Professor Shoemaker, in her article, Re-Placing Property, shines a light on a surprisingly understudied, yet immensely important point. She explores that the law of real property encompasses both situations when land is held for its use value and when it is held for the wealth it represents as a form of investment. Through this work, Professor Shoemaker elegantly and thoughtfully reminds us of this fundamental truth, which likely rings true with every property scholar and student.
Picture a typical family house. The house can be held by a family that uses it daily. The kids’ growth chart is etched in the kitchen pantry and the backyard holds the memories of many birthday parties. The same house; however, can also be held by an investment company, a corporation that holds it for the sake of profit. Same house. Same law of real property. Vastly different purposes.
The idea of land as land dominates our legal imaginations and our everyday use of the language. When we say “house” we picture a family holding it for its use value. Likewise, when we think of farmland, we imagine hardworking farmers caring for the crops and livestock.
But the reality of land ownership in the US is different: profit-making portfolios of various kinds, from pension funds to real estate investment trusts (REITs) hold a significant share of the rural lands in the US. Control over rural land is concentrated in the hands of billionaires and foreign investors. As for family homes, according to some estimates, by 2030, forty percent of single-family homes in the US will be owned by institutional investors.
The key contribution of Professor Shoemaker’s article is in drawing attention to the fact that land as land, and land as wealth are not the same, in either economic or social terms. Yet “property” as a category, as the conceptual tool that allows us to govern resources in a distributed manner, applies to both. By applying the same set of doctrinal rules to both, despite their vast differences, we are missing an important aspect of land as land. We are missing the significance of cultivated lands, a street you grew up on, or sacred spots. In short, we are missing the importance of the places we live in and love.
Professor Shoemaker underscores the significance of people-place relationships, which are both pragmatically and normatively significant. A place is specific and unique. An investment, on the other hand, is merely a place-holder for fungible monetary interests.
She underscores, first, as a descriptive matter, the ways in which property law respects and reinforces the people-place connection. A notable (historical) example of the people-place connection is Homesteading, which was deliberately place-sensitive, demanding both physical residency and material improvements as conditions for establishing ownership.
Another (contemporary) example is the rules that mitigate the harshness of residential foreclosure. These rules embody an understanding that one’s home is a unique and specific place, which deserves an additional layer of protection during times of financial hardship.
Property law also sometimes deliberately ignores the people-place connection. Consider for instance how ownership is not dependent on physical possession or owner-residency. You could hold a fee simple to a house or a piece of land without ever setting a foot there. “Absentee ownership”, as Shoemaker calls it, also facilitates the prevalent practices of housing investment and build-to-rent developments. Absentee ownership is a prominent example of how property choses to de-couple place and people.
Importantly, the people-place-property relationship is one of mutual influences. Our connection to places has, in the past, shaped our property law and concepts, and it continues to do so today. At the same time, property shapes our attachment and connections with places.
Second, the people-place relationship has normative significance as well. Whether to value and prioritize place (or not) is a choice we make.
Consider build-to-rent housing (which is made possible due to absentee ownership). The worry is that large institutional investors can use their power and increasing hold over the housing market to dramatically drive-up rents while neglecting the physical upkeep of the houses and reducing related services. The result will be especially detrimental to those of lesser means. This, in turn, will also impact housing prices beyond the rental market, impacting homeownership rates and affordability more broadly. This kind of complete disembodiment from place, treating land just as wealth, can be risky.
Place-attachment and recognizing land as land for its use value, can have positive impacts on people, including forming and strengthening identities, building and harnessing local-based knowledge, and managing resources in a responsible way. Although we could also have too much of a good thing. Overprotecting existing attachments to specific places can, for instance, limit the ability of new entrants to gain a foothold.
Ultimately, it seems to be a matter of finding (or constantly searching for) the right balance. Professor Shoemaker urges us to “think more carefully about this spectrum of attachment-related values,”; to better evaluate our choices in this regard and the instances in which place-related claims are invoked either as a sward or as a shield. (P. 854.)
Professor Shoemaker’s thoughtful framework offers a different way of understanding the threads that tie property together. The focus on place is a helpful lens through which property can be both described and evaluated. In an era when so many of our challenges are property related – from housing inequalities to resource governance in the context of climate – such a lens is a welcome addition to scholars and policymakers’ toolkit.
