What Are Property Rights?

We’ve been looking for a good primer on “property rights” to help people understand the debate when it comes to re-writing our land use codes in Kootenai County. And lo and behold, there’s a superb piece on the website dedicated to the project. We re-publish it here in hopes that more people read it and understand it and reject the silliness being promulgated by some people in this silly season. We’ll have a lot more to say about all of this, but this is a great place to start. 

What are Property Rights?

Property rights are a cornerstone of western civilization, but too often their nature is misunderstood. Sometimes, the phrase property rights  is used loosely. Generally, that stirs up an emotional response — typically by suggesting that some undefined set of property rights is being put in harm’s way. Unfortunately, this sort of rhetoric too often generates “more heat than light.” It taps into a heartfelt intuitive  image of property rights — which is, in short, “I should be able to do anything I want  with my property.”

Yet, the intuitive  image of property rights is not square with what centuries of Western and U.S. law describe as property rights. The legal definition (which is what applies to zoning and subdivision law), is much more complicated. Indeed, there are volumes of court cases and legal treatises on property rights.

The “common-law” (case law) on property rights describes them as a “bundle of rights” that come along with the ownership of property. The “bundle” comparison is used because property rights can be separated from each other and given, rented, or sold to others (e.g., a person may lease property to another – giving them a temporary right to possess the property – while still retaining ownership; a person may transfer mineral rights or water rights while retaining ownership of the surface; a person may grant an easement to another for a specific purpose, like access or drainage).

Key property rights in the “bundle” include the right to possess (which includes the right to exclude others), use, and dispose of property (for example, by sale, gift, or will). According to the U.S. Supreme Court, the “power to exclude [others from one’s property] is ‘one of the most treasured strands in an owner’s bundle of property rights.’” Loretto v. Teleprompter Manhattan Catv Corp, 458 U.S. 419 (1982).

Property rights may also be created by state law. For example, in Idaho, there is a “right to farm” law, and a right of a property owner who requests and obtains a rezoning to not have the rules change within a certain period of time.

Property rights are not absolute. Courts have consistently held that through our republican form of representative government, the use  of property may be regulated “within reasonable limits” (beyond mere nuisances) for “the public good.” As the U.S. Supreme Court puts it, “that is a burden borne to secure ‘the advantage of living and doing business in a civilized community.’” Andrus v. Allard, 444 U.S. 51 (1979). Significantly, the Andrus v. Allard  decision was not simply the expression of an “activist court” that was “legislating from the bench.” In fact, the opinion was joined by justices across the political spectrum.

The Court in Andrus v. Allard (citing the famous “takings” case of Pennsylvania Coal v. Mahon) ultimately concluded: “Suffice it to say that government regulation—by definition—involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase. ‘Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.’ Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) . . . . The Takings Clause, therefore, preserves governmental power to regulate, subject only to the dictates of ‘justice and fairness.’”

Kendig Keast Collaborative’s project manager describes the ULUC as “a set of rules for what it means to be a ‘good neighbor’ with respect to the use and development of land in Kootenai County.” All are welcome to join in the effort to create proposed new rules that are purposeful, just, and fair.

That’s why we’re here.