By Marc L. Roark+
In 1996, five buildings on 13th Street in the Lower East Side of New York City were transferred to a housing developer to gut, refurbish, and transform into low-income housing. In the years preceding that, squatters and the city engaged in on-again, off-again claims for the space that weaved careful narratives of ownership, community redevelopment, and social obligation against other narratives of sweat equity, legitimacy, and utility. None of these narratives were necessarily neat and tidy — they were overlapping and conflicting and demonstrated the way that squatters on the Lower Eastside of New York City defied paradigms. That in the middle of these conflicts lay an adverse possession case[1] testing the limits of claims built on utility with claims built on title and right is possibly the most property ending for a story that at its core was centered around property — physically, emotionally, and rhetorically.
It is this story that Amy Starecheski tells in her book Ours to Lose: When Squatters Became Homeowners in New York City.[2] One of the truly remarkable pieces of Starecheski’s work is the collection of voices and documents that came out in the litigation between the city and the Lower East Side squatters in the context of this adverse possession action. Primarily an ethnography, Starecheski’s work does a deep dive into how outsiders view and assert claims of ownership to property, how courts rejected those claims, and how they ultimately, in some instances, brought the city of New York around to recognizing the legitimacy of their claims. Starecheski highlights the internal conflicts that arose in relation to those processes — both the legitimacy question about whether asserting claims to ownership were within the groups’ goals and the ultimate means of accepting a claim of ownership when the city opened a door for ownership by squatter of certain properties.
One value that this book offers to property scholars is it highlights a realistic theory of property law[3]. A realistic theory of law urges a methodological shift away from ideological, ahistorical, universal “grand theories” to examine problems in their social, historical, political, economic, and administrative contexts. This is precisely what Starecheski’s work accomplishes — demonstrating the political, rhetorical, and the communal claims on these buildings in New York’s Lower East Side in the 1990s. As a property matter, the case that wound its way through the courts has largely been ignored by legal scholars. Of the law review articles that discuss the case, the overwhelming tendency is to treat it as an aberration within a larger narrative about adverse possession and land development policy.[4] Casebooks, too, largely ignore the case, offering a note at the end of other cases on tacking or the necessity of privity.[5] To be sure, the case itself is rather pedestrian. The majority rejects the community cohesion claim that was asserted by the Lower East Side squatters in claiming an ongoing relationship to one another, while the dissent gently suggests that the relationship is there but is more concerned with the nature of the city’s long-term abandonment of its ownership role of these buildings on the Lower East Side. However, this is the very nature of what ethnography offers to legal scholarship — to find in things most of us cast off as plain something quite unique. And in this, the book is a success. Starecheski’s work shows how attorneys, claimants, groups, and litigants strung together notes, relationships, and encounters to form a theory of privity that nearly succeeded in laying claim to two buildings on New York’s Lower East Side and disrupting development plans that had been decades in the making. At the very least, it shows the evolution of the claim and how it moved the city to reconsider its approach to the Lower East Side squatters.
Along the way, there is a deeper dive into what property conflict and development suggests to us about ownership societies, the transformative nature of property and work, and how property continues to operate as a vital construct in individual and community consciousness. The realism that it presents is that these narratives are rarely tidy. They instead are built on functionalism of their own sort. Law, for example, takes the functionalism of settling claims and the satisfaction of moving on as a core concern for how its rules develop. Yet, that functionalism is only part of the narrative underlying how communities came to see themselves and these buildings at the heart of the conflict between the city and local occupants who had different views on the rhetorical claims of ownership. While the occupants saw themselves as investing sweat equity in the tradition of west-bound homesteaders, the city saw them as land thieves, taking something that was not theirs, just because the city was in a place of not being able to contest it.
In addition to Chapter two, which unpacks the behind-the-scenes action of the adverse possession action, scholars should pay attention to Chapter three on the process of gaining recognition as a community group that the city could vest ownership claims in; Chapter four on the value of labor as a rhetorical claim on property from within; and Chapter five on the exclusive nature of claiming history and working within traditions as a means of sorting through rhetorical property claims. In each of these, there are valuable insights into the ownership society that expected a certain type of owner to assert claims, and then was surprised when a different type of claimant showed up. While these insights are significant and will provide scholars with plenty of new insights into property claims, perhaps the most significant insight is one that the author makes early and that we as scholars regularly parade about as a virtue of property law — that there is a salutatory effect of settling claims, moving on, and resolving disputes between claimants. Indeed, many of the stories about this episode of land development were how conflict did not rally a community together, but how different interests emerged and out of those interests, some people came out as new insiders, while others remained on the outside. Drawing on the author’s own words, this work suggests that “we would be wise to avoid [such]crude legal functionalism[s], which would assume that law works to transform conflict into cohesion.”[6] The actual conflicts on the ground oftentimes have more to say to us than just the satisfaction of claims.
+ Louisiana Outside Counsel of Health and Ethics Professor of Law, and Senior Fellow, Native American Law and Policy Institute, Southern University Law Center, Baton Rouge, Louisiana. Funding to support this book review was provided by Southern University Law Center with special thanks to Chancellor John K. Pierre. The Louisiana Outside Counsel of Health and Ethics Professorship is made available through the State of Louisiana Board of Regents Support Fund.
[1] E. 13th St. Homesteaders’ Coal. v. Lower E. Side Coal. Hous. Dev., 230 A.D. 2d 622 (N.Y. Sup. Ct. 1995).
[2] Amy Starecheski, Ours to Lose: When Squatters Became Homeowners in New York City (2016).
[3] Brian Tamanaha, A Realistic Theory of Law (2017).
[4] Some commentaries have focused on the role of adverse possession in shaping land use development. See e.g., Brian Gardiner, Squatters’ Rights and Adverse Possession: A Search for Equitable Application of Property Laws, 8 Ind. Int’l & Comp. L. Rev. 119, 142–43 (1997) (locating the case in a larger context of adverse possession decisions shaping land policy); Robert E. Parella, Real Property, 48 Syracuse L. Rev. 821, 833–34 (1998) (highlighting the effect of statutory interpretation on the adverse possession claim raised by squatters in the case); Gregory M. Duhl, Property and Custom: Allocating Space in Public Places, 79 Temp. L. Rev. 199, 244 (2006) (emphasizing the need for courts to expand how collective communities interact for purposes of adverse possession claims). Others have focused on the case itself as a unique land use problem. Morgan Oliver Mirvis, Allocating and Managing Property Rights on Manhattan’s Lower East Side, 60 N.Y.U. Ann. Surv. Am. L. 543, 545–47 (2004) (locating the case in a larger context of neighborhood development on the lower east side). Both sets of commentaries tend to agree about the case being an outlier in the literature.
[5] One casebook featured the case as a primary reading. See Alfred Brophy et al., Integrating Spaces: Property Law and Race (2010). At least one other casebook utilizes the case to explore group tacking or the limits of privity. See John G. Sprankling, Property: A Contemporary Approach 131 (4th ed. 2018) (exploring the limits of group privity in E. 13th St. Homesteaders’ Coal., 230 A.D. 2d 622).
[6] See Starecheski, supra note 2, at 94.
