Homes and home working: a property law perspective
| DOI | https://doi.org/10.1108/JPPEL-06-2022-0019 |
| Published date | 16 December 2022 |
| Date | 16 December 2022 |
| Pages | 1-19 |
| Author | Michael W. Poulsom |
Homes and home working: a
property law perspective
Michael W. Poulsom
Manchester Law School, Manchester Metropolitan University, Manchester, UK
Abstract
Purpose –This purpose ofthis paper is to examine whether disciplines outsidelaw demonstrate consensus
on the attributes of home, whether, to the extent that there is consensus, property law supports those
attributes, whether thoseattributes can be reconciled with working from home, and how far property law is
able to addressuncertainty regarding the regulationof working from home.
Design/methodology/approach –This paper identifies conceptions of “home”from non-law
disciplines. It examinesthe extent to which property law in England and Wales supports or challenges those
conceptions. It examines the extent to which working in homes disrupts or distorts those conceptions. It
assessesthe extent to which property law engages with that disruption.
Findings –A lack of clarity in how “home”is defined and perceivedin non-law disciplines, and a tendency
in those disciplines to produce static and decontextualized notions of home is reflected in inconsistent
property law approaches to protection of important “home”attributes. Recognition by property law of the
prevalence of home working is relatively undeveloped. An under-appreciation of “context”dominates both
cross-disciplinaryperceptions of home, and the supportwhich property law provides to those perceptions.
Research limitations/implications –This paper focuses on conceptions of “home”drawn from
disparate disciplines and seeks to find consensus in a diverse field. It concentrates on the regulation by
covenantsof the use of homes for non-domesticpurposes in England and Wales.
Practical implications –Suggested alterations to propertylaw and practice, and to the imposition and
constructionof covenants against business use, might betterreflect the prevalence of working from home and
clarify thecircumstances in which homes can properlybe used for work purposes.
Social implications –This paper identifies that in its inconsistent recognition of “home”attributes in
general, and in the lack of established principles for regulating the use of homes for business purposes in
particular, property law offersinsufficient certainty to occupiers wishing either to work at home, or to resist
doing so. It identifies thata broader cross-disciplinary investigation intothe inter-relationship between living
spaces and workingspaces would be beneficial.
Originality/value –The originalityof this paper lies in its examination from a propertylaw perspective of
establishedcross-disciplinary conceptions of homein the context of the recent growth of working in homes.
Keywords Homes, Working from home, Covenants, Business use, Enforcement, Business
Paper type Research paper
Introduction
“Home”defies easy definition. Practically, home might be viewed as a location for meeting
the personal needs of everyday life.Emotionally, home might be perceived as the location of
a sense of belonging, where people can fosterpersonal relationships, and care for themselves
and others.
The close association of “home”with domestic,as opposed to commercial, environments
must now engage with the widespread use of homes for non-domestic purposes. In April
2020, 46% of employed people in the UK performed some,or all, of their employment duties
in their homes. Of those, 86%, equating to approximately 12 million people, did so because
of the COVID-19 pandemic (Office for National Statistics, 2020). A significant level of home
working is likelyto continue [1].
Homes and
home working
1
Received21 June 2022
Revised15 September 2022
7November 2022
17November 2022
Accepted17 November 2022
Journalof Property, Planning and
EnvironmentalLaw
Vol.15 No. 1, 2023
pp. 1-19
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-06-2022-0019
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/2514-9407.htm
This article focuses on the conduct in homesof activities which might until recently have
been undertaken in specified workplaces. Notwithstanding the extensive literature devoted
to it, this article does not discuss either the status (Schwartz, 2019) or the regulation
(Nilliasca, 2011)ofdomestic labour. The decision to focus this discussion away from
domestic labour is not intended to deny the significance either of that labour or of the
debates which accompany it, but recognises the inherent legitimacy of, and the remote
likelihood of a realistic challengeto, the use of residential property for attending to personal
needs. Similarly, the focus of this article on the significant disparity between different
people’s capacity to workin their homes based on their financial resources and on the nature
of their property tenure is not intended to be exclusionary of other discussions of the
discriminatory effects of working in homes related to gender, ethnicity or social class
(Phizacklea and Wolkowitz,1995).
This article investigateshow notions of home inter-relate with the regulationof the use of
residential properties by the imposition and enforcement of covenants. It identifies how
disciplines outside law have soughtto establish meanings of “home”and how property law
supports or opposes those meanings. It identifies how increased home working has altered
conceptions of home, and examines how, and how successfully, property law has adapted,
and might further adapt, to that increase.
Cross-disciplinary perceptions of “home”
Meers’categorisationof “home”as “an essentially contested concept”(Meers, 2023), perhaps
paradoxically, appearsto provide more clarity and finality than has previouslybeen evident
in discussions of home. Attemptsby non-law disciplines to describe “home”have resulted in
diverse conceptions and understandings. “Home”has become a “repository for complex,
inter-related and [...] contradictory socio-cultural ideas aboutpeople’s relationship with one
another [...] and with places, spaces and things”(Mallett, 2004). Researchers’tendency to
examine discipline specific dimensions of home (Mallett, 2004, p. 64) has created a body of
research on home environments which is “particularly daunting [...] diverse [...]
[and] unintegrated”(Rapoport, 1985), and the size of which has been described as
“counterproductive”(Rapoport, 1985, p. 255).
Attempts to define “home”have tended to focus on occupants’experiences. Some
analyses have attempted to create “lists”of attributes, resulting in “disparate ideas and
observations”(Sixsmith, 1986). Hayward (1976) lists nine “dimensions of home”in orderof
importance, including home as “a set of relationships”(No. 1), “a place of privacy”(No. 4)
and as “a personalized space”(No. 6). Despr
es (1991) draws on studies conducted in the
USA, the UK and Israel to identify general categories of meaning, articulated as “Home as
[...]”, including “Security and Control”,“aReflection of One’s Ideas and Values”,
“Permanence and Continuity”,“Relationships”and “a Refuge from the Outside World”
(Despr
es, 1991, p. 98). One study asked apartment residents to identify the order in which
they felt their home was “the sole area of control for the individual”,“the most appropriate
framework for the family”,“a place of self-expression”and the source of “a feeling of
security”(Sebba and Churchman, 1986). In another, Sixsmith (1986, p. 287) identified 20
collective categoriesof meaning of “home”, the most frequently identifiedbeing “Belonging”
(encompassing comfort, relaxation and familiarity), “Self Expression”(the notion that at
home “you can do what you want”) and “Spatiality”(defined as “thespatial properties and
the activities that thosespaces allow”).
From this “complex and multi-dimensional amalgam”(Fox, 2002) of home attributes,
three features have been chosen for analysis of homes and home working from a property
law perspective. The first is that home should be an environment which occupants can
JPPEL
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