LAW, URBAN SPACE, AND PRECARIOUS PROPERTY: THE GOVERNANCE OF POOR PEOPLE'S POSSESSIONS.

• Author: Blomley, Nicholas

Introduction 224 I. Precariously Housed People Must Negotiate Multiple Legal Spaces 226 II. Routine Seizure and Destruction of Belongings Occurs by Multiple Actors 228 III. Precariously Housed People Lack Meaningful and Accessible Remedies 230 IV. The Taking and Destruction of Poor People's Belongings Perpetuates Vulnerability and Poverty 234 V. The Dispossession of Precariously Housed People Perpetuates Colonialism 237 VI. A Focus on Objects Reveals Overlooked Power Relations Operative through Law 239 Conclusion 241 INTRODUCTION

Law is not abstract and ungrounded, but is formed through, and productive of the spaces in which it exists. Such spaces are not abstract, but inherently social and political. (1) To fully understand the work of legal space, it is necessary to learn from those on the legal margins. (2) The geographies of real property law are, for most of us, taken for granted. The precariously housed, however, are forced to experience only the exclusionary territorialization of private property, without any compensatory right to territory of their own. They live the "Lockean hell": (3) not simply are they "under the power of others --to be dominated by them or dependent on them--in respect of where one may be," (4) but also they must negotiate the legal reality that "that there is nowhere that [they] are in charge of, nowhere that everyone else has no right to be without [their] leave." (5)

Jeremy Waldron developed an influential analysis of space and law in this context. He notes that spaces in which the houseless can exercise their freedom, including fundamental freedoms such as the right to sleep without being disturbed by others, are hedged in by the territory of private property:

For the most part the homeless are excluded from all the places governed by private property rules, whereas the rest of us are, in the same sense, excluded from all but one (or maybe all but a few) of those places. That is another way of saying that each of us has at least one place to be in a country composed of private places, whereas the homeless person has none. (6) The rules of private property are thus, for the houseless person, "a series of fences that stand between them and somewhere to be, somewhere to act." (7) While a powerful argument, we offer two supplements.

First, Waldron focuses on the liberty of the individual person, in relation to the spaces in which she is located. While this is clearly important, it misses one crucial dimension that is central to the person, but distinct: personal possessions. Like all of us, precariously housed people possess an array of belongings that serve multiple ends. Tents keep people dry, animals provide comfort and security, cell phones allow for interaction with others, photo albums remind people of their loved ones. But because people are forced into legal spaces that they do not control, others may treat these belongings as obstructions, waste, 'broken windows', or monetary resource, and regulate accordingly.

Second, to focus only on absolute homelessness, in which people are forced into public space, is to miss the fact that the unhoused move between multiple spaces, that are both public and private, including sidewalks, parks, shelters, transitional housing, storage facilities, rooming houses, single-room accommodations, and other insecure rental housing. In all cases, people's relationship to such spaces is legally precarious. (8) In this sense, Waldron's fundamental insight regarding title while correct, needs to be nuanced. Each of these spaces has its own regulatory logic, tied to distinctive property rules, such as landlord-tenant law, or municipal law.

Waldron's analysis, therefore, can be usefully supplemented and extended. We do so by building on other legal geography studies that animate the effects of bylaws, laws, and practices on vulnerable people (9) and by drawing from our current research project. (10) Based in a number of midsized and large cities in Canada, the project builds on a detailed review of statutes, bylaws, and judicial decisions, together with interviews with precariously housed people and those private and public actors who regulate the spaces they move through. While scholars have addressed particular dimensions of this issue (such as animals owned by houseless people), (11) there is a lack of research at the scale of analysis we adopt.

A focus on objects, rather than persons, reveals hitherto overlooked power relations operative through law. Notionally impersonal and equitable, governing through things can become deeply oppressive and punitive, when differential property relations and access to space are foregrounded. When viewed in combination, these regulatory logics can create a pervasive and intrusive regulatory matrix, governing both people, and their possessions, sometimes independently. This matrix is often experienced by poor people as ambiguous, discretionary, and flexible, creating unpredictability and uncertainty for those governed by it. Moreover, remedies are often unavailable, or oblivious to the fact that poor people also carry their belongings as they move from one space to another. Regulations are often complaint driven, activated arbitrarily at the discretion of the regulator, and reliant upon evaluative judgments that are easily prejudicial and ill-informed. We begin to develop this argument by outlining the multiple legal spaces that the precariously housed must negotiate (Part I) (12) , then documenting the widespread seizure and destruction of people's belongings in these spaces (Part II) (13) , before noting the lack of available remedies (Part III). (14) Reflecting on these findings, we then argue that the seizure of precariously housed people's belongings maintains vulnerability, exacerbating poverty (Part IV) (15) while also perpetuating ongoing colonial relations (Part V). (16) Finally, we reflect briefly on the different ethical and analytical insights that come from a focus on belongings (Part VI). (17)

1. PRECARIOUSLY HOUSED PEOPLE MUST NEGOTIATE MULTIPLE LEGAL SPACES

   Whether it is on the streets or in parks, in shelters or couch surfing, in a rooming house or single-room occupancy, precariously housed people lack access to safe, adequate, and secure places to keep their personal belongings. The laws, bylaws, and less-formal rules that govern public and private spaces, combined with the lack of affordable and adequate housing (as well as lack of storage facilities), creates the reality where the possessions of precariously housed people and people who rely on public space are constantly at risk of theft, seizure, impound, and destruction by governmental and non-governmental actors alike. (18) The lack of secure places to keep belongings means that many people are forced to move their personal property daily to avoid impound or theft.

   For people forced to shelter outside, the category of space they occupy, whether public or private, and the formal and informal rules that govern that space, has implications for the security of their personal belongings. Public land in urban centers is regulated through municipal by-laws specific to parks, streets, and in some jurisdictions, vacant city-owned property, as well as through legislation that governs unclaimed property. (19) Private land and personal property on private land is regulated through trespass legislation, municipal property maintenance bylaws that outline the public responsibilities of private property owners, and common law principles. (20) Cases like R. v. Tanton (21) --where bylaw officers seized the shopping cart and personal belongings of an unhoused individual from private property where it was stored with permission--demonstrate the ways that the possessions of unhoused people are targeted by police and bylaw on both public and private property. This is arguably still the case, despite the court's determination that it is a violation of a person's constitutional rights for police or bylaw to seize belongings consensually stored on private property. Taken together, the overlapping regulatory schemes governing public and private space create the reality where unhoused people have functionally no place they can safely leave their belongings without risk of impoundment or disposal.

   For example, shelters appear to offer stability and security for persons and possessions. However the fact that shelters offer minimal secure storage (22) (and at times no daytime storage capacity whatsoever) (23) and are exempt from landlord-tenant legislation, (24) means shelter-users' rights differ little from those they have on the streets. Residents are at risk of theft and risk of losing belongings to shelter regulations and rules, and are often doubly at risk by being forced to rely on public space and its related laws and bylaws. (25) Shelter standards frameworks which include general storage policies and policies regarding resident belongings upon client discharge, lack the teeth of standard legislation and bylaws to ensure shelter residents are guaranteed adequate storage and rights mechanisms.

   Human rights claims have arisen regarding the lack of storage in shelters, such as Pressello v Union Gospel Mission, (26) where a houseless complainant argued that a lack of storage amounted to discrimination based on his disability. The human rights claim was dismissed, however, because the shelter was able to demonstrate that their code of conduct stated that daytime storage was not available, that items left behind would be discarded, and that the storage they did offer was for a substance use treatment program separate from the shelter program. (27)

   Further, while people in precarious rental housing situations technically have secure places to keep their possessions and benefit from the protections afforded to them through landlord-tenant legislation, broad regulatory gaps and power imbalances between landlord and tenant leave them vulnerable to the loss...