses in leases of office and retail premises in England and Wales. We examined 26 recent leases of green build properties registered at HM Land Registry. The green clauses discovered were classified, and compared with the model form green clauses promoted by the London based Better Building Partnership’s Green Lease Toolkit.
  • S J Bright, 'Green Leases – Becoming more usual? ' (2013) Estates Gazette
  • S J Bright, N Hopkins and N Macklam, 'Owning Part but Losing All: Using Human Rights to Protect Home Ownership' in N Hopkins (ed), Modern Studies in Property Law (Hart 2013)
    “Shared ownership” is used to provide an affordable route into home ownership. Yet there is a significant problem with the shared ownership scheme; as Richardson v Midland Heart [2008] L & TR 31 shows, in the event of the home “owner” falling into rent arrears, he or she may lose not simply his or her home, but also the equity in the property. This chapter examines whether there is some way of using existing legal principles to avoid this unjust outcome by either; first, protecting the use value of the home by relying on Convention rights under the Human Rights Act 1998 to prevent termination of the “shared ownership” lease; or, secondly, recouping the investment value of the home by using human rights law to enable the home “owner” to retain the equity even if the home is lost.
    ISBN: 1849463212
  • S J Bright, Jeremias Prassl and Hannah Glover, 'Tenancy Agreements' in E Simpson and M Stewart (eds), Sham Transactions (Oxford 2013)
  • S J Bright and L Whitehouse, 'The Opportunities and Challenges of Empirical Work: Housing Possession in Theory and in Practice' in Bram Akkermans, Eveline Ramaekers and Ernst Marais (eds), Property Law Perspective II (Antwerp: Intersentia 2013) (forthcoming)
    This paper explains how empirical enquiry of the kind unburdened by the pursuit of a particular hypothesis or strict adherence to scientific methods, has much to offer in terms of developing our understanding of law and, in particular, the traditionally doctrinal field of property law, providing insights into the operation of law that cannot be learned from books alone. The argument is discussed in the context of an ongoing research project by the authors that investigates whether ‘non-financial’ considerations are taken into account during the process of housing possession, looking at both owner-occupied and rented housing. The project is a broad enquiry exploring the extent to which issues other than property rights and the ability to pay are considered when it comes to losing a home, that is, matters such as the welfare of children, health problems, community networks, attachment and so on. The study is not confined to the ultimate decision making stage, when the judge decides whether or not to order possession, but looks also at how non-financial factors inform decisions made earlier on, such as whether a mortgagee thinks that the time has come to issue possession proceedings. Although the study is of possession proceedings in England, and is based around the English legal system, the purpose of this paper is not to report on the research findings but to make a point of broader significance in relation to the role of empirical research within legal scholarship.
  • S J Bright and N Hopkins, 'Evaluating Legal Models of Affordable Home Ownership in England' in T. Turnipseed (ed), Community, Home and Identity (Ashgate 2012)
    This chapter explores the legal modesl used to provide for low cost home ownership and: a) Explains the legal frameworks used to deliver the main LCHO products available in England; b) Explores the potential benefits of home ownership to the individual in the form of wealth creation, “mainstreaming” and security of place; c) Sets out key additional policy objectives of LCHO, in particular introducing and supporting tenure mix (sustainable communities) and sustaining the opportunity for continued use of the subsidy to provide access to LCHO for intermediate income households; and d) Evaluates the extent to which the different products available deliver both the individual benefits of home ownership and support the wider policy objectives.
    ISBN: 9781409438540