Wednesday, May 27, 2020
May 27, 2020

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In times of housing crises, Washington’s old squatters’ rights law is put to the test

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SEATTLE — Police entered the Kent home with their guns drawn. Angela Simmons panicked and held up her hands.

Crisis and opportunity had collided to bring Simmons into the Kent home in 2013. In the aftermath of the recession, when foreclosed houses around King County sat empty, Simmons was introduced to an ancient legal principle called adverse possession that resulted in her living in one such abandoned home that she hoped one day would be hers.

Some may think of it as “squatter’s rights,” but adverse possession, enshrined in 19th-century Washington law and common law going back centuries, theoretically can provide a path to property ownership through moving into an abandoned home without permission, paying taxes on the property and maintaining the place as an owner would. The challenge is to avoid getting caught.

But Simmons never thought that what she was doing could be considered criminal.

She wasn’t the only one.

A man named Naziyr YishmaEl taught a program in south King County on financial self-empowerment, including a course on adverse possession. At that time, several people, including Simmons, had signed onto YishmaEl’s program, paid to become members of what he called the Association of Autonomous People. Then, some moved into foreclosed or otherwise vacant homes.

It was a perfect storm of factors: after the housing bubble burst, mortgages became harder to get for some. At the same time, homelessness also started to rise in King County beginning in 2012.

But adverse possession also often attracts attention from law enforcement and prosecutors, and both forces came down hard on YishmaEl. For his business advising people on financial empowerment and how to use the adverse possession law, YishmaEl was charged with theft and conspiracy but acquitted by a jury for all but one misdemeanor — the unlawful practice of law — which the state Supreme Court upheld last month.

Back in 2013, Simmons exchanged emails with YishmaEl, who sent her information on Washington’s adverse possession process and a spreadsheet of vacant homes.

So Simmons, then working in city government, looked up the laws and even asked the attorneys she knew about adverse possession. It was real, they told her, though they didn’t know how anybody might actually go about it.

For Simmons, the prospect of owning her own home in the area — the ultimate stability for her kids — looked very far away, even on a government salary. So she took the plunge. She settled on a four-bedroom home in a suburban Kent cul-de-sac.

The home was in dire need of repair, so Simmons labored for weeks to fix up the house, remodeling the kitchen and roof. She hired a landscaper, installed an alarm and painted an eggplant accent wall.

It didn’t last long. Shortly after Simmons moved in, a neighbor called the police.

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Squatting, adverse possession and homesteading all have long histories in Washington state. Homesteaders played a major role in settling the Northwest, often outside the bounds of what was legal. Many white settlers who started farms in the Washington Territory before the land was even surveyed, including on Native land, were later granted legal ownership of it by the U.S. government.

Squatting in vacant buildings in Seattle also served as a major protest tool of activists in the ’90s. After protesters agitating for more low-income housing occupied abandoned buildings, two of those buildings were redeveloped to house people with low incomes and formerly homeless people.

The lesser-known law of adverse possession has been on the books since the late 19th century, though in recent years, activists have suggested adverse possession as a common-sense way to combat the homelessness and affordable housing crisis.

Prosecutors alleged that YishmaEl took advantage of people living at the margins through his business, for which he charged $7,000 for membership. YishmaEl countered that he warned his clients he was not a lawyer and advised them that the process wouldn’t be easy.

“I explained to each and every one of them, even on the day that this happened, look, the cops are going to be on there,” he said. “You’re going to have to fight this.”

In California, community organizer Steven DeCaprio used the state’s adverse possession law to advocate for people experiencing homelessness and to successfully occupy an abandoned home.

Two decades ago, DeCaprio found himself homeless in Oakland after losing a job at Whole Foods. He had already seen squats in Europe — protests that eventually blossomed into communities with schools and music venues — while on tour with his punk band.

“I just started researching and looking into it and the phrase adverse possession came up and I looked into it and eventually started squatting and litigating those squats,” DeCaprio said.

DeCaprio found himself in and out of court, and in and out of various homes he and others attempted to occupy in the Bay Area. He founded an organization, Land Action, to help people do the same.

After more than a decade of fixing up a long-abandoned home, DeCaprio eventually acquired the title through adverse possession. His story made national headlines and wound up in an online presentation of YishmaEl’s still available to watch on YouTube.

But in Washington, owning a home through adverse possession is much more difficult because of the length of time involved. California only requires five years of occupying a home intended for adverse possession; Washington in most cases requires 10.

“It’s not usually a successful strategy just because the period of time is so long,” says Edouardo Penalver, a property law expert and dean of Cornell Law School. “Among the ways to acquire property, it’s one of the riskier ones.”

Typically, before that 10 year period is up, an owner will show up to kick you out. Plus, there’s potential criminal liability, Penalver said, as if you’re breaking and entering onto the property.

But the switch that flips when the clock runs out — that’s what makes it enjoyable to teaching students about adverse possession, Penalver said.

“Because it’s so counterintuitive,” Penalver said. “You’re engaging in trespass and that’s bad, but if you do it long enough you become the owner.”

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When Simmons explained to the Kent police what was going on, she handed them a packet of paperwork she had filed with King County, including a notice of adverse possession.

Police chalked the dispute up to a civil matter — meaning they couldn’t do anything about it — and left.

Then, shortly after her interaction with police, Simmons found out the home was being put up for auction? It left her scrambling. Simmons had sunk an estimated $5,000 into the home, all of which went to waste. She had paid YishmaEl $2,500.

Others who learned about adverse possession from YishmaEl had worse outcomes. Holli Gaines was homeless with her son and her newborn, living out of her car, for more than two months after she was arrested for burglary in a home she found through YishmaEl’s course. (The burglary charge was later dropped.) Another woman who followed the adverse possession course lost all her family photos after she was arrested.

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On a recent Friday afternoon, YishmaEl, now 50, had just learned that the Washington Supreme Court had upheld his misdemeanor conviction. It frustrated him. He considered his business and what he advised his clients a matter of his First Amendment rights.

“There was no responsibility or accountability on the police,” YishmaEl said of the justices’ decision. He believes the charges on which some of his clients were arrested never would have held up in court.

By his own account, YishmaEl had spent much of his early life angry. Angry at the bullies in his Omaha neighborhood who targeted his family because they were black. Angry at the system.

“And even with this adverse possession, in a way, it was kind of my way of thumbing my nose to the system,” YishmaEl said. “We’ve got one of the most prosperous countries in the world, we have homeless people, we have people that work full time job, they don’t get a high wage, but they’re on the verge of being homeless.”

YishmaEl still fiercely believes in the potential of adverse possession and is convinced it could be a partial solution to the region’s current homelessness crisis. He’s also considering taking his unlawful practice of law ruling to federal court as a First Amendment challenge.

King County prosecutors have a different view of YishmaEl. To them, he was an opportunist who already had an embezzlement conviction on his record and took advantage of people on the margins during an economic crisis.

“You can’t just walk into a home and claim it’s yours,” King County senior deputy prosecuting attorney Jennifer Atchison said.

DeCaprio, the man who successfully used adverse possession in California, agrees with YishmaEl’s argument while skeptical of his business model. He called the recent Supreme Court ruling “an affront to freedom of speech, the right to organize, the right to engage in public discourse, and opens the door for unlimited targeting of individuals who hold unpopular views.”

As for Simmons, seven years after she attempted to find a home she could own, she’s still renting. Until last year, her daughter still asked about when the family might go back to “the big Kent house.”

She still wants a stable home for her kids, now determined to do it the hard way.

She is convinced her best shot at that in King County’s tight real estate market is to wait until another economic downturn, when more houses might go up for auction at cheaper prices.

Atchison, the King County prosecutor, believes that another economic downturn will almost certainly result in more cases like YishmaEl’s, when homes are foreclosed on and people see an opportunity.

But if YishmaEl’s clients had stayed in the homes long enough, could they have succeeded?

Atchison paused before answering. “Possibly.”

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