On December 10, 1948, the General Assembly of the United Nations issued The Universal Declaration of Human Rights, declaring housing a basic human right. West Coast cities have experienced a surge in homelessness despite a report that found a nationwide decrease in homelessness. In San Francisco’s Bay Area alone, tens of thousands of people were living without homes as of 2017.
A 2018 report by United Nations Special Rapporteur for Adequate Housing, Leilani Farha, revealed that unregulated property speculation and discrimination are largely responsible for the recent rise in urban homelessness.
In an area where the median home costs $820,000, San Francisco’s Bay Area is currently experiencing an affordable housing crisis. Unsurprisingly 25,951 people lack stable housing in the Bay Area. A recent Brookings Institute income inequality study ranked the San Francisco metropolitan area (including San Mateo, Alameda, Contra Costa and Marin Counties) the third highest in income inequality in the United States. In the Bay Area, where the median fair market rate for a two bedroom apartment is $3,121, the highest earners were making eleven times more than the lowest.
Among those most affected by the rising rents are minority communities. A U.C. Berkeley and California Housing Partnership study found that Bay Area neighborhoods lost twenty-eight percent of minority low-income residents when the neighborhoods experienced a thirty percent rent increase. Further, African American families are seven times more likely to face homelessness than white families.
The Special Rapporteur found that discrimination against less affluent communities exacerbates income inequality and forces poor communities into unstable housing and homelessness. Once people lose their homes, they face further barriers to stability in the form of national and local laws criminalizing homelessness. In many cities, local governments target homeless individuals by turning sleeping in public places, panhandling, and sidewalk sitting into criminal offenses. In response to these discriminatory laws and policies, the Special Rapporteur found homeless people are organizing and are taking legal action to challenge these laws.
In the San Francisco Bay Area, local homelessness advocacy groups have revived an old and controversial property law to combat homelessness: adverse possession.
Known colloquially as ‘squatters rights,’ adverse possession essentially allows a person gain title of another person’s land through occupation. Borrowed from old English law, the traditional American idea of adverse possession centers around land waste: if a person is not utilizing his or her land, than he or she may lose it to someone who will. Homes sit empty in many East Bay counties where crime rates, housing foreclosures, and high rents have caused people to leave the area. With around 18,000 vacant housing units in Alameda County’s Oakland, and about 5,629 homeless individuals living in the county, adverse possession then seems a possible solution.
Obtaining housing through adverse possession is no simple thing; it may take years to gain possession and offers no guarantees. Adverse possessors are required by state law to meet certain requirements before gaining ownership as a way to balance the rights of the original owner and the state’s interest in utilizing land. In California, a person must openly occupy and use another’s property without permission and to exclusion of the owner for five continuous years. An adverse possessor must also pay property taxes for five years.
The adverse possessor faces the constant risk that the true owner will reassert ownership before the end of the five-year period, essentially ending the adverse possessor’s claim. Paying property taxes offers additional challenges because the adverse possessor must pay back taxes as well as current property taxes. These taxes can be costly in the San Francisco Bay Area where, for example, the average property tax in Alameda County is $3,993 per year. Adverse possessors may face additional bureaucratic difficulties with meeting the tax requirement when counties are reluctant to accept payments from those not on the property’s title. In addition to procedural difficulties, adverse possessors may also face criminal trespassing charges. In some cases, banks may send representatives to remove adverse possessors from the premises and will sometimes auction off the property. The vacant houses themselves may provide further challenges. For example, abandoned houses may be in disrepair, thus requiring the adverse possessor to spend money fixing the property. In other instances, vacant homes may be located in high crime areas, putting an adverse possessor’s personal safety at risk.
For some, however, the promise of a home outweighs the uncertainty and potential legal consequences posed by adverse possession. Organizations such as Homes Not Jails and Land Action view adverse possession as a viable option to combat housing inequality in the San Francisco Bay Area. Oakland housing rights activist and Land Action founder Steven DeCaprio has personally experienced the difficulties and successes of adverse possession.
A little over 15 years ago Mr. DeCaprio obtained his own home through adverse possession. After discovering the owner of a vacant West Oakland house had passed away in 1982, Mr. DeCaprio and some of his friends moved into the home. Finding the property in disrepair with fire damage and vermin infestation, Mr. DeCaprio spent years making the house habitable. Although none any of the original owner’s family attempted to reclaim the house, Mr. DeCaprio was forced off the property several times by law enforcement. Often when he returned to the property, the house was boarded up or the door welded shut to discourage reoccupation. However, Mr. DeCaprio persisted until he was able to gain title through adverse possession.
After his own successes, Mr. DeCaprio decided the homeless community should form a corporation to help others obtain housing. In 2011, Mr. DeCaprio founded Land Action to “assit organizers occupying and acquiring abandoned and unused real property  to facilitate its use for purposes advancing the principles of justice, freedom, and ecology.” Land Action, modeled from real estate speculator tactics, functions as a title holding company by shielding adverse possessors until they have obtained ownership.
Through Land Action, Mr. DeCaprio advised Christine and Emilio Hernandez and their four children when they encountered issues arising from adverse possession. Unable to afford $2,500 a month in rent, the Hernandez family left their home and turned to adverse possession. In October 2015, the family moved into a vacant house near Oakland’s Fruitvale BART Station. Mr. and Ms. Hernandez found the house, a former drug and prostitution den, in need of rehabilitation. After installing new plumbing and electricity, the Hernandez found their lives disrupted when a bank representative changed the locks and turned off the water and electricity. Later came the eviction notices, and eventually the house was auctioned off. Although ultimately unsuccessful, the Hernandez family plans on finding another vacant house to adversely possess in their search for stable housing.
As the Hernandez family struggled with adverse possession, Mr. DeCaprio too has continued to face difficulties posed by adverse possession. In 2016, Mr. DeCaprio faced up to eight and a half years in jail as well as $89,000 in fines for helping two adverse possessors. However, as of 2017, the criminal charges against Mr. DeCaprio which included trespass and conspiracy, have been dropped.
Despite uncertainty and challenges, adverse possession remains a tempting and time-honored way to combat housing inequality.