Property Rights: The Basics

Property rights are the basis of all rights. Without property rights, no other rights can be protected.

The topic of rights is regularly discussed today, which rights we have and which we don’t. Many believe that a great amount of this confusion could be cleared up if we simply understood that all of our rights can be reduced to our property rights (Pilon, n.d., pg 175). Property rights were very important to the founding fathers as a fundamental right to the nation they were framing. James Madison wrote in 1792 that:

“As a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions” -James Madison, National Gazette Essay, March 27, 1792

Madison seemed to believe that without property rights, no other fundamental rights were safe. Many have echoed this sentiment throughout history. Our basic property rights in the United States are defined by our constitutions on both state and federal levels. Property rights have been questioned, challenged, and studied since the conception of our nation. Many legislators, authors, and courts have historically and are currently attempting to interpret and define exactly what our property rights are. It is valuable to the landowner and/or the land development professional such as the surveyor, engineer, home-builder, etc to be aware of where property rights come from and what they are as to avoid being taken advantage of when properly enjoying or developing property. The following sections discuss the constitution, the concession of rights and responsibilities of property ownership, and the state code of Utah regarding property rights.

The Constitution

The basis of property rights in the United State of America is defined by the fifth and fourteenth amendments of the constitution. Amendment five of the constitution states that “No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” (U.S. Const. Amend. V), then Amendment fourteen of the constitution states “nor shall any State deprive any person of life, liberty, or property, without due process of law” (U.S. Const. Amend. XIV, § I.). The intent of the takings clause in the constitution is to prevent the government from requiring certain individuals to carry the weight alone of providing public interests, which in all rationality fairness, ought to be shared by the general public, Armstrong v. U.S., 34 US 40 (1960).

Bundle of Rights

While the concept of property rights can seem simple, the specifics can be pretty complicated and difficult to visualize. It may be easy to simply think “I own this property so, therefore, I can do anything I want with it”, but this statement isn’t usually true. Property rights are often described and compared to a “bundle of rights” or a “bundle of sticks”. This is the current understanding of property rights in the United States of America (Johnson, 2007). This analogy means that certain specific rights and obligations exist when owning property. These rights can be sold, leased, or excluded from your ownership, even if you own the land. According to Johnson (2007), these general rights and responsibilities are

1. “The right to possess”

   1. The right to prohibit or refuse benefits or use of the property to others.

2. “The right to use”

   1. The right to personally enjoy the property.

3. “The right to manage”

   1. The right to determine who, when, and how the property may be used.

4. “The right to the income”

   1. The right to the income and benefits created from personal use of the property, as well as the use of others.

5. “The right to capital”

   1. The right to sell, gift, transfer, or modify the property.

6. “The right to security”

   1. The right to immunity from the property being taken from the rightful owner.

7. “The power of transmissibility”

   1. The right to gift the property after death.

8. “The absence of term”

   1. The right to eternal ownership of the property.

9. “The prohibition of harmful use”

   1. The duty to avoid using the property in such a way as to harm others.

10. “Liability to execution”

    1. The liability of having property taken away for the payment of debts.

11. “Residuary character”

    1. The accountability to the rules of lapsed ownership rights. As an example, certain obligations exist when owning property such as paying taxes, if these obligations are not met, someone else may be entitled to the property (Johnson, 2007).

An owner of property may or may not hold all the items listed above. In fact, only parts of each right or “stick” may be excluded. A very common situation is when an easement exists on a property, this means that in one way or another, part of the right to manage was sold, leased, or taken from the owner at some point in time. Another example is when the owner rents the property to someone else. This means that even as a non-fee simple owner, you may own certain property rights.

This system of a bundle of rights is how we determine precisely what property rights we have in the United States. This system is largely not understood, however, once you begin to understand it, property and things like rights of way begin to make much more sense. Our property rights have been speculated and interpreted countless times since the constitution was written and will likely continue to evolve. One thing we can be sure of is that strong property rights exist in the United States and it is beneficial for the public to be educated on them.

Notes:

1. This article is part of a greater analysis, that analysis can be found in it's entirety here.

2. Disclaimer: The author of this article is NOT an attorney. The information provided in this document is provided for educational purposes only and is NOT considered legal advice.

References

B.A.M. Development, LLC v. Salt Lake County (“BAM III”), 2012 UT 26, 282 P.3d 41. http://www.utcourts.gov/opinions/supopin/BAM1226050412.pdf

Cornish Town v. Koller, 817 P.2d 305 (Utah 1991). https://utahpropertyrights.files.wordpress.com/2014/02/cornish.pdf

Dolan v. City of Tigard, 512 U.S. 374 (1994). https://utahpropertyrights.files.wordpress.com/2012/12/dolannew13.pdf

First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987). https://utahpropertyrights.files.wordpress.com/2012/12/first-englishnew13.pdf

Johnson, D. R. J. (2007). Reflections on the Bundle of Rights. Vermont Law Review. https://lawreview.vermontlaw.edu/wp-content/uploads/2012/02/johnson2.pdf

Madison, J. M. (1792, March 27). For the National Gazette, 27 March 1792. Founders Online. https://founders.archives.gov/documents/Madison/01-14-02-0238

Municipal Land Use, Development, and Management Act, Utah Municipal Code § 10-9a (2005). https://le.utah.gov/xcode/Title10/Chapter9A/C10-9a_1800010118000101.pdf

Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141 (1987). https://utahpropertyrights.files.wordpress.com/2012/12/nollannew13.pdf

Pilon, R. P. (n.d.). Cato Handbook for Policymakers: 16. Property Rights and the Constitution. Cato Institute. Retrieved April 13, 2021, from https://www.cato.org/sites/cato.org/files/serials/files/cato-handbook-policymakers/2017/2/cato-handbook-for-policymakers-8th-edition-16_0.pdf?queryID=undefined

State of Utah Office of the Property Rights Ombudsman. (n.d.-a). About the Ombudsman. Retrieved April 13, 2021, from https://propertyrights.utah.gov/about/

State of Utah Office of the Property Rights Ombudsman. (n.d.-b). Application Review Fees. Retrieved April 13, 2021, from https://propertyrights.utah.gov/advisory-opinion-topics-explained/p-application-review-fees-2/

State of Utah Office of the Property Rights Ombudsman. (n.d.-c). Exactions. Retrieved April 13, 2021, from https://propertyrights.utah.gov/exactions/

State of Utah Office of the Property Rights Ombudsman. (n.d.-d). Impact Fees. Retrieved April 13, 2021, from https://propertyrights.utah.gov/impact-fees/

State of Utah Office of the Property Rights Ombudsman. (n.d.-e). Just Compensation. Retrieved April 13, 2021, from https://propertyrights.utah.gov/just-compensation/

State of Utah Office of the Property Rights Ombudsman. (n.d.-f). Takings. Retrieved April 13, 2021, from https://propertyrights.utah.gov/the-takings-clause/#:~:text=A%20Regulatory%20Taking%20occurs%20when,taken%20possession%20of%20the%20property.&text=Claims%20of%20regulatory%20takings%20are,case%2Dby%2Dcase%20basis

State of Utah Office of the Property Rights Ombudsman. (n.d.-g). Takings and Eminent Domain. Retrieved April 13, 2021, from https://propertyrights.utah.gov/takings-and-eminent-domain/

State of Utah Office of the Property Rights Ombudsman. (n.d.-h). Temporary Land Use Regulation (Moratorium). Retrieved April 13, 2021, from https://propertyrights.utah.gov/temporary-zoning-ordinance-i-e-moratorium/

State of Utah Office of the Property Rights Ombudsman. (n.d.-i). The Constitutional Takings Issues Act. Retrieved April 13, 2021, from https://propertyrights.utah.gov/the-constitutional-takings-issues-act/

State of Utah Office of the Property Rights Ombudsman. (n.d.-j). The Land Use, Development, and Management Act (LUDMA). Retrieved April 13, 2021, from https://propertyrights.utah.gov/the-land-use-development-and-management-act-ludma/

State of Utah Office of the Property Rights Ombudsman. (n.d.-k). The Private Property Protection Act. Retrieved April 13, 2021, from https://propertyrights.utah.gov/the-private-property-protection-act/

State of Utah Office of the Property Rights Ombudsman. (n.d.-l). Vested Rights. Retrieved April 13, 2021, from https://propertyrights.utah.gov/vested-rights/

State of Utah Office of the Property Rights Ombudsman. (2018, February). Your Guide to Just Compensation. https://site.utah.gov/propertyrights/wp-content/uploads/sites/3/2018/02/Just-Comp-2018.pdf

U.S. Const. amend. V. https://www.archives.gov/founding-docs/bill-of-rights-transcript

U.S. Const. amend. XIV. § 1. https://www.archives.gov/founding-docs/amendments-11-27

Utah Judicial Code, Eminent Domain § 78B-6-501 (2020). https://le.utah.gov/xcode/Title78B/Chapter6/C78B-6-S501_2020051220200512.pdf