Can the exercise of property rights be a civil wrong? People may undertake acts that otherwise fall within their envelopes of ownership in order to exploit bargaining leverage or to spite others: erecting a hideous high fence just to block a neighbor’s light and air, discharging a gun near the property line to disrupt a neighbor’s trade, or demanding an exorbitant price for the trivial entry of a construction crane into one’s airspace. The civil law notion of abuse of right posits implicit carve-outs from property rights for badly motivated acts, while equity steps in to deny relief or adjust remedies when owners behave badly. Yet examining owners’ reasons – at least outside of special contexts like antidiscrimination law – seems at odds with the categorical in rem rights that characterize property. This essay aims to untangle this puzzle. The core insight is that there are multiple possible mechanisms through which putatively absolute property rights can be made less so, some of which involve weighing the motives and interests of nonowners instead of, or in addition to, those of owners. Owners’ distasteful reasons for action are often diagnostic of situations in which property rights should be made less absolute. But it does not follow that unsavory motives must therefore form an all-purpose exception to property rights. Whether the goodness or badness of an owner’s reasons for action should be decisive in a particular class of cases depends on the availability and relative efficacy of other mechanisms for addressing individual and societal vulnerability to ownership’s prerogatives.
Fennell, Lee Anne, Owning Bad: Leverage and Spite in Property Law (October 8, 2018). Civil Wrongs and Justice in Private Law, Paul B Miller and John Oberdiek, eds, Oxford University Press, forthcoming.