Recognizing an Enforceable Right of Use for Unoccupied Housing: a Necessity

Christophe DRIESBACH, 2014

The occupation of vacant real estate properties is an old and controversial practice, whether it be carried out in buildings which are immediately occupied or on plots of land which need makeshift constructions. According to archaeological findings, these struggles first took place in the Bronze Age¹. The history of political squats in France, on the other hand, highlights the beginning of the 20th century and the role played by Georges Cochon². A pioneer of the different groups and organisations which exist today, Georges Cochon combined explicitly useful actions, such as the occupation of unoccupied housing for the poor, with political and media-oriented actions, such as the occupation of the Police headquarters courtyard or the building of shacks in the Tuileries gardens³.

Squats: the Heart of the Debate on the Right to Property

Squats call into question the idea of property as a fundamental building block in our societies, establishing by necessity - and sometimes by the use of force by law enforcement agents or agencies - a specific geographical and temporal relationship to law and justice.

In France, justice contrasts the right to property, which is a constitutional right, with the right to housing, which is merely recognized as a “Constitutional objective”. Therefore, the former is established as the superior right to justify occupants’ eviction. Hostile or misinformed people even demand imprisonment for squatters. However, though the idea of illegality can be disparaged, it is important to stress that squatting is not illegal. Indeed, no law prohibits taking shelter in a vacant building - on the contrary, squatting is a legal way to access ownership, at least since the 1804 Civil Code⁴.

Ownership may be a central notion in French law, but as for all rights, society has created a balanced system in which using or holding property is also important. Legal property is not an undividable block; it can be split into bare ownership and usufruct (the right to use the land without owning it). In the event of an occupation, it must be noted that the usufruct is not concerned - because this would certainly imply trespassing - and that the bare ownership, which is the right to alienate the property, is not affected by the occupation: an owner can sell a squatted unit. Similar to a forced requisition, squatting can therefore be defined as a deprivation of property⁵.

The Right to a Home versus the Right to Property

During an occupation, the right to housing is not the only claim set forth. According to the courts, only the state can be held accountable for making this right enforceable. The right to privacy and the right to a home are also at stake in these claims.

European law, just like French law, considers the protection of the right to a home vital. For individuals, trespassing was established in 1832 and since then the Court of Cassation has developed an elaborate case law in this regard. Unlike in other countries, the home is a broad-ranging notion, since it designates “the place where, whether the interested party resides in it or not, he/she is entitled to claim that he/she is at home, regardless of the legal deed of occupation or the use given to the premises⁶.”

Hence, business premises are considered the business’s home and protected by this law⁷, as are secondary homes or occasional homes, even and especially if no one is occupying them at the time of entrance. In practical terms, the presence of furniture often defines a home. In this case, beyond the criminal response which can be the imposition of fines or imprisonment, the law forces the police to evict the occupants after a simple claim made by the legal occupant, with a minimum 24h delay for any potential submission⁸.

It must be noted that the legal protection of the home does well and truly apply to squats and slums, since the fact that occupants have sleeping and cooking equipment makes the occupied space their home⁹. Nevertheless, in practice it is extremely difficult even to file a complaint in these cases.

More Legal Tolerance for Unoccupied Units

In practice, acquisitive prescription, requiring a 30-year occupation, concerns very few squats. In order to go beyond this prescription and in response to Abbé Pierre’s 1954 plea, several provisions protecting housing were included in French law. These provisions, such as the winter eviction break and delays granted by the judge, protect occupants who have no rights or deeds.

The winter eviction break has existed for a long time in housing law. It was established by article 3 of the law of December 3rd, 1956, enacted by the President René Coty and the Minister of Justice, François Mitterrand. At the time, it applied to all, regardless of the legal status of the occupation. As a matter of fact, the first article of the law allows judges to grand extra delays and specifically states that this is a possibility regardless of the occupants’ justification of the occupation with a deed - it is therefore open to squatters. The only exception the law provides is for occupied units under a decree of danger: if the building is dangerous, law enforcement can carry out the eviction.

For thirty-four years, this law’s wording was not amended. It was quite simply included in the new Building and Housing Code in 1978. Only in July 1991 was this law on winter eviction breaks modified, with the addition of a small but meaningful phrase: “The provisions of this article do not apply when the people concerned by the eviction have entered the housing unit unlawfully”. In June 2012, this provision was included in the latest amendment of the Code of Civil Enforcement Procedures.

The issue of unlawful entrance is regularly brought before courts in the case of squatters. In addition to the winter break, it conditions the granting of an additional 2-month delay after the order to abandon the premises. The length of the delay is dependent on the judge’s evaluation¹⁰. During the 1991 parliamentary debates, the notion seemed straightforward:

Two conditions must be met for the eviction to be ordered. On the one hand, unlawfulness, meaning proof of assault or breaking and entering. The judge cannot presume there has been unlawful entrance or base his/her decision on the sole circumstance of the lack of deed of the concerned people. There must have been proven assault.¹¹

Case law clearly stresses that unlawful entrance is not an assumption and that an occupation without a deed is not a case of unlawful entrance¹². However, unlawful entrance is proved in the event of deterioration or simply breaking and entering. Indeed, the owner is responsible for enclosing the plot of land or property and an occupant cannot be deprived of legal safeguards when he/she simply pushed the door open.

More and More Evictions

Nonetheless, pursuant to two Council of State¹³ decisions, the government presently automatically considers that the winter eviction break does not apply to squats or slums. For the last few years, there have been periodic winter-time evictions.

In addition, the time periods set forth under article L.412-4 of the Code of Civil Enforcement Procedures, initially open to the judge’s free will, have been cut back, first to three years then to just one year, in 2009¹⁴.

This gradual limitation of occupants’ rights is not just a French trademark. Squat legislation, previously very favourable in the Netherlands, has recently been toughened. In England and Wales, occupying residential premises became a criminal offence in September 2012¹⁵. In France, a similar attempt to criminalise occupants and therefore render eviction without a judge’s intervention legal was stopped by the Constitutional Court¹⁶.

Though not illegal but in our societies, squatting’s legitimacy will always be questioned. This legitimacy is defined by the circumstances of the case - it is legitimate for a person in need to find shelter on vacant premises - but it should also be assessed in light of the State’s action.

The usual excuse given for evictions - strict enforcement of judicial decisions - is a hypocrisy aimed at shirking the reality of a policy: first of all, because squat and slum evictions seek to avoid justice by alleging flagrancy¹⁷, and secondly because the State mocks court decisions when enjoined with rehousing the evicted occupants.