Thursday, May 17, 2012
James Charles Smith (Georgia) has posted Some Preliminary Thoughts on the Law of Neighbors, forthcoming in the Georgia Journal of International and Comparative Law, Vol. 39, p. 757 (2012). The abstract:
A fundamental characteristic of real property law, one that is definitional in nature, is that its subject matter consists of land parcels. A land parcel, in contrast to an ownership interest such as a fee simple estate, is not an abstraction. Each land parcel has a physical reality, and virtually all land parcels abut other parcels. Each parcel has one particular location, defined by its proximity to other pieces of property. The value of a land parcel depends heavily upon its location, and the nature of neighboring parcels has a major impact in determining that value.
Owners of neighboring parcels have sets of rights, privileges, and duties that define their legal relationships with neighbors. In Anglo-American law, those rights, privileges, and duties are components of real property law, but they are not a recognized category of real property law. Rather, they represent the application of general doctrines and rules to neighbors, instead of a distinct and cohesive body of law of its own. Other legal systems have developed distinct bodies of law to govern relations among neighbors.
The law of neighbors or “neighborhood law” is not presently a recognized type of law practice in the United States, and it will not likely become one anytime in the near future. In part this is the case because neighbor law disputes typically do not involve high financial stakes and resulting incentives for lawyers to market themselves as experts in the area. This Article suggests that if the field of neighbor law develops in the United States, academics will have to lead the way.
This Article does three things. First, it introduces the “stranger model” and the “friend model” of neighbors law, using these models as a frame for describing three components of existing U.S. law applicable to neighboring landowners. Second, it briefly describes the extent to which South Africa and Scotland have come to describe neighbors law as a discrete legal category, which correlates to the stranger model and friend model. Third, it concludes by making several suggestions on how the models may help in the construction of a coherent law of neighbors.
One of the challenges of land use and local government law is the perception that these issues are purely micro-- that everything we discuss is ad hoc, local, and not generalizable to the larger property law and policy issues. Prof. Jim Smith makes a very important point with this piece: that we should make a full account for the legal aspects of living together in a community. His suggestion for us to consider "a coherent law of neighbors" is compelling, especially given the current trends towards greater cognizance of neighborhood interests in land use decisions.