Este documento foi preparado por Bret Thiele, da Global Initiative for Economic, Social and Cultural Rights, para a Relatoria da ONU para o Direito à Moradia Adequada, como subsídio ao estudo sobre segurança da posse que está sendo desenvolvido. O documento não necessariamente reflete a visão da Relatoria.
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Summary
National laws and policies protect various elements of security of tenure, although rarely in a comprehensive manner. Security of tenure is generally implicit in many of these laws and policies, with the notable exception of laws dealing with eviction protections and regularization, which often have explicit references to security of tenure.
These protections can be found in both civil and common law jurisdictions and some have been informed by international norms to various degrees, again most notably in the context of eviction protection. Forced evictions, however, continue to occur in all parts of the world and what security of tenure exists is all too often correlated with a property rights regime or socio-economic status – thus leaving marginalized individuals, groups and community most vulnerable to violations of their tenure status. Indeed, even within the same type of tenure, the degree of security of tenure often correlates to economic status. Consequently, marginalized groups are often at a disadvantage both between and amongst types of tenure.
Many States have made efforts to protect security of tenure for marginalized individuals or groups. For example, Scotland has adopted the Homelessness etc. (Scotland) Act which is designed to end homelessness, and thus provides an example of the creative use of law and the efficacy of making a concerted effort to end one of the most egregious results of lack of security of tenure. The Act demonstrates how state intervention can assist persons with gaining increasingly secure tenure over time.
International law has had an impact in informing national laws on security of tenure, particularly in the area of eviction protection. Laws and courts have both been informed by the international prohibition on forced eviction, including the requirement of providing the minimum degree of security of tenure to prevent forced evictions. This reliance on international norms has often resulted in increased security of tenure and better outcomes for those living in otherwise tenuous tenure arrangements.
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