BURSTING ITS BOUNDS: OWNERSHIP AND THE CITY.

• Author: Hamill, Sarah E.

In common-law countries, it is possible for owners to lose their property as the result of a process known as takings. These takings can be done by public bodies, in which case they are often referred to as compulsory purchases, eminent domain, or expropriation, depending on the jurisdiction. Or they can be done by private individuals--typically via the courts at the petition of private individuals--in which case they are known as private takings. (1) The loss of property resulting from such takings is not always total. (2) At times, the taking is a loss of a particular right (or rights) to or over the asset rather than a loss of the entire asset.

Takings, whether done by the state or by private individuals, offer insights for property theory. Firstly, takings can be useful for property theorists in their attempts to explain the content of ownership. Takings jurisprudence sheds light on when ownership is lost and when it is not and, thus, what rights owners must have to be owners. (3) Secondly, takings speak to the relationship of individual owners to other owners and to society more broadly, because takings are typically justified on social grounds rather than grounds which are merely inter pares. As such, takings speak to the ways in which property is both an individual entitlement and a social system. The question of how owners interact with other owners and with society more broadly is one which is often underexamined and undertheorized in property theory, yet it can tell us something important about ownership, specifically ownership in land.

The focus in this article is on examples of takings in the urban context. The reason for focusing on the urban context is simple: growing urbanization is increasing the ways in which property interests overlap and intersect and has enhanced the scope for takings, whether public or private. These include instances whereby condominium owners lose their ownership as the result of the actions of other members of the condominium, situations where Business Improvement Districts (BIDs) appropriate public spaces as quasi private, and cases where rural owners are displaced to meet urban centres' demands for water or electricity. Given that takings are hardly an innovation of urban ownership, this article does not argue that urban experiences are changing ownership. Rather, the argument is that these examples of urban takings--which are far from exhaustive--emphasize that private ownership is never fully private and always contains a retained common interest. Urban takings, therefore, pose a challenge for certain strands of property theory, namely those theorists who focus on property law as an individualistic, exclusively private-law doctrine. (4) Given the potential for private takings, it is not possible for theorists to explain away takings as a necessary exercise of state law rather than being a part of property law. Takings, whether public or private, are a part of property law and so ought to be accounted for by property theory.

This article argues that the retained common interest in private property can account for both private and public takings. By calling the common interest "retained", my argument might seem to tacitly reference the claim often made by 17th century theorists that all land was once held in common. (5) Whether or not all land was once actually held in common is irrelevant to the argument I am making. I understand the common interest as being a necessary aspect of private ownership given the social nature of property. In the technical language of the common law, the common interest could be understood as a future interest where the question of vesting is potential rather than beyond doubt (or, if one does subscribe to the idea that all land was once held in common, the future interest in common is an example of reversion).

Here, my argument has some overlap with those advanced by Lee Fennell and Nadav Shoked. (6) Both recognize the community aspect of private ownership though, contrary to my argument, they limit "community" to a community of owners. Both are also more concerned with the way individual owners can lay ownership-like claims to the neighbourhood or community around their private property, rather than the ways communities can make claims to otherwise private property. The question of who is included in a community and at what level the relevant community is defined matters for the common interest of property. As will be seen, the common interest is a site of contestation, in part because of the question of who is--or should be--included in the relevant community. In turn, the question of who is included in the relevant community raises questions about governance.

The first part of this article examines how property theory answers the question of how owners interact with others. The emphasis on takings necessarily means that this article's focus is on property in land rather than the broader definition of property. Part two sets out three examples of takings ranging from strictly private, to private claims to public space, to public takings of private property. These examples are the loss of condominium ownership, BIDs' claims to particular districts, and the expropriation of rural land for urban needs. The third part of the article examines what these three examples mean for ownership and property theory more broadly.

1. OWNERS' INTERACTIONS WITH OTHERS IN PROPERTY THEORY

   It would be impossible to give an exhaustive overview of how different property theories explore how owners interact with others. Hence, this section identifies five main themes in how property theory describes owners interacting with others, including other owners and society more broadly, and provides leading examples of each. These themes are: (a) others as limits, (b) property reflecting interpersonal justice, (c) property as a practice, (d) the obligations of ownership, and (e) property as belonging. There is some overlap between each of the categories; the bulk of each of the theories, with some exceptions, focuses on defining the rights and/or powers of individual owners. The social aspects of property tend to be an afterthought rather than a fully fleshed out aspect of the theories. In addition, theories of property and theories of ownership are often conflated. Many theorists are really defining ownership rather than property when they talk about what property is. (7) So too are there ample debates between and among these thematic approaches. Where relevant, this section identifies the key points of contention, though it does not seek to set out the debates in any detail.

   1. OTHERS AS LIMITS

      Perhaps the simplest account of how owners interact with others is that others act as limits on owners' rights. The others-as-limits approach is typically an afterthought that appears as a qualifier after setting out which rights an owner has. It is perhaps most often seen in a group of theorists commonly called essentialists because of their focus on setting out what rights are essential to "property"--by which they really mean individual ownership. (8)

      A classic example of essentialist theory is Thomas Merrill's claim that the sine qua non of property is the right to exclude. (9) It is clear that Merrill is really discussing ownership, or private property, rather than property more broadly. Under the right to exclude, others appear insofar as they have a duty to keep off property that is not theirs. Merrill has since moderated his claims and acknowledged that others can and do limit an owner's power. He argues that ownership is characterized by "two prerogatives" which he calls "residual managerial authority" and "residual accessionary rights", which the "relevant normative community" recognizes as being in the owner. (10) He uses "residual" to signify that the control "will nearly always be constrained". (11) Yet, he also notes that private property needs some kind of public property to be valuable. (12) Tacit in such comments is a sense that others might also add value to property.

      Other essentialist theorists include additional rights along with the right to exclude, typically the right to use and the right to alienate. (13) While this fleshes out the content of ownership, Katz argues that it does not tell us what is distinctive about ownership. (14) In fact, she criticizes other essentialist theorists for their "boundary approach". (15) Her objection to the boundary approach is how it explains the right to exclude as consisting of everyone else's duty to keep out. She argues that such an understanding focuses too much on nonowners and fails to explain what is distinctive about ownership. To borrow Avihay Dorfman's related critique, those theorists who follow a boundary approach fail to distinguish between possession and ownership. (17)

      Katz's main concern is not distinguishing possession from ownership but protecting the special position of owners and guaranteeing their rights. (18) For Katz, what is distinctive about owners is the right to set the agenda for the owned thing. (19) As with other essentialist theories, the right to set the agenda is limited by the fact of other people. It is clear that Katz understands ownership as a position of authority and that authority ought not to be abused. However, it is abused, on Katz's account, when an owner attempts to manipulate other owners. (20) For Katz, an owner should only use his or her property to pursue worthwhile ends. The potential for an owner to interact with others appears as a limit on what the owner can do with her property.

   2. PROPERTY AND INTERPERSONAL JUSTICE

      A related account of how owners interact with others is seen in the work of interpersonal-justice theorists. These theorists frame property law--and private law more broadly--as a series of interpersonal relationships. There is disagreement as to whether the interpersonal justice is merely corrective or whether it is thicker, requiring...