Property and the Problem of Disuse

62 Pages Posted: 31 Mar 2022

See all articles by Nate Ela

Nate Ela

Temple University Beasley School of Law

Date Written: February 26, 2022

Abstract

Property often lays idle, even in times of dire need. Property scholars have largely overlooked this enduring social problem. The oversight is surprising, since the same scholars often write that property’s purpose is to help people put things to use. Some even contend that the right to exclude is and ought to be property’s essential core because it helps serve this purpose. Yet the right to exclude empowers owners to leave resources idle, even during times of need. One influential theory suggests that conflicts over disuse should be addressed by a shift toward governance, in the form of doctrinal, legislative, and customary exceptions to the right to exclude. But when the right to exclude leads to disuse during a time of need, what actually happens in practice? This Article analyzes how people have repeatedly dealt with the problem of disuse in a major American city. This reveals a practice of brokering, which helps people in need by letting them use idle property. I call this practice the “use fix.”

The Article introduces and analyzes the use fix through a case study of urban agriculture in Chicago. This presents a paradigmatic example of the four property practices that constitute the use fix: matching idle resources with potential users; mapping the extent and location of disuse; articulating social interests in use; and cultivating a norm against letting resources lay idle. From the Progressive Era to the present, Chicago’s reformers have periodically deployed these practices, in various forms, to activate idle land and alleviate poverty and unemployment. Looking further afield, we can observe similar practices in efforts to house people in vacant homes, restart idled workplaces, and provide space for quarantine and isolation during the Covid-19 pandemic.

The use fix sheds new light both on property law and on urban governance. Urban reformers often contend with disuse that is a result of the very property rules that, at least in theory, are often said to promote use. Yet despite its ubiquity and its utility, the use fix has repeatedly failed to become an enduring institution. The political-economic circumstances of its rollback help to explain dynamics of governance, and the remarkable resilience of the right to exclude. For urban reformers working to activate idle resources and address urban inequality, the use fix remains a helpful if underappreciated tool. It offers a promising strategy for making cities more productive, equitable, and resilient.

Keywords: Property, Use, Disuse

Suggested Citation

Ela, Nate, Property and the Problem of Disuse (February 26, 2022). Washington University Law Review, Vol. 100, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4066799 or http://dx.doi.org/10.2139/ssrn.4066799

Nate Ela (Contact Author)

Temple University Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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