Possession Puzzles

20 Pages Posted: 4 Jun 2010 Last revised: 22 Nov 2012

Lee Anne Fennell

University of Chicago - Law School

Date Written: June 4, 2010

Abstract

This brief essay was delivered in slightly different form as the Third in the Wolf Family Lecture Series on the American Law of Real Property at the University of Florida Levin College of Law on March 17, 2010. In it, I use the foreclosure crisis as a springboard for exploring some foundational questions about the relationship between property rights and secure possession. Although the development of property rights is generally viewed as advancing security of tenure, this is true only up to a point; the ability to subdivide and alienate interests in property ultimately encompasses alienation of certain aspects of the option to remain in possession. Cutting back on property’s alienability comes at a high price, however – reduced access to the very possession one might hope to maintain. After framing the basic tradeoff between access and security, I examine some ways that both values might be pursued simultaneously through the further refinement of property rights.

Keywords: possession, dispossession, homeownership, mortgages, leaseholds

Suggested Citation

Fennell, Lee Anne, Possession Puzzles (June 4, 2010). POWELL ON REAL PROPERTY, Michael Allan Wolf, ed., 2010 ; U of Chicago Law & Economics, Olin Working Paper No. 522; U of Chicago, Public Law Working Paper No. 310. Available at SSRN: https://ssrn.com/abstract=1620666

Lee Anne Fennell (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0603 (Phone)

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