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. [End of article]
I understand the liberals' need to regulate, tax, and share, but you gloss over the origination of all parcels of land in this country. If you recall, the American government took it from its native inhabitants at the point of a gun. Thomas Jefferson was among the first to apply the linear system of ranges and townships to the lands so stolen, and the system of take & subdivide continued through the rest of that century and into the next.
The US government arguably has a right to regulate the affairs of trade between property sellers and buyers, but it does not and never did "own" the lands it acquired by manifest destiny. We in the 21st century do not have to petition our government for the right to buy, sell and use the land under our feet. If anyone, property rights rest in the hands of all of the taxpayers, who should at least admit it was a government taking from the getgo.
PAUL HILL
the Property Owner's Network
Longmont, CO.
Land ownership differs from ownership of man-made things, and this fact is shown by how societies have everywhere made land ownership conditional and not absolute. Land was here before us and will be here after us. My ownership of land is legally called tenancy in fee simple. In exchange for paying my land taxes, I have certain limited rights in the use of my land. I certainly don't have the right to destroy my land as I have the right to destroy something man-made that I own. Our time here on earth is breif and the earth itself is our mother, not a commodity to be exploited.
Native Americans recognized that land is different from portable property. Natives fought not because they believed the land was their property but because the European land speculators wanted all the land for profit while excluding the Natives.
"Some of our chiefs make the claim that the land belongs to us. It is not what the Great Spirit told me. He told me that the land belongs to Him, that no people owns the land; that I was not to forget to tell this to the white people when I met them in council."
--Kaneku, Kickapoo prophet
Exactly. The difference between the American Indian and the US government definition of land use is stewardship vs exploitation. The government, via legislative support of split estate ownership (oil firms "own" the earth under "your" land) and eminent domain (a local government can take your land & home for "fair market value" and give it to a private company for commercial development in exchange for increased tax revenues to that government) encourages destructive use of the land.
Is the land damaged when a coalbed methane well contaminates the underlying ground water? Is the land diminished when homes containing families and social networks are replaced with commercial enterprises that produce and distribute corporate products?
The government says it can damage and destroy land in exchange for tranistory economic benefits for "the greater good." The government says it can sell publicly-owned land to the highest bidder in order to subsidize tax breaks for the wealthy.
As usual, the white man speaks with a forked tongue.
PAUL HILL
the Property Owner's Network
If you want to see your argument taken to the government sided extreme, just look at King County, Wa where 65% of the parcel must be given up in exchange for a building permit. Fairness here? Property rights are not total, but fairness in the exercise of government regulation must balance the owners interests with those of the larger community.
Preston Drew
Citizens Alliance for Property Rights
King County, WA