3.1 Property law as a tool for equal rights in multi-owned properties

Based on the previous problem description, inequality issues can potentially be resolved in two ways: discrimination law can be rendered applicable, or, alternatively, the underlying rules and principles of property law can be adjusted to better meet societal demands for equality and justice. In an attempt to find a solution that targets the root of the problem instead of its symptoms, property law and progressive theories of property are used here to examine whether a stronger emphasis on property rules and principles may be another feasible way to address inequality in multi-owned buildings. This starting point for analysing societal issues with multi-owned property is not new or unique. Sherry for example has used property law to analyse strata and community title with regards to societal issues that stem from the extensive use of restrictive use covenants.^[20] And many have argued before that this “new” dimension of ownership constitutes reason to review and reform the conceptual understanding of property.^[21] The following analysis builds on and contributes to these discussions with a novel perspective, using Swedish tenant-owner association law as a starting point for discussion. First, the reasons for and relevance of using Swedish tenant-owner association law as comparison and starting point is explained. Then, the Swedish definition of right of use and Swedish courts assessments of what constitutes disturbance in multi-residential buildings are used as examples to illustrate how more emphasis on fundamental principles of property 296law can provide disabled members with an equally strong right to keep an assistance dog as does discrimination law. Lastly, the analysis focuses on disabled members’ right to request disability adaptations in the common areas and property laws capacity to formulate such a right without the need to apply discrimination law. This part focuses on progressive property theories and extrapolates ia on the Swedish court’s legal reasoning concerning assessment of disturbance to suggest that national building standards can be used as a basis to define applicable normative standards that can provide disabled members with an equally strong right to request accessible accommodation as does discrimination law.

3.2 Sweden as a comparative model for addressing disability rights in multi-owned properties

The primary reason for choosing Sweden as comparison and starting point is that it offers a new perspective. In Sweden, discrimination law is not applicable to multi-owned property associations and, as a consequence, members have no specific legal rights with regards to their disabilities.^[22] For example, residents in tenant-owner associations have no special right to keep assistance dogs in their apartments or to request the installation of ramps in the common areas. Decisions as to whether tenant-owners with disabilities can keep assistance dogs, or receive approval for requests to install ramps, are decided on the same grounds as any other tenant-owners potential request to have and do the same. Yet, tenant-owner associations in Sweden, in comparison to countries that have made discrimination law applicable, have more far-reaching obligations to accept assistance dogs. In fact, in Sweden, members of tenant-owner associations, as a general rule, have a right to keep assistance dogs. The more far-reaching right to have an assistance dog follows from the application of basic principles of ownership and thus serves as an interesting starting point for the discussion of whether more emphasis on property can reduce inequality issues in multi-owned properties. Further reasons for choosing Sweden for comparison and starting point for discussion is that the Swedish legal system, in here relevant parts, builds on the same fundamental governing principles as common law. The Swedish legal system is part of the Scandinavian civil law tradition, which differs in several ways from the common law tradition. However, property law and progressive theories of property law can also be used within a Swedish legal context since they are aimed at the normative core and definition of property: 297democracy, exclusivity, ‘the harm principle’ and the principle of numerus clausus, economic reasoning and efficiency. In these regards, common law, and progressive theories of property law, are of a universal character that is also translatable and relevant to other Western democratic countries, such as Sweden.

The use of Sweden as a starting point is also relevant on material grounds. The regulation and fundamental principles governing Swedish tenant-owner associations are in principle equivalent to the principles and governance rules adopted for corresponding forms of multi-owned property in common law countries, for example strata, community title, and homeowners’ associations.^[23] A tenant-owner association is a particular form of economic association with a specific purpose: to let apartments in the association’s building, with a particular form of lease right, bostadsrätt, to the members of the association.^[24] The bostadsrätt is defined as a particular form of property that constitutes an indirect form of apartment ownership for the tenant-owners. It consists of two parts: 1) it is a personal membership in an organisation that is connected to a right of tenure, unlimited in time, to a particular apartment, and 2) the apartment building is indirectly co-owned by the tenant-owners through their membership in the association. Tenant-owner associations are regulated by the Tenant-owner Association Act (1991:614) (Bostadsrättslag)(TAA), and also, in applicable sections, by the Economic Association Act (2018:672) (lag om ekonomiska föreningar)(EAA). One way in which the Swedish regulation differs from the common law forms is its direct connection to landlord and tenant law. The indirect form of ownership is based on a mixture of landlord and tenant law, fundamental principles of ownership and company law.^[25]

A concrete example of how the regulation of tenant-owner associations in Sweden corresponds to how multi-owned properties are regulated in common law, if discrimination law is not applied, is the lack of right to install ramps in common parts of the building. In Sweden, tenant-owners have little influence on whether and how alterations or new installations should be made to common areas of the building. The tenant-owner association has responsibility for, and decision-making power over, the common areas. As a result, individual members have no right to 298require adjustments to be made in the common areas of the building.^[26] Hence, disability adjustments in the common areas of the building can only be made if the association approve of them.^[27]

Requests for disability adjustments to the common areas of the building, such as automatic doors, or handrails are considered to fall under general maintenance and are routinely processed by the board.^[28] Requests for stair lifts or ramps on the other hand might be considered new installations.^[29] Such requests should be forwarded to the general meeting, unless otherwise stipulated in the bylaws.^[30] A decision by the board, for example, not to install handrails in the entrance hall or the stairs, cannot be contested by the tenant-owners. A matter that the board has decided on, however, can be dealt with at the general meeting by request of any tenant-owner. Hence, if the board denies a tenant-owner’s request to have disability adaptations installed in the common areas, the tenant-owner has a right to have the matter taken up at the general meeting.^[31] However, the tenant-owner has no right to have the installation request granted or to contest a decision taken by the general meeting on a correct formal basis. There are, for example, no requirements as to the reasonableness of the decisions.^[32] Hence, if a request to have, for example, a ramp installed in the common areas is referred to the general meeting, and the general meeting by majority vote decides not to install the ramp, the tenant-owner has no legal right to contest it.^[33]

299In short, The Swedish regulation does not allow for any type of special treatment or have any requirements for the association to accommodate physical accessibility adaptations in the common areas. Hence, the democratic decision-making power of tenant-owner associations in Sweden causes the same problem that discrimination law has been made applicable to solve in the jurisdictions described above. And the same fundamental problem currently exists in a similar way in the UK which has yet to make discrimination laws applicable. However, this situation may change if the suggested amendments of section 36 and schedule 4 of the Equality Act 2010 are adopted.^[34]

3.3 The right to keep assistance dogs: balancing property use and harm

An unreasonable denied request to keep an assistance dog can be classified as an act of discrimination, a violation of the requestees equality rights. What discrimination law does to remedy this equality issue is that it restricts the bylaw-decision making power of associations and obliges them to make decisions that respect disabled members equality rights, even if the bylaws do not permit dogs to be kept. The discrimination law approach does not question the legitimacy of dog-keeping restriction of use per se, it merely holds that the restriction of use must be nuanced enough to take into account disabled members right to live an independent life. It can be questioned though, whether negative restrictions of use, such as dog bans, or positive obligations, for example, requirements that all dogs must be carried in the common areas, are entirely legitimate.

According to Sherry, the main issue with the governance structure and bylaw-decision making power in strata and community titles is that it deviates from traditional property principles. She emphasises that the use of bylaws to regulate and control residents’ use of lots and commonly owned property creates an open-ended bundle of rights. This allows private citizens to attach positive and negative obligations to land, even if they do not comply with the principle of numerus clausus, ie that there are a finite number of valid interests in land, or ‘the harm principle’, ie that owners are free to use their property as they please as long as the way they are using it does not harm other people.^[35] The consequences of this deviation from tra300ditional principles of property law and the failure to constrain the bylaw-making power, she argues, is that it implicates the public free functioning land markets and enables “social and political cultures that run counter to mainstream democracy”.^[36]

Sherry’s arguments provide a theoretical basis for questioning the legitimacy of negative restrictions of use in bylaws, such as dog bans. Following Sherry’s conclusions, if more emphasis is given to fundamental property principles such as the principle of numerus clausus and ‘the harm principle’, the bylaw-power to control the use of multi-owned properties could be reduced. Another consequence of this would be that multi-owned property rights would be subject to the same rules that for centuries have developed and been enforced in property law as safeguards to public democratic values.^[37] In relation to the issues dealt with in this chapter, more emphasis on property can probably reduce the issues with associations deciding to, for example, ban dogs of a certain size. However, this theoretical basis does not provide any guidance as to how more emphasis to the harm principle can be implemented, nor any details as to how it in practice would reduce the need for applying discrimination law when it comes to issues with rejected requests to keep assistance dogs.

To illustrate and provide a practical example of how more emphasis to the harm principle can be implemented and applied to reduce this particular issue, the right to keep assistance dogs in multi-owned properties in Sweden will be explained. Or more accurately, tenant-owners fundamental right to use their apartments for residential purposes as long as they do not cause disturbances that should not have to be tolerated by their neighbors, will be explained. This right of use does not mean that disabled members have a specific right to keep assistance dogs, but it does mean that they have a general right to keep pets in their apartments. If the purpose of the bostadsrätt-agreement is residential use, the legal starting point is that the purpose of use includes eg the right to keep pets.

The right to keep pets does not however follow from the text of the law, but rather is inferred from the fact that keeping for example dogs or cats is not grounds for forfeiture per se. Unacceptable behavior and unauthorized use in tenant-owner associations is expressly regulated by the rules on forfeiture in chapter 7 section 18 of the TAA. The forfeiture rules set minimum requirements that everyone must meet. If a tenant-owner causes disturbance or prevents the maintenance of good condition and order, the tenant-owner’s bostadsrätt can be forfeited on this basis.^[38] 301As a starting point, the association cannot set further obligations than those listed in the TAA. This legal starting point means that the association does not have the right to make preventive decisions about what should be considered ‘harm’, for example keeping a large dog in the apartment.

Using the rules of forfeiture as a benchmark and definition of which behavior and what use that can be considered as harm to others automatically reduces the effect of associations’ bylaw-decision making power. However, it does not mean that tenant-owner associations are prohibited from formulating restrictions of use in their bylaws. Such restrictions are not unlawful, they are however only binding for tenant-owners if compliance with the restriction rule is of particular importance to the association.^[39] And whether compliance with a restriction rule can be considered to be of particular importance to the association is not for the association to decide, it is assessed by a balancing of interests.^[40] It should be pointed out that there is no case law that clearly states that restrictions of use, under any circumstances, can result in a tenant-owner not being allowed to keep a dog in the apartment. For example, it is conceivable that dog bans could be accepted if the association’s building is intended to be particularly allergy friendly.^[41] But even if this is the case, it is possible that a dog could still be kept under certain conditions. For example, if the dog is of a particular breed that is known not to cause allergic reactions, or if measures can be taken that reduce the risk to an acceptable extent.

The purpose of using the rules of forfeiture as an outer limit for the associations decision-making power is to ensure that the tenant-owners’ security of tenure is strong. In relation to this purpose, the Swedish model can be considered appropriate and effective. Also, in relation to the point that is being made in this chapter, the Swedish model serves it purpose. The model provides tenant-members with a property right that is based on the harm principle, and it does mean that members, as a general rule, are entitled to keep assistance dogs in their apartments, whether or not discrimination laws apply.

Admittedly though, the Swedish model can lead to surprisingly generous assessments of what can be considered permissible to do in a dwelling in a multi-family building. This is illustrated in a case from the Svea Court of Appeal^[42]where the 302keeping of eight dogs in a residential dwelling was not considered to cause disturbances that should not have to be tolerated. The disturbances that neighbors had experienced included unpleasant odors in the stairwell and in the lift, noise, dog hair in the laundry room, sanitary nuisances in the building and in the surrounding areas. Noise disturbances had been recorded in the apartment located below the one at issue during a ten-day period. According to these measurements, dog barking had been recorded about 20 times a day, often by several dogs at the same time, but never at night.

Even though the keeping of eight dogs, as in this case, do seem to be a lot, and despite the fact that the dogs barked repeatedly during the days, the courts conclusion, that none of the alleged disturbances could be considered so serious that they should not be tolerated, is actually systematically and logically convincing. What is compelling about the court’s reasoning, apart from the seemingly generous interpretation of how many dogs that can be considered acceptable to keep in one apartment, is the way the neighbors’ perception of the disturbances is assessed in relation to public rules and guidelines for tolerable levels of noise and smell, and general health requirements.^[43] Using reference values and public health requirements to decide whether a particular dog, or dogs, cause disturbances that should not be tolerated offers a fair and foreseeable framework generally applicable for the right of use.

Similar use of public general guidelines is often used by Swedish courts to assess whether, for example, noise levels are acceptable. One example of this follows from the Swedish Supreme Court case NJA 1991 p 574 concerning disturbances in a tenant-owner association due to extensive piano playing in one apartment. Piano playing occurred up to two hours on weekday afternoons and two to four hours on Saturdays and Sundays, but never after 7.30 pm. Measured against permissible sound levels according to the applicable reference values, the length, frequency, and the playing periods during the day, the Supreme court found that the noise level was acceptable and that it had to be tolerated. The Supreme Court also explicitly stated that tenant-members have a right to play musical instruments and that nearby residents must therefore tolerate a certain amount of disturbance.

303From these examples of how Swedish courts assess disturbances in apartment buildings, it seems that the negative effect that the application of discrimination laws is intended to remedy, in terms of disabled members’ right to keep assistance dogs, can also be achieved by placing more emphasis on property law and the harm principle. By negatively determining and defining the right of use based on what is not to be considered as causing harm to others, the decision-making power of multi-owned property associations can be limited in a theoretically anchored, systematic and predictable way. The Swedish regulatory framework and case law on forfeiture due to intolerable disturbances illustrates a practical example of how this effect can be achieved. The Swedish courts’ basis for assessing what constitutes a disturbance should also be generalizable and applicable within common law jurisdictions since the basic principles that the court uses to make the assessment of what is to be considered a disturbance that should not be tolerated correspond to the principles of the law of nuisance.

3.4 A universal right to request disability adaptations in common areas by defining minimal normative standards with a moral approach to property

Based on the preceding discussion, more emphasis on traditional property principles can substantiate a right for members to keep assistance dogs and offer an alternative solution to applying discrimination law to remedy inequality issues in multi-owned buildings. However, more emphasis on traditional property principles would not suffice to reduce the need for applying discrimination laws entirely. As with regards to the right to install a ramp for example, it is unlikely that a greater emphasis on traditional property principles can lead to a similar result as the application of discrimination law does. The special conditions that exist in multi-owned properties are new in relation to traditional principles of property law. On Blackacre, there is no need for a reasonableness test or discussion of undue burden to decide whether for example a neighbor has a legitimate interest to install a disability adaptation on the property.^[44] The only rule needed to decide this question is the principle of exclusivity.

To find support for a right for disabled members to install physical objects in common areas an additional explanatory model is needed. Such additional support 304can be found in progressive theories of property law.^[45] According to two prominent scholars who promote progressive property theories, Dagan and Singer, property should be about finding minimal normative standards that have to be met to promote the inherent core values of property. In Dagan’s description of what he refers to as a liberal theory of property, the essence of property is to ensure that owners cannot claim private authority over their property in excess of what he or she requires for his or her self-determination, and also that the authority that the owner claims is consistent with the self-determination of others.^[46] Singer describes a similar moral approach to property theory,^[47] and argues that property’s primary purpose is to promote fundamental democratic values, to uphold minimum standards for social and economic relationships that are compatible with justified expectations to be treated with dignity and respect.^[48]

If these minimal normative standards and moral approaches to property are tested on the issues dealt with in this chapter, would it then provide theoretical support for that property law can entail a corresponding obligation on associations to balance the individual’s needs against the objective interests of the collective, as does the application of discrimination laws? Possibly. In the same way as with a discrimination law approach, progressive property theory would infer a duty to the association to promote fundamental democratic values, to uphold minimum standards for social and economic relationships that are compatible with justified expectations to be treated with dignity and respect. Also, like discrimination law, progressive property theory would not impose an obligation for associations to install ramps or allow assistance dogs. The theories of Dagan and Singer do not support the existence of a legal presumption or obligation for the association to allow and finance installation of disability adaptations in common areas of the building upon every request. The theories merely support that the majority vote cannot claim authority over the common areas of a building in excess of what is required for the self-determination of the collective. Further, they emphasize that the authority that 305the collective claims must be consistent with the self-determination of individual residents. Hence, it would make it necessary for the association to carefully consider and balance the interest between individuals right to live independently and the self-determination rights of the collective.

Can these theories that promote finding normative standards be of any practical use though? The theoretical basis provided by progressive property theories does not in itself constitute an enforceable right for disabled members to make a request for reasonable accommodation. Still less a direct right to demand the installation of a ramp in common areas. What progressive property creates though is a theoretical explanation and justification for why such a rule can be introduced, either through legislation or case law. For the rule to be practically applicable, it must be provided with predictable and accessible criteria to decide what legitimate interests according to the normative standards are, and how these legitimate interests need to be balanced against the interest of the collective.^[49] In other words, for them to work in practice, there needs to be a clear basis that courts can use in concrete cases – a model for setting objective criteria that can be applied to define normative standards for reciprocal respect in multi-owned properties.

There are several examples of how such a model can be formulated. Regarding the balancing of interests between the individual and the collective, one way to find an acceptable model to use is to take inspiration from the countries that have made discrimination legislation applicable. Another example can be found in the Swedish regulation of members’ right to renovate and make changes in their own apartment as long as it cannot be considered to have a negative impact on the association.^[50] A third possible alternative is to use the requirements established to clarify when accessibility obstacles must be remedied according to the Swedish national building regulations for property owners who conducts businesses in their build306ing.^[51] What these three alternatives have in common is that they refer to similar factual reasons to deny requests or applications, and for imposing requirements of accessibility improvements measures. These are that the adjustment or adaptation is: compliant with basic safety requirements, building-structurally reasonable to implement, and that potential financial consequences are not unduly burdensome for the property owner.

Regarding the definition of normative standards, a possible solution for formulation of applicable criteria, that can be used to determine which requests to make changes that ought to be considered part of the individual’s right to self-determination that other members thus need to respect, could be to adopt a similar approach as the courts in Sweden do to assess degree of disturbance. However, for this purpose, the criteria cannot be solely based on publicly established guidelines on sound or odour measurements and reference values. A possible overarching norm instead could be based on the right to adequate housing in human rights law.^[52] The right to adequate housing does not in itself contain sufficiently clear criteria to be applied in a practical case. However, such criteria can normally be found in national building codes and regulations. The standard of housing that a member of society can expect is continually changing over time and is reflected, ia in the national rules and building standards that apply to new constructions. If current building standards were used as a property norm, this would, at least in Europe, mean that a request to install a ramp in a building that is not accessible is a legitimate request.

Taken together, these minimal normative standards, combined with the above-mentioned suggested criteria for the balancing of interests between the individual and the collective, could give disabled members a corresponding right to request disability adaptations in the common areas that members can otherwise only obtain through the application of discrimination laws. The right to request adequate housing would not constitute an immediate right to have, for example, a ramp installed in the common parts of an older building that does not fulfil the new construction standard regarding general accessibility. The requirement for accessibility would have to be balanced against the financial burden of the association, and for example the risk of not being able to comply with for example fire safety requirements such as the possibility of safely evacuating a building.