The opinion of the court was delivered by: KORMAN
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 PP 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.