Owning Bad: Leverage and Spite in Property Law

Civil Wrongs and Justice in Private Law, Paul B. Miller & John Oberdiek, eds., Oxford University Press, Forthcoming

U of Chicago, Public Law Working Paper No. 691

25 Pages Posted: 16 Oct 2018 Last revised: 10 Mar 2019

See all articles by Lee Anne Fennell

Lee Anne Fennell

University of Chicago - Law School

Date Written: March 2, 2019

Abstract

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.

Keywords: spite, bad faith, leverage, property, entitlements, ownership, abuse of right

Suggested Citation

Fennell, Lee Anne, Owning Bad: Leverage and Spite in Property Law (March 2, 2019). Civil Wrongs and Justice in Private Law, Paul B. Miller & John Oberdiek, eds., Oxford University Press, Forthcoming; U of Chicago, Public Law Working Paper No. 691. Available at SSRN: https://ssrn.com/abstract=3262836

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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