Nicholas Walter, ‘Private Transfers’

This paper takes a fresh approach to a contentious topic in property law, ‘private transfers.’ Private transfers are involuntary, but legal, transfers of property between private parties. A simple example is adverse possession, where one individual acquires title to another individual’s real property.

Private transfers have been a confused area of law since Blackstone, and this confusion persists today. This paper creates a positive and normative model that explains why, and when, private transfers may be desirable. It argues that private transfers are desirable when at least one of two conditions is fulfilled. First, the transfer should be predictable, in that those affected by them know when they risk losing their property, and know what property is at risk. Second, the transfer should confer a direct benefit on society. If neither of these conditions obtains, the transfer is undesirable.

The paper applies this model to the famous case of Kelo v. City of New London and various other property cases. It shows that the transfer of land in Kelo was undesirable – unlike the other examples of transfers that the Court relied on in its decision. The paper then uses Kelo, and other judicial decisions, to theorize the constitutional basis of private transfers. Courts have used both the Public Use Clause and the Due Process Clause to decide the constitutionality of private transfers, in an apparently haphazard manner. This paper proposes a novel resolution of this problem that revolves around the role that the state plays in the transfer: it suggests that if the state mediates the transfer, it should be adjudicated under the Public Use Clause, whereas if the state permits the transfer to take place directly between private parties, it should be decided under the Due Process Clause. This theory accords with much jurisprudence on private transfers, as well as having normative force.

The paper then applies the model to the case of private transfers of land more generally. It critiques proposals that have been made, both before and after Kelo, to facilitate the private transfer of land. It instead puts forward a new scheme for the private transfer of land for use in development that is more in keeping with the rationale of the model, and presents fewer constitutional difficulties.

Walter, Nicholas, Private Transfers (August 17, 2011).

First posted 2011-09-03 13:47:52

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