Equity and homelessness

What can the law do about homelessness? As I explain in this paper, the existing jurisprudence, which usually adopts a 'Charter'-based approach, suggests that the answer is: not much. Given this, in this paper, I wish to explore a private law approach. The approach I have in mind is based on equity, as distinct from the common law. My thesis is that homelessness calls for equitable intervention. The motivation for such intervention involves the state's provision of the system of property rights, which is responsible for but can also solve homelessness. The nature of the equitable interest responds to this motivation. There is a negative equitable right for the state-rather than, as I will explain, private actors-to not exercise its right to exclude people from state-owned property against homeless people. There is also a positive equitable right for the state to provide housing to the homeless, or at least take steps towards doing so. In what follows, I begin by adopting a definition of homelessness based on the lack of legal rights to property, and then explain the limitations of existing 'Charter'-based attempts to address homelessness. This paves the way for exploring a private law approach based on equity. I discuss the motivation for equitable intervention, and then explore what equitable rights might arise.