The Individual Versus the Whole: A Property Rights Dilemma during COVID-19
COVID-19 has caused conflict between the rights of individuals versus the responsibility of governments to intervene in the name of protecting its citizens. An area which is affected by this tension, in particular, is the property rights of owners of short-term rentals. Short-term rentals are rooms, apartments, or homes available to rent for days or weeks rather than long-term leases. They are a popular method of holiday lodging as they are economically desirable for tourists; for example, studies show that Airbnbs provide more affordable lodging options than hotels. They are also a necessary component in maintaining the fruitful economics of small towns. Resort towns like St Andrews are especially vulnerable to the restrictions wrought by Coronavirus as they depend on tourism for economic survival. Short-term rentals prove instrumental in bringing revenue to the town; Airbnb alone sparked over GBP 3.5 million of economic activity in 2018. According to short-term rental data from AirDNA, St Andrews has more than 300 properties listed on Airbnb and VRBO, not including those listed by the numerous local rental agencies.
In response to the Coronavirus pandemic, the UK Government has requested its citizens avoid travel within the United Kingdom, and the Scottish Government has advised that travel lodgings temporarily close. However, in remote areas around the UK, short-term rentals are finding a marketing niche by advertising as places to escape and "wait out" the virus. The rental of properties despite government travel and tourism advice highlights the complex nature of balancing individuals’ ownership and property rights with governments’ rights to enact measures for the health and safety of their citizens. While not every short-term rental owner in the UK has defied government advice and continued to rent their property, this is an issue that deserves examination.
There have been no laws fully banning short-term rentals in the UK and individuals have jurisdiction over how they use their property. For example, in Scotland, citizens have the right to “usus, fructus, abusus,” or “use, enjoy, and abuse” his or her own property under Scots Law. Once an owner has obtained the permission to rent his or her property, complying with zoning laws and the parameters set by local governments, there is little reason for this right to be revoked. This provides legal justification for continuing to rent a property despite the government’s suggestions and may well become legal fodder if stricter mandates are introduced in the future.
Indeed, with the rising numbers of COVID-19 cases the enactment of more legally based restrictions is a strong possibility. Within the coming months, it is arguable that the UK might begin to resemble the United States, where local governments have enforced restrictions and bans on short-term rentals. The European Convention on Human Rights (ECHR), for example, by which the Scottish Government abides, states in Article One of the “Convention for the Protection of Human Rights and Fundamental Freedoms” that while owners have the right to enjoy their property, this right may be revoked in the public interest. “Public interest” is open-ended, but it allows for flexible and contextual interpretations, particularly in unprecedented times like these. The current global pandemic seems an appropriate circumstance to utilise the leniency of this ECHR Article, interpreting “public interest” as health and physical safety, and prioritising this above individuals’ property and ownership rights. If the Scottish Government bans short-term rentals, it will infringe upon owners’ property rights. However, simultaneously, it will uphold and demonstrate respect for every citizen’s right to life.
The anti-lockdown rallies occurring across the United States demonstrate opposition to these measures and the clash of personal rights and ‘freedoms’ and government intervention. While people may, under normal circumstances, have the right to engage in acts such as short-term renting their property, unprecedented circumstances such as these illuminate the hierarchy of rights and freedoms and the placement of the fundamental right to life and the safety of the wider population above all else. Many short-term rental owners are striking a fine balance between asserting their rights and respecting the government shutdowns by renting properties to essential workers, thereby supporting national efforts toward combatting the pandemic.
COVID-19 has placed an age-old conversation about the “individual” versus the “whole” in a new, demanding, and urgent context. Examining the right, and presumably obligation, of governments to intervene to protect the “whole,” despite this most likely undermining certain “individual” freedoms, sheds light on the complex nature of rights and the law — their meaning, their interpretation, and their potentially life-saving effects.