Lee Anne Fennell, ‘Property and Precaution’

Property in land suffers from an unacknowledged precautionary deficit. Ownership is dispensed in standardized blocks of monopoly control that are routinely retained in their entirety until someone raises an issue regarding an actual or potential incompatible land use. This arrangement, which encourages owners to take sustained, unpriced draws against a limited stock of future flexibility, sets the stage for future impasse as inconsistent plans develop. It also makes property an unnecessarily accident-prone institution, given the role that bargaining failure plays in producing costly land use conflicts. Expanding the slate of potential precautions beyond owners’ locational and operational choices to include their choices about the strength and content of their own entitlements offers new traction on land use disputes. In this article, I propose using a local option exchange to confront owners with the opportunity costs of maintaining veto power over unused, low-valued rights. Enabling owners to relinquish property-rule protection of such rights before conflicts arise could make property more flexible and communicative, and hence reduce the costs of incompatible land uses. This approach presents interesting institutional and theoretical challenges. Among other things, it requires rethinking the limits of customization in property bundles and the potential for owner participation in entitlement definition.

Fennell, Lee Anne (2011) “Property and Precaution” Journal of Tort Law: Vol. 4: Iss. 2, Article 3. DOI: 10.2202/1932-9148.1114

First posted 2011-09-07 08:56:15

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