Greetings, all, from Belfast! Picking up the baton from my co-blogger extraordinaire Sally, I’m sitting down for the first afternoon session. The line-up is great and Rashmi Dyal-Chand (Northeastern) is serving as moderator.
First up is Lorna Fox O’Mahoney (Essex Law School). Her project focused on getting into the details of property sharing, while thinking about identity issues. In unpacking the idea of sharing in the UK she discussed the right to roam, home sharing and implied trusts, implied easements and restrictive covenants, squatting and adverse possession, and motivation/identity. O’Mahoney notes that the idea of the right to roam is centered around recreational amenities, and only benefits a certain group. “It is the right to stop, but not to stay.” She also added that although adverse possession is typically noted as a poster child for sharing, it practically only benefits “insiders.” She traces historical developments where tools for sharing started to emerge that allowed outsiders to share in the promise of property, but political forces (mostly lead by insiders) suppressed them – focusing on the progression of the constructive trust as an example. O’Mahony concluded by framing England’s sharing property law story and projecting what hope there might be for future property sharing in the UK.
Next up is Thomas Mitchell (Texas A&M) giving a presentation titled “the sentimental, cultural, and historical value of African-American owned land.” He pointed out how, among other things, concepts like eminent domain, nuisance law, and zoning end up really only benefiting the privileged class to the exclusion of others. He followed up by noting that underepresented groups, particularly people of color, have suffered the most at the hands of property law’s favoritism to certain groups. He gave a background on partition issues in the US and how the law has helped breakup communities and even deprive individuals of basic shelter. Thomas then discussed his work with a uniform act regarding partition of heirship property (adopted in 8 states) and how this was emblematic of policymakers addressing the disparities that the law has caused in the past.
Lastly was Tim Mulvaney (Texas A&M) who discussed the idea that ownership or other property rights should be impacted (even diminished) depending on the human stories at play. He pointed out the story of a homeless encampment on city-owned property in New Jersey that provided basic services for 6-years to persons who were living in poverty. Then the city filed a trespass action to have the tent city removed. Tim notes that traditional property law would clearly favor the city because of the preference for the rights of ownership. Taking note of the progressive property movement, he asserted that there is value in focusing less on the formalism of traditional property law and more on the relationship between the city and the homeless persons and the real survival interests of the displaced individuals. Tim pointed out that two major concepts were at play in the judge’s decision in this case to ultimately allow the people to temporarily remain: reliance by the people on this property for housing and the necessity caused by massive unemployment and a failure by the city to provide for homeless persons (there were no shelters in this town). He concluded by noting that while this decision may have diverged from traditional property rules, it nevertheless introduces an example of how explicit considerations of human stories can play a role in property disputes.
Fabulous job to all three in contextualizing and challenging the development of the notion of “sharing” in property law going forward.