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Monday, August 15, 2011

"Home" and the Uniqueness Doctrine

Okay, I'm back.  I will post about what I've been doing this summer that has kept me off PropertyProf Blog (not that its that terribly interesting) but the theme is that I was ridiculously overly ambitious.  MASSIVE props to Steve Clowney for being a one-man blog this summer and covering up my incredible slackage. 

In the meantime, following up on Steve's Burning House post (very cool site, by the way), I have been thinking a lot lately about the meaning of "home" and our emotional connection to real property.

Real property has enhanced importance in American common law because of the uniqueness doctrine, that is, the idea that all real property is unique and cannot be replaced.  I've critized the uniqueness doctrine in the commercial real estate context, but it goes fairly unchallenged in the residential context.  We have a romantic ideal of the family home (i.e. "every man's home is his castle"), and the law goes to some lengths to protect that value. Think about the differences between residential and commercial foreclosure processes, for example.

But does that romantic ideal match reality?  In my fairly geographically stable life, I have lived in 5 houses in Indianapolis, 3 apartments in Indianapolis, 3 dorm rooms in Bloomington, Indiana, 2 apartments in Bloomington, Indiana, 1 apartment in Cambridge, Massachusetts, and 1 house in Winston-Salem, North Carolina.  So that's 15 different "homes" in 37 years.  Clearly I have far less emotional attachment to the dorm room I inhabited my freshman year of college than I do to the home that I lived in throughout elementary school, but which of these, if any, is my home?

My dad grew up in Richardson County, Nebraska, which currently has a population of about 10,000.  He grew up in the same house that his dad grew up in.  His grandmother lived next door.  His grandparents and great-grandparents grew up down the road.  The Marsh family and collateral families lived in Richardson County, within a few square miles of each other, from 1859 to 1995.  That's a home.  That land had a real emotional resonance to the family.  All our people are buried there.  When the common law talks abut the uniqueness of land, it had my family's Nebraska farms in mind.

But that is also a romantic ideal that was inconsistent with many peoples' reality.  Before they settled in Nebraska, my Marshs traveled from New Jersey to Mason County, Kentucky, to Adams and Highland Counties, Ohio, to Lafayette County, Wisconsin, and to Missouri.  They had a dozen farms in a dozen communities in three generations.  Americans come from a long line of highly mobile people.  We are (almost) all immigrants, after all.

My current hypothesis on all of this is that my "home" is where my immediate family (and the stuff that I'd carry out of a burning house) is located.  If that home is important to me, it is because of the stuff and people contained there, not because of the real property itself.  Oh sure, I might like the house and the neighborhood, but it is essentially a widget. Therefore, I am becoming highly suspicious of the uniqueness doctrine's applicability even to residential real estate.

I've thought about this topic a lot this summer because I've spent so much of it driving back and forth between Winston-Salem and Indianapolis.  Every time I cross the border from Ohio or Kentucky into Indiana, I see the words "Back Home Again in Indiana."  And that rings very true.  But when I cross the border from Virginia to North Carolina, I think to myself "oh good, I'm almost home."  So I think that the modern reality is that we can have more than one home, or that "home" is a broader concept than just a residence.  "Home" is really about a community. 

More on this and what it has to do with state residency statutes in a future post.

Tanya Marsh

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