Are We on the Same Page?
While manning the Kitsap Alliance of Property Owners (KAPO) booth at the Fair this week, in a sudden blinding flash of a flower pot falling on my head, I realized that not all property owners are necessarily on the same page as some of us who appear to bleed this stuff on a daily basis. Those of us who have buried ourselves in the details of Puget Sound Regional Council (PSRC) policies, Shoreline Management Act (SMA), Growth Management Act (GMA), best available science, Critical Area Ordinance (CAO), Growth Management Hearings Board findings, and case law at various levels tend to live this stuff.
Those of us equally dedicated to the cause of freedom and liberty, but not as deeply involved or invested in the day-to-day struggle may get left on the sidelines with respect to an understanding of what we are really dealing with.
While we may, individually, comprehend the overall concepts or “big picture” of property rights we might be a bit cloudy on particulars or some of the specifics. Reading some of those heady tomes created by the “brain trust” might make your head ache. Perhaps a short refresher is appropriate.
First let’s define Property in terms of real property or land. It includes, within a set of geographic boundaries:
- From center of earth to edges of space
- Every thing under the earth – all of the mineral resources
- Everything attached to the earth – buildings, trees, roads
- The air above the earth including the visibility through that space
OK, But when we talk about a “bundle of right” associate with property, what is in the bundle and what does it mean?
“Control” of property means both the ability and authority to determine how the property will be used, how and when it may be disposed of and how and when access will be permitted.
“Enjoyment of Use” means deciding what use the property will be put to and who will benefit from that use. This right supports building a home or putting the property to other use such as farming, mining, or industrial use.
“Exclusion” means just that. The property owner determines who may or may not enter the property. Entrance onto propertyis by permission of the owner No individual or government agency has any right to enter onto a property without prior permission of the owner, except under the most unusual circumstances.
“Disposition” is the right to sell, lease, rent or otherwise dispose of all or portions of a property or the rights vested in the property. Renting a home, leasing space to another, or selling the mineral rights of a property are all types of disposal.
OK so that all very well and good but how do I know those rights are real and that they are protected? First, the right to own property, including real property or land is one of the unalienable rights granted to us by our creator. We do not need permission from or approval of any higher authority to own land. Second, the Bundle of rights theory has been workable through common law for centuries and reaffirmed through case law and other government actions.
For example, following the Revolutionary War, in the Treaty of Paris specific passages were included to ensure that those who remained loyal to the British crown throughout the war were not deprived of their property or denied their rights associated with that property even though they might have abandoned the property or borne arms against the United States.
In the wording of the Louisiana Purchase, there is specific provision to protect both the ownership and rights of property owners as the land was transferred from France to the US. The same level of concern and care is present in other land transfer documents or in documents that transfer land from the U.S. to states or private ownership.
Finally, our federal and state constitutions guarantee the protection of property ownership and the rights associate with property.
- Amendment V– “No person shall be…deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”
Washington State Constitution
Art 1, Section 1 – Primary duty of elected officials to maintain and protect individual rights.
Art 1, Section 3 – No person shall be deprived of life, liberty, or property without due process of law.
Art 1, Section 7 – protection from illegal invasion of property
Art 1, Section 16 – Eminent Domain places strict limits on takings and requires prior just compensation (Very detailed clause) Stronger than Federal protections