Originally posted by Steven | Wednesday, December 28, 2011
So Land Action (our non-profit) organized a teach-in supporting Occupy Oakland to share our experiences and the experiences of others to provide information to develop the best possible strategies for establishing and defending occupations of all types.
Many people expressed an interest to defend foreclosures, reclaim foreclosures, establish new encampments, and establish new squats. All of these activities have legal ramifications and the following is what we covered in the property law teach in.
Disclaimer: This legal essay is not all inclusive nor do I make any assurance to it's accuracy as I am not an attorney. All the law cited in this post is California law as it pertains to Alameda County unless stated otherwise. Laws may vary from state to state, and their enforcement may vary depending on the city you are in.
There are three areas of the law that pertain to occupying land; adverse possession (best case scenario), criminal trespass (worst case scenario), and civil trespass (second best scenario).
1. Adverse Possession
First, there are the laws pertaining to adverse possession in which the occupier of land claims ownership of the land until proven otherwise. The most basic claim is title by occupancy pursuant to Civil Code Section 1006 where the occupier of land is the presumptive owner. This law is very simple so I will quote it in it's entirety:
"Civil Code Section 1006. Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession; but the title conferred by occupancy is not a sufficient interest in real property to enable theoccupant or the occupant's privies to commence or maintain an actionto quiet title, unless the occupancy has ripened into title by prescription."
Of course simply because you occupy a property for a short time it doesn't mean you own the property against someone who can prove they are the true owner. Civil Code Section 1006 does provide you the protection, in certain circumstances, requiring the property owner to prove they own the property in court before an eviction can occur. In some cases, especially foreclosures, the bank may have a difficult time proving they own the property because often the paperwork has changed many hands and has been done poorly. If the owner can't prove they own the property an eviction cannot occur. (at least in theory) In more realistic scenarios it may be possible to defend your occupation in court for a while during the time it takes for the true owner to make an offer of proof. This is what we did at Hellarity. I discuss this further below under the section entitled Civil Trespass.
Of course if you occupy a property long enough you may be able to overcome any eviction and become the true owner by adverse possession pursuant to Civil Code Section 1007. Adverse possession is achieved by 5 years exclusive occupancy without permission along with payment of property taxes pursuant to Code of Civil Procedure Section 325.
Also, an adverse possessor can have their name added to the assessment rolls pursuant to Revenue and Taxation Code Section 610. The importance of this is that for government officials the assessment roll is used as evidence of ownership. If you add your name to the assessment roll it may be possible to prevent police harassment or deprivation of your property rights by government officials. When one makes a request pursuant to Revenue and Taxation Code Section 610 it is necessary to provide a "declaration, under penalty of perjury, that he or she currently has possession of the property and intends to be assessed for the property in order to perfect a claim in adverse possession." The request is made to the tax assessor's office. 2. Criminal Trespass
The worst case scenario in any occupation is that the police arrive and threaten to arrest you. If no one on the property is committing any crimes then the only charge that the police could arrest you under is misdemeanor trespassing. Usually the police provide an occupier one free pass to choose to stay and get arrested or leave the property and avoid arrest.
Before being confronted with that choice it is always a good idea to be aware of your criminal exposure. Under Penal Code Secion 19 a misdemeanor is punishable by up to 6 months in jail and $1,000 fine. This is the maximum sentence. It would be very rare for a judge to impose the maximum penalty. I was sentenced to two months jail after a trial leading to three separate convictions. The judge could have sentenced my to 18 months in jail under Penal Code Section 19, but gave me a much lighter sentence.
Despite this I have spoken to some attorneys about this sentence and the consensus is that a two month sentence is much harsher than normal. I was able to serve my sentence out of custody in a work program.
A more lenient conviction would be either a fine or community service which is common for many convicted of trespass. If you've spent the night in jail some judges will convict you with time served (ie no further punishment).
The most common trespassing charge is under Penal Code Section 602 which states that entry onto land posted no trespassing or where police are requested by the owner to arrest trespassers is a misdemeanor.
Ironically I was convicted of Penal Code Section 602.5 which prohibits the entry into the resdience of another. I find this ironic since the house I was squatting had been empty for over a decade which should have protected me from such a charge.
3. Defenses to Criminal Trespass
There are numerous defenses to a charge of trespassing. The best one, of course, is that you had permission to be on the property or are the true owner. Before a situation confronting the police I recommend reading my previous blog post "Is There Something I Can Help You With?" It's always best to avoid a prosecution than to fight one.
Another defense is that the prosecution is unconstitutional. This is actually a strong legal argument as it is taught in law school, but not as strong today when most judges roll their eyes when the Constitution is cited in a criminal court.
The most obvious constitutional argument is that you should be provided due process under the Fourth Amendment to the U.S. Constitution in the form of an eviction or ejectment (see below). The concept of due process would ensure that one who occupies vacant land is protected by Civil Code Section 1006 (above) as well as the Constitution. One such case that can be cited in support of this is King v. Massarweh, 782 F. 2d 825 where the owner accused his tenants of being trespasser and had them arrested.
The strength of this argument is that if land owners can simply remove occupants by calling the police then what is to stop them from calling the police to remove tenants thus rendering the eviction procedure and tenants rights moot. This is what happened in King v. Massarweh.
Another legal principle that is emerging is that removing people from encampments and throwing them into the streets is cruel and unusual punishment prohibited by the 8th Amendment of the U.S. Constitution. The rational is that the punishment of depriving someone of shelter is cruel when a harmless misdemeanor trespass is the only offense being charged. This is a new defense and there is only one citeable case out of Florida where this argument prevailed; Pottinger v. City of Miami, 40 F. 3d 1155. There has been one victory in California protecting people living on Los Angeles's skid row, but unfortunately that case was not published in the proper legal journals to be considered having the weight of law in California. In California the 8th Amendment defense has not been decided by the courts, but it's worth bringing up anyway; especially if the occupiers are otherwise homeless.
Of course in the context of a political occupation such as Occupy Oakland one could argue that the prosecutions are malicious police actions meant to deprive protestors of their free speech protections under the 1st and 14th Amendment of the U.S. Constitution. The current situation reminds me of the case Allee v. Medrano, 416 U.S. 802 (1974) where farm workers in Texas were arrested numerous times for minor offenses by the police in an effort by the government to suppress organizing efforts by labor unions during the civil rights era. The Supreme Court decided that even though the labor organizers may have committed minor violations of the law that the selective arrests by the organizers were in "bad faith" by the police in an effort to deprive them of their right to free speech, free association, and equality.
Of course, if you find yourself in a jail cell I wouldn't put to much faith in the Constitution in today's political climate. Accepting the risk and doing as much as possible to avoid arrest is something I recommend during the planning stages. That is why I recommend doing your research before taking action, and developing a solid plan and following through with it.
4. Civil Trespass
A very likely scenario for an occupation that avoids the police is that at some point the owner of the property, their estate, or some successor will become involved. I always recommend that you assume the owner will intervene unless the owner is dead (with absolutely no living heirs) or has completely disappeared. That said before entering a property I recommend attempting vigorously to contact the owner. At first I like to ask the owner for permission. If the owner doesn't respond then I like to inform the owner of my intention to adversely possess the property (see above). This way you know the owner is not engaged, and if the owner decides to remove you later you can use copies of your correspondence to show that you entered the property in good faith.
One analogy I use is that it is better to kick the hornets nest than it is to get stuck in it. Do not tip toe around the owner before entering the property unless you want a confrontation later.
Assuming your intention is to adversely posses the property then there are some steps you can take to establish the legitimacy of your occupation.
If the building is your residence you can file a homestead declaration under Code of Civil Procedure Section 704.930. A homestead declaration can be filed with the county recorder's office. This document can be found online or purchased at a copy shop if they provide notary services. The homestead declaration must describe the property as it is described on the previous owner's deed, and be completely filled out.
In the line that says, "I own the following interest..." one can put "occupancy pursuant to civil code section 1006". Another way to fill out that line is "fee simple title". I am not sure the most appropriate, but it has never been an issue. In fact I have left that line blank most of the time.
Also, it is necessary that the Homestead Declaration is signed in front of a notary and then notarized before it is filed. A common mistake is for someone to sign a document before taking it to the notary. The purpose of the notary is to ensure that the signature is authentic; nothing more. So no matter how many mistakes you make in your document the notary only cares about ensuring that you are who you say you are and that you are the one signing the document. Notaries will not ask questions about your paperwork or provide any advice on how it should be filled out.
After notarizing your Homestead Declaration you can then file it with the county recorder. Both the notary and the recorder will charge a fee.
The advantage of a Homestead Declaration is that it can be used as evidence under Code of Civil Procedure Section 704.940. This means that if the owner comes forward at some later date then you can establish that at the very least you were in possession of the property at the time commencing when the declaration was filed unless the owner can prove otherwise. If the owner comes forward over 5 years after filing the declaration it will be more difficult for the owner to legally remove you.
A Homestead Declaration is not appropriate if the owner gives you permission to be on the property. If you have permission from the owner to be there you have a better chance of arguing that you are a tenant.
Also, under Civil Code Section 880.310-880.370 a Notice of Intent to Preserve Interest can be filed with the county recorder after the Homestead Declaration. The Notice of Intent to Preserve Interest enters the person's name in the ownership index. This can be filed in the same way as a Homestead Declaration and must reference the document number of the Homestead Declaration or some other document on file with the county recorder.
Another strategy for establishing record title for the purposes of adverse possession can be to file a Quitclaim Deed which transfers your interest to a third party which is contractually obligated to transfer title back to you when you have been in possession of the property for five years.
The difficulty in filing a Quitclaim Deed is finding a person that you both trust and is also willing to accept the risk without the benefit of acquiring the property. This is a service that Land Action will be providing to certain occupations that fit within our mission which is to support occupations that advance the principles of equality, justice, or equality.
These strategies for adverse possession may not end in successfully acquiring ownership of the property in which you occupy, but it does help to establish your claim. Even if you are arrested the absentee landlord will still have to sue you to clean up their title. This means that if you are arrested or removed through some illegal means you can maintain your claim. If the owner doesn't sue you within 5 years after you are removed you may still acquire the property. If the owner does sue you within 5 years then you can fight them in court and/or negotiate a settlement. What you decide to do depends on the circumstances.
There are two types of lawsuits an owner may use to remove an occupier. One is called and Unlawful Detainer and the other is called a Quiet Title. Unlawful Deatiners are usually used to evict tenants whereas Quiet Title is used against trespassers.
Since the litigation process is so complex I will be developing fill in the blank forms for each step in the process in future blogs. Feel free to add comments if you have a particular situation which may need such a document so I know what to develop first.
Summary
Knowing the laws in an increasingly lawless society does not guarantee any outcome, but it can give you the advantage in developing your strategy and dealing with confrontational situations. Arguing the legality of your occupation with an adversary rarely succeeds, but developing your occupation in a manner that most conforms with the law might help avoid a confrontation or, at the very least, make it more difficult for and adversary to find a pretext to harass you.
Also, in the event that you find yourself in a courtroom, knowing the law can in a best case scenario lead to your victory in fighting an eviction, but even in the worst case scenario it can help you to take advantage of the process to minimize the harm caused by and eviction. More on this will be available on this blog soon.
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