Forced Informality: When Housing Rights and Building Laws Collide

“Forced Informality” looks at how the building law encourages self-builders to break it

Introduction

Secure tenure is an integral component of the right to housing, where the absence of a legal deed leads to a higher likelihood of losing this right, especially in the event of expropriation, or, disaster. Secure tenure also enables other rights, such as the right of the occupants to use utilities, which are only legally connected   if a building permit, and legal title are available.

In a deregulated property market, with house prices increasingly unaffordable,[1] and formal, urban land, concentrated in remote, and increasingly expensive “New Cities”,[2] the main affordable, economical, and culturally appropriate access to housing for most Egyptians, is self-build on subdivided agricultural land. However, the law forbids building on agricultural land unless it is within urban cordons – the approved area for each city or village, rendering buildings liable for demolition, and those still standing, without secure tenure. But when 70% of homes built over the last decade are considered informal,[3] it is important to challenge the factors and laws creating this unstable situation for millions.

Scope of the Building Law

Building laws are a tool for regulating urbanization in terms of planning, construction, maintenance and use. These rules evolved in Egypt over the last century, from the Tanzim Department Order of 1889, applied only to major cities, to the current Unified Building Law 119/2008, that applies to all urban and rural settlements in Egypt.[4] They establish general and detailed regulations, quantitative ones like building heights and urban densities, and some qualitative ones such as land use.

An example of these rules is the maximum height of the building, which is 36 meters, given that it should be equal to or less than one and a half times the width of the street (Article 15). But the law allows the exception by permission from none other than the Prime Minister, which can be observed on the Cairo Nile River front with hotel towers and administrative and residential luxury buildings. Another example of a minimal architectural requirement is room areas and duct dimensions. On the other hand, there are special building rules issued according to a ratified detailed plan of the area where the building is, such as a city, district or village. These rules include an overlap between the architectural and urban elements that affect the construction process, such as the relationship between street width and building ratio, as well as height limits (Article 16).

The law also classifies construction activities as either formal, or, ‘aswha’i -informal or illegal, at times regardless of the technical soundness of the construction itself. Problems begin when general rules conflict with special ones. None more apparent than the fact that the strategic plans are yet to be issued for a large number of towns and villages, although they ought to have been issued around eight years (Article 15).[5] The law stipulates that if these plans are not issued, the existing plans issued under the previous building law. 106/ 1976 shall be applied (Article 17).

The main problem lies in the interpretation of the different local government units for the articles of the law and executive by-laws relating to the situation of land plots in areas where no permanent building requirements have been issued. In some cases, authorities operate on the basis of the general rules of the law, while others work on temporarily promulgated requirements or rules issued under the previous laws. The trajectory of the building license is affected by the understanding of the municipal administration of these intersections. Thus, the results of the licensing processes may differ from one town or neighbourhood to another depending on what the management sees and not purely based on legislation. This difficulty of conforming to the legal system, and the inherent vagaries of the law itself, leads to unfair permits, or even none issued altogether. And so, despite intending to comply with the law, many owners find themselves forced them build outside the legal framework. An action that comes with their deprivation from full, legal, utilities, and, moral damages of being branded as lawless informal settlers.

Giza: A Real-World Lab

The building requirements in Giza Governorate can be studied as an example of the ensuing confusion within the local government apparatus.[6] Also Giza offers a study of the struggle for the built environment between individuals and communities on one side and the state on the other, as many “violations” take place in the form of building on agricultural lands. The expansive desert fringe has already been commodified by the government as so-called New Cities, barring low income communities from their right  to build there.

Among these cases is Ms. Huda, who owns a 70 square meter plot in Al ‘Umraneya district which is located on an 8 meter wide street. She has three sons, whom she wanted to provide proper housing for, and at the same time find a suitable way for making a living. Accordingly, she started the application for a building permit for her plot in 2017. The building requirements in her case stated that she could build on the entire area of the plot, given the fact that the street width is less than 15 meters, also the building height in that case would be 12 meters, meaning that a ground floor and 3 other floors. However, this means that the total built-up area would be 280 square meters, which in the case of Giza building requirements mandates the allocation of car parking within the building. This has put Ms. Huda in front of some unfavourable options; to decrease the total built up area through giving up on the top floor she intended to build, meaning giving up on a house for one of her sons, or making the parking facility in the ground floor which means giving up on her own housing opportunity or on a place to start a business for her sons, or building the car parking facility beneath the building which can be more expensive for her. All the ‘solutions’ at hand represent ways of manipulating the family’s right to capitalise on their property. To the time of writing these lines the situation is still unresolved.

The second case is that of a plot in Boulaq al-Dakroor in Giza, owned by Ms. Fahima who wants to partner with a contractor in the construction of a 12-floor building. The plan was to split it between her family and the contractor, where the family keeps half the number of housing units and the ground floor commercial space, while the other half is retained by the contractor in return for financing the construction process. The actual width of the street on which the plot is located is 26 meters. However, the Plot Surveying document – the legal paperwork necessary for the identification of street width – revealed that the street width is only 8 meters. This happened due to the fact that the current street was originally two narrow lanes with an irrigation canal in the middle, that was filled in some years ago. The officially surveyed street however, will only allow a four floor building, and not an 11 floor one as the actual one would.[7] . Another hurdle came up, where the building requirements of Giza Governorate mandate a building ratio of 60% in such cases and necessitates the presence of 3-meter-wide setback on the three sides of the building other than the main façade. In this particular situation, the main façade was merely 10 meters wide, which means that after subtracting three metres from each side, the actual width of the façade will be 4 meters only.

When applying for the building permit, the owners tried to find design solutions that allowed for the required residential and commercial purposes. The structural design was approved by the Engineering Department; However, the Ordinance department in Boulaq Al-dakroor District did not approve the architectural design and returned it to the owners to modify it. Then, the architect responsible for the project modified it according to the notes by the Ordinance department, and the modified design was resubmitted for structural review. This time the structural design was disapproved due to violation of technical specifications pertaining to the relation between the height of the building, the width of its base and the distribution of the concrete structure. And after many design trials the result was giving up on a larger area of the plot in order to accommodate both the architectural and the structural integrity requirements, eventually meaning the loss of a larger part of the owners’ potential capital and settling for far less than what they planned for.

In our third case, Mr. Samir wanted to have building permits issued for two adjacent plots he owned. They were the last two unbuilt plots from a larger former agricultural basin that was entirely built up. The basin was subdivided informally by the owners and built up. On starting the procedures for acquiring the building permits, the current owner was faced by a demand from the Subdivision Department in Giza City for the “reconciliation” of the informal situation through payment of the required fees for the existing utilities such as water, electricity and sewage, not just for his two plots, but for the entire former agricultural basin. Initially, the owner insisted on paying only his two plots, however, after many confusing interventions from Boulaq al-Dakroor District, Giza City and the Organisation of Technical Oversight on Buildings (OTOB) , and even the Ministry of Housing itself. All that led to the prolongation of the legal dispute surrounding those building permits for more than ten years, eventually compelling the owner to pay for the reconciliatory fees for the entire area of the former basin. It is worth mentioning that Mr. Samir stopped abiding by regulations of building permits in his properties after that case; he would apply law-compliant documents then he would do something else.

Real-world Regulations Required

Two problems emerge in those cases; the first one is the feasibility of the regulations from the point of view of the residents on one side, and from that of the authorities on the other. The regulations were promulgated putting in mind that all property owners were naturally rich people owning cars which compelled the introduction of a constraint that outwardly was aimed at the preservation of public space – the street – from being clogged by people using the right-of-way to park their cars. This was accomplished through mandating property owners to include parking facilities in their plans. These regulations ignored the fact that not all property owners are rich, or that barley ten percent of households own private cars. Here it is shown that regulators have neglected social and economic circumstances surrounding the building process and the subsequent issue of the right to housing.

The second problem is related to the mechanism of implementing the law and its interpretation from the point of view of the authorities, as well as its suitability to reality. If we take the case of Boulaq al-Dakroor and the building requirements of Giza Governorate as examples, we will find that implementation is dependent on the extent of understanding of the staff responsible for issuing the permits, which can have both positive and negative impacts on the legality of the building process. On one hand, some exaggerate in their abidance to the requirements of the building permit which can render such permits impossible to issue. On the other hand, we find those who facilitate matters based on their proper understanding for the relevant legal rules. And of course, there are those who can be bribed to ignore the law altogether. This has happened for three main reasons. The existence of legal rules not relevant to reality; official documents not being updated to reflect physical changes such as land use (from agriculture to building) and filled-in canals.  Also, the frequent interventions from monitoring authorities in the technical workflow of the local administration units put their staff under continuous pressure leading them to take maximum caution and providing fewer leniencies to citizens, or, encouraging them to reconciliate their situations fearing scrutiny from those authorities.

Conclusion: Parliament Back to Square One

The largely arbitrary implementation of the law has emptied the process of acquiring a building permit from its main aim which is to regulate the built environment. This process has become extremely unclear with regards to the final outcome or the moral and material costs. It led also to the presence of a thriving bed for corruption in the local administration through networks of individuals acting as mediators between applicants and local administration staff for the facilitation of procedures in return for bribes.

The disparity between building and urban planning legislation from one side and reality on the other has played a strong part in the labelling of most buildings as informal and the subsequent loss of the right of secure tenure for most. This requires a thorough review of the procedures of building permits, and there can be no better timing for this as parliament is currently debating amendments to the building law.

The debate so far has centred on the issuing of strategic and detailed plans for cities and villages across the nation within a strict timeline. As well as on limiting the role of local administration to approving building permits prepared by accredited private consultancies, rather than the councils, in the hope of fighting government corruption. [8] A framework for ”regularising” building violations is also being discussed as a separate law, which some parliamentarians want to see merged with debate on the building law.[9]

The problem is, though, that the proposed amendments, despite their importance, continue in the same framework that led to the creation of informality in the first place; trying to get a central legislative mechanism to implement complicated and unrealistic building legislation.

What is needed is a mechanism that is sensitive to the local social and economic realities of the building process, especially in the older neighbourhoods and villages. In this regard, these amendments should focus instead on giving bigger roles to local administration, rather than curbing them, along with capacity building. But more importantly, decentralised local government should also be held accountable by the people they serve and provide venues for meaningful participation in the planning and building process, where people have years of self-build experience, in the presence of a competent central reference authority until full scale decentralisation of local administration can be achieved.  Anything less will only perpetuate the status quo.

Acknowledgements

Written by: Ali Al-Moghazy

Editor: Yahia Shawkat

Main image: Shabramant Village, Giza. Photographer: Yahia Shawkat

Notes & References