Dagan on Exclusion and Inclusion in Property

Hanoch Dagan (Tel Aviv) has posted Exclusion and Inclusion in Property on SSRN.  Here's the abstract:

Exclusion is in vogue in property discourse: the right to exclude is often considered property’s most defining feature. In this essay, I criticize exclusion-centrism in property theory and argue that inclusion is also a key component of property. Property is an umbrella for a diverse set of property institutions, and defies a perception viewing the right to exclude, or indeed any other feature, as the ultimate core of its definition. To illustrate this point, the essay points to three examples - the law of public accommodations, the copyright doctrine of fair use, and the law of fair housing, notably in the contexts of common-interest communities and leaseholds. The essay shows that limits on the right of owners to exclude, either by refusing to sell or lease or by insisting that non-owners refrain from physically entering their land, are quite prevalent in property law. It further argues that, in these examples, the right of non-owners to inclusion (to buy, rent, or physically enter) should not be viewed as an embarrassing aberration but rather as entailed by the very values that shape property institutions in the first place. I thus conclude that, although less characteristic, manifestations of inclusion are just as intrinsic to property as those of exclusion, and should not be analyzed as external limitations or impositions.

Ben Barros

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