Before You Sue ...

A Brief History of Property Rights

By Nancy Jacques, 2-23-06

This is the shortest history on property rights - that is, real estate - you’ll read in the next 15 minutes. Like balancing a checking account, an occasional review of property rights history aids in avoiding embarrassing moments and expensive errors.

The West comes replete with myths about the inalienable-ness of individual property rights. Myths crop up like bind weed, choking off dialogue just when communities attempt to plan. They spur organized property rights movements.

It’s paradoxical that such movements exist in a nation hosting the most vigorous defense of private property in the world, writes Joseph L. Sax, eminent scholar of water, property rights and public trust law. Still, Sax understands and writes extensively on the movements’ sue-happy reactions to planning. His analyses are potent, relevant warnings: When local governments don’t assert strong ordinances retaining community character before the onslaught of rapid development, battle cries of “unfair� ring out later against attempted controls.

Unfair? To whom? What are rights of property owners? And a forgotten point: From where do ownership benefits come?

Ownership exists thanks to governments conveying deeds. In return for conveyance and protective services, government has always retained four powers: eminent domain, taxation, the right to reclaim title absent heirs, and the right to regulate.

Would you want a hazardous waste dump in your neighborhood, or a brothel, because landowners should have rights to profit? Thankfully, it’s never been unconstitutional to regulate use or sale of real property. Since the Colonial Era there have existed property restrictions regulating noise, odors, height and number of buildings, and their uses.

Initially property complaints were decided via nuisance litigation, case-by-case hassles that led, decades ago, to zoning and land-use standards. Today, Sax finds restrictions per se aren’t problematic, rather timing and pace of change exacerbate reaction.

Ownership of any kind of property requires accepting social, political and economic relationships. Individual property rights wouldn’t exist without a larger social body. Alone in the world, what would property or rights be?

The social body also extends benefits and value to property. Own property and thank everyone else for its worth: the guy across town, in Washington, in China.

Place your lovely home on the market just as mortgage interest rates soar and countries holding our national debt decide to act like American Express: Pay up in 30 days, or else. Speculate on developing a ranch-style exurban subdivision just as gasoline jumps to $7 a gallon. Gorgeous properties, perhaps, but profits are dust.

Two homes are built exactly alike across town from each other. You choose one. Your neighborhood school acquires a rotten reputation; the other a stellar profile. No sense in suing gossip mongers for resulting dissimilar home prices. The fact that schools exist in the first place, thanks to community, adds property value.

Real estate may be home, investment, insurance or legacy, but like owning stocks or pork bellies, or being alive, it’s risky. And like the mirror often reminds: Time changes things. There are no guarantees everyone will own property, nor does a deed say you can do tomorrow with your land what you can do today. But there are laws and traditions protecting community. Even the private property advocates’ sweetheart, John Locke (1632-1704), wrote about the ultimate test of rights of assets being impact to community.

Okay, you’re thinking: “In the good old days I could do anything I wanted with my property.� Maybe. With the Homestead Act, if you happened to succeed building a home, farming and improving the land, filing the $18 fee, surviving the Range Wars to “prove up,� you could do what you wanted. I’m not sure many folks today would trade their social amenities for that kind of freedom.

Yesterday not being today, Sax examines how, in community after community, it’s the property owners intending to develop, who rant and resist long-range planning ordinances, slowing planning and setting up later conflicts, hurting themselves. The public screams back “enough,� and reactive downzoning occurs.

Is restriction fair? The Supreme Court in 2002, in the Tahoe-Sierra case, ruled favoring community rights. The Bush Administration, though, sided against property owners.

Adam Smith (1723-1790) wrote, “As soon as the land of any country has all become private property, the landlords, like all other men, love to reap where they never sowed.�

Property is business. Some people get hurt. A community’s infrastructure and transportation systems, its record of crime or safety, its schools and health care services, protection of viewsheds and natural areas become assets creating private property values. Location, location.

Think about this during current planning processes. Think about this whenever battle cries begin over personal property rights being violated because the rights of others are taken into account.

Like this story? Get more! Sign up for our free newsletters.