Architecture of AppropriationArchitecture of Appropriation

This conversation is part of the publication Architecture of Appropriation. On Squatting as Spatial Practice.

René Boer (RB): You have been working with squatters for a long time. Could you explain what the situation was before the squatting ban and what it allowed squatters to do at the time?

Willem Jebbink (WJ): Maybe I should first explain that the squatting ban has actually been there for a long time. In 2010 squatting was changed in legal terms from a misdemeanor to a felony. When it was just a misdemeanor there was the possibility to squat after one year vacancy.

RB: So when a building was empty for more than one year, it was still a misdemeanor if you squatted something, or it was only a misdemeanor if you squatted before that one-year period?

WJ: If you would squat after the one year period it would not be a criminal offense. What the government wanted to pursue after the new law of 2010 was legislation regarding vacancy, and to totally criminalize use of the belongings of another person.

RB: Before we talk about the new law, is it right that if you squatted something which was empty for more than one year, you could still get into conflict, in terms of civil law, with the owner?

WJ: Yes, those procedures were taking place in more or less the same fashion as they are now. Since the squatting ban there is more weight, perhaps psychologically or morally, in favor of the owner as squatting is a criminal offense now, even when the property is empty for more than one year. In civil law cases, owners often use the argument that squatting is a criminal offense to support their case, but educated judges still question whether the owner has concrete plans for the site that are convincing enough and won't result in unjustified vacancy.

RB: So, at the time, the owner would directly sue the squatters?

WJ: Yes, that happened much more often than today. In addition, the squatting ban took the financial burden off the shoulders of the owners and provided them with a free instrument to get an eviction. Now they don't have to pay anything as long as they can present plans to the prosecutor.

RB: And sometimes squatters could win such a civil law case?

WJ: Yes, now and then.

Marina Otero Verzier (MOV): How do property owners prove that they have concrete plans?

Rahul Uppal (RU): It really depends on what kind of procedure you're referring to. Looking at the civil court cases between owners and squatters, the person who squats, and their lawyer team, have full insight into all the evidence being presented by the owner, because the owner has to prove that they have urgent interest.

If there is a potential renter there is a renting contract presented, if there is a buyer there is a buying contract presented. If there are plans for development then there is a permit or maybe an application for a permit presented, alongside a construction contract, planning for the project, and proof of financial means to realize the plans. In addition, there is often an anti-squat contract to bridge the short gap between the eviction and starting the project. If there is a criminal eviction, the counterparty is not the owner, but the state. In those cases its statistically much harder to counter an eviction, because apart from the owners´ interests, the State also suggests interest in an eviction in order to end a criminal offense.

I find that argument rather weak, because in that stage, a squat usually has lasted for weeks or months already. Arrests have not been made in nine years following the squatting ban. So I think it's more an argument to strengthen the case, than an actual, separate interest. Criminal evictions are nothing more than a gesture from the State towards property owners, and I believe it should be treated as such, and that means that courts should cease to make a distinction between criminal evictions and civil evictions, because there should be one basic rule: no eviction for vacancy, regardless whether its a criminal or civil eviction case. Right now we are dealing with an artificial difference in treatment that is rather confusing for my clients. Apart from that, I would like to stress that anti squat should be considered as de facto vacancy, because if anti squat is allowed as a means to get a property evicted, that would mean the end of decades of balance in eviction jurisprudence, where an owner has to prove he or she has plans. There is zero need for actual plans, if you can sign a simple, non binding anti squat agreement, and receive a quick eviction. Needless to say, if that would be allowed, then that will have a negative effect on the housing market (no external incentive for owners to make plans for property) and rights of individuals to basic protection of their rights against arbitrary loss of their home. I currently do have confidence that courts are aware of the sensitivity of this aspect.

I don't understand why an owner doesn't have to demonstrate as much proof in a criminal eviction as in a civil eviction. With a criminal eviction it's almost impossible for me to build a case where I can tell my client that I have confidence in winning the case. As far as I know it only happened onceAt the time of this conversation, in October 2017 that there was a victory for the squatters, based on a clear proportionality verdict (a judge weighing the rights of the squatters versus the rights of the owners, etcetera). Even though there was a plan for the building, the squatting refugees could stay for six more weeks. It was a very small victory, but for me it was huge.

MOV: Could you explain what were the reasons that this particular judge took into consideration to rule in their favor? Was it because of humanitarian reasons?

RU: Yes. The point I made was that this was the most vulnerable subgroup within a group of refugees, who had been sleeping rough for months and there was no space for them in a night shelter. We could provide the proof that they would actually be on the street. If these people get an eviction then it means that there is no proportionality assessment, because it was the whole point of a 2010 case that we won that there has to be an individual assessment in every case. But if the worst case scenario is negative, then how can you say there is an individual assessment?

WJ: I have also seen such a verdict in a criminal eviction case, in which the court decided that the squatters can stay for a little while longer, based on the fact that planned work wasn't due to start immediately.

RB: Let's go back to the introduction of the squatting ban in 2010 for a moment. You have been contesting it in long court cases; but what would the original law have meant for squatters in its pure form, without your contestation? What did it propose?

WJ: It would have meant that squatting would be completely illegal, so it would act as a deterrent for people to squat. People would not want to continue squatting or would become very careful in doing so.

RB: But was the idea that, in theory, the entire act of squatting would be evaluated under criminal law instead of civil law? That was the idea of the 2010 law.

RU: Yes, but in the end the policy was changed based on a case in The Hague. I think it was the first case for Willem or Marcel Schukkink-KoolMarcel Schukkink-Kool is a lawyer based in The Hague. after the squatting ban. The new law should have been in effect, but they decided to repair the lack of protection by giving a person who is under the threat of eviction the possibility to present a case in court, within a period of eight weeks. In addition, cities have expressed that they will uphold the principle of not evicting for vacancy. There are certain owners who want to stay below the radar, perhaps they have a criminal history and they don't want relationships with authorities and the interference that would cause. In a few cases, the owners went to court themselves to get the verdict and force the city to do the eviction.

RB: So there are reasons for owners to choose civil court instead of criminal court.

RU: Yes, there are a few reasons. Usually the owner really wants help from the state, and it's cheaper for them to choose criminal law.

RB: So after this eight-week court case was won in The Hague, you also engaged in a long lawsuit together with the Schijnheilig squatting group. How did this come about and how did it change the situation?

WJ: After the law was introduced we came together with a group of lawyers and studied the possibilities to start an injunction procedure. The main issue was that in the legislation of the new law not a single word was said about the protection of the right to home under the European convention for human rights. The law did not hold any possibility for a squatter to go to an independent and free judge and be judged in their favor.

MOV: So before the ban the right to housing, a home, was acknowledged to be more important than the right to property.

WJ: At least according to the legislature, and at least after a period of one year of vacancy. You could argue in court that according to the legislature at that point there is no interest in protecting the ownership anymore and the right to home automatically becomes more important.

MOV: Does it mean that, since the ban, the right to housing is not a right anymore?

WJ: It is still a fundamental right.

RU: It is not about the right to home, but about the proportionality of any measure by a State to interfere with an individual's homeIn European law there are several parts of the proportionality discussion - there must be a legitimate aim for a measure, the measure must be suitable to achieve the aim and the measure must be reasonable, considering the competing interests of different groups at hand. In these scenarios, the measure is eviction..

MOV: Does it make any difference to make a case for a squat depending on the number of people living there? How big the community is or the type of building it is? Are there certain conditions that make a difference, for instance in the case of the refugees as a particular community? What conditions would facilitate a more successful construction of a case?

WJ: Perhaps I should firstly explain that when it comes down to proportionality the European convention on human rights holds the possibility to violate the right to home, but only when it is justified. It is stated that there should be access to court, in order to have the proportionality assessed. This is what was lacking in the new law - the legal framework in the Netherlands lacked this access to court. That is why the state decided to repair it with a new policy, to make up for the missing element. Still, in my opinion this is a very weak way of repairing it since the costs of the legal procedure are payable by the squatters.

RB: This is quite an achievement. You made sure that there is a legal framework that allows people to actually go to court.

WJ: It's quite unusual what happened. A new law was introduced with a long parliamentary history, of which some documents where rewritten. A lot of discussion took place. In the end the government stated that they will enforce the criminality of squatting by any means. In response, we argued that the law in itself is, generally speaking, not sufficient. We're not talking about one case, we're talking about the whole legal framework. We could be very proud of ourselves, but it is still such a shame that the parliament, and a considerable number of politicians, did not look at the protection of human rights for squatters.

RB: The result of your efforts is also that there is again a certain amount of security for squatters. When you squat something, you cannot be arrested right away. You have the protection of going to court to defend your case.

WJ: That is sadly not true. The possibility to be arrested is still there. Although they never operate like that.

RU: I've always seen it as a sign of tolerance that the public prosecutors did not decide to use that part of the law.

WJ: Yes, that is why I argued in a case in the supreme court last year that in fact this policy comes down to tolerating squatting for at least eight weeks, if someone takes the right action and starts an injunction procedure.

RB: Now we're seven years after the introduction of the squatting ban. What have you seen in the last seven years? You created this legal framework to be able to go to court - have other things changed over the last seven years?

RU: There emerged a few exceptions to this system, of course. These exceptions mean that there is no protection in case a building might collapse, or in case of trespassing. Or if other criminal acts are being committed in the house, apart from squatting. The health of the squatters can be at risk, like in the case of asbestos. In December 2010 I think many prosecutors were trying to see how far they could go with using those exceptions. There was a trend in 2012 where there were a lot of speed-evictions, with limited information about why and what actually happened. I would call the public prosecutor and ask for an explanation. Their response is always that there were development plans in place, but they don't have to give any further information. Another thing that has struck me in 9 years litigation after the squatting ban, that it makes a significant difference which judge will decide a court case. It should not be so, but there are clear patterns in how judges decide in squatting cases. I've come to find that rather disappointing.

WJ: I think what you have to understand is that the policy is talking about the inhabitants. The inhabitants of certain premises. Speed-evictions were based on a public prosecutor arguing that if the squatters started squatting this morning at nine, I can send the police there at 11 to try to evict. In that case we can't talk of inhabitants, so there is not really a right to home for the squatters yet. The problem is that there are not any definitions of what an inhabitant is. It is quite dubious that the whole discussion even exists about whether you are an inhabitant or not.

MOV: Who says there is a condition that it is not safe?

RU: The municipality rules when somewhere is considered dangerous, and this is something we do not tend to contest. The municipality or the fire department visits to make an inspection, and there are people who give their opinion about asbestos and construction quality.

WJ: The squatting laws made in 2010 were twofold, firstly making squatting illegal, and the second part was through administrative law to enforce house owners to actively use their belongings. This was left to the municipality to enforce and for a long time, they did not do anything at all with the framework that was offered to them. But I think recently the city of Amsterdam put that framework into use and summoned house owners to do something with their belongings.

RB: For the first time a fine was given to a house owner based on this law, after seven years.

WJ: I have heard stories about the canal houses that are in the ownership of rich Chinese and Russian people, that only come here once a year to spend a weekend. I think the city can and should be able to enforce that people that are always in the city can live there or use the property for whatever reason, like an office of a law firm for instance.

RB: How did so many squatted places keep their existence after the squatting ban? For example ADM survived for another eight years after the introduction of the ban. How is that exactly possible? Why were they not charged by the state for squatting?

RU: The diplomacy and lobbying of ADM. I also think that the squatting law itself left out the word 'land'. Through this loophole, I think places like ADM are very hard to evict if you consider that it is composed of few existing buildings and more space surrounding them.

RB: But it's not just land. For example, places like Bajesdorp or Joe's Garage still exist seven years after the introduction of the ban.

RU: Apparently there is no urgency. It would have to do with the plans.

MOV: When squatters are evicted, what are their rights? Do you have any rights to another place to live or are you left alone on the streets?

WJ: Yes, you are. The policy does not include any further rights of people being literally forced out of the premises. Even with regard to their belongings, there is no policy and no legislation.

RU: That's an interesting aspect and kind of frustrating.

RB: All squatters know both of you, and have been working with you on many cases. How do you position yourself from a personal perspective in this movement? How do you see your role? Will you continue to do this, and how have you experienced this over the last 10 years?

RU: I was at ADM festival this weekend and I also have contacts in the squatting movement that border on friendship. I feel grateful to have been able to follow this path of law. I also deal with lots of family cases, but the other part is squatting, and so far it has been very interesting and I will continue to do it for as long as I feel that I can make some kind of contribution of significance. If I look around at my colleagues I know I am very lucky with having such interesting clients.

WJ: The same applies to me. I met a lot of clients that I still assist in one of my former offices. We get along very well. I think a key aspect is that I want to get to the bottom of things. Not superficially assist, but to try and look for the loopholes and the possibilities. I think what we achieved in 2010 was really something spectacular and that is the joy of my work.

MOV: Do you think what we are trying to do will make any difference? The fact that there is a national institution of architecture claiming that it constitutes an important legacy? Is that at all useful in a court case, or is it significant only in the cultural or political realm, rather than legally?

WJ: Yes. Although I think it is important to keep doing things like you do, because it puts the criminalization of squatting into perspective.

RB: But for example, in the case of ADM, there are 20 or 30 self-built homes that we deem an interesting contribution to architecture in the Netherlands. Such an acknowledgment by a national institute, would that in any way be relevant in a court case?

WJ: Yes, it would make a difference. Projects like these, that's the main thing, they will keep putting things into perspective.