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What is the role of government with regard to individual ownership of property?
The government establishes laws concerning property. More specifically, ownership of property depends upon legal recognition of ownership rights. The government establishes and enforces property ownership rights through a formalized system for recording and disclosure that puts others on notice of those rights. Without government recognition and enforcement of property rights, ownership rights would be synonymous with possession or control of the property. Those capable of obtaining and maintaining possession or control through any means (such as force or coercion) would own all available property.
Discussion: Do you agree that an individual only has ownership in something to the extent that the government (the law) recognizes that individual’s rights? Are you concerned by any requirements that the government puts in place to establish ownership?
Practice Question: Gordon enters into a verbal agreement to purchase land from Wynona. He pays for the land and takes possession of it. Gordon and Wynona never execute a deed or otherwise title the land with Gordon. When Wynona passes away, her children claim ownership of the land. Who likely has legal ownership of the land and what is the role of government in establishing and recognizing ownership?
- There are several ways through which a property owner is enabled by the federal and state governments to claim and prove ownership. One of the most obvious ways is by having a property deed which shows the names and any other detail of the real owner of the property. However, when the person claiming ownership of the property does not have a property did, they can produce any of the following as prove of ownership;
- Recorder’s office documents – When a person acquires an ownership in land, they should record the deed and other property ownership documents at the county recorder’s office where the property is located to provide notice to the public.
- By producing tax receipts – The owner doesn’t have to have recorded the property to pay the taxes for it. If the owner can prove that they have been paying taxes, then the tax receipts are all they need as proof.
- Affidavit of ownership. – Alternatively, if the person has no documents such as a deed, they can swear and sign an affidavit of ownership in the presence of a notary.
Calandrillo, Steve, An Economic Analysis of Property Rights in Information: Justifications and Problems of Exclusive Rights, Incentives to Generate Information, and the Alternative of a Government-Run Reward System. Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 9, No. 1, pp. 301-60 (1998). Available at SSRN: https://ssrn.com/abstract=693983
Merges, Robert P., What Kind of Rights Are Intellectual Property Rights? (March 17, 2017). Oxford Handbook of IP Law (R. Dreyfuss and J. Pila, eds.), Forthcoming; UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2959073
Robinson, David T. and Hou, Kewei, Towards a Property Rights View of Government Ownership (October 22, 1999). AFA 2001 New Orleans. Available at SSRN: https://ssrn.com/abstract=216468
Ziegler, Edward H. and Laitos, Jan G., Property Rights, Housing, and the American Constitution: The Social Benefits of Property Rights Protection, Government Interventions, and the European Court on Human Rights’ Hutten-Czapska Decision (June 3, 2011). Indiana International & Comparative Law Review, Vol. 21, No. 25, 2011; U Denver Legal Studies Research Paper No. 11-12. Available at SSRN: https://ssrn.com/abstract=1857569
Hansen, Zeynep Kocabiyik and Libecap, Gary D., U.S. Land Policy, Property Rights, and the Dust Bowl of the 1930s (September 2001). FEEM Working Paper No. 69.2001. Available at SSRN: https://ssrn.com/abstract=286699 or http://dx.doi.org/10.2139/ssrn.286699