Wednesday, January 20, 2016
Greetings readers of PropertyProf Blog! I am delighted to join the crew of bloggers here and look forward to sharing thoughts with you and, more importantly, reading your views on property issues in the modern world.
This week I have been neck deep putting the finishing touches on an article, Privacy and Community Property. (Which I will be presenting this year at ALPS, so come join us in Belfast in May!) Not to bore folks with details, but basically the article explores intra-spousal privacy rights in community property regimes with regards to community property. For example, A and B marry. A buys a diary. Barring some exception, under community property law, the diary is classified as community property, meaning it is jointly owned by the spouses from the moment it is acquired. Being classified as community property also means that the diary has to fall under some managerial scheme. The default managerial scheme which the diary likely falls under is equal management, which means either spouse can manage (ex: sell, encumber, lease, etc.) the diary. A writes in the diary. A tucks the diary deep in a drawer and puts a lock on it like a second grader would.
Query: can B read the diary?
The diary example is perhaps a silly example you would expect to find being argued about on the playground of an elementary school, but the question comes up regularly in divorce cases. Can A read B's emails without B's consent? Answer: Sometimes yes, sometimes no, all turning on reasonable expectations of privacy and whether B's "intrusion" into A's seclusion was highly offensive. (See White v. White, 781 A.2d 85 (N.J. 2001); State v. Walker, 491 Mich. 931 (2012).) Is it an unreasonable intrusion upon the seclusion of A for B to videotape A unknowingly in the bedroom A and B share? Answer: Yes. It is always a highly offensive intrusion. (See Miller v. Brooks, 472 S.E.2d 350, 355 (N.C. App. 1996); Clayton v. Richards, 47 S.W. 3d 149, 153 (Tex. Court of Appeal Texarkana 2001); Marriage of Tigges, 758 N.W.2d 824, 825 (Iowa 2008).)
These issues are fascinating to me, particularly in the community property setting. Community property is everywhere: your house, your car, your email, this blog (see section 5.2 of Typepad's Privacy statement establishing my ownership over this particular post!). If you live in one of the nine community property jurisdictions, as I happen to, do you have any right of privacy with regards to that community property?
I won't bore you here with the long details of my argument, but, in brief, the answer to me must be yes, but community property law muddies the privacy waters. Thus, I assert there needs to be clarification in community property laws and delineate how such clarification could occur.
Thinking about community property law and the joint ownership regime created through community property had me contemplating other situations of joint ownership, like tenants in common and joint tenants. It is well-established that these forms of joint ownership grant each joint owner the ability to use the entirety of the property and the inability to exclude the other joint owner from the property. Does that inability to exclude negate privacy rights the joint owners have in the property? Assume A and B are not spouses, but best friends, and they buy a diary together. If A can't exclude B from the diary, can A have any expectation of privacy in that diary?
Again, the diary example is elementary, but individuals regularly buy property together--businesses, land, investments. In many of these acquisitions, the parties will work out ex ante the rights they have in the property vis-a-vis one another. But in the instances in which A and B do not reach an agreement ahead of time, what privacy rights do A and B have from one another with regards to the jointly-owned property?
That's my food for thought today. I will soon be moving away from privacy thoughts and onto thoughts about one of the most un-private events around, Mardi Gras, a multi-week festivity where property issues abound! It's only 20 days away, so start preparing for some carnival-related posts, including a copy of my own King Cake recipe so you can all share in the revelry of the season.