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Hostile and Notorious: The Conditions of Private Property
An analysis of building occupations, US law, and private property.
"I want to win. I want our building occupations to last.” -signed, a medic
“The prevalence of vacant and abandoned property in U.S. cities has reached crisis proportions despite efforts to foster reuse of these sites.” -The Lincoln Institute
Following the recent four-day occupation of an empty bank building at 75 River Street in Santa Cruz and the attempted occupation of an empty warehouse in Seattle, the controversial tactic of attempting to seize and hold vacant private property has been taken up as a new front of a sprawling social movement. These actions move beyond protesting the enclosure of public space and stifling of free speech; they aim to expand the scope of critique to the role that private property plays in our current crisis. This change in scope has not been lost on the landlords. "I'm definitely not in agreement with this group taking over private property," a local property owner told the Mercury News.
Any understanding of property laws must first acknowledge that these are agreements between human beings. They have had different meanings for ancient Sumerian kings, early Roman jurists, Chinese peasants, and the CEO of Chase Bank, and they change when the general assumptions of a given society no longer match up with reality. Given the pervasive misinformation about private property in the United States, let’s introduce some distinctions about what property is, and take a look at the legal frameworks that place conditions on the ownership of property.
What is Property?
First, it should be noted that the ideological defense of “private property” is both vague and misleading. The seizure, or even abolition of private property doesn’t refer to the water bottles or homes that many of us have purchased; private property in the context of anti-capitalist politics refers to the ownership by bosses and landlords of the resources people need to survive. Most people have no access to the tools and supplies required to build their own furniture, provide all their own food, or maintain a home entirely on their own. In a capitalist society, we depend on the market to provide these for us in exchange for money. We work waged jobs, where we receive only a portion of the value we add to the commodities we produce, and go into debt in order to afford them. When anti-capitalists talk about private property, they’re not referring to the possessions consumers have purchased in order to live; they’re referring to those possessions that the wealthy have accumulated in order to rent or sell to those who must work a waged job to survive.
According to the latest US census, last year there were 15 million homes – over 11% of all US houses – that are now empty year round. Some groups have begun occupying a miniscule fraction of these buildings, or moving to protect dwellings threatened by foreclosure. An Occupy Our Homes National Day of Action took place on December 6 in order to protect or claim these properties from the predatory banks that have already destroyed millions of lives. These groups have a lot of support, since they’re only obliquely attacking the notion of private property. Their legitimation rests on the visceral appeal of communities supporting their members – even though, according to US property law, the property does belong to the banks. The argument centers on the idea that the welfare of people is more important than the profit margins of banks. Current United States law disagrees, and sheriff’s departments around the country have supported the law against people in need. The state has judged this form of occupation to be revolutionary, however surprising or dismaying that may be.
Many autonomous groups have decided that a more open and frontal assault on the notion of private property is also necessary. In the actions in Santa Cruz, Seattle, and other locations, vacant buildings owned by private entities have been seized by activists in order to liberate them for public use. In Santa Cruz, occupiers of 75 River attempted to use property laws themselves to denaturalize the current rights of property owners, invoking “adverse possession,” a legal category by which trespassers can claim ownership of property. By claiming possession of the building and the land, the occupiers took an important first step towards an argument – in action and word – against the way that we in the United States think about and value private property. After all, as I argued to the press at the time, many people consider negligent disuse of empty structures immoral in the face of rising homelessness and poverty. Following the evacuation of the former bank, some community activists, in solidarity with Occupy Santa Cruz and 75 River transformed a vacant lot into a community garden and park. The “liberated” space has since been bulldozed replaced by a fence.
That many in Santa Cruz opposed the action was not a surprise: the ruling class of this small beach town are land owners, whose power and wealth comes from rent and tourism. However, some in Occupy Santa Cruz had also opposed this action on two grounds: first, they’d been led to believe that the march was to occupy a foreclosed home and they were not prepared for or supportive of the occupation of an empty bank; second, while they thought the occupation of foreclosed homes was justified, they considered the occupation of empty “private property” unjustifiable. While the distinction seems strange – they’re both, after all, private property – it was argued that a family could immediately use a foreclosed home, while claiming 75 River just provoked the cops and the ruling landowners. Indeed, soon after 75 River was ceded to the authorities and the police made it known that they would be pursuing the lead organizers of the action for arrest, the encampment of Occupy Santa Cruz, tenuously tolerated for months, was trampled and cleared on December 7.
The dispute is interesting since it reveals an ideology about types of private property that will have to be subjected to scrutiny. For some, dormant commercial private property is to be respected; only if that property was zoned residential should it be available to the people. Empty and vacated buildings, even if they were built by seizing and razing the homes of the working class, should be off limits. This disagreement is fundamentally about how best to “create a new relationship between land and communities, so communities can control resources to serve people rather than just create profit,” as Occupy Our Homes coordinator Michael Premo put it in an interview with Mother Jones. The implicit argument of these new occupations is that communities comprise not just residences, but also the skylines and buildings sloughed off by the 1%.
Strategy and Consensus
If these buildings are ever going to be more than good photo-ops and anxious hours spent waiting for police eviction, occupiers should consider the strategic and practical purposes of each action. If the buildings are to be opened, defended and made to flourish, occupiers must think through at least three issues: the use of general assemblies in illegal and possibly dangerous situations, actual uses of buildings, and their relationship to the law.
Activists today run the risk of fetishizing general assemblies. While it’s a necessary means by which large and diverse bodies make decisions, there is little room for deliberation in the critical first days and weeks of an illegal occupation intent on creating public space. Those who plan an occupation must instead have clear plans for a number of contingencies. There is no room for indecisiveness. It’s no secret that a particular aggregation of individuals has planned and initiated the action – that group must determine how to communicate directions based on developing conditions. Plans for defense or evacuation of the space in response to inevitable confrontations with police should be made available to occupiers and sympathizers. Those who were less involved or aware of the action then have a chance to gauge their own level of support, and can plan their own actions based on clear information. If the planning stage of the action was not accomplished within the space of a general assembly, use of the general assembly to legitimate the action seems to miss not just the opportunity, but also the point.
Generally, these building occupations have made overtures towards opening the space to the community. At 75 River, an announcement claimed that the space would be used “to organize humanitarian efforts, house a library, and provide a forum for discussions.” This is all good rhetoric, but very little was actually done to build such institutions in the space. I have been told that this is partly because no one thought it could actually be held, and partly because openly looking for organizations to use the space – such as Food Not Bombs/Lawns, homeless organizations, among others – could alert the authorities to the action. What’s more, these groups risk losing their scarce supplies in the event of police repression. While the 75 River action remains an important moment in our collective attempt to rethink private property, if communities around the world are to see these occupations as beneficial, the occupiers themselves must take steps to make this a material fact.
Had the occupation immediately tilled the front yard and planted it, the cops would still have come. Had the occupation passed out flyers throughout town announcing a dance party the next night, the cops would still have come. Had the occupation immediately set up a feast to celebrate, or invited the Food Network to rework their space, the cops would still have come. But the occupation would have made a claim on that space. As I spoke with people in Santa Cruz over the following few days, I encountered resistance to the idea that the occupiers could have done anything constructive. Many people, after all, don’t consider graffiti and furniture barricades much of an improvement.
Others continue to feel that those who plan these occupations are themselves either elite youths rebelling against their privilege, or mindless hippies incapable of building anything. Within the movement we can dismiss these judgments, but only action to the contrary can actually dispel them. This is not to say that we’ll change every mind; we don’t need to do that. We do, however, need to stop expecting “the masses” to automatically understand our ideas. Making serious strides toward intelligibility doesn’t just mean writing articles or re-tweeting pithy observations, but actually taking the steps necessary to build a mass movement.
Breaking the Law
If we are to actually transform the relations that constitute society, this new stage of occupations needs to articulate its opposition to the current configuration of private property in the US. By citing “adverse possession,” the 75 River organizers gave a legal justification for rethinking the sovereignty of private property. While neither US nor California law allows “adverse possession” to be used for the immediate seizure of land, they do place this action along a continuum of other private appropriations of private property. As a lawyer for an East Coast economic justice group, who asked to remain anonymous, told me in a phone conversation, “pushing the envelope of the permissible is one of the things that has gotten the movement such media attraction, and appears as one of the main goals – a hugely successfully achieved one at that.” Since “the permissible” relies on social agreement, radical actions create the space within which our historically recent idea of “private property” can be interrogated.
In this case, the only use that the legal category of “adverse possession” allows is the ideological challenge. As currently written, “adverse possession” laws are of no legal use to the movement. A friend at Harvard Law School friend told me,
Unlike Europe, where there is a premium on space such that a party that occupies an empty dwelling/building for a brief period of time has rights to that space, we have a complicated system that takes time. We also have such an emphasis on personal property in the legal code, that property is almost never adversely possessed in urban areas.
However, this law does have an ideological and political valence that helps to illuminate the transitive nature of private property. It takes into account the popular conception that the public good is a condition for the ownership of private property, and arguments about the laws can take this as their starting point.
Sections 315-330 of the California Code of Civil Procedure deal with this issue, though the matter is specifically taken up in beginning in Section 321. Here, California code establishes that legal owners of property have the right to repossess their formerly vacant property, “unless it appear[s] that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action.” There are conditions, then, on the “recovery of real property” by legal owners. Sections 322 and 324 also make a distinction between “claim of title” through written instrument, such as a property deed or court injunction, and non-written instrument – adverse, or hostile, possession without the permission of the deed owner. Section 325 lays out the specific conditions under which “claim of title” can be used without written instruments: land must have been claimed, occupied and managed for at least five continuous years; state, county, and municipal taxes must have been paid during those five years; and records of that payment must appear in official records.
Given that these political occupations have been both very open and very illegal, there is little reason to think that any of them would last the requisite five years. What is of crucial importance right now, however, is that the law recognizes a means whereby the legal owner of property can lose it through inattention or lack of use. There are conditions upon the ownership of property!
Adverse possession is often used in rural areas where property boundaries might be difficult to maintain or notice. As California law states:
Questions about ownership often wind up in court after an absent owner of rural property discovers that someone is living on his land or, when a piece of urban property is sold, a title insurance company refuses to issue insurance because the neighbor’s garage is found to be standing squarely on the property. If the people involved can’t work something out, the property owner may sue the trespasser, or the trespasser may bring a lawsuit to quiet title – a request for the court to settle who owns what.
Here, “adverse possession” appears related to the Preemption Act of 1841 and the Homestead Act of 1862, which allowed for squatters to take possession of “empty land.” After improving it and living on it for five continuous years, they could gain possession of up to 160 acres.
Today, in most states, trespassers can take legal ownership of property if the following conditions are met: the trespass is hostile, actual, open, notorious, and continuous. (Indeed, some enterprising real estate agents have made this their business.) In California, the payment of property taxes is also required. “Hostile,” here, doesn’t mean bandanas and linked arms; the legal definition is that the occupiers know that they’re taking possession of land that isn’t their own. (In some states, there’s also precedent for merely possessing the land without knowledge that it belongs to someone else). It should be noted that while the requirement to maintain continuous open possession applies to occupiers, it doesn’t appear to apply to the legal owners.
Legally, California property owners can’t prevent the seizure of their property just by posting “No Trespassing” signs. If, however, owners give permission to occupiers to be in that space, and give that permission in writing, ownership will never transfer because the occupiers have been invited to use the land. It is no longer hostile. If “adverse possession” is being claimed, owners may have to file a lawsuit to eject. But again, since meeting the five-year requirement is an extraordinary challenge, it seems unlikely that any occupiers will be able to use the legal definition of “adverse possession.”
There are also a variety of “easements” through which the use or possession of another’s private property might be granted, though these typically revolve around issues of use of land and require continuous and hostile use of that land for between 10 and 20 years. Since there is no transfer of ownership, easements will never require the payment of property taxes. Another important difference is that easements do not require solitary possession: even if the owner has used the property, an easement can still be granted because its specificity relies on use, not ownership. Easements, again, can be avoided by simply granting permission, in writing, for the use of property, which eliminates the necessary “hostile” element. Like adverse possession, easements denaturalize the idea that one person or corporation ever has exclusive and permanent use of land, if there are legitimate reasons for others to have access to that land.
Beginning to See the Blight
There are, of course, other ways that private property is open to de-possession. In cases of blighted and dilapidated property, states and municipalities have found it expedient, the Center for Community Progress writes, set up “land banks” in order to take possession of “problem properties” and “dispose of them in a manner consistent with the public’s interest.” In this way, the Lincoln Institute of Land Policy explains, “vacant, abandoned and tax-delinquent” properties can either be put to use or bulldozed: “The properties are acquired primarily through tax foreclosure, and then the land bank develops or, more likely, holds and manages the properties until a new use or owner is identified.”
An Ivy-league law professor who wished to remain anonymous informed me that ownership of these properties must be proven, and that this is not always as simple as merely providing the title. In his words,
Maybe a good defense attorney could show that the owner cannot prove ownership and then cannot claim trespass. This has worked in many foreclosure cases where the banks, because of numerous bundling of mortgages, can't find the original paperwork and can't proceed with the foreclosure because they cannot prove rightful ownership.
Such a situation might, at the very least, remove the police from the equation and send the case to civil court – allowing occupiers crucial time to make repairs and improve the these buildings for community use.
Community Development Corporations (CDCs) have also been organized to act on behalf of communities to repurpose vacant and derelict properties. As the Lincoln Institute of Land Policy notes, however, there are often difficult barriers to pass before CDCs can repurpose property, and they all rely on existing property laws. Municipalities can sometimes force absentee landlords to sell, though this is typically only in cases of abandonment and requires the persistent use of municipal issuances for code violations. Municipalities can also place liens on properties and thereby force foreclosures; often derelict properties will have several liens, purchased by several different corporations, and ownership can be extremely difficult to sort out. Alternatively, if a building is a “clear nuisance,” municipalities can sometimes be petitioned to either hand the property over to a CDC through receivership or, if the owner is amenable, force payment for improvements to the lot. This is both rare and controversial. Furthermore, title is usually unclear in these situations. Finally, cities can claim property for the public good through “eminent domain.” This has been used to seize blighted properties and convert them to “community” use – usually shopping malls and expensive condos. Following a recent New London, CT case, where non-blighted property was seized for economic redevelopment, state and municipal entities have been very wary of using eminent domain.
While many of us no doubt picture “blight” as dilapidated, ramshackle, or dangerous, the legal definition is a bit more slippery. A lawyer based in California, who also requested anonymity, alerted me to the malleable definition of “blight.” According to a Daily Transcript Article from 2005, which followed in the wake of the New London, CT case, “blight” can exist only where “80 percent of the land in the area has been developed for urban use, or has irregular and inadequate sized lots in multiple ownership; or is an integral part of an urban area surrounded by development parcels.” After establishing this as the base, a structure must be deemed unsafe or unhealthy or exhibit signs that “hinder economic use of buildings and lots” or be made up of incompatible bits such that economic development is hindered. If the structure meets these criteria, it must further be deemed an economic blight: there must be either “depreciated or stagnant property values” or “high business vacancies, low lease rates, high turnover rates, or excessive vacant lots” or too many residences for the land to support or high crime in the area. Once these conditions are met, it must further be established that only redevelopment could alter the present situation: “meaning the blight cannot be reversed or alleviated by: private enterprise; or government action; or both private enterprise and governmental action.”
Given the current state of economic depression, the sagging property values of structures in many urban areas, and the vast number of vacant buildings throughout the country, blight might actually be a useful category for such appeals. As eminent domain scholar Tim Sandefur notes, California law “means that virtually anything short of pure speculation will qualify. And while it speaks of 'specific conditions,' these 'conditions' are the ones already listed in section 33031 [of the California Health and Safety Code].” Of course, it is notoriously difficult to claim eminent domain (even, these days, for developers) and few city councils appear to have the interests of the poor and the working class in mind when they act. Again, however, built into US property law is the idea that private property is regulated by historically specific social agreements that establish a public good, and that the sovereignty of private property is therefore not an immutable fact of life.
All of these are long processes, and entail respecting property laws that will always give precedence to the whims of landowners over local communities. While the struggle to possess empty and abandoned buildings in the name of communities will certainly require dedicated and innovative lawyers and legal tools, this can only follow the action of the movement. Direct action to oppose and confront the enclosure and misuse not just of space, but of entire communities, has become a legitimate front in the struggle.
It’s important to note a difference in squatting between the US and other countries. In England, which has a robust squatting community, squatting is a civil matter and doesn’t require the same level of police enforcement that it does in the US. Some states have more lenient laws: in Florida, squatters can post notices that a property is under siege, and if they manage to hold it for seven years, they may take possession.
Still, it appears that most squats that survive do so by avoiding notice by police and landlords. There don’t appear to be any mechanisms in the United States to shift these actions from the realm of criminal trespass into the realm of civil litigation. There are several squatters’ rights organizations that make an immediate impact on people’s lives, though they have not yet been able to make much of a dent in the properties controlled by absentee and predatory owners. Homes Not Jails has opened up “hundreds of buildings for use,” though most of them last no longer than six months. Take Back the Land hopes to “elevate” housing to the level of a human right and has seen an enormous amount of publicity within the months since occupations burst onto the scene.
There are no inalienable rights to own private property. Private property means different things in different countries and communities, and the limits and responsibilities of its use are constantly changing according to political pressure. It took statutory laws, the Preemption Act and Homestead Act, to make public lands private.
Claiming private spaces by a social movement is illegal within a legislative and juridical framework that equates the “public good” with gross domestic product. Notions of the “public good” in the United States have tended to rely on the perceived ability of commercial activity to make life better for for the majority. For this reason, blighted property can be seized by “public servants” and handed over to “private enterprise”; chambers of commerce have more importance in local politics than associations of community gardeners; and the stock market is the bearer of US economic wealth, rather than the number of unemployed or homeless. The last forty years, however, have demonstrated that all of these assumptions hide the reality of a class society. Arguments about what constitutes the “public good” in the United States have been increasingly revealed to be arguments about what is good for “job creators” – the wealthiest men, women and corporations in the world.
Against this ideology, the strategy of occupying dormant private property articulates the interests of the working class. Public-space occupations have presented themselves as the establishment of new forms of community, based on the mutual exchange of voluntary labor. But for the masses of people whose time is in short supply, whose days are entirely structured by work, it is clear that labor remains the fundamental element of a system of exploitation. By attacking private property itself, a strategy of illegal occupations – which nevertheless takes advantage of the gaps and openings of the existing laws – can move us past the “public good” to the foundations of working-class power.
Mark Paschal is a graduate student at UC-Santa Cruz, a member of UAW 2865, and an organizer within the UCSC General Assembly.