Limitation of the ownership right by the right to home: Notions and legal policy
Authors: Nikolić Dušan , Midorović Sloboda 
Published: November 2020

In international and national jurisprudence it can be noticed that, under certain circumstances, courts are prone to limit some of the owners' entitlements with regard to their immovable property so as to enable the use of such property by other persons or families as their home. This trend is due to the growing population on the planet, a drastic social stratification, mass migration and etc., on the one hand, and efforts to mitigate problems and growing tensions in society by pursuing appropriate social and legal policies, on the other hand. There are legal loopholes in this area that courts tend to eliminate by extensively interpreting international conventions, sometimes even referring to something that is not stipulated therein. For instance, courts colloquially and in a simplified manner speak of limitations of the ownership right by the right to home. Systematic analysis of the relevant international documents, nevertheless, reveals that this subject matter is indeed covered by three rights: 1. the right to adequate conditions for establishing home; 2. right to respect home and 3. right to protect home. Even though they are neither exhaustively enumerated as such in intentional documents, nor terminologically determined, they make a logical sequence that undoubtedly emanate from the human rights catalogue and court decisions that have been rendered in past seventy years. In the jurisprudence of the European Court of Human Rights and national courts, ownership right has been mainly constrained so as to enable an uninhibited life in the space considered home and so as to prevent eviction from that space. In such circumstances, the court shall give the preference to one of the two fundamental rights: the ownership right or the right to home. This is achieved through the so-called balancing of interests. In order for the outcome of such balancing to be as fair as possible, it is primarily necessary to determine whether a particular space can be considered home. In this respect there often exist certain dilemmas. They are the consequence of the absence of a precise definition, or even of a more widely accepted terminological determination of the notion home. In this paper, this phenomenon is discussed in detail in a broader historical and comparative context. The analysis has revealed that in Europe from ancient times to the end of XVIII century, home was considered a community of persons and goods (univesitas rerum et personarum), and that it consisted of two components: tangible (referring to the space and things) and intangible, spiritual (referring to the connections between community members and their emotional connection to the space). The emergence of liberal ideology, associated with materialism and an individualised concept of law, influenced the change in its perception. In the modern world, and especially in the field of economy, home has been reduced to the living space. Nevertheless, when considering the request to limit the ownership right so as to preserve home, the court shall establish if there are spiritual attachments of the user to the specific living space that justify preferring his/her needs over material interests of the owner. Eventually, provided that the court decides to limit the ownership right, it shall determine how the owner will be compensated for the use of his/her space. As a rule, that burden shall be borne by the person who continues using that space. If, however, that turns out to be impossible, financial means for the use of living space shall be secured by the state from the funds aimed at financing social programs. By way of ratified international conventions, the state is, in general, obliged to do that. Besides, the article also gives an overview of the examples of active legal policies and examples of good practice in comparative law. The legal policy of the Republic of Serbia and its court practice in this respect are also examined.