Property rights, law enforcement issues emanate from moms4housing standoff
In mid-January, an activist group moms4housing illegally moved into and were subsequently expelled from a vacant building in Oakland, to much media attention. Tony Francois of the Pacific Legal Foundation examines, in an exclusive interview with Opportunity Now, the legal and policy issues surrounding the occupation.
Opportunity Now: What are the laws regarding squatting: are there any constraints on property owners expelling people who are unlawfully on their property?
Tony Francois: There is an old legal principle that allows people to trespass to obtain ownership of property from the legal owner--even if it’s against the wishes of the owner. Usually this happens around things like boundary disputes between neighbors, it’s usually not about an entire piece of property. But there are a lot of things you have to do to make that principle apply: You have to occupy or use the property for a long time. You probably need to put some financial commitment into it, such as paying taxes on the property.
But with the Oakland trespassers, this doesn’t seem to be the issue. This looks more like activists occupying a vacant home to make a public point. And it’s also a practical way of getting people under a roof that no one else is using. I don’t see them arguing that they are establishing rights as tenants against the owners’ wishes, and forcing the owner into a legal position of having to be their landlord. But by moving in and staying there, they start getting closer to the grey area of squatters’ rights.
In simple terms: as trespassers they do not have rights to property. But if they can convince a judge that they are tenants based on some kind of agreement with property owner, then as tenants they have significant rights, even if they don't pay rent.
ON: Why would a house that can be providing shelter and generate revenue be left vacant?
TF: There are lots of completely legitimate and reasonable reasons as to why a property may be vacant at a particular moment in time. Maybe there’s a trailer on a construction site. Maybe there’s a commercial building that has some open space because they’re retrofitting the building or a tenant just moved out. Maybe you inherited your parents’ house, you don’t want to move in, you’re not sure what to do with it, maybe it needs repairs—so you’re considering your options and letting it sit vacant. You’re not a speculator or a flipper, you’re just managing a family asset. Maybe you are a landlord who feels burned and wants out of the business: you’ve had a tenant leave, and given rent control and substantial tenant protections, it’s just not penciling out for you to continue to be a landlord and you’re looking to get out. Maybe the property is not safe to rent. Maybe it’s not ADA compliant. And the landlord doesn’t have the money right now to fix it up.
ON: So it sounds like, if you’re an owner of a vacant property, being nice and letting trespassers stay could lead to all sorts of legal issues for you. If you’re an owner of a vacant property, what can you do do make sure you don’t get into the kind of trouble the Oakland property owner got into?
TF: Owners need to be vigilant—they are often unaware of what’s going on with their property. And remember, they are sometimes dealing with people who don’t want to be discovered, so owners need to be extra alert. First off, you need to have a plan to regularly check on your property. Have somebody go there and look around closely for signs that people are trespassing. Second, if you find that somebody has moved in against your will, you need to take quick action. In years past, you could call the Sheriff’s office and say: “I own this property and I have a squatter I need removed.” The Sheriff would then check the tax rolls and take action. But in today’s environment, you are much less likely to get the Sheriff to do that. You will probably need to file a lawsuit to get a court order directing law enforcement to remove whomever is trespassing. That will cost money.
Some people recommend you just go talk to the trespassers and see if you can incent them to decamp—and if the incentive is less than the lawsuit that might make sense. Though they may come back or word could get out that you reward trespassers.
ON: The Sheriff in the Oakland is considering charging the owner of the property for the costs of removing the squatters.
TF: This is happening a lot more with public services: Cities are strapped for cash, so they start charging people for services provided—they might charge you for the ambulance ride to the hospital, or if you’re holding a permit for a parade, to charge you for security at the parade.
Very quickly this becomes a pretty chilling message to everybody. In the case of the Oakland trespassers, the property owner may have to pay for the work of carrying out a court order. Or, on the other hand, they could turn to the moms4housing group and say: you occupied, the house, you barricaded the door, you pay the Sheriff’s costs. That starts bumping up against their First Amendment rights.
The bill of course should be paid by Alameda County. It’s a terrible sign if the sheriff is saying that somebody else has to pay the costs of them carrying out a court order. But just as law enforcement has essentially quit enforcing low-level crimes such as drugs and petty theft, perhaps at some point in the not-so-distant future they will stop enforcing trespassing laws.
ON: There must be a way to address vacant property in a way that helps the homeless situation.
TF: We have to remember that if these properties were not vacant, and were being rented out at market rates, that wouldn’t help the homeless because they probably could not afford to live there.
But with vacant properties there might be opportunities, you can imagine at model that goes something like this:
The city of Oakland works with property owners to identify vacant units.
The city creates a roster of vacant homes for which the city is willing to pay, from an affordable housing fund, below-market rent for people who need housing.
This provides housing immediately, and saves the City the hassle and cost of having to build some new housing.
ON: And it’s a lot cheaper than building new units that cost north of $600k per unit.
TF: There may be some ideological resistance to the city paying property owners directly, as it takes away any leverage the city might have with the property owners, but it would be interesting to see how many units would come on the market. Even so, the idea does bring up some of the same issues we discussed previously. Is the property still privately owned or publicly owned? Do the people who start to live there become tenants with tenants’ rights?
ON: And it would only address a certain segment of the homelessness problem. The bigger problem will remain.
TF: The homelessness phenomenom is likely to be with with us until we are more effective at dealing with the upstream problems of overall housing supply and how to address compassionately but effectively mental illness, addiction, and people dealing with trauma. If we make it impossible for people to evict trespassers, we are just creating a whole new set of problems that make these people wards of the state and just cover up the problem. We need to concentrate on addressing the core issues and distribute responsibility fairly across the whole community for fixing the problem.
Read more from the Pacific Legal Foundation here.
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