Do Something! Sins of Omission in Property Law

Property often seems like a force field, a socially protected clearing in which an owner can act (within specified bounds) or do nothing at all. On this account, property is institutionalized noninterference. Trouble arises, we are given to understand, only when someone—an owner, an outsider, or the government—does something that impinges on someone else’s entitlements. The pervasive language of exclusion and encroachment, of boundaries defended and breached, cultivates the perception that property law operates to constrain action, not to compel it.

Two recent articles challenge the idea that property law is, or should be, complacent about inactivity. Nadav Shoked’s piece, The Duty to Maintain, examines the affirmative obligations that law routinely places on owners and finds them to be normatively well-grounded. And in Passive Takings, Christopher Serkin suggests that there are circumstances in which government should be subject to takings liability for passivity as well as for action. Each of these pieces emphasizes the contingent and interdependent nature of property interests, and each highlights the weakness and ultimate incoherence of using a line between acts and omissions to determine the duties owed by and to owners.

Shoked uses the recent foreclosure crisis as a central example and a lens through which to evaluate the normative status of legal obligations to care for and maintain one’s property. The duty to keep one’s property to a certain standard is a quite longstanding one, however, manifested in myriad well-established doctrines, as Shoked demonstrates. Bringing these pockets of affirmative obligations together shows that property law is a mechanism for distributing obligations, not just for protecting spaces from cross-boundary incursions. Shoked’s analysis complements recent accounts of the affirmative obligations of owners by Larissa Katz and Robert Ellickson; instead of focusing on what duties owners are particularly well-positioned to perform, Shoked considers what duties are fairly implied from relationships among property owners. In so doing, he stresses the socially embedded nature of each owner’s holding and the potential for omissions as well as acts to generate negative spillovers.

Recognizing the positive obligations of ownership puts pressure on another well-accepted but faulty idea: that ownership is always wanted or voluntary. As Shoked observes, the duties attaching to ownership can produce negative-value property, like Detroit lots that would not sell for one dollar. Neglected property represents a social threat precisely because it exposes a gap in a usually unnoticed system of widely dispersed and continually ongoing maintenance activity undertaken by owners collectively. The need to keep that system in good working order connects to a set of questions I have touched on previously: what forms of unwanted ownership should the law tolerate or enforce, and when should it help owners unburden themselves of undesired ownership?

Just as an owner’s inaction can generate harm when it interacts with natural or human-made forces, so too can a government’s inaction. Here we come to Serkin’s piece, which suggests that the government could commit a taking by failing to act. His core example is sea level rise, which could interact with a previously innocuous regulatory constraint (such as a limit on building height) to deprive an owner of valuable use of her land. Other kinds of government inaction can generate momentous losses for private property owners as well, as where the government has deprived owners of self-help alternatives but then fails to act itself. As Serkin is careful to note, not all such lapses will rise to the level of a taking, just as not all affirmative acts that diminish value constitute takings. Moreover, even those omissions that constitute takings would not obligate the government to act; it could instead pay just compensation to avoid concentrating burdens on particular landowners. Yet the government is put to a choice—act or pay—that mirrors the one choice it faces when its actions constitute a taking.

Serkin’s concerns about passivity resonate for a reason: Inaction rarely occurs in a vacuum, but rather against a backdrop of pervasive and indeed inevitable governmental involvement in constructing the conditions of resource access, including the allocation of property entitlements. The web of past and ongoing government involvement in property interests can turn regulatory continuity or passivity into a dynamic reallocation of societal burdens at least as significant as new regulatory impositions. Such an idea is hardly far-fetched. Indeed, a recent Maryland decision, Litz v. Maryland Department of the Environment, 446 Md. 254 (2016), recognized that inaction can generate a viable takings claim, at least where past actions give rise to a duty towards the landowners in question.

Both Shoked and Serkin enrich our understanding of property rights by focusing on the potential for harm to flow from inactivity. Their ideas could be extended further by questioning not only the line between acts and omissions, but also the (equally mutable) line between harms and benefits. Social losses from inactivity encompass not only the damage inflicted by neglected homes and rising tides—large as those may be—but also the opportunity costs of failing to put together the most valuable urban uses and connect them with the most useful infrastructure and institutional arrangements. While the doctrinal sources of duty that Shoked and Serkin examine may not stretch far enough to address these latter sorts of losses, the project of property must ultimately find ways to do so. By chipping away at assumptions about inaction, Shoked and Serkin offer fresh insights for adapting property to meet these evolving challenges.

Cite as: Lee Anne Fennell, Do Something! Sins of Omission in Property Law, JOTWELL (June 20, 2016) (reviewing Christopher Serkin, Passive Takings: The State’s Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345 (2014); Nadav Shoked, The Duty to Maintain, 64 Duke L.J. 437 (2014)),