The real life of law: Polish lessons on housing activism in the postcommunist context

Abstract

In this paper, I analyze the content and practice of law enforcement in the domain of tenants’ protection in Warsaw to draw lessons from Polish examples on the strategy for housing activism in the postcommunist context. The local public administration is quite weak, as it has limited financial and human resources capacities, which undermines the usefulness of concentration on legislation and rights because these two elements are not automatically implemented and enforced. The insufficient control measures within public administration need to be supplemented by external pressures and monitoring. Therefore, housing activists should focus on building a grassroots movement instead of exhausting all their energy to influence legislation and representative democracy channels. Tenant movements need to find resourceful solutions to enforce law or act beyond the legal framework. I will argue that law enforcement is the main challenge in pursuing the goals of housing accessibility.

Introduction

A housing activist from Budapest recently asked me about the legislation prohibiting eviction on the street in Poland, which is absent in the Hungarian legal framework. This inspired me to document the experience of Poland’s housing activists to reflect on tactics in the region. Social movements typically focus on fighting for social rights. However, one needs to analyze the real workings of law to evaluate whether this is an effective strategy in a particular context. Laws are not implemented in an automatic way but depend on the local public administration. The best example to illustrate the gap between rights and their enforcement is the right to housing in Ukraine. By the time this right is executed, the claimant is already dead, because it takes 55 years to receive an apartment.1 Since the postcommunist public administrations seem to show similar trends on average, housing activists from Eastern European countries can learn about the best tactics to employ in order to prevent wasting resources on potentially ineffective tactics. This paper does not document the entire or statistically representative picture of housing policy and the overall situation in Poland, but rather focuses on some aspects to deliver certain insights into possible strategies to improve housing provision in the region. The empirical material in this paper was gathered while conducting case studies on the interactions between public administration and citizens, and the activities of the tenant movement in Warsaw.2 Further cases of tenants’ actions in Warsaw are described in Gajewska (2012). This article will present some interactions between tenant movement organizations, activists, and supporters and the public administration. Instead of presenting a detailed picture of tenant movement in Warsaw or in Poland, which would make for another article, I provide only a very short overview. There are four main organizations defending tenants in Warsaw: Warsaw Association of Tenants (Warszawskie Stowarzyszenie Lokatorów, WSL), Left Alternative (Lewicowa Alternatywa, LA), Committee for Tenant Defense (Komitet Obrony Lokatorów, KOL), Attorney Office for Social Justice (Kancelaria Sprawiedliwości Społecznej, KSS). They have a similar profile and often cooperate with each other to organize an eviction blockade. Furthermore, there are two squats, Syrena and Przychodnia (Clinique), which also support protest actions of tenants.

The first section will briefly present the problem of housing in Poland and in other Eastern European countries. The problem of non-implementation of housing rights will be highlighted. The two following sections will elaborate on the “real life” of local-level law enforcement concerning tenant protection. First, the seemingly progressive legislation protecting tenants from eviction will be analyzed in terms of its real impact on advancing tenants’ situations to highlight possible drawbacks of a strategy oriented towards legal measures. Second, the role of activists in law enforcement and in preventing evictions will be described in order to demonstrate that the focus on legal measures may turn out to be less relevant than activists hope. The next section will argue for the importance of building a strong tenant movement. Furthermore, it will present both the ways to mobilize such a movement and the possible tactics that aim to increase public housing supply.

Non-implementation of housing rights

The ratio of owner-occupied to rented apartments is quite high in Eastern Europe in comparison to this ratio in Western countries. This reduces the number of people potentially interested in public housing. The liberal type of residential capitalism, which encourages home ownership, thus placing the risks of changing interest rates and decreased home value on the homeowner (Schwartz and Seabrooke, 2008), is preferred by the authorities in Eastern Europe.

Postcommunist countries differ in the way the transformation to the capitalist system was organized in the housing sector. The transformation brought about the problem of ownership. In Hungary, housing restitution took the form of vouchers that former owners could trade for shares in companies or land undergoing privatization. In 1991, a substantial amount of property was already privately owned. By contrast, in Poland there is no restitution legislation, but some return of property in kind – which de facto became the dominant form of restitution – has been obtained by claimants through court trials and these types of trials are still being initiated. The restitution of property in kind to former owners is in an ethical contradiction with the fact that tenants who had been living in public housing invested in and contributed to maintaining this property. A bill on restitution did pass through both houses of parliament in March 2001 but failed to become a law due to a presidential veto, which President Kwaśniewski justified on the grounds of social justice and economic development. The principle of restitution in Bulgaria was that tenants of restituted property could only be evicted after the three-year mandatory notice period, whereas in the Czech Republic, tenants could not be evicted unless they agreed to an equivalent housing trade (Appel, 2005, pp. 392ff.). In Poland, a ten-year public housing rent freeze was introduced in 1994 to give municipalities the time to supply housing alternatives and to allow the rental market to develop. The suspension of rent control in 2004 aggravated the problem of insufficient housing provision: for example, in 2008 in Warsaw, public housing rent increased by an average of 200 to 300 percent.

Housing rights were included in the 1948 Universal Declaration of Human Rights and recognized by United Nations, Council of Europe, and the EU member states. The 1966 International Covenant on Economic, Social and Cultural Rights prohibits forced eviction and obliges the State to provide alternative housing to those who cannot provide for themselves. Social housing provisions have been recognized in the EU as a service of general economic interest (Kenna, 2008). In addition, the 1997 Polish Constitution includes an article on housing, obliging the state to commit to preventing homelessness. Eurostat data shows that the proportion of severe housing deprivation3 in Eastern European EU member states is higher than in other member states. In 2011, five Eastern European countries had a severe deprivation rate of over ten percent (Bulgaria, Hungary, Latvia, Poland and Romania, the latter with a staggering 25.9 percent). In 2011, the highest overcrowding rates were registered in Romania (54.2 percent), Bulgaria (47.4 percent), Poland (47.2 percent), and Hungary (47.1 percent) (Eurostat, 2013). For Poland, the Supreme Audit Chamber (Najwyższa Izba Kontroli, or NIK), in its critique of insufficient state engagement in housing provision, indicated that 1,500,000 additional apartments were needed to meet demand. 6,500,000 people were in a difficult housing situation (NIK, 2012).

In Poland, the NIK stated in its evaluation that the Ministry of Infrastructure does not fulfil its role in promoting adequate public housing supply, which goes against administrative law. Municipalities have no incentive to maintain social housing, seeing it as a financial burden. The lack of concrete legal measures to supply the poorest citizens with public housing allows municipalities to ignore the housing problem (NIK, 2012). This shows that gaining national-level legislation in support of public housing supply is not enough. Policy implementation very much depends on local bureaucrats, especially in a situation of ambiguity and conflict (deLeon and deLeon, 2002).

Anti-eviction legislation in Poland

In this section, I will concentrate on anti-eviction legislation in Warsaw to highlight four thorny details that may work against the advancement of tenants’ situations: 1) the criteria used to determine a tenant’s eligibility to receive a replacement apartment may be interpreted by administrators in a rather arbitrary way; 2) the low quality of the replacement apartment may practically prevent living there; 3) legislation may enable an outflow of public money to the private sector; 4) strong anti-eviction legislation may make private-sector housing less accessible. One needs to consider these potential drawbacks when considering legal measures to improve tenants’ situations.

While tenant protection legislation may seem advantageous and progressive at face value, a closer look at its enforcement shows that it may turn out to be less advantageous in the long run. On February 5, 2005, Poland introduced a law prohibiting evictions unless the former tenant is provided with or ensured a replacement living space. In the case of eviction of a minor or a person in custody, a court must be consulted first. The court then decides whether the tenant to be evicted has the right to social housing. The legislation guarantees the right to social housing to certain groups in the case of eviction: pregnant women, minors, disabled people or individuals under custody and the persons responsible for them if they live together, severely ill individuals, pensioners who are eligible for social benefits, and unemployed individuals. Additional criteria may be defined by the municipality (which is obliged to define eligibility for public housing). A person who has the opportunity to live in another apartment is not eligible for social housing. Administrators often explain that a tenant can live with other members of his or her family: for instance, with parents. This shows that local bureaucrats may have a certain amount of leeway in defining the extent of tenant protection against eviction resulting in homelessness.

The definition of replacement housing is so general that it is very easy to allocate practically uninhabitable space to claimants. The law defines replacement housing in the following way: the space should be habitable, have at least 5 square meters of habitable space per person, and be in the same geographic area (commune) as their prior home. The Ministry of Justice has defined the conditions regarding replacement apartments: they should have access to a water supply and a toilet (even if these amenities may be located outside the building), have access to natural light and be equipped with electric lighting fixtures, a heating system and the fixtures necessary to install cooking equipment, and the divisional structures should be free from humidity. The lease period must be at minimum one month and maximum six months. The conditions are so minimal that administrators may assign a basement to an evicted tenant. Since the lease period for replacement housing is so short, there is less incentive to engage in a trial over these conditions, and as a result the administration can allocate whatever living space it chooses. Even if the space is uninhabitable, it is difficult for tenants to defend their right to a decent living space, taking into account the fact that evicted tenants are often quite poor.

A tenant who does not have the right to social housing cannot be evicted until either the tenant to be evicted finds another apartment, or the municipality or the owner of the apartment provides a replacement apartment for the tenant.4 The owner of the apartment from which a tenant is to be evicted is not required to find replacement accommodation, but it can accelerate the process. If the municipality does not provide social housing to a tenant, despite the court’s ruling that the tenant is eligible, the tenant can continue to live in the apartment. The tenant pays the same rent as specified in the original lease and the municipality must pay the difference between the rent paid by the tenant and the rent that would be paid if the apartment were rented to a new tenant (Article 18 of the Tenants’ Protection Law). In 2007, the Tenants’ Protection Law was changed following the decision of the Constitutional Court: the owner of the apartment occupied by a tenant to be evicted who is eligible for social housing can demand full compensation of rent from the respective municipality. Another example of transfer of public money to the private sector is when municipalities fulfil their obligation to provide replacement housing through the intermediary of a private provider. The Warsaw authorities rent an entire hotel and allocate rooms to tenants who are eligible for a replacement housing, as required by the law. In this way, public money is transferred to the private sector rather than being invested in maintaining or expanding the current housing stock.

In addition to the potential transfer of public money to the private sector, another danger involves rigid anti-eviction legislation, which results in more limited access to private sector housing. Apartment owners may impose stricter eligibility criteria on potential tenants, requiring stable employment or other guarantees. Given that employment in Central Eastern Europe is often precarious or informal, this may aggravate the problem of homelessness. The example of France illustrates this well: access to private housing is very difficult for precarious workers and unemployed people. The state funds some guarantees for tenants, but these are limited in number. Eligibility is limited to young people. There are private-public agencies that help people rent an apartment and talk to apartment owners: in some cases, they even offer to sign a guarantee for a tenant. However, these limited measures are not sufficient and require financial resources and administrative capacities lacking in postcommunist region.

Arbitrary law enforcement in cases of eviction and eviction blockades

A closer look at cases of evictions and eviction blockades will further illustrate the limitations of legal measures as a strategy for housing activism. Tenants are most often evicted because they have not paid rent for at least three months or they have disturbed their neighbours. In Warsaw, 1,900 households in public housing are in debt; over 500 households are indebted to housing cooperatives, and 350 to private owners (Zubik, 2012). Activists organize eviction blockades and negotiate with debt collectors. In many cases, it turns out that tenants to be evicted meet some of the eligibility criteria for protection against eviction, but the decision to evict them has been made nonetheless. Regulations protecting certain groups of tenants are often not applied in practice. For instance, a young couple with a four-year-old daughter was scheduled to be evicted on October 8, 2012. The administrators in charge of the case were approached by activists, who provided them with a letter from the replacement accommodation provider, which stated that minors are not allowed to live in this specific replacement accommodation. Although this letter was a proof that the administration had not yet provided the family with a suitable replacement housing, the administrators at first refused to stop the eviction proceedings. Finally, the eviction was postponed indefinitely, although whether this resulted from activist intervention or other factors is unclear. The intervention of legally versed activists has prevented many evictions, as they were able to point to lacking documentation accompanying eviction decisions. Tenants do not often have enough legal knowledge to dispute eviction. Local administration and social services do not inform tenants of their rights. Therefore, the application of anti-eviction law depends on the activism mobilized when an eviction is announced. Usually dozens of people come to eviction blockades and one hundred participants is the current record. This is still a far cry from the strong mobilizations which assembled hundreds or thousands of people in Chicago and New York in the 1930s (Booth, 2012), nonetheless has some impact. However, eviction blockades only postpone an eviction. For instance, activists tried to block two evictions from public housing on August 6, 2012, for the second time. In both cases, they had managed to block these evictions the first time, but the second attempt to evict tenants was supported by more than one hundred policemen, and the evictions were carried out (Berek, 2012).

Certainly, any law advantageous to tenants presents progress, but one needs to consider whether the concentration on legal measures makes sense if there is no social mobilization to implement these laws. Laws protecting tenants can be a basis for trials in administrative courts in the event of their non-enforcement, but bringing a case to court requires resources, and it takes a long time for a final decision to be made. Judiciary tactics are better suited for claimants with substantial resources. The administration risks little in the event of non-enforcement of law, and has leeway in interpreting these laws because it deals with destitute populations. The Attorney’s Office for Social Justice (Kancelaria Sprawiedliwości Społecznej, KSS), a grass-roots organization which helps low-income individuals in legal disputes, accused the state of either not providing legal representation for these individuals in court or providing them with low quality representation. The organization represents tenants in court, using a legal loophole which allows non-lawyers to represent a person in court in some exceptional cases. However, the organization is overwhelmed by demand as their work requires extensive preparation and specialized knowledge (Interview with organization leaders, 30 May 2012).

A successful eviction blockade can postpone eviction for several months and during this time other solutions can be found. In such a context, replacement apartments, which are offered for one to six months, may seem more costly and less convenient to tenants than remaining in their current apartment. Furthermore, some eviction orders have been successfully blocked and postponed, despite being in accordance with the law. Activists managed to negotiate a solution with the administration. In view of these arbitrary relations between law and enforcement practice, one can conclude that anti-eviction law alone does not automatically improve tenants’ situations. On the other hand, activist mobilization and involvement can stand in for anti-eviction laws to protect tenants in situations in which there is no applicable legislation.

First things first: the need to build a tenant movement

Social movement theorists claim that rights may incite people to mobilize and form a movement. They may have an activating and constitutive power. However, it is difficult to imagine that an anti-eviction law would have such a mobilizing power. There is a psychological limit to it: no one wants to think of eviction in advance and once faced with it, it is too late to engage in a political process around a law prohibiting it. Polish activists I talked with pointed to this problem of denial when a tenant is facing eviction, which leads them to put off seeking help until the last moment. The aforementioned Hungarian activist also had trouble mobilizing tenants in public housing because tenants could often not identify with the problem of homelessness. In contrast to this disaffected attitude toward eviction, citizens may be more eager to mobilize around watchdog activism and “value for taxes” demands. Public administration with limited financial and human resources requires such external watchdog measures. The demand for affordable public housing can draw support from a broad public and younger generations who have experienced the recent crisis and are not eligible for home loans.

Furthermore, the impact of legislation-oriented strategy on movement building should be considered. The tendency of organizations to shift towards self-interested goals may distance them from their constituencies over time. This can be observed in new social movements in the wake of their struggles targeting reformist politics and modification of law in the 1960s-1980s (Day, 2004). Therefore, action to change the legal framework must be complemented by direct action, which builds up movement solidarity and capacities.

A tenant movement could be built around monitoring of the present public housing stock and public expenditures on renovations to prevent the outflow of public resources. These would expose any potential failures of local administrators. This has been implemented by tenants’ organizations in Warsaw, which publish data and tenants’ testimonials on their websites. One of the organizations has recently initiated more formalized monitoring of housing policy output and has received financial support from the Batory Foundation. Another tenant organization created a space for tenants to update a register of empty apartments on its blog/website. This register currently features over 160 responses. Rather ironically, there are thousands of empty apartments in the public stock, and many of them are inhabited by politicians, whose income clearly exceeds eligibility criteria.

Conclusions

The main conclusion of this paper is that focusing on legislation is not the best strategy for housing activists, especially when they lack the support of a well-organized tenant movement. Based on the above description of Polish legislation designed to protect tenants from eviction following their failure to pay due rent, it is clear that this legislation does not provide tenants with any real protection. Moreover, even if legal protection of tenants were introduced, subsequent incumbents would likely introduce exceptions to limit its scope. Furthermore, the practice of law enforcement makes this anti-eviction law even less effective because allocated replacement housing may be uninhabitable. While increasing public housing stock, broadening eligibility criteria, and monitoring public asset utilization are both useful and tangible strategies for housing activists, focusing on anti-eviction law – and particularly on replacement apartment provision – is arguably less effective in postcommunist context. Another danger related to the obligation to provide replacement housing is the potential outflow public money to private sector providers, which gives administrators an opportunity for collusion.

Given the limited capacities of postcommunist local administration and its low level of responsiveness to citizens, any law protecting citizens requires a grassroots movement and mobilization potential to be enforced. Therefore, housing activists should focus on this element first rather than concentrating on legal channels and engaging in elitist politics. Tenants are regularly evicted even though the laws in place theoretically protect them from eviction, further illustrating this discrepancy between law and practice. Activists play an important role in monitoring law enforcement and negotiating compromises with administration. Direct action in the form of eviction blockades may protect tenants when the law does not.

References

Appel, Hilary 2005. “Anti-Communist Justice and Founding the Post-Communist Order: Lustration and Restitution in Central Europe.” East European Politics and Societies 19(3): 379–405.

Berek, Sonia 2012. “Czarny poniedziałek w Warszawie.” 7 August. Lokatorzy.pl

Booth, Jeff 2012. “How the Left Stopped Foreclosures in the Great Depression.” 1 July 2012. Socialist Alternative, http://www.socialistalternative.org/news/article20.php?id=1877 .

Day, Richard J.F. 2004. “From hegemony to affinity: The political logic of the newest social movement.” Cultural Studies 18(5): 716-748.

deLeon, Peter and deLeon, Linda 2002. “What Ever Happened to Policy Implementation? An Alternative Approach.” Journal of Public Administration Research and Theory 12(4): 467-492.

Eurostat 2013. “Housing statistics.” http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Housing_statistics#Housing_quality

Gajewska, Katarzyna 2012. “Reprivatisation sauvage et insuffisance de logements à Varsovie.” Dossier: “Projets d’urbanisme à l’Est,” Regard sur l’Est. http://www.regard-est.com/home/breve_contenu.php?id=1329&PHPSESSID=c68c1deb9821897f1fe45fddde6560d0

Kenna, Padraic 2008. “Globalization and Housing Rights.” Indiana Journal of Global Legal Studies 15(2): 397-469.

NIK 2012. “Realizacja zadań w zakresie gospodarki mieszkaniowej przez organy administracji rządowej i jednostki samorządu terytorialnego.” Report from control.

Schwartz, Herman and Seabrooke, Leonard 2008. “Varieties of Residential Capitalism in the International Political Economy: Old Welfare States and the New Politics of Housing.” Comparative European Politics 6: 237–261.

Zubik, Małgorzata 2012. “Pięć tysięcy osób do eksmisji. Dokąd ich przenieść?” 15 October 2012, gazeta.pl.

1 Volodymyr Ishchenko shared this information during his presentation at the conference “Mapping Neoliberalism and Its Countermovements in the Former Second World,” July 23-27th, 2012, Budapest, Hungary.

2 The findings presented in this article were gathered while completing the project entitled “Reinventing the state from below: public governance and engaged citizenship in the recent disputes over tenants’ issues in Poland.” The research was partially sponsored by Budapesti Közép-Európai Egyetem Alapítvány. The theses explained herein represent the ideas of the author, but not necessarily the opinion of CEU IAS.

3 Eurostat defines the severe housing deprivation rate as the proportion of persons living in a dwelling which is considered as being overcrowded and having poor amenities, the latter referring to those households with a leaking roof, no bath/shower and no indoor toilet, or a dwelling considered too dark. Source: http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Glossary:Severe_housing_deprivation_rate

4 Tenants who signed their lease in 2006 or later do not benefit from this eviction postponement clause, even if they are eligible for social housing.

5 The author of the report is one of the tenant movement activists and a member of squat Syrena. She participated in the blockades. The report was originally published on the website of one of the tenants’ organizations, WSL.