Tenancy in ‘Anticommons’? A Theoretical and Empirical Analysis of Co-Ownership

43 Pages Posted: 9 Jul 2011 Last revised: 24 Jun 2012

See all articles by Yun-chien Chang

Yun-chien Chang

Academia Sinica - Institutum Iurisprudentiae (IIAS); New York University School of Law

Date Written: June 20, 2012

Abstract

This article argues that a resource held in tenancy in common is likely to be underused and underinvested, and is thus better characterized as an anticommons. Nevertheless, tenancy in common does not necessarily create tragedy, as under most legal regimes each co-tenant has a right to petition for partition at any time, and after partition, new owners are likely to utilize the resource more efficiently.

Using data from Taiwan, this article finds that cooperation among co-tenants does not fail as often as the literature has suggested. In 2005–2010, at least 82.5% of the co-ownership partitions were conducted through voluntary agreements, while only about 7.5% of the partitions were ordered by the court. In addition, using multinomial logistic regression models, this article finds that the court tends to order, and the plaintiffs tend to petition for, partition by sale when partitioning in kind or partial partition would create excessively small plots.

Keywords: tenancy in common, tragedy of the commons, tragedy of the anticommons, partition in kind, partition by sale, partial partition, gridlock, underinvest

JEL Classification: K11

Suggested Citation

Chang, Yun-chien, Tenancy in ‘Anticommons’? A Theoretical and Empirical Analysis of Co-Ownership (June 20, 2012). The Journal of Legal Analysis, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1881329 or http://dx.doi.org/10.2139/ssrn.1881329

Yun-chien Chang (Contact Author)

Academia Sinica - Institutum Iurisprudentiae (IIAS) ( email )

128 Academia Sinica Rd., Sec. 2
Nankang
Taipei City, 11529
Taiwan

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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