916 F.Supp. 214
(Cite as: 916 F.Supp. 214)
Rose Mary WALLS, Juana Doe, Juan Garcia, Pasram Goberdhan, Juan Doe, and John
Roe, as Individuals and on Behalf of All Those Similarly Situated, Plaintiffs,
v.
Rudolph GIULIANI, as Mayor of the City of New York and Deborah Wright, as
Commissioner of Housing Preservation and Development, Defendants.
No. 95 CV 2494.
United States District Court,
E.D. New York.
Feb. 8, 1996.
MEMORANDUM AND ORDER
KORMAN, District Judge.
This is one of several recent cases involving squatters who are occupying apartments in
buildings acquired by the City of New York in tax foreclosure proceedings. Lord Denning has
succinctly defined a squatter as "one who, without any colour of right, enters on an unoccupied
house or land, intending to stay there as long as he can. He may seek to justify or excuse his
conduct. He may say he was homeless and that this house or land was standing empty. But this
plea is of no avail in law." McPhail v. Persons Unknown, 1 Ch. 447, 456B (1973) (Denning, J.).
"Although urban residential squatting is probably as old as history," it became "a problem of
serious social concern" in England and the United States in the late 1960s and 1970s. Jesse
Dukeminier & James E. Krier, Property 106- 07 (2d ed. 1988). Under English law, the remedy
of self-help is available to an owner of property occupied by squatters. This remedy derives
from the fact that the squatters illegally entered the property of the owner. Id. "They were
trespassers so long as they remained there. So the trespassers never gained possession. The
owner, being entitled to possession, was entitled to forcibly turn them out." McPhail, 1 Ch. at
456B. In reaching this conclusion, Lord Denning relied upon Sir Frederick Pollock's statement
of the prevailing law:
A trespasser may in any case be turned off land before he has gained possession, and he does
not gain possession until there has been something like acquiescence in the physical fact of his
occupation on the part of the rightful owner.
Pollock on Torts 292 (15th ed. 1951) (1887).
The present case involves residential squatters who, notwithstanding a string of legal setbacks
suffered by others, seek to prevent the City of New York from employing the remedy of
self-help to remove them from City-owned dwellings. The new wrinkle in this case is plaintiffs'
allegation that, for its own economic reasons, the City of New York deliberately adopted a
policy of encouraging squatters to occupy City-owned buildings and that it deliberately
acquiesced in their occupancy of the property. Plaintiffs argue that the prior acquiescence of the
City of New York in their otherwise illegal occupation creates an interest sufficient to entitle
them "due process" before they are forcibly removed. Specifically, the complaint alleges:
There has existed for more than fifteen (15) years within the City of New York a growing
homelessness crisis which largely affects low-income and minority families who are unable to
locate affordable rental apartments.
....
Upon information and belief, during the past fifteen years, the costs to defendants of providing
temporary shelter to the increasing number of homeless families and individuals has risen
dramatically.
Upon information and belief, the present cost of housing one homeless family in a Tier Two
Family shelter exceeds $40,000.00 per year, and the average period of time a family remains in
said shelter is approximately fourteen (14) months.
Upon information and belief, for more than ten (10) years the defendants, in an effort to control
and limit the costs of providing such temporary shelter to said homeless population, have
knowingly tolerated and acquiesced in the use of their vacant and partially occupied in rem
properties by homeless families for residential purposes.
Upon information and belief, it has been a part of the defendants' policy to tolerate and
acquiesce in such use and occupancy, and to simply "look the other way" until such time as
defendants may wish to oust such occupants in order to use said premises for other purposes.
Amended Complaint ¶¶ 49, 53-56 (emphasis supplied).
While New York law permits self-help and does not confer any property interest on squatters,
the policy of acquiescence alleged in the amended complaint, if proved, may be sufficient to
create the kind of "naked possessory interest," known as a tenancy at sufferance, Livingston v.
Tanner, 14 N.Y. 64, 66 (1836), for which New York law and the Constitution provide some
notice before resort is had to self-help. Accordingly, although many of the grounds for relief
suggested by plaintiffs are without merit and have been rejected elsewhere, I deny defendants'
motion to dismiss the complaint which was filed as a class action. [footnote omitted] . . .
DISCUSSION
***
If acquiescence may transform a trespass into a possessory interest of some kind, the problem
then becomes defining the nature of that interest. Plaintiffs argue that they are at least tenants by
sufferance who are entitled to a thirty-day notice to quit before they can be removed from the
apartments they occupy. Specifically, plaintiffs rely on New York Real Property Law § 228,
which provides that "[a] tenancy at will or by sufferance, however created, may be terminated by
a written notice of not less than thirty days given in behalf of the landlord, to the tenant,
requiring him to remove from the premises," and that only "after the expiration of thirty days
after the service of such notice, [may the landlord reenter], maintain an action to recover
possession, or proceed in the manner prescribed by law, to remove the tenant...." Id.
***
The possessory interest created by the defendants' alleged acquiescence in the occupation of its
real property by squatters is closely akin to the "naked possession" that characterized a tenancy
by sufferance at common law. Like a tenancy by sufferance, a squatter's possession is "a
wrongful holding" of the property which is made possible "by the folly of the owner to suffer
him to continue in possession." While normally such tenancies arise after the termination of
what was initially a lawful interest, that is not the critical aspect of a tenancy by sufferance.
Instead, it is the acquiescence of the owner in the "wrongful holding" by the tenant.
The relationship of the parties, prior to the period of sufferance, is significant only because it
may shed some light on the kind of relationship that the landlord is "suffering." If the prior
relationship was a tenancy of some kind, then it may be inferred that a tenancy by sufferance
continues thereafter. The absence of a prior relationship, however, may make it more difficult to
draw such an inference. This deficiency, however, does not compel the conclusion that plaintiffs
will be unable to establish conduct sufficient to create a tenancy by sufferance if the allegations
in the complaint are proved at trial.
***
The fact that the allegations in the complaint may be sufficient to create a tenancy by sufferance
does not end the discussion. This is an action pursuant to 42 U.S.C. § 1983, in which plaintiffs
must establish a violation of the Constitution. The principal issue here is whether the thirty-day
notice to quit afforded by N.Y.Real Prop.Law § 228 is sufficient to create a property interest
protected by the Due Process Clause. . .
***
… [T]he thirty-day notice to quit provision accomplishes the same result as a notice of
termination clause in a contract terminable at will. It effectively limits the right of the landlord
to terminate the implied contract that a tenancy by sufferance reflects and confers a right on the
tenant to the continued occupation of the property for a period of thirty days. This is sufficient
to create a property right protected by the Due Process Clause. Because this right is essentially a
hybrid between a procedural and a substantive right, the Due Process Clause requires that the
thirty days notice to quit must be provided unless other provisions of New York law provide a
basis for dispensing with it.
***
The Due Process Clause is not the only provision of the Constitution that may be implicated
here. The manner in which self-help evictions are allegedly effectuated also implicates the
Fourth Amendment right to be free from unreasonable searches and seizures. . . . While the
Fourth Amendment does not protect the right of a person to make his home in someone else's
house, it may limit the manner in which a self-help eviction by the City may be undertaken here.
The allegations of the amended complaint, which are assumed to be true, graphically describe
the manner in which the self-help evictions are accomplished:
To effectuate the ouster of those who are similarly situated to members of the class, the
defendants have utilized the following tactics: 1) breaking down doors to their apartments; 2)
sealing doors and changing the locks thereof after the ouster of such persons and their families;
3) using weapons and police dogs to intimidate and terrorize such persons and their families
into immediately abandoning their homes and belongings; 4) making shows of overwhelming
force by appearing at the subject premises with a multitude of police and threatening to arrest
such persons and their families on unspecified charges unless they immediately vacate their
homes; 5) affording such persons and their families as little as fifteen (15) minutes to gather
up such belongings as they can carry before being forced to vacate their homes; and 6) leaving
such persons' remaining personal property in the building under seal or removing said property
to warehouses or other storage facilities, thus depriving class members of access to and use and
enjoyment of said property.
....
[I]f defendants arrive at an apartment targeted for a self-help eviction and discover that no one
is at home, it is their practice to change the locks and bar the occupants' re-entry into the
apartment. A variation on this tactic is to lie in wait until the targeted apartment is temporarily
unattended and then change the locks and/or seal the building or apartment unit.
This tactic is practiced by the defendants without regard to the dangers it presents to the
occupants, and particularly to the many "latch-key" school age children returning home with
no notice or understanding that they have been ousted. Said tactic not only fails to consider the
physical danger in which said minor children are placed by literally forcing them to remain
unattended on the streets until their parents return, but is also oblivious to the potential danger
of denying class members access to their clothing, medicine, money, legal documents and, of
course, physical means of shelter.
Amended Complaint ¶¶ 62-63, 65-66.
. . . Until the City exercises its option to terminate the interest, plaintiffs may have a reasonable
expectation of privacy sufficient to require some form of prior notice, particularly if New York
confers upon them the legal right to remain until they are afforded such notice. . .
***
Although I deny preliminary injunctive relief, I reject the City's claim that, even if the allegations
are true, plaintiffs are not entitled to relief. . . .
Accordingly, for the foregoing reasons, defendants' motion to dismiss the complaint and
plaintiffs' motion for a preliminary injunction are denied.