Human Right to Housing

By: SADIE MORRIS


            On January 14th, 2020, several families were forcibly removed by Oakland police from a house they were occupying to demonstrate against the ever-growing housing crisis in California. The demonstration began on November 18th, 2019 when two mothers experiencing homelessness entered a vacant home owned by home-flipping company Wedgewood Properties with their children.[1] The situation soon morphed into a lawsuit in which Wedgewood Properties sued for the eviction of the families, to which the mothers responded with a claim of right of possession, arguing  that they have a human right to housing. According to California State Law, “The court shall determine the claim [of right of possession] to be invalid if the court determines that the claimant is an invitee, licensee, guest, or trespasser.”[2] In an unprecedented move, Alameda County Superior Court Judge Patrick McKinney decided to consider the mothers’ argument rather than dismissing the case as a clear example of a claim being invalid due to trespassing.[3] This allowed the mothers and their families to stay in the home for the next few months while the case was decided. At the same, they organized to spread their message, calling themselves Moms for Housing. Eventually, Judge McKinney found that while the mothers’ argument was moving, he rejected the argument that the women had a right to stay in the vacant home given their lack of alternatives.[4] This case is part of a larger conversation about the right to housing which has been going on since the Industrial Revolution and was reinvigorated by the economic depression of 2008. It is worth examining the body of laws surrounding the right to housing in order to better understand the position of Moms for Housing and where the conversation should go from here.

          The importance of housing has been enshrined in U.S. and English law for centuries. Most of these legal foundations lie in protections for the rights of property owners, which may seem to be in opposition to the rights of those without property at first glance. However, on closer inspection, these foundations actually speak to the legal recognition that a house is more than just a place of shelter. Housing affects physical health, mental health, physical fitness, nutrition, access to services, cultural and community identity, exposure to crime and other factors of well-being.[5] It is little surprise, then, that the first tenement acts and zoning laws arose in response to the squalor conditions of Industrial Revolution-age homes in the 19th and early 20th centuries. Citizens petitioned their governments–at the local, state, and federal level– to ensure that they and their families had access to affordable and adequate housing. Commissions on housing were started at all levels of government. Their work would contribute to a new body of housing legislation that arose mid-century, including the National Industrial Recovery Act of 1933, the National Housing Act of 1934 and The Housing Act of 1945.[6]

            The right to housing also became cemented in international law during the mid-twentieth century. Article 25 of the Universal Declaration of Human Rights of 1948 provides that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”[7] The Article goes on to say that “Motherhood and childhood are entitled to special care and assistance,” recognizing the specific role of adequate housing in proper childhood development.[8] The specific right of children to “a standard of living adequate for the child’s physical, mental, spiritual, moral and social development” is further emphasized in Article 27 of The Convention on the Rights of the Child.[9] The right to housing was also reaffirmed in the 1976 International Covenant on Economic, Social, and Cultural Rights.[10]  In general these laws do not “envision free single family homes for everyone; it is a more nuanced responsibility for governments to ensure all residents have access to adequate, affordable housing.”[11]

            Given that the right to housing is explicitly present in international law and U.S. law itself recognizes the multiplicity of roles that housing plays, the question must be raised whether there was some legitimacy to the Moms for Housing claim. The doctrine of “Unclean Hands” holds that courts cannot grant an injunction to a “litigant guilty of wrongdoing directly connected with the lawsuit.”[12] As applied to situations in which those experiencing homelessness are suing to keep from being removed from a property, the indicated party must be able to show that the government suing them has breached some duty they owe to the residents of the encampment.[13] While potentially a strong argument in cases on the side of the right to housing, this doctrine would not apply in the Moms for Housing claim because it is not the government suing for their removal but rather a private company, Wedgewood. Some litigants have argued under the Eighth Amendment that removal from property is a form of cruel or unusual punishment if the government is essentially criminalizing a necessary activity for survival in the absence of alternatives–the absence of alternatives being a key contingency.[14]

            Whether or not there are alternatives to illegally trespassing and squatting on vacant property is a harder question to answer in the face of growing economic problems in the U.S. and specifically in California. In the aftermath of the financial and housing crisis of 2008, the poverty rate in California has risen to 18.2% and “homelessness routinely tops the polls of residents’ biggest concerns.”[15] A visceral statistic in evidence of this is that “the only demographic category in the Bay Area whose incomes mostly rise above the salary needed for a two-bedroom abode in the Moms’ West Oakland neighborhood is white men, who earn a little more than $100,000 at the median. Black women earn less than half of that—$49,369.”[16] The Special Rapporteur on Adequate Housing to the United Nations reports that the 2008 financial crisis caused a dramatic increase in housing commercialization, changing housing primarily into a form of investment rather than a way to actually create homes for people.[17] Not only has this commercialization stimulated the growth of huge housing conglomerates like Wedgewood, which spur foreclosures and evictions, but “the vast amount of wealth [created by these conglomerates and via the investment market] has left governments accountable to investors rather than their international human rights obligations.”[18]  Evictions that go through private companies can also not be examined under the Unclean Hands doctrine, which results in governments being exempted from their duties to uphold the right to housing.

            The Moms for Housing legal case itself was unlikely to stand up to current U.S. legal standards, but their case was successful in furthering a dialogue on what right to housing is owed to citizens. The fact that the UN Sustainable Development Goals and Habitat III New Urban Agenda back in 2015 includes a commitment to “promote national, sub-national, and local housing policies that support the progressive realization of the right to adequate housing for all as a component of the right to an adequate standard of living” indicates how the Moms for Housing case is part of a larger, in-progress conversation that has begun to shift and must continue to shift towards thinking about a just housing system as part of the process of developing a more sustainable world.[19] Ever the land of experimentation, California and the U.S. have an important role to play in demonstrating how the right to housing can be incorporated in longer term planning.


[1] Brentin Mock and Sarah Holder, A Group of Mother, a Vacant Home, and a Win for Fair Housing, CITYLAB, 28 January 2020, https://www.citylab.com/equity/2020/01/moms-4-housing-eviction-oakland-homeless-crisis-real-estate/605263/.

[2] Code of Civil Procedure §1174.3, CCP (d) (2020)

[3] Marisa Kendall, Judge Considers if Moms 4 Housing has Right to Occupy Empty House, MERCURYNEWS, 30 December 2019, https://www.mercurynews.com/2019/12/30/judge-considers-moms-4-housings-right-to-occupy-empty-home/

[4] Marisa Kendall, Moms 4 Housing Loses Court Case Still Refuses to Move Out, MERCURYNEWS, 11 January 2020, https://www.mercurynews.com/2020/01/10/moms-4-housing-loses-court-case-must-vacate-west-oakland-home/

[5] Emily Bergeron, Adequate Housing is a Human Right, AMERICANBAR, 01 October 2019, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol–44–no-2–housing/adequate-housing-is-a-human-right/

[6] Emily Bergeron, Adequate Housing is a Human Right, AMERICANBAR, 01 October 2019, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol–44–no-2–housing/adequate-housing-is-a-human-right/

[7] Universal Declaration of Human Rights, UNITED NATIONS, 1948 https://www.un.org/en/universal-declaration-human-rights/.

[8] id.

[9] Supra. See note 7 (93)

[10] International Covenant on Economic, Social and Cultural Rights, UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER, 1966, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.

[11] Tent City, USA, NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, 2017 (83)

[12] Supra. See note 7 (86)

[13] Id.

[14] Supra. See note 7 (84)

[15] Conor Dougherty, California, Mired in a Housing Crisis, Rejects and Effort to Ease It, NEW YORK TIMES, 30 January 2020, https://www.nytimes.com/2020/01/30/business/economy/sb50-california-housing.html?te=1&nl=california-today&emc=edit_ca_20200131&campaign_id=49&instance_id=15634&segment_id=20863&user_id=bf0474a0ccaccf28d2f666623c073ebb&regi_id=7776464820200131

[16] Brentin Mock and Sarah Holder, A Group of Mother, a Vacant Home, and a Win for Fair Housing, CITYLAB, 28 January 2020, https://www.citylab.com/equity/2020/01/moms-4-housing-eviction-oakland-homeless-crisis-real-estate/605263/.

[17] Office of the High Commissioner, Special Rapporteur on Adequate Housing as component of the right to an adequate standard of living, UNITED NATIONS HUMAN RIGHTS COUNCIL, 2019, https://www.ohchr.org/en/issues/housing/pages/housingindex.aspx

[18] Id.

[19] Supra. See note 7 (95)

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