What Are Property Rights?

PROPERTY RIGHTS

Property rights seem to be this year’s discussion of choice. That’s fair – this subject should come up every once and a while.

But let’s make sure that we’re all discussing the same thing. From where I sit, our property rights come from three overarching sources plus legal precedents. The three sources are the US Constitution’s 5th and 14th amendments, which prohibit governments from taking private property without due process of law, and, more directly, through the Fifth Amendment’s Takings Clause (“nor shall private property be taken for public use without just compensation”), along with Arizona voters approved Proposition 207: The Private Property Rights Protection Act. The combination of these three sources provides every citizen’s right to purchase, sell, and use their property. “Purchase” and “Sell” are likely not big issues, but “Use” is a legal point of contention.

Use of your property is not unlimited. Like free speech and gun rights, use of property is not absolute. One cannot divert water runoff from your property so that it floods your neighbor. One cannot fire a weapon and have the round travel across your boundary. When you play your music loud or how long your dog can bark can be restricted unless you can keep those sound-waves on your property. And most importantly, your property rights end where your neighbor’s property rights begin. In other words, people cannot use their property in ways that injure their neighbors’ property.

Most legal precedents deal with taking of one’s property. That is, your neighbor, government, or court removing value of your property. It may be a bad policy, but the courts are likely to find that for some justified greater good, taking some or all of your property value (eminent domain, prescriptive easements, etc.) is certainly allowable as long as you are justly compensated. If it can’t be amicably determined, the amount of compensation is often up to a court to decide.

For valid health and safety reasons (and the courts have often allowed broad authority in designating what is a health or safety issue), governments can restrict the use of your property without providing compensation (building codes, sewage disposal, first-responder access, wildfire safety, etc.). These restrictions can come from federal, state, county, and local regulations. If you’re willing to accept them when you purchase a property, property development (HOA) regulations can also have restrictions beyond health and safety issues. That brings up the question, “what is an HOA regulation?” For those that bring it up, that needs a specific answer. If one cannot be provided, the discussion should end.

For instances that are not health or safety related, if a government, to include your town, attempts to take value of your property without just compensation, that should be fought. Our town should assure that its codes are first and foremost focused on health and safety and absolutely should not be taking value from your property. For further reading on the subject, I recommend the section dealing with constitutional property rights within Cato Institute’s comprehensive Cato Handbook for Policymakers which is available at https://www.cato.org/cato-handbook-policymakers/cato-handbook-policymakers-9th-edition-2022/property-rights-constitution.