Squatting and the State: Resilient Property in an Age of Crisis.

The Private Law Group at Trinity College Dublin is delighted to welcome Professor Lorna Fox O’Mahony (University of Essex) and Professor Marc L. Roark (Southern University Law Centre) to present on their co-authored monograph (Cambridge University Press, 2021) above on Friday 10 December in the School of Law at Trinity College Dublin.

Abstract

Homeless squatting on empty land is a paradigmatic property problem for our time. Across the world, and regardless of the relative wealth of nations, squatting is a growing phenomenon, increasing in prevalence where homelessness coincides with absentee ownership and land-banking. While the tensions between land settlors and speculators are as old as the property law that emerged to govern land rights, the twenty-first century has been defined by acute property challenges: inequality, affordable housing crises, land use and sustainability crises, uneven economic growth, and financial and economic recessions; all heightened in the wake of the coronavirus pandemic. These are cut across by proprietory and territorial anxieties: from the sanctity of private property rights, to migration, moral panics, identity and the politics of exclusion. At the same time, contemporary land and property politics—fuelled with the question of ‘who belongs?’—has been shackled to polarized political debates, and cognate property theories, that offer little prospect for resolution.

Large-scale property problems generate existential pressures on governments, state actors and institutions, across the scales of government, and particularly in periods of political turbulence and fiscal constraints. Yet, the dominant narratives, theories, approaches and methodologies applied to property theory and property law typically ‘look away from’ the role of the state in private property law, or rely on imagined models of the (Hegelian, Aristotelian, Lockean) state that have not provided the breadth, reach or realism to tackle property law’s most urgent, wicked problems. This relative lack of attention to the role and nature of state responses to property problems has also meant that liberal property theories have paid little attention to the changing nature of liberal democratic states, and the challenges and crises they navigate, since the late twentieth-century.

Resilient Property offers a new methodological and theoretical framework for analysing state responses to large-scale property problems. The approach was developed using the case study of homeless squatting, and drawing on state responses to squatting in the U.S., Spain, Ireland, South Africa and England. Taking insights from wicked problem theory, vulnerability theory and equilibrium theory, it reveals how state responses to squatting are determined, not only by their likely impacts on the resilience of competing stakeholders (squatters, owners, neighbours, communities, markets and social movements) but by the state’s own resilience needs, as state actors and institutions (national and local) seek to maintain or restore systemic equilibrium.