Friday, May 11, 2012

Smith on the Law of Neighbors

JsmithJames Smith (Georgia) has posted Some Preliminary Thoughts on the Law of Neighbors (Georgia Journal of International and Comparative Law) on SSRN.  Here's 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.

Steve Clowney

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Very interesting. So much of what is taught in property law is, if not about "strangers", then about contracting parties (mortgagor/mortgagee; landlord/tenant; etc). In Torrens systems, issues about indefeasibility most often arise in the context of sale of land (again, contracting parties).

Does this reflect a kind of atomism about property? Does the recent wave of scholarship focusing on exclusionary aspects of property do the same? Why do we want to "isolate" property, rather than make it relational, even neighbourly? Is this a "bowling alone" sociology?

One of the reasons I find condominiums/strata titles so interesting is that so many of the issues are not about contracting parties, but about neighbours, and how they live their lives together - happily or otherwise.

Posted by: Thomas Gibbons NZ | May 12, 2012 8:28:41 PM

I look forward to reading this article. Having spent considerable time in land use law matters, I'm curious about how neighbor law and land use regulation relate. The use and abuse of parcels in the mortgage crisis illuminates dysfunctions in the intersection of law of ownership and use of residential property.

Posted by: Kermit Lind | May 15, 2012 8:35:16 AM

One interesting reality is that the general public often thinks that the body of "neighbor law" has much more detail and certainty that it actually does. Lots of it is common law, there aren't a lot of litigated cases (especially in smaller and younger states), one can't always be comfortable that the 1902 precedent that you have to rely upon which hasn't been the subject of a decided decision since then is really still good law or has in fact been obliquely made irrelevant by some other doctrine even though it hasn't been expressly overruled, the sources of the applicable rule (as Smith notes) are fragmentary and not subject to an overarching logic, and the statutory framework is often non-existent or consists of piecemeal land use regulations which may or may not give rise to private law remedies (e.g. Colorado has held that sidewalk snow removal ordinances do not give rise to a duty that creates slip and fall liability).

Posted by: ohwilleke | May 21, 2012 3:11:58 PM

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