COR Point 49 Right to Housing (ICESCR Article 11)
Persons without Property Rights
We should first review the situation of persons without property rights. All land development systems and land clearance projects may affect persons without property rights and persons without property rights are the most disadvantaged if they encounter forced evictions.
Persons without Property Rights on Public Land
After the review of the first State report, the Ministry of Finance revised the “Directions for Disposal of Occupied National Public Use Real Estate Managed by Administration Authorities,” which mandated the expulsion of informal settlements on public land, effective June 17, 2014.103 However, the new version only requires officials to refer persons who meet rigorous requirements for access to social welfare to the social welfare agencies of local governments for resettlement and does not make the land development agency responsible for finding alternative housing. In fact, local governments do not have adequate supplies of suitable housing available for use in such resettlement and it is also not the case that all of the residents who are evicted can meet the official standards for access to social welfare. For example, only a relatively small minority of the residents in the Huaguang Community were able to participate in the resettlement program and thus receive short-term and unaffordable accommodation while the overwhelming majority of residents were evicted without having any alternative housing.
Persons without Property Rights in Cases of Urban Renewal
With regard to the question of evictions and removal before development, both existing Urban Renewal Act and the draft package of revisions now under review allow construction companies in the process of carrying out urban renewal projects to apply for building dimension incentives if they provide housing units to persons without property rights.104 As far as the construction company is concerned, the provision of housing units to persons without property rights offers little benefit and they may not necessarily be able to obtain the volume incentives offered through this process for which there is also a ceiling. Construction companies usually proceed through the exercise of rights under the Civil Code to first expel persons without property rights and then carry out the urban renewal plan.
Regarding affordability, both the existing Urban Renewal Act and the draft revisions do not establish measures to evaluate the capability of persons without property ownership rights or title holders to afford participation in the project. This shortcoming causes the problem that even when resettlement plans through leases, purchases or rights transfers are proposed, they are often beyond the financial capability of persons – especially those without property rights for the reason that the newly constructed building, even there are discounts on the housing unit purchasing price, will have higher management fees. In cases of resettlement for tenants, the cost of rent is not based on the wages or salaries of the resettled persons, which is also in contravention of Article 11 of the ICESCR and Point 8(c) of General Comment 8 on the ICESCR as well as Point 49 in the Conclusions and Recommendations.
Persons without Property Rights in other development methods
Land expropriation, land consolidation and other development systems set up rights holders always as landowners. As a result, when encompassed in the scope of a development project, tenants who are not landowners and informal residents have little or no room to express their views and may even face eviction suits from other landowners even though they are as equally stakeholders as other homeowners. In land expropriation or land consolidation or clean-up systems, tenants without property rights or informal residents also do not have alternative housing and can at best depend on meagre cash compensations from local governments for goods or belongings on the demolished land.
The Legitimacy of Land Development and Clean-up and Alternative Housing or Compensation
We believe that the government should evaluate whether land development or clean-up projects have legitimacy before discussing alternative housing. Points 184-191 respectively discuss the types of land clean-up and development methods. The first section explains what we believe is legitimate and the second section discusses how to resettle or compensate people who are affected by these systems.
National Land Clean-up
On November 27, 2009, the Executive Yuan established the “National Land Clean-up and Reactivation Squad” whose purpose was to bolster the efficiency of national land use, create asset value and accelerate development.105 In the eyes of the government, public lands, which cover over 60 percent of Taiwan’s land area, are seen as real estate commodities whose value exceeds NT$20 trillion.106 Even though a large number of informal settlements occupy public land (Refer to Point 160), this policy did not take into consideration the rights of residence of these existing residents. Civil society organizations believe that this kind of policy often arises out of considerations of economic development or government fiscal conditions and indirectly turns public land to the use of conglomerates for their own use and profit and that the legitimacy of the evictions of people for such purposes should be reconsidered.
The government has yet to comprehensively clarify the situation regarding residents on public lands. Moreover, the government has not conducted evaluations of the necessity and public interest prior to demolishing illegal buildings and during the process of demolition and eviction in light of the provisions of the two covenants. The government has also failed to provide related resettlement or compensation after such removals.
Urban Renewal
The existing Urban Renewal Act features provisions for construction companies to be qualified as urban renewal project “implementers” and bulk rewards which lead most urban renewal projects to be adopt the method of complete reconstruction out of considerations of “asset value” and not to consider questions such as cultural asset preservation, the form or texture of the original housing or the degree to which existing residents can afford to buy or rent the new housing units. In addition, Article 22 of the Urban Renewal Act sets agreement of landowners with at least 75 percent of the existing land area and floor area as the standard for approval of an urban renewal business plan, but does not clearly stipulate participatory mechanisms through which households which do not agree can effectively express their views and does not establish dispute resolution mechanisms. As a result, the legitimacy and necessity of such projects do not receive comprehensive consideration.
Please refer to Point 211 above.
Zone Expropriation
Public interest, necessity and the lack of other options are necessary preconditions for land expropriation. However, at present, most zone expropriations are conducted for economic objectives. There are no clear and precise standards for the evaluation for key preconditions such as the public interest, necessity and lack of other options. The absence of open and transparent review procedures also results in the evaluation of public interest, necessity and the availability of other options to be arbitrarily determined by the developing agency or so-called expert and professional committees and thus to gravely lack foundation in social consensus.107
Article 44 of the Land Expropriation Act adopts a formula for “entitled value” calculated by the responsible municipal, city or county authority for “the value of land a landowner is entitled to receive,” which is calculated in proportion to the ratio of his entitled compensation for land value and the total compensation for land value for the zone expropriation, divided by the unit value of the actually distributed land. This method mechanically takes the land of the original residence and transforms it into a pure price and does not consider the needs of the original resident for residence, work and essential needs and also does not consider the possibility of the return of the original resident to the land in question. This method is naturally unable to substantively provide the resident with alternative housing to resolve living needs. In addition, given the limitations caused by the narrowness of streets and the small areas, original residents who have relatively small property rights will find it impossible to obtain land in relatively ideal locations through lotteries. Hence, the system is designed entirely to the advantage of large property owners and developers.
Urban Land Consolidation
Urban land consolidation is one type of land development method under the framework of urban planning. Therefore, once an urban plan is finalized, urban land consolidation is a matter of time that depends only on surveys to select the scope and the actual timing of implementation. Regardless of whether the urban consolidation is conducted by public or private sector agencies or even if decades have passed since the passage of the urban plan, the implementation can be decided by the implementing agency without any further evaluations of the originally approved plan or reconsideration of whether it is in accords with the needs of residents and without any further public hearings or review by the city assembly. It should be evident that such a process gravely lacks due consideration for public interest and necessity. [For information regarding citizen participation in the land consolidation process, please refer to Point 43]
The threshold for private-sector urban land consolidations is favourable to large landowners and squeezes the room for small landowners to express their views (please refer to Point 43 above). Regardless of whether the land consolidation is conducted by the public or private sector, there are no procedures for resettlement (for either property owners or non-property owners) and the result is to both evict residents and render them unemployed. Moreover, compensation for the demolition of residences and belongings is also insufficient to allow most such residents to buy new homes or even cover their losses in the eviction process.
- See http://gazette.nat.gov.tw/EG_FileManager/eguploadpub/eg020112/ch04/type2/gov30/num4/Eg.htm (in Chinese)
- Local governments offer building dimension incentives based on commitments to increase a certain number of floors, such as embodied in Article 19 of the “Urban Regeneration Local Ordinance of Taipei City”.
- Directions Concerning the Establishment of the National Land Clean-up and Reactivation Squad as revised as of May 20, 2015: http://ppt.cc/NRTrh.
- Wang Hsin-jen, “Chu Li-lun named Convenor; To Clean Up NT$20 trillion in National Land,” Commercial Times, December 1, 2009 (in Chinese).
- For information regarding citizen participation in the land expropriation process, please refer to Point 42.