This article was translated and adapted by me, and I am not a lawyer nor do I have the preparation to translate legal text.
This article is an adaptation of my 13/7/2020 congressional testimony in the “Housing and renting in the times of COVID-19" hearing held by the Mexico City congress.
I was part of the group of organizations and activists that wrote a series of reform suggestion to the Mexico City code, same which were adopted and formally presented as bills by representatives Martha Avila and Valentina Batres. The original objective of these adaptations and adhesions was to solve pre existing problems of rental contracts in the capital, problems which would aggravate because of the effects of the inevitable wave of evictions brought by the COVID-19 pandemic. Ever since its announcement, the initiative has been controversial. Some criticism directed to it is warranted by reasonable worries that can be attended through debate. Many others come from erroneous information and distortions, many times spread with ignorance, sometimes malice.
Traditionally, law codes in the country have included home rental contracts as just another contract, inserted in the same frame as contracts for goods and services. And yes, as any contract it is susceptible to the regular rules and principles, but let’s not confuse ourselves: a rental contract does not have the same social consequences, nor is it (or shouldn’t) be framed under a mercantilist logic that reduces the tenant and the landlord merely to means of cash flux.
This logic, which is used to attack the initiative, forgets the particularities of home rental: On the one hand there’s a person who is willing to pay another with the intention of satisfying their need for housing, and on the other there’s a homeowner who decided to place their property for rent, because they plan on using it just in the future, or wishes to receive income on it. The homeowner is not obligated to guarantee the tenant’s right to housing, but voluntarily decides to offer their right to housing in exchange for compensation. Then, renting is a relationship where both parties give their respective wealth for mutual benefit: the homeowner gives a property, the tenant a percentage of their monthly income (which according to the national statistical institution, might be as high as 61% of income). But it’s also a legal relationship in which the parties’ life plans constantly intertwine.
Renting can be a strength for communities, as valuable and beneficial as it is complex. Its value goes beyond the flow of cash. Renting generates neighborhoods, social fabrics, it diversifies our cities, and helps bringing people closer to their jobs, among other much more abstract social effects.
However, for a long time we’ve had alarming data in Mexico that should raise attention to renting and its social effects, with or without a pandemic, with or without initiative in this Honorable Congress. Both the statistical institution as the OECD coincide that at a national level, around 14 to 15% of people rented the home they lived in. According to the statistical institution, this percentage rises to 24.37% in Mexico City. We also know that the statistical institution has underlined that only 41% of people who rent have a rental contract. As in, 59% of rentals do not have contracts.
Since 2003, the UN’s special rapporteur on adequate housing, Miloon Kothari, wrote about his unease with the number of evictions carried out in Mexico City in his report on his visit to Mexico, back then the number of evictions carried out in Mexico City averaged around three every day. Sometime before the pandemic said average had risen to eight.
Of course, like every contract, breaching rental obligations has consequences. and here I wish to emphasize: neither the initiative, nor we the people who wrote it, fail to recognize that evicting someone who breaches rent obligations is legal. Many evictions are carried out in compliance with the relevant legislation, and clearly respecting the rights of homeowners. But we cannot be foolish either: the lack of written contracts has allowed for abuse, illegality, and violations of the rights of homeowners and tenants.
In any faculty of law across the country, we’re taught since the very first years about something we could call the “sanctity of judicial certainty and security.” The parties will to become obligated is the core of contracts and its written manifestation is the certainty to prevent potential conflicts in the future. Specially when the contract creates a mutual coordination relationship with such social repercussions as renting is. As is, Mexico City code establishes on article 2406 that “ The rental contract must be granted in written form”, and it also presents that “foregoing this formality will be imputed onto the landlord.” In that sense, the landlord’s obligation to give a written contract already exists. It’s not something this initiative imposses. However, the law does not establish clear and realistic consequences to breaching this obligation.
It is why it is proposed in this initiative, that eviction is prohibited when there’s no written contract, at least until said requirement is met. Knowing this requirement, it is believable that the landlord would, wishing to avoid problems in the future, give a written contract. Nonetheless, this bill can be adjusted and perfected, and be offered a counter bill that might meet the objectives more efficiently. But as opposed to the means, the objective is not object of negotiation: we need to flatten the curve of contract-less rentals, and rather than justifying and normalizing this context of illegality and lack of judicial security in detriment to the rights of tenants and landlords.
Lately this initiative, which is not immune to corrections, has been target of attacks motivated more by an alarmed disinformation that for what it actually says. It has been said that establishing a minimal contract length of three years violates contract rights, while for a long time, article 2398 of Mexico City code already establishes a minimum length. A different one, yes, but a minimum length nonetheless.
It has also been said that the initiative is unconstitutional because its retroactive, even though it is not claimed that it will be implicitly or explicitly in the text, but also that the criteria held by the supreme court on case 2116/2004 makes very clear that contracts are subject to the active laws at the signing time. It is why the initiative would only affect rental contracts written after it is adopted.
It is also said that this initiative would encourage squatting, when this is not only prohibited in the text, but also whoever tried to would be forced to become a tenant in a trial, and in the act be forced to pay rent to the homeowner while the trial in which they’ll have the difficult task of proving willingness inside an existing contract.
There’s also those who claim that individuals are not meant to provide the right to housing of others because this is something the state should do, and they’re right: but the state is precisely obligated to guarantee the judicial certainty and security of people by making sure written contracts that create certainty to those who participate in a rental exist just as the supreme court, and the UN have recognized.
It has also been said that human rights cannot determine contractual obligations, when the supreme court has clearly stated in case 3516/2013 that contracts among private parties cannot go against housing rights standards, as is judicial security. Finally, it is also said that the initiative would force homeowners into reducing or forgiving rent payments, when both its text and the Alternative Justice Law of the Superior Justice Tribunal in Mexico City make exceedingly clear that there cannot be a renegociation if both parties don’t agree, which is why changes to rent are not obligatory unless bilateral.
But what isn’t said is that the initiative seeks to end with a problem of structural illegality and lack of judicial uncertainty. Neither has it been said that the initiative seeks to, as an example, find ways to deal with those who have already been evicted. The initiative guarantees the presence of social workers during an eviction (or “removal” as some codes still name) to support the elderly, kids, disabled, or indigenous people when they’re being evicted. Neither has it been said that the initiative contemplates that those who are evicted will be given support by authorities for them to known their housing alternatives and have access to them in order to avoid homelessness. But it’s also ignored that many cities and countries and jurisdictions of the world have already started to implement or discuss measures to prevent and mitigate the avalanche of stories of evictions. And this is our opportunity to adopt at least a few laws that will attend to this ever so present future.
No rentals without contracts. Whoever defends the opposite is validating, even unintentionally, the culture of illegality and consenting to a context where real estate mafias and other groups seek to mine where some seek to build. Some, even, might be opposed to escape the inevitable taxes that written contracts generate.
The initiative can be polished, adapted, and improved, which is what the legislative process is for. But to disregard it entirely is to ignore the problem. From those who participated in the formulation of the initiative, we don’t want to right as to the mechanism proposed. We’re interested in reaching objectives that should not be debated with conflicts of interest because they’re elemental to protect and strengthen rentals, which is a type of coexistence in which parties often find challenges, but is basic for the social fabric.
-Written by Kalycho Escoffié for Animal Politico
Kalycho Escoffié is a lawyer and housing rights activist, currently the director of the human right center at the faculty of law of the Universidad libre de derecho in Monterrey.