Law and Land Craft
I’m Janelle Orsi, a cartoonist, an activist, and a lawyer focused on transitioning land back to the commons.
At the Law Center, we have a lot of programs related to land and worker co-ops and finance. We are part of something much bigger and have links to several land projects we are working with. Beautiful organizations that are getting title to land. Not just owning land but transforming the relationship to it and to each other. What we’re doing today is simply offering our best nuggets of wisdom and pointing toward sources that will help you craft your own land relationships.
As lawyers, we have people who ask us how to form structures. “Should we be a limited equity housing organization?” People want to put things in legal boxes and it’s very tempting to say sure, here are your options and your next steps.
But if we really want to transform things, what we are creating should not fit into any of the existing boxes. There is no formula. And we should be trying to disrupt the usual boxes.
I love this phrase land craft. The truth is: what we need to do is just harness our natural intuition, come together, and be creative together. That is the way we are going to transform our relationships to land.
This is legal advice. It does not sound like legal advice. But the things that feel right are the things that work best. You will hear us use words such as love or relationship. That is in fact the best way to legally protect land and our relationships to it.
For over fourteen years, I have been doing this work as a lawyer for land projects and radical real estate projects. Something is happening that feels like a paradigm shift. Groups are coming to us, so many groups, in such a different way than I have seen before. They are setting aside the idea that land is a thing they can simply own and profit from. They are groups of people really nested in the broader movements for transformation. They see land as a permanent community asset, not something they will trade in later to cash in. That is evidence of a paradigm shift.
An Aside on Co-ops
Let me remind this co-op minded audience: Cooperatives are not a thing. Which means a couple of things. They are not the thing. What I see happening lately is people are forming cooperatives or calling things cooperatives and feeling like they have arrived. As though simply being a cooperative is the transformation. It has to go deeper than that.
Cooperatives are not just one thing. It depends on where you are standing and what you are going for. A lot of people think of a cooperative as a type of legal entity. For others it is a tax category. For others it is a state of mind. Trying to define what a cooperative is not really the goal here. I feel like there are deeper principles we can focus on that I will share briefly.
I use the image of a layer cake. At a practical local level we have to form organizations. At the state level we need to form a corporation. I think of the actual business as the spongy part of the cake and the tax status you choose (at the federal level) as the icing. You choose it for the sake of getting a particular benefit. There are all kinds of ways of mixing and matching. It varies from state to state, no need to overthink it.
What matters are the ingredients of the cake — the financial governance, the operational policies you bake into the cake. That gives it its real flavor.
That is what makes something a land trust or permanent real estate cooperative. It is simply a label we put on a certain combination of ingredients — things like your bylaws or articles, these important legal documents. But you can bake them in several different ways.
I like the phrase “movement cooperative.” People coming together to meet their own needs and organize for their own benefits. They know their own benefit is tied to the greater good and the broader system. They are very outward oriented. Many of the clients we work with, I would describe them as movement cooperatives.
To Non-profit or Not to Non-Profit?
Then there is the decision to be a 501(c)(3) or not. There are certain benefits — the ability to take in donations and receive grants a lot more easily than other kinds of entities. The ability to have unpaid volunteers without worrying about employment law, getting loan repayment if you have a lot of school debt, etc.
One thing I want to say about 501(c)(3)’s, which sometimes conjure up fears of the “nonprofit industrial complex,” is that they are quite flexible. Our Sustainable Economies Law Center is a 501(c)(3). You can democratize 501(c)(3)’s. We created a network called the Nonprofit Democracy Network. There is a shift underway in the nonprofit sector towards more cooperative and democratic models.
How to Think about Land
OK, here’s the next provocative thing I want to say: land is not a thing. I mean this seriously. It is kind of insightful when you think about it.
When I started to spend time with clients and understand how they relate to land, I realized land is more than a square and the things on it. It is really everyone and everything that has a relationship to that land. The fish that swim through it, even the people who visit it.
What is the nature of that relationship? It is one of giving and receiving. It is one of reciprocity. There are the people and creatures that help nurture the land. That's an inherent part of the land. Whether the folks are on the land all the time or not. Those folks are nurtured by the land. Dependent on the land.
To think of land as a square, something you box up and sell without considering that web of relationships, is so out of touch with reality of the nature of existence. So we’re trying to rethink, what is land?
With land, there are many relationships we have to think about protecting. As lawyers we think about the legal tools we can use to protect this web of relationships.
For example, how can we use leases and licenses and easements and purchase options to make sure all the beings that have relationships with the land can sustain them in the long term and not have them be severed?
For one client we drew up a map of a piece of land that is very important to a lot of people, including people living on it. It is a historic tribal village with many organizations involved in helping steward it. When we looked at the relationships and asked how do we protect them legally, it looks complicated. It really is a beautiful thing.
We are basically using easements and leases and co-ownership to make sure everyone is able to sustain the relationship to the land in the long term. You can do something similar with a piece of land you are connected to — i.e., map out the relationships. And ask yourself, how do we want to protect them?
The other thing is that each relationship links to another web of relationships. Actually land is not just a web of relationships: it is a web of webs. Let’s say a cooperative owns the land. The whole web built around a particular cooperative is critical to protecting the land. It is a web of web of webs. Think about East Bay Permanent Real Estate Cooperative (EBPREC). They are building relationships with other organizations to make sure the land they own will be protected in the long-term if the cooperative disappears.
A Ridiculous Profession
Now I want to say: lawyers are not a thing. This is my hope for the future. I think the legal profession, as it has unfolded over time, is ridiculous. It is not responsive to the needs of communities and societies. We need to rethink it.
In the meantime we have a legal system. If you’re doing anything with land, have a lawyer you work with. And with this question: can we write love letters instead of legal documents? You have no idea how serious I am when I say that.
When I write legal documents, I am thinking about the fact that if we don’t create more loving relationships with each other, between people and land, none of this will work. Please think about getting beyond the usual framework of what lawyers are going to suggest you do with legal documents.
We create a lot of legal documents as slideshows. We think in terms of working a canvas where we design our future. Lawyers should be part of the collective work of liberation. We are telling the future — the story of our collective future together. This is how I have come to see my role and hopefully how many will see their role.
We lawyers are not on a pedestal with special expertise. We are not service providers providing services to a movement. We are part of it.
Sometimes I remind myself that these land projects are not my clients. I am their client. They are creating the world that will sustain and nurture me and give me hope. So try to create an expectation that any lawyer you work with will be part of a larger group of people deliberating together and designing together.
Help us rethink the role of lawyers and our overall relationship to law — and put the law back into the hands of the people.