Property and Secrecy

Abstract

Real estate ownership is conventionally viewed as a clear matter of public record. Yet purchasers of real estate are increasingly employing legal techniques to preserve their anonymity by registering their properties through trustees or opaque shell companies. This turn of events calls for delineating the appropriate boundaries of secrecy in property.

The Article identifies primary contexts in which the issue of secrecy comes up in the law, including in financial and proprietary settings, such as secret trusts or undisclosed accumulation of shares in public corporations. It then underscores the unique features of secrecy in real estate. It offers an innovative analysis of the ways in which anonymous property holdings might generate externalities for various types of stakeholders, from central and local governments up to neighboring property owners in both their individual and collective capacities, such as in a homeowner association. The analysis establishes normative criteria for requiring property owners to disclose relevant details. It calls, however, to distinguish between a duty to provide information and the operative results of such disclosure in regard to interested parties’ capacity to act on such information.

This Article argues that, somewhat counter-intuitively, an elaborate discussion of the proper limits to the interest in secrecy would challenge prevailing forms of exclusion and other types of defensive or offensive tactics against “unwelcomed neighbors,” whenever such practices have no normative merit. The discourse on secret real estate holdings would therefore shed broader light on the underlying societal features of ownership.

Keywords: property, real estate, trusts, wills, corporations, First Amendment, privacy, condominiums, land assembly

JEL Classification: K11, K22, R20