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The Changing Architectures of Adverse Possession and a Political Aesthetics of Squatting

(Draft)

Published in Fox-O’Mahony, L. and D., Hickey, R. (2014) ‘’Vulnerable demons’? Moral rhetoric and the criminalisation of squatting’, London, Palgrave Macmillan

Lucy Finchett-Maddock

This paper will discuss the changing architectures of adverse possession, looking at the criminalisation of squatting in residential buildings and the effects of the Land Registration Act 2002 (hereinafter ‘LRA 2002’). I will argue the criminalisation of residential squatting via the Legal Aid Sentencing and Punishment of Offenders Act 2012 (hereinafter ‘LASPOA’), and farewell to the relativity of title through the LRA 2002, as the ‘removal of the other’ from within law.

By the removal of the other, the confiscation of the founding principle of land law as usucapio (seizure of land), I will argue law overall will become dysfunctional, based on a Schmittean understanding of the earth as being the origin of order and orientation, and thus law.1

Having recently been focusing on the Summer Riots and the departure from sentencing procedure of the Courts in response,2 I have been wondering the extent to which this response to resistance can be echoed in the recent changes to the law of squatting and adverse possession. As a result, this piece hopes to interrogate the ‘changing architectures of adverse possession’ in terms of a political aesthetic, a spectacular performance of law followed by resistance that demonstrates a totalising project of law and the removal of its integral element of impurity in a wish to control in the name of individual property rights.

As has been eloquently highlighted by Fox O’Mahony and Cobb,3 they identify the emergence of a moral agenda in property law’s responses to squatting, highlighting the immorality of the squatter, and the deemed legitimacy of the homeowner. Suggested by Dee and Dadusc4 this moralising creates an atmosphere of ‘otherness’ in our understanding of the squatter, a situation of us and them, whereby ‘their’ actions become reprehensible. This happens in the familiar manner to how we assimilate on an individual level what is beautiful, and what may not be so beautiful. Thus pure, impure, what is legal, and what is illegal. This piece wishes to unravel how law has constructed its other in terms of squatting, what squatting symbolises and problematises here, and what the changing architectures of adverse

1 See Carl Schmitt, Nomos of the Earth (Telos Press, first published 1952).2 See Lucy Finchett-Maddock, ‘Seeing Red: Entropy, Property and Resistance in the Summer Riots 2011’ (2012) 23(3) Law and Critique, 199-217.3 See L Fox O’Mahony and  N Cobb, ‘Taxonomies of Squatting: Unlawful Occupation in a New Legal Order’ (2008) 71(6) Modern Law Review, 878-911; N Cobb and L Fox ‘Living outside the system: the (im)morality of urban squatting after the Land Registration Act 2002’ (2007) 27(2) Legal Studies, 236-260.4 See D Dadusc and ETC Dee, Chapter 5 in this volume.

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possession, coupled with the criminalisation of residential squatting, are doing when they remove that other. The idea of the ‘other’ is influenced by continental philosopher Emmanual Levinas’ understanding of the other as an ethical responsibility towards those that are different and separate,5 the process of ‘othering’ portrayed by Edward Said,6 and Carl Schmitt.7

In terms of the UK Summer Riots of 2011, the other of the rioter was re-invented when sentencing guidelines were departed from, whereby in the case of R v Blackshaw & Others,8 the individual offences of Blackshaw and Sutcliffe were taken as part of a culpable acknowledgement of acts happening elsewhere on a collective scale. The law itself acted unexpectedly and some would say unfairly in its handing down of very harsh sentences to those involved in the riots, or even merely accused of inciting a riot (Blackshaw and Sutcliffe). Arguably here, and drawing from the recent application of crowd theory in understanding the departure from the Sentencing Guidelines,9 the law was responding to the threat of the ‘mob’. Put it another way and the law was seeking to comprehend, within the limits of the framework that it has, the machinations of collective behaviour. Crowd theory can be useful when considering the collective nature of the riots, and how the authorities exaggerate the punishment in response to match a more conservative and bestial understanding of the mob as to be that which is feared – collective behaviour as the other – manifested in the spectacular reaction of the law and the resultant, disproportionate sentencing.

In this chapter I argue the project of criminalisation and closing in of the scaffold of adverse possession, demonstrates similar motives to those of exaggerated sentencing mechanisms, in a totalising project of law, and one which is undeniably shaped by an overarching economic rhetoric of neo-liberalism10 demonstrable of a regime of value-added individual property rights. This piece questions how, through section 144, law is now responding to squatting through its reification of the other, the collective, against a backdrop of absolutist claims of property and dominion as pioneered through the remit of the LRA 2002. The law sees squatters as a) the other; and b) the collective. Indeed in the case of Caird with regards to mob mentality: “The law had always leant heavily against those who use the threat that lay in the power of numbers. The acts of any individual participator could not be approached in isolation”.11

The Squatter, The Other

On 1 September under s 144 of LASPOA, it became an offence of criminal trespass to squat in a building that was deemed for residential purposes. According to Cowan, Fox O’Mahony and Cobb, this move to criminalise is moulded by ‘wider constructions of squatting and the squatter within popular discourse’.12 An obvious way in which this is achieved is through the

5 See E Levinas, Totality and Infinity: An Essay on Exteriority (Duquesne University Press, 1969).6 See E Said, Orientalism (Vintage Books, 1979).7 See C Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (University of Chicago Press, 2006).8 [2011] EWCA Crim 2312.9 Crown and Coroners Act 2009, part 4.10 See D Cowan, L Fox O’Mahony, and N Cobb, Great Debates in Property Law (Palgrave Macmillan, 2012); Mary Manjikian, Securitisation of Property Squatting in Europe (Routledge, 2013); Hannah Dobbs, Nine-tenths of the Law: Property and Resistance in the United States (AK Press, 2013).11 R v Caird (1970) 54 Cr App R. 499, 506 (CA).12 Cowan et al (n9), 112.

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media, encouraging the stereotype of the invasive squatter.13 As Dadusc and Dee highlight,14 this demonising has taken shape as a form of moral panic whereby the media creates a hyper-reality out of a story or many stories, the sum greater than the facts of its parts, to the point that there is an outrage and urgency necessitated to quell the readers’ worries and ensure the actions cease. This otherliness relies upon an understanding of the world, and the moral standpoint creates this otherliness.

The idea of the ‘other’ is influenced by both continental philosopher Emmanual Levinas’ understanding of the other, an ethical relation between ourselves15 and the face of the other; as well as more of a process of ‘othering’ of which Edward Said so eloquently portrayed in his work on ‘orientalism’.16 This us and them mentality is supported in the political philosophy of Carl Schmitt, whereby sovereignty exists as a mechanism of boundary drawing, the division between the ‘friend and the enemy’.17 In the Schmittean sense, the other is a form of identifying those of whom we are not a part, those we should either be concerned about or suspicious of; in terms of understanding sovereignty, it is those who are beyond the scope of one jurisdiction and under the regime of another. Said sees this as a justification for labelling, naming, exoticisation whereby cultures and practices that are different to one’s own are critiqued or merely referred to, when there is little or no understanding of the culture from the critics perspective. He refers specifically to the way in which the Occident sees the Orient, a blanket understanding of a many cultures and visions that cannot be generalised under merely Oriental. With this in mind, thus a Levinisian understanding of the other is to say that there is an ontological responsibility to acknowledge the ‘other’, those who are exterior to ourselves, or merely anything which is outside of our being, as by understanding the other we thus recognise our own selves. The other therefore in the sense of squatters can be seen as those who are arguably characterised and caricatured in certain less favourable terms, therefore it being responsible for the law to comprehend these others in order to recognise the constucts and limits of itself. This demonisation of the squatter as other been talked of by other writers.18

Attached to squatting, across the world, is a sort of stigma that comes with it, although it has seen a recent resurgence with the middle-class as something fashionable to do. Ron Bailey, the famous squatting lawyer and one of the prominents of the direct housing movement at the end of the sixties and beginning of the seventies in the UK, recounts how those ex-army families who had nowhere to go after the war, were seen as ‘Problem Families’; thus a naming and labelling process with reference to squatting, has been historically charged.19 Property lawyer Prichard illustrates how squatters are fabricated by common assumptions: ‘Clearly emotive expressions such as “scroungers”, “rent-a-crowd”, “heartless authorities” would be used alongside deceptively unscientific phraseology such as “genuine homelessness” and “responsible” as freely applied to occupiers and to evicting authorities

13 P Vincent-Jones, ‘Private property and public order: The hippy convoy and criminal trespass", (1986) 13(3) Journal of Law and Society 34, 113. 14 Dee and Dadusc (n4).15 See Levinas (n5).16 See Said (n6).17 See Schmitt (n7).18 Dee and Dadusc (n4); L Finchett-Maddock, ‘No Home for Squatters’ Rights: Limitations and Legitimated Violence’ (2012) published at http://www.criticallegalthinking.com; Finchett-Maddock, ‘Trespassers Will and the Removal of the Other’ (2011) published at http://www.criticallegalthinking.com; Finchett-Maddock, Observations of the London Social Centre Scene: How a Law is Performed through Archiving the Memory of the Commons. PhD Thesis (2011), forthcoming Protest, Property and the Commons: Performances of Law and Resistance (Routledge 2014).19 See Bailey, The Squatters (Penguin 1973).

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alike’.20 Conway and Stannard summarise the negative manner in which squatters are categorised by the dispossessed landowner, ‘the primary emotions are often anger and disgust directed towards the squatter – a figure frequently portrayed as a villainous bogeyman in the popular media and elsewhere’.21 This only serves to ‘portray squatters as folk devils of the very worst sort; an articulated, sophisticated and ruthlessly organised army of hippies, layabouts and drug addicts (many of them foreign) who lie in wait to take over your house as soon as you go on holiday and smash it up for the sheer pleasure of doing so’.22

Manjikian argues the regulation of squatting as that which is determined through media and political rhetoric, accelerated by discourses of security and exclusion, asking: ‘How is it that in the urban areas of many Western European nations, domestic policy issues having to do with housing, illegal immigrants and squatters have thus come to be viewed through the lens of securitization?’.23 As a result, she contends the squatter is constructed as a threat to the state, and that these understandings structure state responses to the squatter.24 Squatting is seen as an ‘extraordinary practice’25 in an era of crisis politics whereby issues that were traditionally seen as nuisance are transformed to those which threaten ‘our very way of life’. She speaks of anti-squatter rhetoric and race with a focus on the legal and political treatment of the Roma in France, the double jeopardy of being both a squatter and ‘A8 National’ in the UK, as well as highlighting the same constructions of ‘otherness’ and exclusion that race creates as that of the negative discourse of the squatter. Indeed, this creation of the other is a central operation of securitisation, with its most familiar example as the ‘terrorist’. Indigenous claims to land are echoed by Dobbs and Keenan, where Dobbs reveals the fiction of American property law as its foundation based on the hypocritical colonialists’ taking of land by theft. As quoted by Milner S Ball, ‘Territoriality is a way of organising and talking about power. The problem is of power, not space. There is plenty of the latter’.26 Keenan in her work on ‘subversive property’ speaks of not just how property can be laden with power but also as forms of belonging.27

The extraordinariness – otherness - of squatters, the peculiar method of adverse possession, does not quite compute with the constructs of neo-liberal capitalist times. The idea of using space in a not-for-profit formula is something becoming more and more alien to a high capitalism that promotes a biopolitics of the market and privatisation. As Peñalver and Katyal so lucidly state: ‘The overwhelmingly negative view of property lawbreakers in popular consciousness comports with the centrality of property rights within our characteristically individualist, capitalist, political culture’.28 The law follows, as Fox O’Mahony and Cobb have demonstrated in their rigorous work on squatting and adverse possession, that squatting and squatters themselves are legally constructed through categorisations of crime; housing; limitation; property; and human rights; which requires, in their view, the development of a taxonomy of squatting ‘with which one might better evaluate the law in this area’.29. 20 AA Prichard, Squatting (Modern Legal Studies) (Sweet and Maxwell, 1981), 1.21 H Conway and J Stannard, ‘The emotional paradoxes of adverse possession’ (2013) 64(1) Northern Ireland Legal Quarterly 75, 77.22 Ibid.23 Manjikian (n10), 7.24 Ibid, 11.25 Ibid, 8.26 MS Ball in Dobbs (n10).27 S Keenan, Law and the Production of Spaces of Belonging (Routledge, 2014).28 EM Peñalver and S Katyal, Property Outlaws: How Squatters, Pirates and Protestors improve the Law of Ownership (Yale University Press, 2010), 79.29 Fox O’Mahony and Cobb (2008, n3), 878.

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‘Squatters’ Rights’: The Paradox of the Right to Exclude and the Inclusion of the Other

‘Squatters’ rights’ as they were known (and are still applicable in terms of commercial buildings), or the unlawful but not criminal activity of taking possession of someone’s property without their express permission, emanated from Section 12 of the Criminal Law Act 1977, as amended by the Criminal Justice and Public Order Act 1994, laying out the distinction that underlies a trespasser and a squatter through whether the said adverse possessor had knowledge of there being a resident living in a given property. As long as there are were clear signs of the owner of the property living there, then Section 6 of the Criminal Law Act 1977 could be used, acting as the legal document through which squatters’ rights are upheld. In order to ensure lawful occupancy, squatters had to ensure sole access to the property, through replacing the locks and securing the building entirely, with no broken windows or doors. Eviction could only legally take place after a Possession Order (‘PO’) had been made by the owner, to remove the unwanted residents from the property (Civil Procedure Rules, 55.8). The squatters then had the right to remain until this Order has been agreed by the local or High Court. Thus, eviction could only take place after it had been agreed civilly within the courts, and this process still remains in commercial instances. Squatting for not just use but to acquire title is thus adverse possession, the taking of land by wrong, as governed by the law of limitations (Limitations Act 1980). In unregistered land and prior to LRA 2002, if the squatter applied for the possession of the property after a period of twelve years, the property rightly became their own, unless the owner objected prior to the twelfth year.

As part of my PhD research, I argued that the recognition of a right to squat was something that is revered and important to the squatting community, or at least those who were aware of the requirements of squatting legally.30 In a 2010 article in The Independent, ‘… the new generation of squatters have a greater understanding of the law and how it can protect them, helped in part by sophisticated legal advice available on the internet’.31 According to a representative from the UK Bailiff Company, squatters had become more legally savvy, getting one of them to break into the property and then enter it and put the Section 6 up.32 Compiled by the ASS, there is of course the ‘Squatters’ Handbook’ stating the relevant law, and how to comply with the law in order to secure and occupy a building correctly (Advisory Service for Squatters, 2009). The handbook now undoubtedly needs updating, however, the 13th edition is an interesting reminder of how important ‘squatters’ rights’ were to squatters. There were guides to the Criminal Law Act 1977 Sections 6 and 12, LRA 2002, Schedule 6, Part 9, Criminal Justice and Public Order Act 1994, Limitation Act 1980 and the Civil Procedure Rules.

It is interesting to briefly consider the role of law as anticipated by those resisting it, and what it means to actually respect the formality of predisposed justice, that law offers. In a famous piece by post-structuralist thinker Jacques Derrida, he recounts the extraordinary presence of Nelson Mandela in court, giving the law a ‘taste of its own medicine’ whilst him being wholly educated in his rights, and awareness of the manner in which the law expects you to perform in its company. Derrida stated that Mandela admired the law, and played it for its own game, and convinced the law as a result. According to Derrida, Mandela was admirable for having known how to admire, this being the admiration of Mandela, a double genitive

30 Ibid. Finchett-Maddock (n18).31 P Bignell and L Franklin, ‘Young, urban professional seeks home – vacant premises will do’ The Independent (London, 22 August 2010).32 Ibid.

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whereby the admiration allows for resistance to law takes place.33 Thus, like Mandela, squatters using their legal entitlements, ‘… [become] admirable for having, with all this force, admired, and for having made a force of [their] admiration, a combative, untreatable, and irreducible power. The law itself, the law above other laws’.34 Thus, by admiring the law with squatters’ rights, those who wished to see the end of law must have first of all proceeded with the law, according to Danté35 and revisited by Agamben,36 in an organised, and legal anarchy. It seems as though in order to be an organised and prevalent force, one must know one’s enemy, create a rapport, develop a relationship, as in any other circumstance within social interaction.

The Encroachment of Absolutist Property - The Removal of the Other within Law

Despite the fact that displacing someone from a building that had obvious signs of being their home without the permission of the legal owner has been illegal since the Criminal Law Act 1977, the necessity for a duplicate law just goes to demonstrate the accelerated deification and reification of individual property rights, over the social utility and sharing of resources held within the philosophy and practice of squatting. This recent shift in media-aggravated legislative change is a definitive move further in favour of the landowner as opposed to those who have no land, and those who support the redistribution of land.

Since the 1970s and 1980s, and in the lead up to 2011, there has been an encroaching shift towards the removal of squatters’ rights from UK law. During the 1970s, the legal landscape was very different to now. According to barrister David Watkinson, there was no duty on local housing authorities to secure accommodation for the homeless until the Housing (Homeless Persons) Act, December 1977. There was no security of tenure for local authority tenants until 1980 (Housing Act 1980), nor of tenure for tenants in the private furnished property sector until the Rent Act 1974, and there had been the years of decontrol for unfurnished tenants in the private sector 1957-1965 (Housing Act 1957, Rent Acts 1965-1977, Protection from Eviction Act 1967-1977).37 In order to deter eviction without a court order, squatters first relied on the Forcible Entry Act, this act being repealed by the Criminal Law Act in 1977 and the offence of ‘violent entry’ requiring a person on the premises replaced that of entry alone (McPhail v Persons Names Unknown).38

The process and length of time with regard to possession orders was altered somewhat in 1971 as it was held that the court could not grant a possession order against persons whose names were unknown (In Re Wykeham Terrace, Brighton),39 allowing for possession if ‘reasonable steps’ on behalf of the landowner, had been taken to recover the names. In 1975 (Burston Finance v Wilkins) a High Court judge decided that even if names were unknown, if squatters knew of the proceedings, then they were impelled to come to court no matter what, and whether or not ‘reasonable steps’ to consider their names had been taken, was irrelevant.40 Again, in 1975, Lord Denning said: ‘Irregularities no longer nullify the 33 J Derrida, ‘The Laws of Reflection: Nelson Mandela, In Admiration’ in Derrida and M Tlili (eds), For Nelson Mandela (Seaver Books 1987), 15.34 Ibid.35 Danté in ibid. 36 See G Agamben, State of Exception (Stanford University Press, 2008).37 See D Watkinson, ‘New Laws for Squatters’ (1994) 44 Adviser, 9-11; D Watkinson, ‘Squatters Rights since 1977 and the Effect of the European Convention on Housing Law’, ‘Law on Trial’, ‘Housing Evening’, Birkbeck College, University of London, 2 July, 2010.38 [1973] Ch 447 (CA).39 [1971] Ch 204 (Ch D).40 (1975) 240 EG 375.

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proceedings. People who defy the law cannot be allowed to avoid it by putting up technical objections’ (Warwick University v De Graaf).41 By 1977, possession orders were shortened once again and the ‘reasonable steps’ requirement entirely removed.42 On top of this, possession made against squatters was made to take effect immediately, as of McPhail v Persons Unknown with the courts having no power to suspend a court order once it had been made and without the landowner’s express agreement.43 In 1972, the Law Commission requested by the Lord Chancellor to look into whether the act of squatting could be moved over from a civil wrong to a criminal offence, looking back into the law of forcible entry (laws of 1381 and 1623) that could be made effective in a contemporary context. The Lord Chancellor responded with a working paper in July 1974, Working Paper No. 54: Criminal Law Offences of Entering and Remaining on Property, giving the version of squatter’s rights up until LASPOA.

The Criminal Justice Act 1994 made some substantial changes to the law relating to squatting, measures in the Criminal Justice Bill were then designed to deal a great deterrence to squatters. Sections 75 and 76 are with regard to Interim Possession Orders (‘IPO’), the new fast-track way of evicting squatters. Once all of the correct proceedings have been followed and the courts have granted the IPO, the squatters concerned have 24 hours in which to leave the premises, after the order has been served. Sections 72, 73 and 74 related to squatters and PIOs, changing Section 6 of the Criminal Law Act 1977, and applying only to residential property. DROs and PIOs (or others who can prove that they are acting on behalf of them), were made exempt from the protection previously given to squatters, thus allowing them to use violence to secure entry. This is alongside making it an offence to resist eviction by a DRO or PIO with a court fine or six month prison sentence if the related sections are violated.

The LRA 2002 fundamentally altered the law of adverse possession, whereby after ten years of physical possession, a squatter has to apply to the ‘Land Registry’ to have their title recognised as owner.44 In a move that did not happen previously, the original owner of the property is then notified by the Registry upon receiving the claim from the adverse possessor, and the owner can then defeat the application, simply by raising an objection. Sections 96 to 98 and Schedule 6 give the ‘paper owner’ the right to be notified that adverse possession is occurring, and as a result, recover possession (the Act does not cover unregistered land – see section 96 (1)). In Buckinghamshire CC v Moran, it was ruled a person claiming to have obtained title by adverse possession must show both actual possession and the requisite intention to possess the land.45

With the arrival of s144 of LASPOA has furthered a move to outlaw squatting overall, the first step being to criminalise squatting in residential buildings. The halt at commercial property squatting being criminalised has been highlighted as avoiding an infringement on the right to protest. According to Cowan, Cobb and Fox O’Mahony, the regime of unquestioned support for the landowner in the removal of squatters from their premises, regardless of the authenticity of the claim of the squatter, has illustrated a shift from use value of land to the unimpeded legitimacy of proprietary claims: ‘This represents a significant leap from the settlement created by the Law Commission and the legislators of the Criminal Law Act 1977, all of whom saw the need for immediate use for property, whether as a displaced or intending

41 (1975) 1 WLR 1135 (CA).42 Ibid.43 Ibid.44 See generally Waring, Ch 8 in this volume.45 [1990] Ch 623 (CA).

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occupier, as the sine que non of criminal liability’.46 Thus, Cowan et al claim that the move to criminalise underlines the problem of squatting as that which intrinsically infringes proprietary claims, always favouring the displaced owner whether or not the squatter may have a more factually sympathetic case to remain.47 In fact, they claim this is fundamentally altered from the Criminal Law Act 1977 in that the immorality is always on the side of the squatter, drawing ‘our attention away from the responsibility that might be apportioned to property owners’.48

Commentators have spoken of an unforeseen consequence of the introduction of this new offence under s144 of LASPOA being that squatters are now targeting commercial non-residential premises in order to avoid committing an offence, aswell as utilising their knowledge of the new law to squat quasi-commercial spaces such as pubs.49 The question of whether, if all the requirements of adverse possession are met in registered land (which will rarely be able to happen due to the title being gained by ultimate permission from the landowner in the tenth year), a squatter could ever gain title as a result of a criminal offence, i.e. does the criminality of the trespass now preclude a claim to adversely possess?50 Pawlowski and Clarke discuss this with reference to questions over the effect of the commencement of LASPOA (Lambeth LBC v Blackburn), and whether the permission of the owner would make any difference to a claim for title.51 In Bakewell Management Ltd v Brandwood, according to Lord Walker, ‘there should be a competent grantor, rather than any wide principle based on criminality’. All in all, this makes the practice of adverse possession more and more unfathomable.

With regards to the European Convention of Human Rights 1950 (‘ECHR’) (and its inclusion within UK law within the Human Rights Act 1998 (‘HRA’)), it appeared recently that Convention law would reduce the rights of occupiers. In J A Pye (Oxford) Ltd v United Kingdom, a decision overruled an earlier decision stating the doctrine of adverse possession was in breach of Article 1 Protocol 1 of the ECHR (entitlement to peaceful enjoyment of possessions; no deprivation except in the public interest and subject to conditions). This previous ruling was overturned on the basis that ‘a limitation period for actions for the recovery of land pursues a legitimate aim in the public interest’.52

In the case of Mayor of London v Hall (trespass by the ‘democracy village’ encampment on Parliament Square, London), the campers were not seen as purely using their rights to visit the gardens, but as having entered with the intention of occupation and had remained there despite being asked to leave.53 Following McPhail, they were also in breach of relevant byelaws and although their removal breached Article 10 and 11 of the ECHR, the interference was deemed as proportionate, and their appeals to remain were dismissed. Occupation protests exemplified by the student opposition to the rise in tuition fees demonstrated an increased resort to private law mechanisms to remove students from sit-ins, whilst at the same time highlighting the very private nature of quasi-public spaces such as the

46 Cowan et al (n10), 115.47 Ibid,117.48 Ibid, 118.49 A Oldfield and R Jobes, ‘Squats go to work’ (2013) EG 96.50 See generally Hickey, Ch 7 in this volume.51 M Pawlowski and S Clarke, ‘Moving in, moving out: will judges allow adverse possession claims based on an offence?’ (2013) 157(10) Solicitors’ Journal 10-11.52 See J A Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (ECtHR Grand Chamber).53 [2010] EWCA Civ 817; [2011] 1 WLR 504.

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university (see Appleby v UK;54 and Essex v Djemal55) and a retreat from using any form of possession-based law to counter the protests. The Occupy encampment of St Paul’s brought to light the unassumed nature of what appeared to be public space, with the proprietary rights of the City of London and the proportional rights of the Church and its supporters, outweighing the rights of those protesting (City of London v Samede),56 following the decision to move them.57 The rulings were inevitably in favour of the landowners, once again remedied through the use of private law mechanisms. Interestingly in Samede, claims of members of the camp’s rights under Article 8 being infringed were dismissed, the distinction between occupation of land for protest and those as a home being clearly delineated. In the recent Malik ruling, whereby the displaced private landowner ordered possession of his car lot that was being occupied by the ‘Grow Heathrow’ encampment, the defendants used article 8 as a defence, the right to private and family life which invokes the closest there is in convention rights to the right to a home.58 The question arose as to whether article 8 can be used of in defence of both private and public landlords. In McCann v UK,59 the right to a home was subject to proportionality, Manchester CC v Pinnock60 and Hounslow LBC v Powell61 following where article 8 could be raised against a local authority seeking possession. What Malik did was to allow the capability of invoking article 8 in commercial properties, although eviction was seen as a proportionate measure to protect the interests of the displaced owner.62

There have been instances whereby instead of criminalising squatting, there has been a deliberate deterrence by co-optation on the part of the authorities. In the UK, organised squatting declined more as a result of concessions than repression and the reason for such legalisation was the cost involved in police and state repression. During 1977, 5,000 squats in London were legalised.63 These are ‘licensed squatters’,64 whereby their organised resistance was co-opted through a legal manoeuvre of containment. This is what Pruijt has described as a ‘repressive-integration-cooptation’ model of relations between states and urban social movements. Instead of forms of illegalisation, the repression comes in the form of total integration into the system, so as to stifle the energy of the movement: ‘The squatting movement seems to conform to this pattern. Repression is evident in the actions of legislators who try to close the legal loopholes that facilitate squatting’.65 It highlights the importance and effectiveness of the movements, and the law’s determination to hide their significance.

The Proper and the Improper

According to Bryan, ‘property is about much more than a set of legal relations: it is an expression of social relationships because it organises people with respect to each other and

54 (2003) 37 EHRR 38 (ECtHR).55 [1980] 1 WLR 1301 (CA)56 [2012] EWCA Civ 160.57 [2012] EWHC 34 (QB).58 Malik v Fassenfelt [2013] EWCA Civ 798.59 (2008) 47 EHRR 40 (ECtHR).60 [2010] UKSC 45; [2011] 2 AC 104.61 [2011] UKSC 8; [2011] 2 AC 186.62 L McCormick, ‘Invoking article 8 for squatters in commercial properties’ (2012) 156(47) Solicitors’ Journal, Supp (Property Focus), 23-24.63 H Pruijt, ‘Is the institutionalization of urban movements inevitable? A comparison of the opportunities for sustained squatting in New York City and Amsterdam’ (2003) 27 International Journal of Urban and Regional Research 133, 135.64 Ibid, 136.65 Ibid, 134.

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their material environment’.66 Davies describes property thus within a ‘cultural matrix’, tinged with histories, meanings, presents, contexts and cultural appropriations. As can be relayed through the remit of squatters’ rights and put forward by Davies, critique and resistance exist as much within the theory as the praxis of ownership.67 The very fact that there is such discontinuity with regards to a definition or placement of property, both philosophically and within law, gives rise to the question whether such a set of rights exists at all. In the words of Proudhon: ‘If property is a natural, absolute, imprescriptible, and inalienable right, why, in all ages, has there been so much preoccupation with its origin? For this is one of the distinguishing characteristics. The origin of a natural right: Good God, whoever inquired into the origin of the rights of liberty, security or equality?’68

Recounting John Austin: ‘Laws proper, or properly so called, are commands; laws which are not commands, are laws improper and improperly so called’.69 This brings up the question as to what is proper and what is improper, and what is property and whom it belongs to. By relying on a formation of law that sees something as proper and the other as improper, furthers a violent dialectic that sees anything outside of its remit as otherly, and thus wrong. Refer to this as a ‘metaphysics of the proper and the improper’, as Derrida does,70 but through the excluding of objects, beings and intangible forms from within law, then this leaves property law as unrepresentative, and in need of reform. Davies describes very clearly the way in which ‘proper’ is the ability to exclude others, stating that: ‘Positive law itself is also conceptually based upon an originating exclusion, decision, or splitting which establishes a realm of law and a realm of that which is other to law’.71 Any ‘pure’ formation of law (she gives Kelsen’s pure law as that which is a law free of foreign elements), will always disallow the ‘impure’, or that which muddies the sleek surface and constitution of the law. Using Derrida to unravel the meaning of proper and improper, she reveals the existence of the improper within the proper realm of the law, as through repetition, it is never unique, and thus loses all purity. It is thus ‘iterable’ and never peculiar to itself: ‘In other words, and to simplify, the formal deconstructive argument is essentially that the proper must refer outside of itself to that which is common, and to its (improper) other. It is never itself, and is therefore a non-identity, equally common and improper’.72

If property is thus a representation of an impure form of law, then what does this say with regards to adverse possession and squatters’ rights prior, give or take the LRA and LASPOA? Davies’ proper and improper allows for an understanding of the place within which squatting used to sit, whereby the improper (squatters) were actually allowed within law (proper). This right to exclude, the paradox of adverse possession whereby the possessory claim must be solid enough to exclude all others once again, even the paper title owner, is arguably no different from the original understanding of possession, that which is not a taking by wrong. Even Lord Bingham agreed within this in Pye, stating adverse possession as no different from possession in the original sense.73 In a similar vein, Dobbs’ recent genealogy of squatting in

66 B Bryan, ‘Property as Ontology: on Aboriginal and English Understandings of Property’ (2000) 13 Canadian Journal of Law and Jurisprudence 3.67 M Davies, Property: Meanings, Histories, Theories (Routledge Cavendish 2007), 9.68 See PJ Proudhon, What is Property? An Inquiry into the Principle and Right of Government (first published 1840, Forgotten Books, 2008).69 J Austin, ‘The Province of Jurisprudence Determined’ in HLA Hart (ed), The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (Weidenfield and Nicolson 1954), vii.70 Derrida in Davies (n67), 32.71 Ibid, 33.72 Ibid, 44.73 JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419.

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the US she states: ‘as indigenous advocates frequently point out, we are a nation founded by squatters’.74 The only difference between possession and adverse possession being the time that has effluxed in between, the quantification and ordering of the soil that has happened between the originary claim and then the adverse claim. What does this say regards a Lockean understanding of terra nullius, as once there is always a prior claim attached to land, then land could be argued as only ever being adversely possessed? Other than the extinguishment of title upon death, using the Mabo ruling,75 the prior title can be extinguished using Locke’s very proviso, which is of course where he is so ambiguous in his usage as he simultaneously supports the justified taking of land based upon cultivation (which extinguishes prior title).76 Nevertheless, at once this right to exclude, becomes, arguably, a right to include, as it allows for a redistribution based on use, based on behaviour and not on an abstract right. The language is a language of boundaries, and thus by asserting who has rights and who does not have rights, thus there is a within and a without. Squatting lies in a liminal zone between both individual property rights, and a more fluid version of communal rights. Like the state of exception itself, squats were neither external nor internal to the juridical order, and the problem is liminality, the threshold. In the words of Agamben, this is, ‘a zone of indifference, where inside and outside do not exclude each other but rather blur with each other’.77 Thus, like the law’s treatment of the state of exception, they were acknowledged by law in a manner whereby there is an attempt to include the exception (squats) within state law (law of adverse possession), determining a ‘zone of indistinction in which fact and law coincide’.78 With Mary’s work, this phenomenology, or categorisation, of the outside-inside, the impure, unwanted and the miscreant is further mythologised through a compelling use of ‘liminality’ (which is a familiar description when considering the relationship of law with resistance in critical legal studies): ‘The squatter can be viewed as a type of liminal individual who resides in the interstices of society where he is often uncounted and unsurveilled, sharing an identity here with other types of uncounted and ill-defined individuals, such as terrorists’.79

The Importance of the Land in Law

To understand the integral nature of land to law, it is helpful to use Carl Schmitt’s ‘Nomos of the Earth’. Everything in property is a measurement and distribution of soil, in Schmitt’s understanding: ‘Every ontomomous and ontological judgment derives from the land. For this reason, we will begin with land appropriation as the primeval act in founding law’.80 Schmitt’s ‘nomos’ is an understanding of law and its role in the expropriation of land and the development of property rights. Law is seen as unity of order and orientation, whereby Schmitt espoused the great primeval acts of law to be terrestrial, with land appropriation as paramount.81 Nomos is seen as the fundamental process of apportioning space, the original act is nomos82 being where space and law and orientation meet. Nomos thus is law, or a means of dividing, a form of classification, or even a wall83 the division of proper and improper. It is

74 Dobbs (n11), 2.75 Mabo v Queensland (No 2) (1992) 175 CLR 1 (High Court of Australia).76 See J Locke, Two Treatise of Government (Cambridge University Press, 1988).77 Agamben (n36), 23.78 Ibid, 26.79 Manjikian (n10), 52.80 Schmitt (n7).81 Ibid, 44.82 Ibid, 3.83 Ibid, 70.

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the first division and first classification of space, in order and orientation.84 Schmitt states that land appropriation underlies all other subsequent forms of law, preceding the distinction between public and private law.85 Through law, there is the presence of an historical process, enclosure itself as a ‘constitutive act of spatial ordering’.86 Given that law first accords itself in the land, its dividing process is characteristic of further boundary fixing and unfixing, the regime of Parliamentary enclosure, the literal fencing and hedging of the land, representative of the divisions of private property. The removal of the commoners from the common field to make way for a new understanding of land use, is reminiscent of the removal of squatters’ rights and the relativity of title through the re-apportionment and limitations of law. The Limitations Acts themselves are prime examples of how law creates, in conjunction with the emergence of the common law estate from possession, the doctrine of relativity of title and the Law of Property Act 1925, the beginnings and ends of rights in rem, the spatial and indeed temporal ordering of property. Limitation periods however are more recognisant of an era of relativity, whereby the empirical reality of behavioural fact was that which governed how law operated. Using Schmitt as a compass, one can see how possession as opposed to ownership guided the history of land use, and thus the beginnings of law itself, the proof of title as the community acknowledging your presence on the land, and your clod of earth in seisin.

The process of property rights and land law can be seen as a movement of naming, as a method of labeling, tagging, dividing and claiming ownership. There are the included and excluded, and those who fall entirely outside of the scope of law. Not only was the common field expropriated from those who thrived off its countenance, but so too was their common right, their shared framework of understanding. This, ‘laying down of the law’, its violent interjection onto the land and the people living on it, remains in its modern form as ‘eviction’ and POs, and now the LASPOA and LRA 2002. Any squatter will understand the violent force of property rights, just by entering a building and surveying the destruction of the internals of a building. Part of the deterrent that landlords and councils use to stop squatters entering is to destroy any means of basic amenities that those looking for an emptied space may wish to use. This includes ‘gutting’, the smashing up of all the plumbing, the destruction of stair cases rendering floors other than the ground floor inaccessible. This is the tearing up of space, and the job of those who come to occupy, is then to rejuvenate and to rebuild: ‘Six of the bailiffs there were’, said Ricky, ‘they smashed open the door with long crowbars and rushed into the house. They beat us up, hit us with bars and started throwing the furniture out. Two of them rushed upstairs and dragged Karen out of bed and threw her on the floor’.87

Thus, the surrounding pact of state law is the law of enclosure, it is that which cuts and divides, names, delays and distributes. It acts within its own interest and the interest of private accumulation. Eviction is today’s answer to the violence of enclosure, as it seeks to do the very same thing that the parliamentary enclosures did back in the beginning of the sixteenth century. In this way, it is clear that violence secures title to land. According to Magón, the first landowner appeared with the first man who had slaves to work his fields88. Corr, summarises the anarchist-tinged literature on property, he states that land ownership, ‘exists when an individual has the violent forces necessary to evict or subdue the inhabitants

84 Ibid, 67.85 Ibid, 46.86 Ibid, 71.87 Illegal eviction at Redbridge (1963 -65) in Bailey (n19), 63.88 Anders Corr, No Trespassing: Squatting, Rent Strikes, and Land Struggles Worldwide (Southend Press 1999), 12-15.

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of a given piece of land and claims ‘ownership’.89 He also highlights how this is a process that has taken place again and again, along different stratas, within different areas of the world and at alternate times and spaces, claiming that such a replication, ‘will remain that way inasmuch as the system and ideology of spatial property is the salient inter-human relation to land’.90 In order to maintain this striation of inequality, absentee landowners evict those who are living within or on their land. This is the pain of eviction, and once again, is experienced in many ways and on many levels, the force of enclosure operating through the legitimated regime of expropriation in the form of forcible removal from land or property.

Highlighting the philosophical underpinnings that squatting takes from anarchist literature, eviction is understood as a waste of human life and energy, when the evictee has less access to resources that the evictor.91 Indeed, as Stake paradoxically speaks in his uneasiness with the code of adverse possession: ‘the law refrains from depriving people of lands they have long occupied because doing so would cause them too much pain. It is in the nature of a man's mind’.92

The Removal of the Right to Include with the Right to Exclude to the Functional Detriment of Law

Squatting as an unlawful not criminal act, has not always been a controversial area of law, its bracketing under the remit of adverse possession saw the synchronous emergence of property rights over-all. Were it not for the stop valve of adverse possession and the taking of land by seizure, it would have been difficult to balance competing claims to land. Time limits on claims to land date back to as early as the Limitation Act 1623, introducing arbitrary time limits on the assertion of claims. As a result, there developed the novel area of possession by successful taking. The bringing in of Limitations Acts saw possession based on the effluxion of time as one of the foundational concepts of English land law, at once enclosing one’s right to land and at the same time opening out the beginning of another’s based on a system of relativity of title.

Adverse possession remains a central paradox within English land law, statutory limitation as that which presses the relativity of title to its extremity.93 Seizure of land is therefore the basis of individual property rights, and the claim to an understanding of ownership. The mixing of labour with the land and the curtailment of the jural owner’s rights through abandonment and misuse is a very Lockean proviso, and given the fundamental role of adverse possession and squatting (as the control of land) as shaping property rights overall, legislators will do well to consider what the removal of this doctrine means to the strength of rights to property in sum. Thus, based on a Schmittean understanding of law as order and orientation, the centrifugal role of land, the removal of the right to include with the right to exclude is tantamount to the functional detriment of law. The treatment of squatters by law is not only as that which is otherly, but also a collectivity.

Reminiscent of the previous era’s squatters’ rights is the ‘right of resistance’,94 one right that is controversial within constitutional legality, analogised by Agamben as a ‘state of

89 Ibid.90 Ibid.91 Ibid, 4.92 Jeffrey Stake, ‘The Uneasy Case for Adverse Possession’ (2001) Faculty Publications. Paper 221. http://www.repository.law.indiana.edu/facpub/221, at 2473.93 K Gray and SF Gray, Elements of Land Law (5th edn, OUP, 2011), 1159.

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exception’. An argument against its inclusion within the constitution is that which has been removed from the sphere of positive law cannot be re-included,95 and yet this very right remains outside and is enacted outside law, and by its exclusion, it structures the whole of positive law at the same time. Very much like the right to resistance and removing the other from law, ‘what is ultimately at issue is the question of the juridical significance of a sphere of action that is in itself extra-juridical. Two theses are at odds here: One asserts that law must coincide with the norm, and the other holds that the sphere of law exceeds the norm. But in the analysis, the two positions agree in ruling out the existence of a sphere of human action that is entirely removed from law’.96 Squatters’ rights have been ruled out from law, and yet the right to resist in the form of occupation was created by law, now taken away. Like the state of exception itself, it is once again a question of boundaries, thresholds. The law of limitation, that of adverse possession, is the act of limiting. It is the resultant threshold between individual rights and commonly held rights; by limiting, there is a boundary, and it is these boundaries that squatting movements are seeking to break down. Because this anomaly is interstititial, fluctuating and forming in and out of the system and their own system, it confuses neo-liberal property regimes somewhat by their liminal existence, and so the quest is to rid the law of this paradox97 of collectivity and otherness. As Prichard states in his technical summation of squatting and the related legal areas:

Relative ownership promotes the importance of possession even further. For this reason the policy of limitation will be invented, not just to discourage delay in suing till claims are stale, but to achieve virtually impregnable title once enough years have passed. Possession, or a refined and confusing version of it, adverse possession, is the pre-requisite for the running of time to establish limitation.98

Changing Architectures of Adverse Possession and a Political Aesthetics of Squatting

Having considered the fundamental placement of land in law, the role of law as that which limits and delimits and through squatting and adverse possession, the right to exclude becoming the right to include, where does this leave us in terms of a political aesthetics of squatting?

Individual property rights rely on this earthly basis, once again returning to Schmitt, as without a territorial understanding of law, there can be no ordering of law on top. As we know with the LRA 2002, there is a ‘crack in the mirror’ whereby what is happening on the register is not what is happening on the ground, literally. And yet the legal title exists now in the register alone, and creation and priority becoming as one with e-conveyancing.99

Using a Benjaminian account of political resistance and war, and drawing from Futurist painter Marinetti (fascist acquaintance of Mussolini), an extremity of power and war leads to an aestheticisation of political life.100 Benjamin departs from Marinetti’s admiration of the commodity fetish and sees the political aesthesis of power as evidence of a move to the 94 This ‘right of resistance’ is when supposed right of the people to overthrow their government if they are not acting in their interests.95 Agamben (n36), 10-11.96 Ibid, 11.97 See L Katz, ‘The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law’ (2010) 55 McGill Law Journal 47.98 Prichard (n20), 7.99 See Op.cit Gray and Gray. 100 Walter Benjamin, The work of art in the age of mechanical reproduction (Penguin, 2008), at 36-37.

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ridiculous. All life is dramatised to the point at which it is spectacle and commodity, any norms create laws that are caricatures of themselves. Therefore, in an era of totalising property law, the legal structures becomes architectures and the law tries to reinforce itself in a political aesthetics of order. In traditional crowd theory, the crowd is depicted as something to be feared, a mass that is unable to be captured by the mechanisms of control or calculation. It is the absence of a figurehead that allows for uncertainty, the actions of both law and resistance becoming difficult to place within this complex dialectic. This is arguably the view of the sentencing judges in the cases of Blackshaw and Sutcliffe, and also the legislative developments in terms of LASPOA and the LRA 2002. Both the judgments coming out of the riots and the legislative changes to the use and control of land suggest a negative castigation of collective behaviour which highlights the unaccommodating nature of law for any disturbances affected in numbers. This is evidenced by the creation of the legal anomaly of RRO and the removal of the right to include. It seems as though the only way the common law can accept collective action is through criminalisation. The Criminal Justice and Public Order Act 1994 (regulating numbers of people collectively enjoying electronic music at any one time) would be another example of this encroaching on the other, the collective other. This refers to section 63 regarding powers to remove persons attending or preparing for a rave, a gathering on land in the open air. Subsection (1A) (a) refers to a gathering on land of 20 or more persons who are trespassing on the land, thus allowing the authorities to intervene based upon numbers. These are instances of law reacting to numbers, disorder, chaos and uncertainty. Through the accession of the individual over the collective, private property over welfare state, the rioters and squatters alike are the excluded with less and less right to include.

Through understanding how law uses a traditional and bestial myth of the crowd, as opposed to understanding the integral importance of its constituents for its own survival, the law will only ever demonise the squatter, other, and the collective. Manjikian identifies a common concern between those who are left outside as a result of post-modern crisis politics with those excluded by political totalising across eras, in her convincing and emotional call for a ‘critical squatter studies’101. It is hoped by identifying a narrative of a political aesthetics of squatting, the work of this piece alongside the others within this collection, will strive towards this very real and important academic engagement of which Manjikian speaks.

101 Manjikian (n10), 52.

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