An Exciting Property Rights Hypothetical

[Qwertz]

Who can sleep when there are hypotheticals to ponder?! This one kept me up for three hours the other night, and it's looking to keep me up for at least one more....

This is a question of rights not of law. That's why it's not in the "Law" subforum. I actually don't know easement law, and if anyone wants to slip it into a rights argument, I'd be interested, but it's not the main thrust of my hypothetical. Also, it's based in a system of private, individual property rights - no 'public property' like streets are now. All streets should be considered privately owned.

A property owner owns a large city block. The entire block. No development. The owner divides the block into eight plots as depicted in illustration 1:

He then sells the eight plots to eight other owners and ceases to own any part of the property. Each of the eight owners constructs a domicile on their plot at the positions of the letters in the illustration. The owner of plot H enjoys an extra large back yard for a while, then decides to build a rental property in the form of a house on the back lot, as in illustration 2:

He builds a driveway connecting his own driveway to the rental property at H'. The combined driveway is indicated in red. After a while the owner of H and H' decides to sell H', along with an easement (a right granted to one party to the limited use of the property of another) to use the portion of the driveway still owned by H to access the property. All is well and good. Eventually, a large corporation, let's call it Wal-Stor, decides it would like to build a store in this neighborhood. Their store would ideally occupy the entire block - 8/9 of structure and 1/9 of parking. The store manages to make successful bids on all the properties except H', whose owner holds out "on principle, because Wal-Stor is an evil multinational corporation, and oh, save the penguins!" Even though the owner of H' is clearly a secretly-guilt-wracked-for-breathing environmentalist, it's still his right not to sell and we're not going to force him, but now Wal-Stor either has to abandon their plans for a store or they must build structure on all of the 8 purchased properties and purchase additional space for parking across the street (or build a garage below or deck above the structure.) The situation is illustrated in illustration 3:

Now Wal-Stor bought property H, and I don't know the legal status of the easement which was granted to H' for the use of the driveway, but Wal-Stor is going to destroy that part of the driveway which was on H anyway - it's their property - and build a squared donut of a building. Granted this is probably not likely, but it gets the point across.

Does Wal-Stor have to provide access to H(prime)'s property ("H''s" looks silly)? I don't think so. But does H' have a right to access, and by accessing, use, enjoy and dispose of his property as he sees fit? Is access part of property rights? Does the situation change based on whether or not H' is developed? Bears a domicile which serves as the owner's residence? Or source of income (such as a rental property, or a small store)? If access must be provided, is a door enough (where the owner can access the property by walking through the store), or must Wal-Stor build a tunnel through or under, or a bridge over, their building? I don't like any of these, because they involve the word "must." But what of the owner of H'? I mean, sure, he's a totally irrational environmentalist who won't sell at any cost, and so presumably doesn't care about the devaluation of his property by virtue of the restricted access (and crappy view), but that alone shouldn't strip him of his right to the use and disposal of his property. Or does he earn his trip up shit's creek without a way home (so to speak) by virtue of being an interminable dumbass?

And a final note, does Wal-Stor's blocking his access constitute coercion to sell?

-Q

[mosespa]

What good are property rights if one can be denied access to said property?

The owner of "H" now has a property that he cannot access.

I don't think this situation would happen. A court (or other governing body) would be called upon to settle this disagreement (in Randian terms, one of only two proper functions of a governing body.)

It COULD be seen as "coercion to sell," but if they have constructed a "donut" around "H," then they seem to have reached beyond a governing court and would likely be called upon to offer restitution of some sort even if it meant failure to obtain property "H."

It would seem that there is no way to solve this problem without resorting to collectivist tactics.

But then again, my vision may be limited by a lack of knowledge of the "proper" handling of this situation.

Someone else can feel free to interject here.

Edited January 30, 2006 by mosespa

[Groovenstein]

Wal-Stor is going to destroy that part of the driveway which was on H anyway - it's their property - and build a squared donut of a building. Does Wal-Stor have to provide access to H(prime)'s property ("H''s" looks silly)?

Yes. That's what an easement is--a right of access. W's right to its property is limited by the right a previous owner granted to Hp. That right of Hp's doesn't just vaporize (assuming his lawyer worded the easement properly). The next question is what kind of access must be provided, i.e. what is the scope of the easement? You asked:

If access must be provided, is a door enough (where the owner can access the property by walking through the store), or must Wal-Stor build a tunnel through or under, or a bridge over, their building? I don't like any of these, because they involve the word "must."

It'd be a good idea to get rid of your aversion to "must" when it's used in the context of honoring a contractual obligation. But back to the lecture at hand, let's assume that the easement didn't say much. It just said "an easement of ingress and egress." Then I'd look at how it had been used (the original parties' expectations). It was used as a driveway. I'd say W must provide the functional equivalent of a driveway.

[Qwertz]

It'd be a good idea to get rid of your aversion to "must" when it's used in the context of honoring a contractual obligation.

Oh I have no aversion to that. The legal point at issue, which would represent the 'must' I was talking about, would be the situation where H (the owner of the driveway from the street to Hp) wants to sell to sell to W, and W wants to buy, and both agree on a price, but W 'must' honor H's agreement with Hp, which is not W's agreement with Hp - an agreement they never made, but must make in order to complete the transaction, with a party whose property isn't involved in the transaction. I mean, insofar as an easment doesn't actually grant real property, only the right to use someone else's for an express purpose.

Again, I don't know the law yet, so I defer to your knowledge in that area (I think I read something somewhere which made me think you were an attorney or had studied law formally.) I'm still waiting for application decisions.

<anxiety>

-Q

Post Script: Though I suppose the obligation could interpret as being on H - H must not sell the property without continuing the easement with the new owners. But that would make the easement similar to a covenant, which I assume it's not. Not that covenants have any bearing here. I think I'm getting loopy from the no sleep.

Edited January 30, 2006 by Qwertz

[DavidOdden]

Easements were also discussed here. The fundamental choice is made at the stage when Hp agrees to buy a surrounded chunk from H; because of the wording of the easement (which was vetted by the crack team at Matt's Law and String Shoppe) Hp knows that not only does he have the right to access his will-be property, but whovever might end up buying the land in the future will also have that right. This is important, since it significantly affects future saleability. And at the same time, H knew that not only did he have to allow access, but also the next guy would have the same obligationt, which has an affect on the value of H's property (on the theory that property with no encumberance is more valuable than property with). If you don't feel comfortable with that kind of restriction on your property, you could restrict the term of the right, say to 99 years, or 50 years. The fundamental rights issue is knowing what you're getting (unrestricted control vs. an obligation to allow access), and agreeing to the sale given the terms, or else not agreeing to the sale and looking for different property.

[Yes]

Who can sleep when there are hypotheticals to ponder?! This one kept me up for three hours the other night, and it's looking to keep me up for at least one more....And a final note, does Wal-Stor's blocking his access constitute coercion to sell?

-Q

It's highly unusual for an entity to obtain property without first agreeing to maintain a right-of way access to the property of others, as a condition of sale.

As an architect and planner, I have been in these situations numerous times. The subject of a right-of way or other such access typically comes up in a title search. Usually the provisions of what is allowed and what is not in a ROW are clearly stipulated in the agreement, which ususally is filed in the town's land records.

Since this is the reality, and the reality of the situation is that it would be well nigh impossible for Wal-Stor to obtain this property without the right-of-way provision, any act by Wal-Stor to block access to such property could be viewed as a violation, and could be, in fact, subject to criminal and/or civil prosecution (or complaint), since it is highly likely that Owner H would file a complaint.

Edited February 21, 2006 by Yes

[GoCapitalism]

I don't understand which of these you are asking:

1) what is the case under current law? or

2) what should be the case in a free society?

In terms of #2, it is up to H' to sign an agreement with H that maintains his access even after H sells his property to wal-store. It makes no sense to me to say that the person who owns the property H' has a right to access it. What if I bought land in Iraq and I need to use other peoples' property to get to it (ie, plane, car, camel)? Do the owners of the plane, car, and camel HAVE TO allow me to use their property? No.

[DavidV]

Assuming that H implicitly or explicitly gives up his right to an easement, he still has the option to fly into his property, build a bridge, or make an underground tunnel. This might not be practical for a single residence, but might be for a remote cabin or a road, for example. The important thing to remember is that buying land does not automatically give you ownership of all the potential property above or below that land.

[nimble]

Assuming that H implicitly or explicitly gives up his right to an easement, he still has the option to fly into his property, build a bridge, or make an underground tunnel. This might not be practical for a single residence, but might be for a remote cabin or a road, for example. The important thing to remember is that buying land does not automatically give you ownership of all the potential property above or below that land.

Actually, I think saying that only would raise more questions. Would Wal-Stor be able to build a canopy that covered up H' s land? Would anyone be able to do that, just build a canopy like structure that covered over other people's property, blocking out sun etc? That would be problematic for farming, and probably just anyone in general.

[DavidOdden]

Actually, I think saying that only would raise more questions. Would Wal-Stor be able to build a canopy that covered up H' s land? Would anyone be able to do that, just build a canopy like structure that covered over other people's property, blocking out sun etc? That would be problematic for farming, and probably just anyone in general.

Ignoring the question doesn't help, either. What you need to do is be sure to secure the air rights, mineral rights, a path to your property, and so on. If you don't care, then you can leave that right unsecured and take the consequences. That would be a way that I can guarantee the magnificent view out my front window, by buying the air rights from 400ft to 500ft over the 250 ft tall apartment building across the way.

[nimble]

Ignoring the question doesn't help, either. What you need to do is be sure to secure the air rights, mineral rights, a path to your property, and so on. If you don't care, then you can leave that right unsecured and take the consequences. That would be a way that I can guarantee the magnificent view out my front window, by buying the air rights from 400ft to 500ft over the 250 ft tall apartment building across the way.

This is just a side question to you, and more of a legal one or practical one than a political one--how would you go about dividing air, mineral, etc? Air might be kind of easy, but the question is, how high do you go and how does that effect cost? Like would I own my house and the air above it all the way to the stratosphere? Could I charge planes for coming through my property? Could I sell just the land, and maintain my rights to the air? Conversely, how far down do you go? To the core? Does your plot get smaller as you go further down to account for the fact that the Earth is spherical and that eventually the core is a single point?

Not trying to antagonize, I am just really curious about the "propertization" of air and underground.

[DavidOdden]

This is just a side question to you, and more of a legal one or practical one than a political one--how would you go about dividing air, mineral, etc?

Dunno, exactly: that's a pretty specialised area, relative to my dilettante knowledge. As I understand it, though, trade in air rights is profitable in cities because of view issues. Assume a gorgeous mountain, call it Baker, which you can see from your house in a hill. It's computable that the only way to block that view it to build a 20 story building on lot #24, now owned by Jones, who has a 12 story apartment building there. You can purchase the air right above the lot from say 200-400 ft. Jones can build under that, but not above that: this limits his future expansion, and protects your view. Caution: it also means that Trump will not only have to negotiate with Jones, but also you, to buy the air rights, so be careful in selling rights, because it will cut into the future sale value of your property.

The upper and lower limits are important questions. There is a practical limit of a few miles; one principled answer would be "the center", narrowing to a point. The question really only makes sense in a legal context, and I just don't have any idea about that. The mantle is unexplored territory, and I think it's reasonable to consider it unclaimed "land". When we do finally develop that journey to the center of the earth-mobile, there will presumably be a legal means of staking claims, and harmonizing mantal claims with existing crustal rights. The upper limit is probably more important (as seen in myriad megalopolis of the future with flying cars movie -- the ones where we all speak Japanese) and immediate.

The underlying question is whether there is something (other than "man") that cannot be property. Is the air so important that it must be public property, owned by none yet available to all? I'm not at all persuaded that there is any intrinsically "public property". There are a lot of objections that one could raise that are based on the problem of making the transition to a society without restrictions on ownership -- like, do people suddenly gain air rights up to 32,000 ft?

[nimble]

Yea, my question was just more of a theoretical one, than any positioned stance against air property. Thanks for addressing it.

[Robspe]

A war was fought over a similar problem. The War of the Pacific (1879-1884) was at least partially about Bolivia's access to the Pacific Ocean at the border between Chile and Peru. The peace treaty cut off Bolivia from the sea but Chile guaranteed Bolivian access to a rail line and port rights. From an anthropological point of view, there's no better way to make a man fight you than to cut off his escape. Even a mouse will fight a cat if cornered.

As to the hypothetical, the easement would certainly have a market value, perhaps higher than that of the H(prime) property itself. If Wal-stor was determined not to pay through the nose, they might want to buy H(prime)'s property before the news got out that they were planning a store. Otherwise, their only way out might be to allow H(prime) a means of access that they could make extremely inconvenient, within the bounds of nuisance law. But a smart firm wouldn't put themselves in this position in the first place.

[DavidOdden]

From an anthropological point of view, there's no better way to make a man fight you than to cut off his escape. Even a mouse will fight a cat if cornered.

Perhaps, but I remain convinced that it is man's nature to survive by reason rather than force, and that mice are not the best models for understanding man.

[DavidV]

Actually, I think saying that only would raise more questions. Would Wal-Stor be able to build a canopy that covered up H' s land? Would anyone be able to do that, just build a canopy like structure that covered over other people's property, blocking out sun etc? That would be problematic for farming, and probably just anyone in general.

I think context is important here. A judge would only allow a canopy if H' had no other alternative and had done his best to find less drastic means of solving the problem. He might even be required to build a tranparent bridge if sunlight was an issue.