The Right to Housing: Possessing Home in California

Los Angeles Community Action Network mobilizing to defend
      housing as a human right.

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.

Home Reclaimed?


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.

Land Action

Steven DeCaprio of Land Action speaking at a rally.

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.  

Introduction to Upcoming Ninth Circuit Survey, by Judge Clifton


By: The Honorable Richard R. Clifton

For nearly four decades, the Golden Gate University Law Review has produced an annual volume reviewing decisions of the Ninth Circuit.  As our court covers over one-fifth of the country, and deals with a comparable share of the federal appeals, it is appropriate to pay attention to its jurisprudence.

The bar should be grateful to the law review for that effort.  The Ninth Circuit is the last stop for the overwhelming majority of cases.  Review by the Supreme Court is sought for only a fraction of the Ninth Circuit’s decisions, and the Supreme Court takes for consideration on the merits only about one per cent of those cases in which a petition for certiorari is filed.  To be sure, the Court takes many high-profile cases, but even most cases that could be described that way do not get selected by the Court for plenary consideration.  As a practical matter, lawyers considering an appeal to the Ninth Circuit know that it will be the final appeal for all but a handful of cases.  Understanding more about the court’s decisions may help a lawyer craft more persuasive arguments.

These volumes should also be of interest to lawyers practicing before the court because they provide useful insight into how the court operates.  Most lawyers working on Ninth Circuit appeals do not have much experience with the court.  There are exceptions, of course.  There are lawyers with the Department of Justice, Federal Defender Offices, or other government agencies who appear before the court on a regular basis, as do some private practitioners who specialize in fields like criminal appeals, immigration law, or Social Security benefit appeals.  But most attorneys who appear before the Ninth Circuit do not do so very often.  As a result, they may not be familiar with the court’s internal procedures.

In recent years many of the introductions written by my colleagues to these annual volumes have made an effort to discuss the court’s operations. Judge Morgan Christen wrote about the contributions made to the court by senior judges and by the court’s staff attorneys.  Judge Susan Graber discussed the use of technology, decisions to submit a case on the briefs and without oral argument, and the screening process, used by our court for about one-third of all cases resolved on the merits.  Judge Marsha Berzon provided insight into how our court considers whether to rehear a case en banc.  The court’s procedures have been discussed in articles by other authors as well.

The court does not intend for its processes to be secret.  Indeed, it is affirmatively helpful to the court for lawyers and other interested people to have a better idea of how the court works.  Someone who is knowledgeable is less likely to make a mistake that has to be untangled or, in some cases, may be fatal to an appeal.  That person is also better able to explain to clients and other interested people what to expect on appeal and the significance of some of the court’s orders and instructions.

Unfortunately, it is hard for someone who is not behind the curtain to know what goes on backstage.  Although the Federal Rules of Appellate Procedure, the Ninth Circuit Rules, and the court’s General Orders are readily available, including on the court’s website, they do not define all of the court’s procedures.  Besides, it may be difficult to glean how the court actually works just from the rules – someone trying to understand baseball would find it challenging to do so by only reading the official rulebook.  The Golden Gate University Law Review has performed a useful service in helping to explain how the court works.

There are other sources available, and lawyers with cases before the Ninth Circuit would do well to consult them.  In recent years the court itself has tried to make more information available, primarily via its website.  Anyone interested in the court – including lawyers who are filing appeals, drafting briefs, and preparing for oral arguments – should make a point of checking the resource information made readily available by the court at that website:

Worthy of special note are substantive outlines on certain areas of law, currently found on the website in a section described as Guides and Legal Outlines.  Most of the outlines are prepared by staff attorneys employed by the Ninth Circuit who help present cases to judges and who deal repeatedly with certain areas of the law, developing substantial expertise in the process.  Currently there are outlines available on appellate jurisdiction, standards of review, perfecting an appeal, immigration law, and section 1983 litigation.  Reviewed and updated on a periodic basis, they were initially prepared for use by staff attorneys themselves, but some years ago it was decided to make them public.  They are not recognized by the court as a persuasive authority, so they should not be cited for that purpose, but they provide an outstanding summary of important legal propositions with supporting citations to Supreme Court and Ninth Circuit decisions.

Another recent addition to the collection is the Appellate Lawyer Representatives’ Guide to Practice in the United States Court of Appeals for the Ninth Circuit.  It can also be found on the Ninth Circuit’s website.  The first version of the guide was made available on October 22, 2013, and periodic reviews and updates are planned.  It was prepared by lawyers who serve as representatives of appellate practitioners to the periodic Ninth Circuit Judicial Conference.  It describes the court’s procedures and provides helpful checklists for the preparation and filing of motions, briefs, and records. Even experienced lawyers are likely to learn something new from the guide.  I wish I had been able to refer to it when I was a practicing lawyer.

The Golden Gate University Law Review has been a leader in the effort to better explain the Ninth Circuit.  The judges of the court and the lawyers practicing before it owe the law review our thanks.

About Judge Richard R. Clifton:

President George W. Bush nominated Judge Clifton to the Ninth Circuit on September 4, 2001, and the Senate confirmed him on July 18, 2002.  Judge Clifton received his A.B. from Princeton University in 1972, and his J.D. from Yale Law School in 1975.

After law school, Judge Clifton clerked for Judge Herbert Y.C. Choy of the United States Court of Appeals for the Ninth Circuit from 1975 to 1976.  Judge Clifton went on to maintain a private practice in Honolulu, Hawaii, from 1977 to 2002, where he also served as an Adjunct Professor at the University of Hawaii, Richardson School of Law, from 1978 to 1980 and again from 1983 to 1989. Judge Clifton maintains his chambers in Honolulu, Hawaii.

Hollingsworth v. Perry: United States Supreme Court Grants Certiorari to Hear the ‘Prop 8’ Case

As the marriage equality battle enters the U.S. Supreme Court, which will take up both the Defense of Marriage Act and California’s Proposition 8, Shawn Barnett, Golden Gate University Law Review’s Managing Editor, offers a Case Summary of Hollingsworth v. Perry, starting all the way back in 2008 with In re Marriage Cases.

A generation ago, the notion of a legal basis for same-sex marriage was so disregarded that the United States Supreme Court dismissed a case involving the issue without even writing an opinion.  On February 7, 2012, the United States Court of Appeals for the Ninth Circuit affirmed a decision striking down a ban on same-sex marriage in the nation’s most populous state as violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

While forty years had passed between the two decisions, the controversy surrounding same-sex marriage in California lay dormant until 2004 when then-San Francisco Mayor Gavin Newsom became a prominent figure in the fight for marriage equality.  He was the driving force behind a protest described as “civil disobedience,” issuing marriage licenses to same-sex couples.  This protest, and the four thousand marriages that took place before a court injunction halted them, were the triggering events of an issue that has divided the state for the better part of the last decade.

Those marriages led to a series of lawsuits culminating in a ruling by the California Supreme Court declaring the denial of same-sex marriages unconstitutional, followed by a state constitutional amendment effectively reversing that ruling.  The controversy culminated in the Ninth Circuit’s decision, discussed here.  Eight years and over seventy-three million dollars later, this controversy seems to have been decided—at least for Californians—with the opinion in Perry v. Brown.

The United States District Court for the Northern District of California was the first federal court to consider Proposition 8.  Judge Vaughn Walker issued his judgment for the plaintiffs, finding Proposition 8 unconstitutional based on the Equal Protection Clause of the Fourteen Amendment of the United States Constitution because Proposition 8 discriminated against same-sex couples without any rational reason for doing so.

The Ninth Circuit has twice considered the issue of same-sex marriage.  After the District Court’s decision, a three-judge panel heard the appeal.  This opinion, authored by Judge Stephen Reinhardt, affirmed the District Court’s conclusion that Proposition 8 violated the Fourteenth Amendment of the U.S. Constitution.  The majority agreed with the District Court that Proposition 8 violated the Fourteenth Amendment of the United States Constitution.  Finding no other basis than discrimination against same-sex couples as the motivation behind Proposition 8, the court determined that it was invalid.  The second time the Ninth Circuit weighed in on Proposition 8, it was to deny a request for a rehearing en banc.

On December 7, 2012, the Supreme Court of the United States granted the writ of certiorari requested by the defenders of Proposition 8.  Now titled Hollingsworth v. Perry, the Supreme Court directed both parties to argue “[w]hether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman” and “[w]hether petitioners have standing under Article III, § 2 of the Constitution in this case.”

While the Ninth Circuit’s ruling and subsequent denial for rehearing appears to be a victory for marriage equality, the narrow holding of Perry had focused specifically on the validity of Proposition 8 as an amendment to the California Constitution, rather than on same-sex marriage as a fundamental right.  However, with the granting of certiorari to a case involving the Defense of Marriage Act, it would appear that the Supreme Court will decide both cases on their merits and make a determination of the rights of same-sex couples to marry under the Fourteenth Amendment.

To allow for a full understanding of the case now before the Supreme Court, this Case Summary covers both opinions by the Ninth Circuit Court of Appeals; that is, the initial three-judge decision and the subsequent denial for rehearing en banc.

Click here to view the full Case Summary.