Insecure Property Rights Brings Conflict

We allow local politicians to arbitrarily redefine property use, and then we wonder why this causes problems. Daniel J. Chacon writes for the Rocky Mountain News:

After a nearly 10-hour meeting that ended just after 3 a.m. today, the City Council approved a rezoning that will prevent the construction of duplexes and other multifamily dwellings in two northwest Denver neighborhoods.

The council voted 10-2 to rezone 53 acres in West Highland and 62 acres in Sloan’s Lake from R-2 to R-1, putting an end to so-called scrape-off redevelopments to make room for higher density multiple-unit properties.

Council members Charlie Brown and Jeanne Faatz voted in opposition. Though they raised several concerns with the proposal, both said the issue boiled down to property rights.

The dissenting council members are correct that arbitrarily changing property rules violates rights, but the fundamental problem is not the change in zoning but the zoning controls themselves. Arbitrarily zoning to allow higher density use is just as incompatible with property rights.

It is a sad state when, in America, people think they own their neighbors’ property as well as their own. Yet that is the mentality manifest and propagated by zoning controls. Land ownership is to a significant degree a socialistic endeavor.

What is the alternative? The proper default position is that the first-in-time user acquires rights in the used property, but not in any adjacent property, except insofar as use of adjacent property interferes with the original use. For example, if you build a ranch in an open frontier, you have the right to own and operate the ranch, but you don’t own the entire frontier or the open land not directly associated with the ranch. If somebody moves in next door, you have no right to control that property unless the new neighbor directly interferes with your operation of your ranch — for instance, if your neighbor opens a plant that poisons your land.

First-in-time property allows for voluntary communal rights. For example, if you want to set up a commune on an open (or purchased) piece of property, compete with common ownership within the commune, you have that right. Though the language of a “private commune” is odd, it is apt in the sense that the commune is privately held by a particular group of people.

I live in a Homeowner’s Association (HOA) in which all of the outdoor property is owned in common and use of indoor property is restricted by covenant. The sort of complex in which I live simply could not operate without such an arrangement (though it does fall into problems typical of collective ownership. I have speculated that federal housing policy drives such property away from an apartment model to a condominium model, but regardless HOAs are permissible in a free market).

If you want to maintain partial ownership rights over your neighbors’ property, then you should buy into an HOA. Alternately, a group of neighbors could, by unanimous consent, create an HOA.

Aside from HOAs and conflicts of prior rights, you do not own your neighbor’s property and should not have the ability to control it. Real property rights are not subject to majority rule or the whims of petty politicians.

Insecure property rights necessarily breeds conflict.

Chacon continues:

About 130 people testified at the two hearings, and at least twice that many showed up to listen. The huge turnout — and the divisiveness of the issue — prompted council members to call on sheriff’s deputies to keep a close eye on the hearings.

The zoning changes, which go into effect in January 2009, created ill feelings among divided neighbors. …

Supporters said the increased density from the multiple-unit structures was ruining the character of the two neighborhoods, which are comprised of predominately single-family detached homes.

The outcropping of multifamily structures has cast shadows on gardens, increased traffic and created parking wars, among other quality of life issues, they said. …

But opponents said the rezoning infringes on their property rights and would hobble the redevelopment they say has revitalized the neighborhoods.

Todd Silverman said he bought in the area 10 years ago for several reasons, including the “potential the zoning would afford.”

It’s unfair that now “certain people want to take away those property rights,” he said.

Realtor Susan Pearce agreed. She also said the rezoning could lead to higher housing costs.

You do not own the roads (though someone should), and thus you do not own traffic rights. You have the right to park your car on any property that you own or rent, but not on property that does not belong to you.

The matter of sunlight access (similar to the matter of scenic views) is a trickier one. While it is conceivable that a new user could block another’s sunlight in such a way as to significantly impede the original use, I have never heard of such a case. If you buy property in an urban setting, you’re hardly counting on unimpeded sunlight for your livelihood. The notion that a partial “shadow” on one’s garden may constitute a violation of property rights seems pretty silly. An HOA can properly control such things, but otherwise the owner should be able to determine use. Of course, you are welcome to purchase your neighbor’s land — or an easement on that land — in order to preserve your views or prevent shadowing.

Defining property rights is no trivial matter, particularly when it involves such things as moving water and air. Yet property rights can be securely defined through objective laws and the courts. A mark of secure property rights is that they cannot be overturned by vote.

To a large degree, property rights have been subverted by zoning controls. The inevitable result is the sort of conflict and injustice seen in these Denver neighborhoods.