Property Rights as a Bundle of Sticks

In their first year of law school, law students are usually introduced to the idea that the right to property is a bundle of sticks—not one unitary thing, but an assemblage of different things. How can this image alienate us from a naïve conception of property rights?

The naïve conception of property rights would hold that when you own something, it is yours to do with as you like, to profit from, alter, or destroy, and no one else has any claims upon it. Items in the world (and land) can be either owned or not-owned. Public property like sidewalks may occupy a hazy space in between.

In fact, this does not match up to the real world. A number of property rights can be separated out, and they can be found in multiple combinations or alone. Here are some examples of property rights in the American legal system:

1) The right of control or use: Most things that I personally own I have the right to use. If I own a hammer and some nails and some wood, I can use them to make a table. Some things that I do not personally own I also have the right to use. For example, if I rent a car, I can drive it wherever I want so long as I obey the terms of the lease agreement, but I can’t do much else with it. And whether I own or am renting a car, I don’t have the right to drive it over the speed limit or into pedestrians. If I own a stereo, I can use it to listen to music at a reasonable volume, but not at a volume that violates noise restrictions. These are government restrictions on my right of control.

2) The right of benefit: Again, this applies to most things I personally own. If I own a cow and she produces milk, I can sell that milk for money. If I own a non-voting share of stock that pays dividends, what I really own is a small piece of the right to benefit from that company (and the right of transference for that piece; see below). The right to benefit is curtailed to a certain extent by taxes; if a share of stock or a cow makes me a lot of money, the government will take some of it. Government is not the only body that can restrict the right of benefit. For example, some condominium projects don’t allow buyers to rent out the condos.

3) The right of transference: If I no longer want something I own, like a lamp, I can give it away or sell it for some money. Sometimes I may be prevented from selling something, but I can still give it away. For example, I can legally give my adult friend alcohol or cigarettes, but without a license I can’t ask for money in exchange.

4) The right of destruction: Many things I own I can also destroy if I want. If my printer is broken, I can smash it with something large and heavy, and so long as I don’t cause a public nuisance in doing so I am perfectly within my rights. However, if I own something with hazardous chemicals inside, I can’t just destroy that, because doing so would illegally release them. In many slaveholding societies, slaveowners had the right to control, benefit from, and transfer their slaves, but not the right to kill them. The right of destruction is sometimes thought of as the clearest proxy for property rights as a whole.

5) The right of exclusion: Also often thought of as a proxy for property rights as a whole. Most things I own I can legally prevent other people from using, benefiting from, transferring, and destroying. What good is owning something if you can’t prevent other people from doing those things, you might ask? In fact, this happens all the time, with easements. Easements are the right to use someone else’s property for something. A right of way is an example of an easement. A railroad might own the right to construct rails over a narrow strip of a property, but the property as a whole would still belong to someone else. Or, an electric company might own the right to run wires over your property. If I buy a piece of real estate with someone else’s right of way running across it, I don’t have the right to exclude them from making that use of that strip, although I can use it for other non-interfering uses. In emergency situations, the right of exclusion sometimes doesn’t apply. For example, if the police obtain a warrant to search my house, I can’t keep them out. And anyone is allowed to trespass on my land to escape a burning building.

Those of us who are not lawyers do not habitually distinguish between the different property rights, but in many everyday situations we encounter cases where these rights are separated. This can lead to confusion. For example, I recently locked my bicycle to a pole that had written on it, in strips of tape, “NO BIKES.” (There were no other convenient places available, and municipal law allows you to lock your bike to poles.) I came back later to find that someone had chained my bike to the pole. I managed to reach the old man responsible and found out the full story. At the top of the pole is a sign from the city indicating that the adjacent space is for a certain handicapped permit only. The old man has this permit, and he asked the city to put up the sign and pays them every year to keep it up. If he stops paying, he said, the city will remove the pole. If this is true, which I believe it is, that doesn’t make the pole his property; it remains public property, like all the other poles with parking signs on them. But in this case the old man has the right of destruction (in that if he didn’t pay the pole would be removed), and he believed this also meant he had other property rights including the right of exclusion. (As for why the old man didn’t want bikes parked there, that was unclear and seemed to be mainly anti-bike prejudice.)

All the rights and examples above were drawn from American law and society, and most Western countries have similar basic conceptions of property rights. But that isn’t the only way property can work. For example, many property systems make much more extensive use of usufruct than ours does. Usufruct is, in essence, the right to use and benefit from property that doesn’t “belong” to you. Here is a hypothetical (but not unrealistic) property system from James C. Scott’s book “Seeing Like a State,” meant to alienate us from any remnants of a naïve conception of property rights:

“Let us imagine a community in which families have usufruct rights to parcels of cropland during the main growing season. Only certain crops, however, may be planted, and every seven years the usufruct land is redistributed among resident families according to each family’s size and its number of able-bodied adults. After the harvest of the main season crop, all cropland reverts to common land where any family may glean, graze their fowl and livestock, and even plant quickly maturing, dry-season crops. Rights to graze fowl and livestock on pastureland held in common by the village is extended to all local families, but the number of animals that can be grazed is restricted according to family size, especially in dry years when forage is scarce. Families not using their grazing rights can give them to other villagers but not to outsiders. Everyone has the right to gather firewood for normal family needs, and the village blacksmith and baker are given larger allotments. No commercial sale from village woodlands is permitted.

Trees that have been planted and any fruit they may bear are the property of the family who planted them, no matter where they are now growing. Fruit fallen from such trees, however, is the property of anyone who gathers it. When a family fells one of its trees or a tree is felled by a storm, the trunk belongs to the family, the branches to the immediate neighbors, and the ‘tops’ (leaves and twigs) to any poorer villager who carries them off. Land is set aside for use or leasing out by widows with children and dependents of conscripted males. Usufruct rights to land and trees may be let to anyone in the village; the only time they may be let to someone outside the village is if no one in the community wishes to claim them.”

This hypothetical system is based on some found in Southeast Asia. There is a bit more, but I think this excerpt should provide enough illustration. It would be possible to describe the property system described above in terms of our current law, with generous use of easements and such, but it’s clearly at base an entirely different system, with different assumptions about the nature of property. Most likely someone from that hypothetical society would find our property system as confusing as we would find theirs. Moreover, the system described above is not made up of laws, in the main sense of the word, but of customs. As Scott says, “Customs are better understood as a living, negotiated tissue of practices which are continually being adapted to new ecological and social circumstances.”

The difference between our system of property rights, which tends towards single owners for every identifiable unit, and the hypothetical system of time-shared rights and divided ownership should make clear how contingent our idea of property really is. For us, property is one bundle of sticks; for other societies, it may be a different bundle, or they may not even have anything we could clearly identify as an analogous bundle.

Questions for commenters: What other property rights can you think of besides the five I listed? What are other good examples of cases where these rights are separated out?

Cross-posted from Empire Avenue.

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