Resolving the Intergenerational Conflicts of Real Property Law: Preserving Free Markets and Personal Autonomy for Future Generations

64 Pages Posted: 1 Mar 2007  

Gerald Korngold

New York Law School

Date Written: February 2007

Abstract

This article argues that land allocation agreements (e.g., deeds, mortgages, covenants, easements, etc.) made today will have a profound and perhaps negative effect on owners in future generations. It shows that the current architecture of the land transaction system and related rules unduly favor current owners over successors, causing a negative impact on land markets and choices of future players. Moreover, the article demonstrates that current doctrine and theory do not provide adequate flexibility for future generations to deal with outmoded land allocation agreements, leading to inefficiencies and frustration of the personal autonomy of future owners. The article suggests a new conceptual framework as well as specific alternative approaches for courts and legislatures across the spectrum of real property areas (including, inter alia, interpretation of instruments, the recording system, changed circumstances rules, conservation easements, subdivision covenants, and eminent domain). Given the historical and ongoing importance of land in the American experience, it is essential that decision makers act to guarantee future generations the opportunity to engage in markets and to fulfill their personal aspirations.

Keywords: Land rights, real property, successor owner, free markets, personal autonomy, land allocation agreements, freedom of contract, free alienability, intergenerational compact, land ownership, eminent domain, subdivision covenants, recording system, conservation easements

JEL Classification: K10, K11, K12, K19

Suggested Citation

Korngold, Gerald, Resolving the Intergenerational Conflicts of Real Property Law: Preserving Free Markets and Personal Autonomy for Future Generations (February 2007). Case Legal Studies Research Paper No. 07-04; NYLS Legal Studies Research Paper No. 08/09-4. Available at SSRN: https://ssrn.com/abstract=965755 or http://dx.doi.org/10.2139/ssrn.965755

Gerald Korngold (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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