The nature of property rights and responsibilities has evolved to extend into spaces not previously considered part of property law, such as ocial, community and affordable housing.

Property law is potentially involved through the law governing freehold ownership, the general law governing commercial leases through head lease arrangements for public housing properties between government and CHO and residential tenancy legislation in relation to tenancies entered into by social housing tenants.

Regulation involves CHOs being regulated and made accountable for the use of public monies in supplying, managing and or owning public housing properties in the public interest and is now underpinned by the Community Housing Providers National Law (the National Law) and the National Regulatory System for Community Housing (NRSCH) . The registration system introduced through the NRSCH enhanced both accountability and professionalism in the community housing sector.

This chapter focuses on understanding social, community and affordable housing and the role property lawyers should play in this emerging and important sector involving a complicated distribution of rights and responsibilities.

Any consideration of property law must begin with the nature of property and how we should understand its conceptual underpinning.

The law is primarily a practical and pragmatic science directed to confronting and responding to practical issues and challenges in human affairs, dealings, and transactions. Many existing approaches to property law begin with an attempt to explain the conceptual contours of property and property law and to lay out its philosophical basis, proceeding to analyse these conceptual components and the law’s part in constructing the mosaic of property and its legal underpinnings. In the modern Australian context, this necessarily involves a detailed investigation and analysis of both myriad legislation and caselaw. While this strategy has stood the test of time and is reflected in the following chapters, this book seeks to position the discussion, explanation, and analysis within a context of two overarching themes. First, to explain and systematically integrate the effects and implications of technology upon property and property law. Second, to present a narrative which moves readers from property law principles to the practice of property law in all its applications.

The law and practice relating to the Crown (or state) lands of Australia is often a topic not well covered in a student’s journey through property law. Yet, Crown lands legislation dealing with the alienation and management of the lands of the Crown has been a feature of the legislative framework of the various Australian jurisdictions since their respective creations.Given that some such interests or rights authorised under the various legislation may rarely be granted or exist only in small numbers, this chapter focuses on some of the enduring principles of Crown lands law and practice.

This chapter discusses the key knowledge requirements or threads of Crown land law and practice that will give both student and practitioner a solid understanding of how to approach the complex legislation of the jurisdiction with its peculiar interests and rights; the public interest, modern land tenure, and Crown lands legislation; Crown lands legislation and Crown land; grants and the Crown’s general power to deal with Crown land; reservations and exceptions in Crown grants; interpreting a Crown grant; public purpose land

The scaling-back, scaling-up, and scaling-down of liberal nation states since the 1970s have fundamentally changed the contexts in which state responses to squatting must be understood. The impacts of neoliberalism, globalization, and localism – scaling-back, scaling-up, and scaling-down the nation-state – have provoked new questions for liberal property theories. While the foundations of the classical nineteenth century liberal state and twentieth century liberal ownership societies – which underpin liberal theories of private property – have shifted, the “invisibility” of the state in liberal property theories has meant that this fundamental change has attracted relatively little attention. Against the backdrop of the global financial crisis and Great Recession, the politics of “austerity” and affordable housing crises, the re-emergence of squatting as an issue of political concern and the use of state power to respond to unlawful occupation have re-positioned debates about “private property” in the public realm. For property scholarship to succeed in understanding and advancing solutions to contemporary property problems, it is important that our theoretical and methodological frameworks are attuned to the real contexts of state action.

The options available to states to respond to squatting, including through law, are wide-ranging, sometimes dynamic and always revealing of the complex relationships between land, housing and shelter, poverty and ownership, citizenship and exclusion in each jurisdiction, in particular moments. The legal tools adopted and applied in response to squatting vary by jurisdiction (and within jurisdictions, by level of state action, for example, local vs national), and over time. In this chapter we introduce key elements within legal responses to homeless squatting in each of five jurisdictions that we draw on to inform our analysis throughout the book: Ireland, England and Wales, South Africa, Spain and the United States of America. In drawing examples and illustrations from a range of diverse jurisdictions, we aim to follow the advice of Van der Walt and Walsh, to pay: “…close attention to jurisdictional differences, and to broader social, economic and cultural considerations not always apparent from the face of constitutional texts, legislative provisions or even judicial decisions.” Our aim in this chapter is to set out the “legal base-line” for the book, locating these laws in their historical, geographical and social context. In doing so, we introduce an array of potential legal responses to squatting: including regularization of unlawful occupation (enabling the squatter to acquire rights in land), and a range of civil actions and criminal sanctions targeted at unlawful occupiers or absent owners.

While the institution of private property is a central institution of the liberal state, the role of the state is necessarily, and paradoxically, de-centered in accounts of liberal property law. The rhetorical power of ownership relies on the de-politicization of property rights, positioning the question of entitlements and the protection of the status quo of private property above, or prior to, the law. In periods of relative stability the relationships between private property, political ideologies, state legitimacy and authority are relegated from the “public realm” of political and legal debate to the “private sphere” of interpersonal relations between individuals. Indeed, the resilience of the liberal state is rooted in the taken-for-granted assumption that private property rights (as defined by the dominant narrative) will, and must, be upheld. However, in an age of crisis, “settled” liberal nation states, including the USA and the UK, economic setbacks, social movement protests, and civil unrest, have called into question the relationships between property relations, on the one hand, and the authority and legitimacy of state actions and institutions, on the other. This chapter explains how “Resilient Property” approach and methodology focuses directly on state action in responding to property problems, particularly in moments of crisis.

In this chapter, we explain the methodological frame and normative hypothesis of Resilient Property, drawing on wicked problem theory, vulnerability theory and equilibrium theory. Structuring methods drawn from wicked problem theory and “method assemblage” are adopted to support fuller analyses of the complex array of relations and practices, individual and institutional vulnerabilities that are at stake when homeless squatters occupy empty property. Resilient Property draws insights from “vulnerability theory”: adopting Fineman’s general approach to vulnerability and resilience; and building on her insights concerning institutional vulnerability, including the vulnerability of the state. This provides a central anchor for our analyses of state responses to squatting: that a necessary implication of recognizing that the state itself is a vulnerable institution is that we recognize the need for states (and governments) to act in ways that build their own resilience, to shore up their authority and legitimacy in the face of conflict or crises. This underpins our focus on “equilibrium” in Resilient Property: recognizing that states are not neutral arbiters in relation to competing claims to land but are required to negotiate their “other-regarding” responsibilities – adjudicating and allocating resilience to individuals and institutions – against the backdrop of their own “self-regarding” need for resilience. Through this approach, Resilient Property enables us to develop a realistic, contextualized, conceptualization of state action with regard to complex property problems.

Political and property crises open up vital new questions for property theorists, and analyses of state responses to these crises cast new light on how property systems, and property law, adapt and evolve to meet complex challenges – while remaining institutionally resilient themselves. Resilient Property draws on equilibrium theory to understand how resilience is produced, for states and for individuals. In this postscript, we reflect on the property crises we are currently collectively facing, across the world: the impact, and aftermath of the global coronavirus pandemic. Applying the lens of our Resilient Property theory, we examine the emergency measures adopted by several governments as the pandemic threatened the health and wellbeing of citizens on a scale that was unprecedented for most of our lifetimes. As “stay-in-place” orders, including the provision of emergency shelter for unhoused or precariously housed people, collided with an upsurge in vacant commercial buildings and stalled development projects, the perfect property storm of homelessness, squatting and empty buildings/land was brought into fresh relief. Through a Resilient Property lens, state responses to property problems in the pandemic reveal the resilience needs that states were confronted with during the crisis, and the actions they took to maintain and restore equilibrium through the shockwaves of the pandemic and its aftermath

In the introduction we describe the “wicked” global property problem of homeless squatting on empty land or in empty properties and outline some key themes explored in the book. We reflect on the nature of squatting as a property problem; and introduce the concept of “scale,” which we deploy throughout the book to describe the dynamic nature of state responses to squatting. We outline the importance of seeing “the state” in the analyses of squatting and other property problems, through its interactions with individuals, interactions with other state-bodies, and interactions with its territory, and interactions with its own institutions. Finally, we set out the structure and approach followed in the book, including reference to five primary jurisdictions: the USA, Ireland, Spain, South Africa and England and Wales.

Homeless squatting on empty land is a local challenge, replicated on a world-wide scale. While some have argued that neoliberal globalization has had a homogenizing effect on domestic legal systems generally, and on states’ responses to squatting more specifically, domestic institutions retain significant capacity and capability to govern; and their resilience critically determines economic success and political stability and nation-states adapt to changing circumstances. This chapter frames our analyses of state responses to homeless squatting on empty land in the context of nation state norms and narratives: what we describe – adapting Robert Cover – as the property “nomos” of each jurisdiction. We argue that state responses to squatting are framed by the “foundational” regime goals through which the state’s role and relationships to citizens with respect to property were articulated and understood, and examine how these foundational goals with respect to private property, housing and citizenship emerged in each of the five primary jurisdictions from which we draw insights and illustrations in this book: the United States of America, Ireland, Spain, South Africa, and England and Wales. In doing so, we aim to better understand how domestic institutions, norms and narratives in each of these jurisdictions have shaped the nomos within which “the state” acts in response to homeless squatting on empty land.

States make decisions to allocate resilience to (or withhold resilience from) stakeholders across these networked interests through the lens of the state’s own vulnerability and resilience needs. We have revealed how the state’s “other-regarding” responsibility to govern in the “collective interest” – allocating resilience to shore up particular (competing) individual, aggregated and/or institutional claims – and the state’s own “self-regarding” need to shore up its resilience vis-à-vis citizens, markets, and society – interact to produce and provoke state responses to squatting. Finally, because Resilient Property analyses seek to explore as much as possible of the “problem space,” we have looked beyond the horizontal scale of national legislation or litigation to investigate how multi-scalar states craft complex solutions to complex problems. This includes tailoring responses to the specific needs and priorities, pressures and strains, commitments and constraints, that come to fore at the local, regional, national or supra-national level. Multilayered responses to squatting allow scope for normative hybridity within state responses to “wicked” property problems, in ways that can support systemic equilibrium. In the first part of this chapter, we reflect on three types of state responses to squatting: (1) property/private law responses; (2) criminal justice/law-and-order responses; and (3) responses deploying other administrative functions of the state. We consider how state responses reflect alignments between state self-interest and selected aspects of the state’s other-regarding responsibilities; and how they contribute (or not) to restoring equilibrium and shoring up the authority and legitimacy of the state in moments of crisis. These national-jurisdiction level legal responses are embedded within a polycentric, multimodal, and multi-scalar matrix. In the second part of the chapter, we examine two city-level case studies: New York City and Barcelona – to reflect on moments in which local- or city-level responses were key to restoring equilibrium, or triggering tipping-points for change.