A Place for All?
Squatting, Homesteading, and Adverse Possession in New York
by Katie Hanford
Katie Hanford (she/her) is a second-year Master of City Planning student concentrating in Housing, Community
and Economic Development. She is interested in the intersection of culture, power, and community-led
design, specifically how communities come together to create urban space that fits their needs. When not people watching, Katie spends her time playing/listening to all things heavy, watching ‘90s romcoms and finding the best food and drink deals Philly has to offer.
In 1984, Rolando Politi, an Italian artist who emigrated to the US in 1980, decided to squat in 539 East 13th Street in Manhattan’s Lower East Side. Like many buildings on that block, 539 had been abandoned and burned out for the insurance money. New York’s Department of Housing and Preservation (HPD) owned the property and had boarded it up with tin, a typical practice of the time. [1] Politi and some friends were working construction next door when they heard that the drug dealers who were using 539 had been chased out by the police. The group decided then was their chance: they entered the building and officially secured residence, putting up a notice stating their intention for a homesteading project and placing large spikes in the front door. [2] Members of 539 began rehabilitating the building, replacing rotten joists, windows, water heaters and other infrastructure to ensure it was a sound place to live. [3] The organization took over three more dilapidated HPD-owned buildings on the block.
The squat community grew quickly as people from all walks of life came together for a common purpose: securing safe, livable and affordable housing. During their rehabilitation efforts, members of the squat continually petitioned the City to be recognized under legal homesteading programs and attempt to secure more capital for larger improvements. What should have been a simple process under the City’s dying Homesteading Act became a highly publicized and protracted legal battle, setting the stage for the future of squatting in New York City.
“Squatting” – the act of occupying a property that one does not own – has a long and storied history, one whose morality and legality has adjusted along with the concept of property and an individual’s right to it. Its legal counterpart, known as adverse possession, was brought to the U.S. as a part of English common law. The act of squatting found a cultural foothold in the economically struggling New York City of the 1970s and ‘80s, when a large number of abandoned buildings were occupied by creatives, anarchists and other low-income people in desperate need of affordable housing they could call their own.
The East 13th Street Homesteaders (ETSH) were largely responsible for turning the tide of legal action in favor of squatters’ rights, if only momentarily. These squatters and their peers helped revitalize areas of New York whose physical building stock had long been ignored by public and private interests. By rehabilitating these properties and putting care into their surrounding neighborhoods, squatters unwittingly became catalysts for city-sponsored gentrification. The history of this movement - and the policy and legal decisions brought in reaction to it - showcases how the concept of adverse possession has been manipulated and stripped of its ability to enact “public good.” If interpreted differently, New York City’s affordable housing crisis might have been culled by a larger fleet of equitable and organic community-led housing.
[1] Starecheski, Amy. Ours to Lose: When Squatters Became Homeowners in New
York City. The University of Chicago Press, 2016
[2] Ibid. at 47
[3] Kois, Dan. “The East Village Standoff I Missed.” Curbed, 16 Jan. 2023
Image: A warehouse in Williamsburg
Source: Katie Hanford
Urban Disinvestment and the Capital Gap in NYC
Understanding the history of squatting in New York City requires an understanding of large-scale disinvestment in urban cores throughout the mid-20th century. In New York City and beyond, the 1950s and ‘60s saw foundational middle-class tax bases leaving cities in droves for the promise of home ownership and open space in the newly created American suburbs. This left cities like New York with a paradox: they remained metropolitan centers, attractive as economic hubs in a job sense but uneven when it came to housing markets. Neoliberal policies – including “processes of privatization of state property and services, [a] shift to entrepreneurial urban governance, and… market-based solutions to social problems” – began to take the place of robust public services. [4] Combined with the disappearing tax base, these neoliberal practices forced the City to choose where to invest and how to make the most of its vanishing funding. Low-income areas of cities were affected first, as the “rent gap” caused “land with run-down, outdated buildings on it to be worth less than it would be empty. Because the buildings, run-down, out of fashion, and full of tenants without much capacity to pay, detract from the potential value of the land, the owners have an incentive to let the buildings decay and push the tenants out.” [5] This tactic led to widespread decline in low-income areas of New York - including the Lower East Side and large swaths of Brooklyn – due to landlord neglect and even arson. This downturn was tacitly supported by a lack of City investment in upkeep of these areas and ineffective punishment of neglectful private landowners. [6] These trends would continue through the 1970s and 1980s.
[4] Starecheski at 24
[5] Starecheski at 47
[6[ Ibid.
[7] Hirsch, Eric, and Peter Wood. “SQUATTING IN NEW YORK CITY: JUSTIFICA-
TION AND STRATEGY.” Review of Law & Social Change, vol. 26, no. 605, 1987, pp.
605–617
[8] Ibid.
[9] Starecheski at 54
[10] Ibid at 68
Throughout this period, New York City made desperate attempts to lure capital back to the city and avoid defaulting on the loans taken out to replace their vanishing tax base. As the “rent gap” swallowed more neighborhoods, the City foreclosed on and auctioned off properties to recover delinquent taxes to earn back some capital. [7] The auction plan largely backfired, as the City soon realized reselling these properties either led to more delinquency or more speculation, neither of which improved the landscape of neighborhoods, nor brought in the liquid capital the City was so desperate to gain. Therefore, the City continued acquiring properties that it could neither sell nor maintain. By 1988, the City owned nearly 10,000 buildings and 130,000 units of housing, only 50% of which was habitable. [8]
Low-income housing was impacted first and hit hardest. Low-income residents were faced with a housing crisis as livable and non-neglected affordable housing dwindled. This is where squatting came in. Low-income residents, artists and others attempting to create pathways to affordable housing took advantage of the City’s abandoned properties, moving in and rehabilitating them with whatever capital and labor they could gather. Squatting in New York City was not a new concept; there had been widespread movements throughout the 20th century, often featuring largely ethnic lower-income communities who took over buildings in order to provide for their families and fight against the beginnings of urban disinvestment. [9] By the 1970s, there had been a few “successful movements,” defined by their ability to gain legitimate legal and fiscal support from the City, which ultimately came in the form of homesteading. City- and government-supported homesteading programs turned the “sweat-equity” squatting movements of the 1960s into legitimated revitalization efforts. New York’s first homesteading program was funded by HPD In 1974 and stewarded by the nonprofit Urban Homesteading Assistance Board (UHAB). Through this program, homesteaders would acquire clear titles to homes after rehabilitating the buildings and living in them for three to five years. [10]
Local and federal programs required homesteaders to have steady incomes on top of their rehabilitation efforts to qualify for the promised low-interest loans. Consequently, these programs favored moderate-income homesteaders as the safest investment, even though their motivations were more often centered around profit than those of low-income homesteaders seeking affordable shelter. Squatting seemed to be the only viable housing option for the City’s most vulnerable populations.
Image: Multi-use shop space in Brooklyn
Source: Katie Hanford
Adverse Possession and the East 13th Street Squats
Modern conceptions of squatting often paint the act as immoral and lazy, a way to “freeload” on hard-working landowners. However, the idea of squatting was not always deemed immoral; its legal history is rooted in the connection between utilitarian notions of property and public good, with underused property seen as more of a moral blight than a non-owner’s decision to occupy the property without permission.[11] Adverse possession’s cultural and legal definition changed with new perceptions of property. The U.S.’s doctrine pulls from Lockean-influenced English common law, defined as a “method of acquisition of title to real property by possession for a statutory period under certain conditions.” [12] Adverse possession has five key elements a claimant must prove to win rights to the occupied land. The claimant’s possession must be open and continuous for a statutorily-mandated period, must occupy the entire area, must be at odds with the title holder’s interests, and must be notorious. [13] Various cases and applications of this law over the last 200 years have pulled the concept farther from its inception, as state-level legal interpretations have focused more on property line disputes than the notion of abandoned land as a moral blight.
By the 1980s, homesteading as a concept had all but been abandoned by New York as land values in disinvested areas rose along with the promise of profitable development. Closed-door sales between small-time landlords throughout the 1970s had driven up land values without addressing any needed physical improvements [14], making the concept of homesteading a less attractive pull for the cash-strapped City. Instead, New York looked to expanding "affordable housing” in partnership with established community organizations and nonprofits as a development-oriented solution to decades of disinvestment. [15]
With economic and political pressure mounting, the East 13th St. Squatters turned to adverse possession as their last-ditch effort to cement community control of their homes. The prospect of the squats in lucrative neighborhoods turning into permanent community-run housing made the City squirm.
Image: Harlem
Source: Katie Hanford
[11] Gardiner, Brian. “Squatters’ Rights and Adverse Possession: A search for equitable
application of property laws.” Indiana International & Comparative Law Re-
view, vol. 8, no. 1, 1997, pp. 119–158, https://doi.org/10.18060/17807
[12] Ibid. at 122
[13] Ibid. at 122
[14] Ibid. at 48
[15] Starecheski at 90
[16] O’Shea, Sara. “Property Owners Beware: Adverse Possession in New York Is Still Alive and Well.” HLS | Hollis, Laidlaw & Simon, 9 Dec. 2021
[17] Johnson v. M’Intosh
[18] Starecheski at 94
[19] Gardiner at 144
[20] Starecheski at 98
[21] Gardiner at 143
[22] Starecheski at 93
East 13th Street Homesteaders v. Lower East Side Coalition Housing Development (1995)
Facing eviction pressures with no clear way out, the squats pursued a legal battle that would define the future of homesteading in New York City. ETSH reached 10 years of occupying their series of squats in 1994 and finally met the statutory requirement for adverse possession established in the State of New York.[16] In adverse possession cases, government-owned land is generally protected when it is held for public use.[17] However, “when government land is held for private or proprietary use, it is open to appropriation via adverse possession.”[18] New York’s law clarifies that state-owned property is not automatically tagged for public use and many felt the City gave up its right to designate these buildings for “public use” when it entered into auction tactics in the early 1980s.
There is a sad yet perfectly suited irony in the fact that New York, itself a relatively “low-income” geographic area (and therefore a dangerous loan recipient) trying to claw its way back to solvency, attempted to stop its own citizens from doing the same. It was not as though the City was against squatting, either: during this time, the City (under Mayor Giuliani’s leadership) had actually encouraged small businesses to squat in its abandoned buildings, hopeful that economic flows would revitalize the neighborhoods the City had left destitute. [19]
To make their claim of adverse possession, ETSH needed to prove all five elements in addition to the City’s acting as a private landlord and a continuous occupation by members of ETSH across all four buildings. ETSH argued that the collective – not singular residents – was claiming possession. They also utilized the idea of “useful labor,” including the installation of new doors, windows, utility systems, etc., to speak to the original spirit of adverse possession as an open and notorious use going against the landowner’s intent, which they argued was disinvestment and latent ownership. [20] The City was represented through the Lower East Side Coalition Housing Development (LESCHD), a nonprofit set up to develop a $4 million affordable housing project at the debated site. [21] The Homesteaders had originally intended to work with LESCHD to create this affordable housing until they realized their lack of income flows would disqualify them from remaining in their homes. [22]
The City disputed the plaintiffs’ claims by calling their identities and a general concept of “public good” into question. They questioned squatters’ need for affordable housing, arguing that squatters did not show valid proof of eventual homelessness if evicted from the squats. They argued that having a profit-seeking motive for these buildings did not disqualify the project from serving the public good. Finally, they cited urban renewal and slum clearance rhetoric when discussing how the City had been trying to remove the squatters, all of which was still “legally considered a public good.”[23] These tactics were a way for the City to house a cultural attack within legal language and showcased the law’s ineptitude at keeping up with changing norms and knowledge. How was it that 30 years after disastrous urban renewal projects, the defendants could still legally cite actions in their spirit as serving the “public good?” What is the role of the law in understanding the intersection of historical context and future impacts development has on a neighborhood?
In October 1995, the New York Supreme Court granted ETSH an injunction that halted eviction processes and found the squatters’ act of possession “legally intelligible and effective, and the law legitimated their property claims.”[24] The victory was short-lived: after an appeal from the City, New York’s State Appellate Court overruled the decision in August 1996, citing that ETSH could not have established continuous occupation because the City had resealed the buildings multiple times between 1984 and 1994.[25] The reversed ruling did not mark the end of squatters’ attempts to prove adverse possession, but this case was the closest they came to achieving that goal.
The legacy of the case marked a turning point in the resistance movement, as the chance that squatting could be seen as a legitimate claim to property influenced the City to negotiate the transfer of a small number of squats to residents in the coming years. [26] However, “success” in this case was a bitter pill to swallow: only 11 of the dozens of initial squats were transferred to resident ownership in the early 2000s.[27] Legal backlash to this small victory followed suit. In 2008, an amendment to New York's Real Property Actions and Proceedings Law was enacted to shield property owners by significantly increasing the burden of proof for adverse possessors, effectively criminalizing adverse possession claims.[28] This shift was a direct reaction to the near-success of squatters' rights in the 1990s and aimed to prevent further claims that could challenge property values in a city bouncing back from financial turmoil. The amendment brought an effective end to the public-serving spirit of adverse possession in New York moving forward, providing further proof that the law does not – and never will – exist in a sociopolitical vacuum
[16] O’Shea, Sara. “Property Owners Beware: Adverse Possession in New York Is Still Alive and Well.” HLS | Hollis, Laidlaw & Simon, 9 Dec. 2021
[17] Johnson v. M’Intosh
[18] Starecheski at 94
[19] Gardiner at 144
[20] Starecheski at 98
[21] Gardiner at 143
[22] Starecheski at 93
[23] Ibid. at 96
[24] Id.
[25] Starecheski at 113
[26] Ibid. at 117
[27] Kois
[28] O’shea
[29] Ibid. at 89
[30] Starecheski at 48
What About Public Good?: Adverse Possession’s Modern Misinterpretation
In the legal battle of East 13th Street Homesteaders v. Lower East Side Coalition Housing Development (1995), New York City asserted that squatters' occupation jeopardized safety and sanitation, framing their defense around the ambiguous concept of "public good." This defense failed to consider that squatters often represented the very segment of the public most in need of support for humane living conditions and affordable housing. How should the concept of “public good” be attended to in the legal system when the definition of the public is subject to political influence?
At the time of this case, the City was interested in converting the squats into “affordable housing.” In reality, New York City's attempts to reclaim squats reflected a desire to control the destiny of these properties to maximize private profit, as the affordable housing solutions the City proposed would revert to market rates after 15 years.[29] This temporary view of affordable housing unmasked the City’s approach to solvency: one that hinged on replacing existing low-income communities with higher-income residents in the near future.[30] Which public was the City actually trying to serve?
Dozens of squats existed in New York at the time, with varying levels of community organization and rehabilitation processes in motion. If the initial ruling in the ETSH case had stood, other squats could have followed in legally sound footsteps to achieve ownership of their sweat equity projects, putting the power of property ownership in the hands of those who would never have had enough capital to achieve ownership through traditional structures. Landowners – both private and public – were afraid of this reality. A precedent set on the original understanding of adverse possession – to uphold property as a public good - would have turned a profit-oriented housing market on its head. Although it is speculation to argue that this shift would have made landlord delinquency more difficult and led to the revitalization of squats’ neighborhoods, this reality was not impossible. It simply required the City to trust in its vulnerable populations to remake spaces to fit their own needs – and to back this trust with access to capital flows and City-supported rehabilitation programs.
Despite its financial issues, New York held a powerful position as a global city with interest from major economic forces. It makes sense that, at a time where public services were largely being gutted in favor of private investment, the City favored strategies that attracted investors interested in large-scale, profit-oriented development - and the always-attendant higher property taxes - as a clear path to solvency. A city potentially alienating capital-backed investors in favor of rolling the dice on low-income interventions in a crumbling housing stock would have been a risky move, at best. But it is also a City’s job to serve its population, regardless of class, color and creed. New York was in a position to revolutionize a city government’s relationship with its public, and it backed down from that chance. The law fell in line with the City’s private-profit vision, cementing the notion that legal proceedings are influenced by specific sociopolitical contexts. The Court of Appeals understood recognized how this case could embolden squats across the city to pursue possessor claims. The idea of adverse possession was twisted to meet financial goals instead of the public interest it had been designed to support, all allowed by the false objectivity of the law.
By neglecting the promotion of community well-being and failing to regulate private rights in the public interest, the city's actions underscored the need for legal interpretations that prioritize vulnerable populations. Imagine a world in which the tension between private property (and private profit) and public good had tilted further in favor of genuine efforts to promote public health, safety, and welfare, and had recognized the public good that the squatters represented - community, increased safety, economic activity and revitalization to neighborhoods that had otherwise been subject to systematic disinvestment for over two decades. Imagine a world in which the Court of Appeals that overruled the trial court’s fact-based findings of continuous occupancy (a rare move for an appellate court that does not itself make factual findings from evidence introduced in the lower court) would have accepted that ETHS had made a legally legitimate claim to the East 13th Street properties. If the City of New York and its courts had recognized the importance of adverse possession’s original interpretation to upholding the notion of public good instead of being captive to a politics that catered to private property and capital, the housing affordability crisis in New York today would look a bit different.
