By Keegan Hamilton
By Albert Samaha
By Village Voice staff
By Tessa Stuart
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By Steve Weinstein
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Tiny, with bright eyes peering out from beneath a mop of curly black hair, wearing a flower-print dress and stirring batter for a homemade pineapple cake, Thelma Utsey is the last person you'd take for a squatter. If she has piercings or tattoos, they're hidden. And her politics are more practical than radical. Even so, city officials have considered her a squatter for years.
But a recent court decision disagrees, and grants Utsey, 48, and her family a status that could influence the fates of squatters citywide. In a July 17 ruling of the appellate term of the state supreme court, a three-judge panel decided that the Utseys are tenants, not only because they have long lived on the property and done much to improve it, but more importantly because they lived there with the city's knowledge. The court ruled that if the city wants the Utseys outwhich it doesit must treat them as tenants and cannot evict them without proper procedure, beginning with a 30-day notice ordering them to leave the three-story, single-family, city-owned house in East New York where they have squatted since 1988.
"I was living in a place and the rent got expensive and I was about to be evicted. I checked out this place, cleaned it up, and moved my children in."
The decision puts the city in a bind: If it follows the ruling and files a 30-day notice, it might win an eviction. But that notice would mean that the city implicitly acknowledges the Utseys as tenants. And that, in turn, could imperil one of the city's most powerful tools in getting rid of squatters, with implications far beyond the Utseys' Linwood Street home. As a result, it might be worth the city's while to leave the Utseys alone.
The legal tool, called self-help eviction (it's the owner, in this case the city, who's being helped), presumes that squatters are trespassers with no right to a court proceeding or eviction by a marshal. Instead, using police powers, the city simply tosses them out. Second only to declaring a building unsafe and in need of immediate evacuation, self-help is the city's eviction method of choice for squatters. Citywide, about 1400 squatters are evicted this way each year, says Jim Provost of Brooklyn Legal Services, which is representing the Utseys.
"The city is more concerned about how it would deal with the possibility of setting a precedent that would jeopardize self-help evictions than it is in dealing with just this particular tenant," says Provost. "This case recognizes that if a squatter has a long period of occupancy with the city's knowledge, the city cannot be the sole arbiter. Maybe they shouldn't be knocking on squatters' doors and kicking them out. Maybe in some neighborhoods, squatters are a good thing."
At the core of the judges' decision was the fact that the city knew the Utseys were living in the building but did not persistently seek their ouster. Also key was the manner in which Thelma Utsey, who is disabled by a thyroid problem, transformed the garbage-filled shell used by drug dealers into a home with all the amenities, installing plumbing, electricity, appliances, flooring, and aluminum siding, "at a cost of thousands of dollars and much hard work," the judges noted. They also added that Utseys' efforts had a "stabilizing influence on the neighborhood."
Indeed, while the house is no palacewater stains mar the ceiling, the stairs creak and leanits five bedrooms make it comfortable for Utsey, her three children, and one grandchild. She never challenged the city's ownership. "I'm willing to pay rent," says Utsey, who had worked as a counselor in a local community development agency, "but even better, I'd like to buy the house from the city." She figures her family has spent about $30,000 on the place so far.
Over the years, the city tried twice to evict her, saying that the lot the house occupies was to be joined to neighboring vacant parcels and developed as affordable housing. And while the lot was in fact part of such a proposal in 1995, the current developers say the parcel is out. "We were supposed to build four houses there, but the city said somebody moved into their property and they took it from us," says developer Julius Mehrberg. "We're building around her."
It was necessity, not politics, that prompted Utsey to move into the house 12 years ago. "It wasn't some big idea," she says. "I was living in a place and the rent got expensive and I was about to be evicted. I checked out this place, cleaned it up, and moved my children in."
Assistant Corporation Counsel George Gutwirth says the city is likely to appeal the recent decision. Whether it will also file the 30-day notice to evict the Utseys is less sure.
In the meantime, Utsey will stay put. "I'm just going to keep fighting for my house," she says. "I call it mine because I've been here for 10 years, more than that. And it's going to be mine, no matter what stigma the city tries to put on it."