AuthorRoark, Marc L.


In the 1980s squatters took over eleven buildings in New York's lower east side. (1) Previously abandoned and left to rot amid the city's financial crisis, squatters invoked the image of homesteaders from the nineteenth century, staking claims through sweat equity and possession. Over the time of their occupation of these buildings, the city shifted from a posture of ambivalence to their acts, to aggressive attempts to reclaim those buildings on behalf of speculators eager to capitalize on the lower east side's affordable real estate. (2) The lower east side squatters would challenge the city's ownership claims through adverse possession, and although they lost, they ultimately brought the city to the negotiation table that enabled some of the occupied buildings to legalize their claims. (3) While the legal perspectives of this case often focus on the nature of the adverse possession action--or its deficiencies--what Amy Starecheski terms the "crude legal functionalism[s]," the actual conflicts on the ground oftentimes have more to say to us than just the outcome of claims on buildings in New York City. (4) In fact, looking across the breadth of squatters' claims in America commends to us that squatters tell us something about what land and occupation mean within the American consciousness. Looking at the laws surrounding squatters can tell us something about what it means to be an American.

It is not surprising that land relationships shape the way cultures and communities think about themselves vis-a-vis outliers to its institutions. Kate Green described how land laws form an essentializing character for the cultures that regulate land by shaping what is considered the "ideal landowner." (5) These idealized landowners--"settled and stable," hard-working and committed, rational, self-interested, possessive and individualist--posed no threat to the institution of private property. (6) The moral superiority of the "squatter-landowner's" claim was underlined by the fact that while "[h]e may be apparently 'stealing' land from his neighbour,... in practice he can do so only if the neighbour is a bad owner, a waster of the natural national resource." (7) The recognition that laws relating to land are built on the backs of communal expectations for how land shapes our expectations of society is something that has been under-explored and under-accounted for in our legal discourse.

Recent property discourse has attempted to engage with how outsider property norms have an important role to play in shaping how property is regulated. The most important (and detailed) account of how outsider norms interact with property systems is A.J. van der Walt's Property in the Margins. (8) Describing rights as framed between either "strong rights [or] weak rights," van der Walt highlights how claims to property are typically framed through dichotomies that elevate property rights over personal rights, and any rights as better than no rights. (9) Indeed, the scaling of rights to occupy land according to what one's status to property is in relation to that land has had an outsized influence on how we think about land interests and their importance to our shared social and narrative values. This influence stretches beyond mere ownership or occupation, but touches on the basis of security, privacy, and identity. (10) By this way of thinking, if owning land is an essentializing aspect of American personhood, then certainly owning land renders one as "more American" than not owning land.

Indeed, Ananya Roy's work on property and citizenship highlights how this dichotomy between housed and unhoused (or underhoused) shapes a dialectic around citizenship and worth. (11) "If the American Dream is articulated in a landscape of single-family detached suburban dwellings, then 'less homelike' accommodations... are... seen as unworthy alternatives." (12) This insertion of worth transcends beyond merely scaling value and identity, but implicates the way we socially articulate values such as right, access, and blame-worthiness when we have to explain why some people are justified in their claims to spaces and some people are not. (13) When outsiders assert challenges to the property franchise, whether through mere temporary possession, long-term possessory occupation, or attempts to claim ownership, owners, neighbors, and even the state often articulate collective disapproval and deploy actions that at their core asks of the intruders "just who do you think you are?"

That question is one that property infers on behalf of owners and other persons who claim access to property legally. In fact, I argue in this Article that the laws and regulations underlying ownership often define identity vis-a-vis non-owners who stake claims to land. In responding to non-owners, legal structures and actors (including the state) set forth a narrative of property ownership that articulates the essential traits that the law promotes. At times outsiders challenge the legal identity structures, urging reforms and reconstituting of property norms that outsiders reveal as unjust or unaligned with the actual values that the social system promotes. Amongst these narrative competitions that squatters have traditionally revealed is the tension between owner as innocent versus squatter as scofflaw; the necessity of land ownership for social progress versus the utility of property use as a local asset; and the romanticized frontier versus the gritty city in American culture.

Indeed, the New York City Squatters in the 1980's and 1990's laid claim to all of these narratives through their occupation--claiming themselves as the rightful progeny of frontiersmen who homesteaded lands in the nineteenth century through sweat equity and their own labor. (14) What they found was a legal system that was ready to leave these squatter narratives in the nineteenth century and return to the time before--when speculators' claims to land were protected by the legal system. In short, in the last seventy-five years of the twentieth century, the homesteading squatters had been written out of the narrative. Instead, they were seen by cities, neighbors and communities as a different type of outsider.

This Article differs from some key other works on squatters and outsiders in legal process. Penalver and Katyal's seminal work Property Outlaws articulates how outsiders to legal process, including squatters, have helped reframe and reshape the law to account for distributional inequities. (15) Their work offers an alternative narrative of property's dominant claim of stability by focusing on how disobedience exerted in property settings has escalated needed evolution of property norms over time. (16) One of the areas they highlight is the way the image of squatters was transformed during the nineteenth century from lawless opportunists to pioneers whose utility helped expand and build the emerging nation through persistent pressure that forced the federal government to be responsive to their claims. (17) Pointing to a series of federal concessions, from the adoption preemption laws that favored pre-existing occupants claims to stake purchase options on land, to the out-sized myth of the 1862 Homestead Act, Penalver and Katyal describe in a compelling narrative how property claims transformed thanks to property outsiders challenging the speculation-culture of eastern elite banking interests. (18)

In contrast, Hannah Dobbz in her book Nine-Tenths of the Law: Property and Resistance in the United States articulates a version of squatting by outsiders as a tactic towards legal reform, rather than an end or a claim. (19) Dobbz takes the Penalver and Katyal thesis one step forward, arguing that squatting in the United States has traditionally offered outsiders a mechanism to directly challenge land relationships (whether formed from land speculation, housing disparities, or urban gentrification) that are a product of social and economic disparities. (20) But unlike the Property Outlaws' thesis where outsiders influence state action, this version of property activism is not dependent on possessors or squatters actually obtaining legal interests in the places they occupy since those outcomes are rare in American law. (21) Instead, the squatters are a visible articulation of how the property system serves some people instead of others. In Dobbz's narrative the reason that squatters were accepted in the western frontier was a general disdain for legal solutions over pragmatic realities. (22)

This article offers a third-rail approach to the squatter's narratives from Penalver and Katyal and Dobbz--that squatters reveal the essence of how property law articulates values embedded in social and legal treatment of land relationships. Legal scholarship often attempts to articulate the values that law should embrace when facing property conflicts. For example, Eric Claeys, in his article Labor, Exclusion, and Flourishing in Property Law, attempts to cast the institution of private property as a valuable check on both the communitarian instincts of progressive property and the rights instincts of law and economics when it promotes industrious productive labor use as the governing principle for deciding when conflicts around trespass and privilege to trespass emerge. (23) Thus, in Claey's productive labor theory, property is deployed to protect the valuable function of concurrent labor and industriousness in land use, rather than the bare economic speculation of ownership absent use or occupation. (24) Both governance and right are deployed in this framework to promote a "public good in relation to interests in rational flourishing." (25) That public good is importantly germane to identify the characteristics that society expects to embrace as it endorses land relationships in different persons at different times.

Similarly, Jed Purdy notes that defining property is always about making choices...

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