Right to property

[Jonathan Buhacoff]

The proposed right:

No government or person shall deprive a person of their property nor use their property without consent except in accordance with a lawful process.

Intent:

Prevents the government from seizing property without due process.

This right is not intended to imply that a person can own whatever property they want. The government may restrict ownership of some items. However, if a person owns an item that is not prohibited, this right protects the person from being deprived of that item without due process.

Discussion:

One example is of a lawful process (assuming the legislature enacts such a law) is temporarily confiscating items upon arrest — to be returned when the person is released except for unlawful items.

This right to not be deprived of property without consent means that stealing and robbing are violations of rights. Government should still enact laws specifically prohibiting these criminal behaviors in more detail and setting the range of consequences.

The right to property is against deprivation without consent. This means facilities may prohibit certain items on the premises, and people who want to enter must choose to not bring those items or to hand them to a guard upon entry, or choose to not enter at all.

Squatters

There are places where squatters gain right to possess a property merely by being there long enough. In these situations, where the state makes it difficult to evict a squatter, the state would be violating the proposed right to property of the owner.

We need a common sense federal law that allows a land owner to request eviction of any occupant of a residential or commercial property who has not signed a lease agreement with the owner, or who has not signed a lease agreement with any authorized occupant whose own lease with the owner allows subleasing the property.

This law would simply protect owners from squatters and unauthorized permanent guests. It would allow property owners to appeal any denied eviction request where the tenant has not provided evidence such as a signed lease agreement (and obviously, which is not forged).

Tenants must keep their signed agreements in a safe place. This is the responsibility of the tenant if they want to be able to fight an eviction. Squatters would not have such agreements from the landlord. Therefore, in accordance with the proposed right to property, a squatter would need to apply to the local government for a lease to the property in order to establish any rights. The application approval process would require the local government to attempt to contact the owner, with a maximum number of attempts over a maximum time period defined, after which the government would take possession of the property and lease it to the squatter. This would be part of the due process required by the right to property.

All other state and federal laws protecting tenants from abuse by landlords would still apply to authorized tenants, including squatters who obtained a lease agreement from the local government.

If a city allows and even protects squatters for the purpose of making productive use of abandoned properties, that should be clearly separated from any live-in situation and also the procedure and timelines for the owner to repossess the premises should be made very clear. During their temporary possession of abandoned property, squatters should be aware that they don’t own the property so they don’t have permission to make any building improvements, especially those that would require a permit. If the owner is reachable they would have to give permission. If the owner is unreachable, the city would have to give permission. However, when the owner returns they do not need to reimburse the squatter for any improvements. Squatters should not invest more than they are willing to lose if the owner returns tomorrow and starts the repossession timeline.

If an owner returns and attempts eviction of a squatter, and the squatter does not have a lease from the city, the city must evict the squatter to protect the owner’s right to property. If the squatter has a lease from the city, the eviction must be denied and the owner must request a return of the property from the city. It would be the city’s responsibility to evict the squatter tenants (since the city issued their lease agreement) before returning the property to the owner.

When an owner returns, as part of reclaiming the property from the city, the owner would need to pay any overdue property taxes. However, the owner would not be required to pay any utility bills incurred while the property was abandoned. It is the responsibility of the utility companies to stop service if they don’t receive payment. If the city grants any leases to squatters, paying utilities becomes the city’s responsibility. If the city chooses not to require any rent or utility payments from the squatter, that is the city’s loss and the city cannot attempt to collect this from the owner. Taking over responsibility for the property would be part of the due process required by this right to property. The city must also appraise the property at the time it is claimed by the city, before issuing a lease to any squatter.

When the owner returns to reclaim the property, the city would have some maximum period of time to evict any squatters and return the property, or to buy the property from the owner for the amount appraised at the time the property was abandoned (not the current value which would be affected by market changes and the squatter activity) plus any inflation that occured since then, less any property taxes owed.

Comparison with the United States:

In the United States, the Third Amendment to the Constitution says “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” The same right is covered by the right to property because quartering a soldier in someone’s home is using their property.

In the United States, the “seizure” part of the Fourth Amendment to the Constitution is covered by the right to property. Also, in the Sixth Amendment the phrase “nor shall private property be taken for public use, without just compensation” also corresponds to the right to property.

In the United States Constitution, the Fifth Amendment states “No person all be… deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.

Comparison with the United Nations:

Article 17.1 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to own property alone as well as in association with others.”

Article 17.2 of the United Nations Universal Declaration of Human Rights states “No one shall be arbitrarily deprived of his property.”

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