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The duty to maintain.


Property is closely associated with freedom. Following the demise of the feudal property system, property ownership in Anglo-American law came to imply an individual's freedom to act as she pleases on her land. For their part, modern property theories--whether right-based, utilitarian, or relational--employ the normative value of freedom to justify ownership. Courts and scholars have always acknowledged the fact that this freedom of the owner cannot be absolute: an owner's freedom to do as she pleases on her land is often limited to protect other owners. However, the consensual assumption remains that an owner is not subject to affirmative duties. She is free, according to conventional wisdom, to choose to do nothing with her property. This Article argues that this assumption is simply wrong. Owners are not free to ignore their land. Property law has always subjected them to an obligation to maintain their land up to a specific standard. This obligation, dubbed here "the duty to maintain," is enforced through an array of legal rules and practices. This Article chronicles these rules and practices for the first time, classifying them in accordance with the enforcement mechanism they employ. It then justifies these diverse rules and practices--and the general duty to maintain--in light of the different theories of property. In this fashion, this Article illustrates that ownership, both as a legal institution and as a normative concept, inherently and inevitably incorporates a duty to maintain.


I.   Current Property Theory: Ownership as Freedom from Duties to Act
     A. The Key Role of an Owner's Freedom in Property Theories
        1. The Key Role of an Owner's Freedom in Right Based Property
        2. The Key Role of an Owner's Freedom in Utilitarian Property
        3. The Key Role of an Owner's Freedom in Relational Property
     B. Limitations on an Owner's Freedom in Current Property Theories
     C. Owners' Affirmative Duties in Anglo-American Law: From Status
        to Contract
     D. The Policy Effect of Current Property Theory's Attitude Toward
        Affirmative Duties: The Debate over Lenders' Responsibilities
II.  Current Property Law: A Duty To Maintain Embedded in Ownership
     A. Rules Imposing the Duty To Maintain Through Financial Liability
        1. Waste Law
        2. Negligence Law
        3. Nuisance Law
        4. Servitudes Law
        5. Landlord-Tenant Law
        6. State and Local Statutory Maintenance Obligations
        7. Farming Law
     B. Rules Imposing the Duty To Maintain Through Loss of Property
        1. Eminent Domain
        2. Improving Trespasser
        3. Adverse Possession
        4. Nuisance Abatement and Abandoned Properties Rehabilitation
     C. Summary: Property Law's Duty To Maintain and Its Relationship
        to Rights to Destroy and Abandon
III. The Normative Standing of the Duty To Maintain
     A. Elements of the Duty To Maintain Explained by Right-Based
        Property Theories
        1. The Duty To Maintain as Embodying Actual Contracts
        2. Legal Rules Imposing the Duty To Maintain that Draw on
           Explicit Contracts
        3. Legal Rules Imposing the Duty To Maintain that Draw on
          Implicit Contracts
     B. Elements of the Duty To Maintain Explained by Utilitarian
        Property Theories
        1. The Duty To Maintain as Embodying a Hypothetical Contract
        2. Legal Rules Imposing the Duty To Maintain that Directly
           Institute the Hypothetical Contract
        3. Legal Rules Imposing the Duty To Maintain that Indirectly
           Institute the Hypothetical Contract
        4. The Scope of the Hypothetical Contract
     C. Elements of the Duty To Maintain Explained by Relational
        Property Theories
     D. Summary: Revisiting the Debate over Lenders' Responsibilities


Property is freedom. Property ownership conveys on the owner independence, autonomy, and privacy; it cordons off a slice of the world and designates the owner as its master. Philosophers and economists, judges and laypeople, legal scholars and political scientists, varied as their ideological and methodological predilections may be, all ground property--even if to shifting degrees and for different reasons--in freedom. (1) The rules of Anglo-American property law seemingly vindicate their position: once Jane becomes Blackacre's owner, Jane is free to set the blueprint for Blackacre's use and development. (2) True, Jane's freedom as an owner can never be absolute. (3) There are activities that the law prohibits her from freely undertaking on Blackacre. She may be found liable if, for example, she constructs an artificial reservoir. (4) She may be barred from establishing a factory. (5) Moreover, the law may force Jane to allow others to enter, or stay in, Blackacre. She may, for example, be enjoined to permit patrons of all races to frequent the restaurant she operates on Blackacre. (6) She may be ordered to share Blackacre with her former spouse. (7) But in one very important respect Jane is still completely free as Blackacre's owner. Jane may be banned from establishing a factory on Blackacre, but she cannot be forced to install one. (8) Her desire to exclude diners of a specific racial group from her Blackacre restaurant may be thwarted, but she cannot be required to launch a restaurant. (9) Legal writers view these freedoms as instances of a general freedom accorded to Jane: as Blackacre's owner, she can simply decide to do nothing on, or with, Blackacre. (10) In the eloquent terms employed by legal scholars, ownership incorporates a right to "let [the property] lie fallow," (11) or "gather dust." (12)

But does property ownership indeed encompass this right?

At the time of this Article's publication, properties are offered for sale in Detroit, Michigan, for one dollar. (13) Assets languish on the market only if they are over-priced, implying that the fair market value of these specific properties is negative. (14) If ownership includes the right to let property lie fallow or gather dust, this fact is baffling. To be valued at less than zero, the property must not only be valueless. It must do worse than offer no conceivable economic benefit. (15) Negative-value property must carry actual duties for its owner. Yet the only involuntary affirmative duty acknowledged as affixed to ownership--the administrative duty to pay property taxes--cannot burden a valueless property: taxes are calculated as a percentage of the property's value. (16) The anomaly of the negative valuation of these Detroit properties can only be explained if nonadministrative duties inherent to ownership itself burden all property owners. That is, if ownership does not incorporate a right to "let [the property] lie fallow" or "gather dust."

This Article shows that ownership indeed does not include such a right. Rebutting scholars' proclamations, this Article concludes that property law does not--and never did--afford the owner the freedom to do nothing with her land, and that furthermore, it should not afford that freedom to her. Rather, for weighty normative reasons, ownership contains an affirmative duty to keep land in good repair, a duty that forces owners to engage in certain activities on their land regardless of their own desires. This Article dubs this duty "the duty to maintain." This duty to maintain is enforced through disparate legal means, ranging in the intensity of their impact. Sometimes, when the most extreme of these means are applied, the duty gives rise to a state of affairs in which property not only fails to equate with the owner's freedom, but becomes freedom's antithesis: ownership amounts to coercion. A property owner is less free than a nonowner. Jane may find herself subject to a legal duty she cannot shed as long as she owns Blackacre, while at the same time, she cannot rid herself of the legal status of owner. (17) This is precisely the predicament trapping the owners of the Detroit one-dollar assets.

How does law impose this liability on owners in Detroit and elsewhere? How does it render erroneous the prevalent academic perception that owners enjoy the freedom to let their property lie fallow or gather dust? What elements of law have academic writers been missing? Law imposes inescapable liabilities on owners through a myriad of rules. For example, an owner might be liable in tort law to trespassers injured on her land. (18) An owner might be liable in nuisance law to neighbors if strangers use her property for illegal activities. (19) An owner might be subject to a common-law duty to support adjoining lands. (20) An owner might be bound to keep the property livable as long as a tenant occupies it, with limited rights to ever terminate that tenancy. (21) An owner might be forced to buy unauthorized improvements to her land made by a stranger. (22) Although most of these rules are well established in law--indeed, many have existed in Anglo-American property law for centuries--scholars have overlooked them in this context as they formally address disparate social ills that are unrelated to an owner's right to let her land lie fallow or gather dust. These rules' declared purposes are distinct and evince little intention to disturb an owner's freedom of inaction: they are concerned, for example, with privileging possessors of land over landowners, (23) remedying physical injuries, (24) combatting illegal activities, (25) or shielding adjacent lands from collapse. (26) Therefore, never before have these rules been considered as forming part of one legal concept. Yet they all forcefully direct an owner toward one action: to maintain her property up to a specific, legally defined, standard.

As this Article shows, there is an abundance of such rules. (27) Separately and in tandem, they create an affirmative duty inherent to property law; they establish this Article's duty to maintain. (28) By introducing this new unitary concept, this Article facilitates an informed and consistent assessment of the normative worth of each individual rule instituting a duty to maintain. Furthermore, through this exercise this Article promotes a new, and improved, understanding of the legal notion and social function of ownership. In influential works authored during and since the closing decade of the twentieth century, legal scholars have provided a richer and more accurate understanding of the rules and roles of property law. (29) As Professor Joseph Singer clarified, property is not only about rights, but also about obligations. (30) Much attention has accordingly been paid to obligations, such as those mentioned in the opening paragraph of this Introduction, that force an owner to refrain from certain activities on her land, or from excluding particular persons from entering it. (31) Yet to the very limited extent that property law's affirmative obligations have been explored, scholars have either claimed that these obligations attach to the ownership of assets of exceptional social importance, such as heritage buildings (32) or inns, (33) or that they amount to mere aspiration in an era of environmental degradation. (34)

This Article argues instead that property contains a general, persistent, ancient, and expanding affirmative duty to maintain an owned asset. The presence of such an intrusive obligation, in an institution supposedly dedicated to freedom, challenges our understanding of that institution. Ever since the dawn of the liberal age, thinkers have celebrated ownership as providing owners with freedom from the dictates of others. Accordingly they have condemned the attachment of affirmative obligations to ownership as smacking of feudal landholding notions, which conflated economic relations with personal obligations. (35) The duty to maintain, as uncovered in this Article, unsettles this tenet of faith, for as this Article contends, property law's duty to maintain is not the result of a series of historical mishaps or of defunct, feudal, legal reasoning. Rather, the duty flows directly from the different justifications for ownership that have animated property law's concern with the institution since the inception of the modern age.

The duty to maintain is normatively warranted, as it always represents an arrangement among property-interest holders. This arrangement can take one of three forms. First, some legal rules instituting the duty to maintain reflect an actual or implied arrangement between current or antecedent neighbors that was freely reached at some point, even though that point might only be found in the distant past. (36) Second, a larger group of legal rules imposes the duty on neighbors as a legally constructed arrangement whereby they all agree to maintain their lands, because collective-action problems block the neighbors themselves from attaining this mutually and socially beneficial arrangement. (37) Third, a few legal rules insert the duty into existing arrangements whose terms create a relationship of dependence between property-interest holders whereby one unfairly exploits the other by not maintaining the land. (38) Enforcement of each of these three incarnations of the maintenance obligation is inherent to the normative notion of ownership according to at least one of the three major property theories--right-based, utilitarian, or relational. Hence, the same normative theories that endorse property and celebrate the institution's capacity to ensure freedom actually justify--nay, necessitate--the placement on owners of affirmative duties to maintain.

The failure to coherently acknowledge this normative and doctrinal reality has carried tangible and troubling costs for American law. For example, in the aftermath of the housing market's collapse in 2008, states and localities moved to enforce vacant property maintenance codes against lenders who own mortgage interests in abandoned houses. (39) When banks challenge such practices, courts often accept their arguments, believing that these new laws contradict traditional notions regarding a property-interest holder's freedom to let her asset lie fallow or gather dust. (40) In fact, however, these measures, geared toward remedying the devastating neighborhood and social costs of neglect and foreclosure, merely reincarnate entrenched principles of property law embodied in the duty to maintain. Moreover, they are wholly justifiable based on the duty's normative standing. Judges ignore this fact due to a scholarly unawareness of the duty to maintain. This Article, demonstrating that the duty to maintain is and should be a component of property holding, ought to cure this oversight.

This Article proceeds as follows. Part I reviews the concern of diverse property theories--grouped into three archetypes: right-based, utilitarian, and relational--with freedom. It illustrates the key role attributed to freedom, that is, the owner's liberty to act as she pleases on her land, in justifying property. It then explores the nature of the limits the disparate property theories presently acknowledge as placed on such freedom. Part I finds that although theorists realize that an owner's freedom to act as she pleases is never absolute, they mostly assume that in the postfeudal Anglo-American world, the owner enjoys a complete freedom to refrain from engaging in an activity on her land, unless she is subject to a specific contractual duty demanding otherwise. Part I concludes by demonstrating how this assumption has, over the past few years, affected the judicial approach to the imposition of duties on mortgage lenders.

Part II then reveals that the assumption that the owner enjoys a freedom to refrain from action is misleading--that such a freedom does not exist even in current, postfeudal, property law. It presents the disparate legal rules that place on an owner a duty to maintain her land even if she herself never entered a contract to that effect. Part II offers a taxonomy of these rules based on the enforcement mechanism they employ, either financial liability or loss of land. It concludes by summarizing the standing in property law of the duty to maintain and its relationship to the owner's right (or lack thereof) to abandon or destroy her property.

Part III constructs explanations for the various rules exposed in Part II as forming property law's duty to maintain. Three rationales for the duty to maintain are developed, drawing on each of the three property theories reviewed in Part I. Finally, to illustrate the practical implications of its theoretical findings, Part III concludes by revisiting the debate over lenders' duties in foreclosure, introduced earlier in Part I.


A. The Key Role of an Owner's Freedom in Property Theories

This Article's main contribution is highlighting and explaining the freedom-depriving function of property. To grasp the challenge to common scholarly thinking this contribution portends, it is necessary to first appreciate the central role legal and philosophical theories attach to freedom in constructing the notion of property. Thus, this opening Part surveys the different ways in which all major property theories celebrate the owner's freedom on her land, and more prominently, the owner's immunity from others' commands to act on her land. The major property theories are grouped into three archetypes: right-based, utilitarian, and relational. This Part briefly surveys each archetype and the manner in which it grounds property in the owner's freedom.

1. The Key Role of an Owner's Freedom in Right-Based Property Theories. Right-based arguments constitute the first archetype of property theories. A right-based property theory takes an individual's interest as sufficient moral justification for holding others under a duty to respect private property. (41) The particular individual interest that can justify property differs across right-based justifications for property. But the owner's freedom is central to all--whether they are Kantian, libertarian, Lockean, or Hegelian. Kantian and libertarian accounts are the most extreme in this regard. According to Kant, the establishment of the legal institution of property is rooted in the innate right to freedom. (42) Kant defines freedom as "independence from being constrained by another's choice." (43) Freedom is the requirement that no other person be able to tell an individual what purposes to pursue. (44) To effectuate this innate capacity for choice immune from the interference of others, external objects of choice must be accessible to the individual. (45) Therefore, each person must have an entitlement to external objects: a right rendering an object available for the exclusive exercise of her capacity for choice. (46) In other words, holding an asset, whose manner of use cannot be dictated to the individual by others, is a prerequisite for the individual's freedom.

Libertarian theories rely heavily on this argument, eventually equating property with freedom. In libertarianism the private-property regime is justified as the only regime that both sustains and is sustained by the owner's free actions. (47) Property presents the most effective constraint on the ability of outsiders--most notably, the government--to interfere with individual freedom. (48) By dispersing the ability to freely act on resources among many owners, the private-property regime prevents one decisionmaker from monopolizing power. (49) Conversely, an interference with the individual owner's freedom--forcing her to use her property in a certain manner--amounts to exacting forced labor from her. (50) This leads libertarians to demand full respect of the owner's autonomy to do, or not do, as she pleases with her property.

Though other right-based property theories do not ground property primarily in freedom, and are often able to steer clear of libertarian conclusions, they too hold that ownership serves values of autonomy and self-determination. Locke's highly influential right-based theory locates ownership's source in labor. (51) Subject to certain provisos, it awards ownership to the person who labored on the resource. (52) After property is acquired in this fashion, Locke's theory stresses the owner's freedom to act on the land that is now hers. Through labor, the individual gains absolute control over the asset "that another can no longer have any right to," (53) and from which "the common right of other Men" is excluded. (54) Mixing one's labor with an external object results in the freedom to decide whether to act, or not act, on the object.

Similar to the Lockean labor theory, Hegelian property theories do not ground property in freedom per se. (55) Rather, they associate property with the individual's personality or personhood. (56) Yet, like all other right-based property theories, they too eventually insist on the owner's isolation from the decrees of others. For Hegelians, the person can become a real self only through relationships with external objects. (57) Individuals "need to be able to 'embody' the freedom of their personalities in external objects so that their conceptions of themselves as persons ... become concrete and recognizable ... in a public and external world." (58) Because the external object embodies the individual's personality or free will, the individual should have the right to control that external object. Interferences with the owner's relationship with, or decisions respecting, her external objects are a denial of the owner's personhood. For personhood theories, as for the freedom-based Kantian property theories, property crystalizes into the "first embodiment of freedom." (59)

2. The Key Role of an Owner's Freedom in Utilitarian Property Theories. For different reasons, all right-based property theories highlight property's function in enabling individual freedom and in barring outsiders from dictating a course of action to the individual owner. Utilitarian justifications for property, which represent the second archetype of property theories, likewise celebrate property's capacity to promote freedom.

Utilitarian theories are not interested in freedom as a right. Indeed, the distinction between right-based and utilitarian theories is the latter's refusal to recognize a single individual aim--say, freedom--as a basis for moral constraints. (60) Rather, in the utilitarian worldview, the foundation for an institution must be its capacity to serve a social aim. In the most prevalent of current utilitarian theories, that aim is overall social wealth or general welfare. (61) This aim is promoted, according to utilitarian commentators, when law grants owners the freedom to act. (62) As a result, although not invested in freedom qua freedom, that is, in freedom's inherent moral value, utilitarian accounts of property still embrace property specifically due to its freedom-promoting function.

Owners' freedom to make independent decisions regarding the use and transfer of assets is vital for general welfare because it assures that assets are used in a socially efficient manner. The private-property regime promises an owner that she will reap the fruits of any positive developments of her land and bear the burdens of negative developments; thereby the regime affords her a strong incentive to choose for her land only uses whose benefits outweigh their costs. (63) Thus, as Professor Harold Demsetz argues in a seminal article, the point of private property is that it aligns the owner's incentives in the utilization of her land with the social interests regarding its use. Private property is the optimal solution for the societal challenge of making efficient use of society's limited resources. (64)

A regime relying on the owner's freedom is socially advantageous not only because the owner holds the strongest incentive to reach the most efficient decisions regarding the asset, but also because no one else has better knowledge respecting an asset's best use. (65) The owner, as the person closest to the asset, is the person most familiar with it; additionally, and inevitably, she knows best which uses will promote her own welfare as an individual. (66) Utilitarians, accordingly, argue that an asset's true social value can only be discerned through market transactions whereby independent owners freely express their preferences respecting the asset. (67) The free market is capable of rectifying the situation when the current owner does not place the highest subjective value on, or is not the best user of, the asset. Such an owner will be furnished with pecuniary incentives to identify and contract with another individual who places a higher value on the asset. (68) Thus, through a utilitarian analysis, the owner's freedom to independently adopt decisions governing the use and transfer of land renders private property the optimal regime for resource regulation.

3. The Key Role of an Owner's Freedom in Relational Property Theories. The legal academic accounts forming the third archetype of property theories combine elements from the right-based and utilitarian theories to synthesize a description of the function of property that differs from that drawn by those two groups of theories. Nonetheless, like right-based and utilitarian theories, this last group of theories celebrates ownership's role as provider of freedom. The theories considered in this Section under the collective heading "relational" have gained in popularity over the past two decades. Amongst them, I count theories titled civic-republican, (69) Aristotelian, (70) objective-wellbeing, (71) human-flourishing, (72) pluralist, (73) social-relations, (74) social-obligation, (75) and progressive-property. (76) Like right-based theories, these theories all cherish specific values. Yet, unlike right-based theories whose focus is on individual rights, relational theories share with utilitarianism the belief that property is justified because it promotes social goals. Unlike utilitarianism, however, these theories have a preset view of what those social goals, or values, are. They do not define social goals in terms of overall welfare (that is, satisfying subjective preferences), (77) but rather ground them in a specific objective view of the common good and of desirable social interactions.

More often than not, freedom is one of the defining elements of these desirable interactions, and property is heralded as its paramount purveyor. (78) This attitude is associated with the most influential relational-property theory in American thinking--civic republicanism. Civic republicanism locates property's justification in its democratic role. A tradition hearkening back to canonical thinkers such as Aristotle and Thomas Jefferson, it posits that property-holding is a prerequisite for meaningful citizen participation in government. (79) To be an active citizen, freely participating in the political realm, the individual must not depend on others. (80) As long as others control her economic wellbeing, an individual cannot be expected to be free from their will when politically participating. Jefferson, therefore, extolled the independent yeoman living on his own land. In Jefferson's mind, and in that of his disciples, the persistence of republican governance hinges on widespread property-ownership because ownership assures the freedom to independently make decisions regarding one's life, interests, land, and politics. (81)

Similar support for wide ownership-distribution is proclaimed by the other theories listed above as relational, although their focus is not limited to ownership's political function. (82) These other relational theories suggest that society entertains a substantive conception of the good life. As a society, we believe that certain things are good for people and that having such things makes for better lives. (83) Prominently, and in clear departure from the Jeffersonian fixation on the detached yeoman, non-civic republican relational theories count relationships with others among those things individuals must have in order to flourish. (84)

The ensuing reverence for property law's power to foster relationships--rather than isolation--renders relational theories hospitable to limitations on the powers of owners. Nonetheless, relational theorists contend that the relationships humans must maintain if they are to flourish have to be based on a great degree of freedom. The objective values necessary for a good life include deep social relations, but also autonomy and liberty, which imply an ability to choose one's life course. Such choices are possible only through independent control of some material goods. (85) Individuals cannot pursue the lives they desire or freely enter relationships that enable them to flourish if they lack unilateral control over some assets. (86) Property law must afford them such control. For law to promote wellbeing and sustain vital relationships, it must assure an ample measure of freedom and autonomy to a widespread population of property holders.

B. Limitations on an Owner's Freedom in Current Property Theories

As the preceding exposition concluded, all property theories attribute to ownership the salutary function of furthering freedom. Accordingly, property law's doctrines have been structured toward the promotion of the owner's autonomy. (87) Yet, in a world of limited resources, in which owners are surrounded by other owners, there is no possible way to secure for all owners the capacity to freely do as they wish with their property. If one owner is free, for example, to construct a reservoir that floods underground shafts connecting her land with another's, the second owner is not free to operate a mine on her land. (88) If red cedar trees communicate a disease to apple trees, owners are not free to plant apple trees if their neighbor is free to plant red cedars. (89) If all local owners are free to enforce an agreement--a "covenant"--barring themselves and their successors from conveying their properties to "people of the Negro or Mongolian race," African Americans can never freely become owners. (90) Property rights conflict; one owner's freedom of action inevitably interferes with another's. As a result it is clear that all three property theories admit and even require limits on the owner's freedom; uncertainty solely surrounds the location of those limits. (91) Each theory places the limits in accordance with its own particular normative standards for defining and designing property rights.

Right-based property theories ground property in individual rights, such as freedom. Yet they only recognize a right as long as its exercise does not harm the rights of others. (92) Thus, right-based arguments must discern what counts as harm--or, more precisely, illegitimate harm--and then limit the owner's right when her freedom of action engenders such harm. Utilitarian arguments embrace the owner's freedom because, thanks to the owner's right to the asset, her private interests align with social interests concerning its use. But when those interests do not correspond--when the owner's freedom of action produces effects felt only by others--the owner's freedom of action does not promote social welfare. The task for utilitarians is to identify such externalities that cannot be internalized by the owner through bargaining with others and limit her freedom of action to avert them. (93) Relational explanations hold that individual freedom assured through ownership is necessary for human flourishing. But they realize that beyond a certain point, a commitment to an owner's individual freedom either defeats shared relationships that are also necessary for flourishing or interferes with the ability of others to acquire minimal resources for flourishing. (94) Ascertaining the correct mixture between these interests needed for flourishing, and limiting an owner's freedom in accordance, is the challenge for relational theorists.

The diverse balancing acts required by the different theories--right-based, utilitarian, and relational--are executed through property law's specific doctrines. Relying on right-based, utilitarian, or relational theories, a court might employ nuisance law to conclude that the owner's freedom to construct the reservoir should be curtailed to protect her neighboring owner's freedom. (95) Relying on right-based, utilitarian, or relational theories, a legislature might avail itself of the police power to conclude that owners' freedom to grow red cedars should be curtailed to protect other owners' freedom. (96) Relying on right-based, utilitarian, or relational theories, a court or legislature may reform the law of covenants to curtail owners' freedom to enforce racially restrictive covenants, in order to protect others' freedom. (97) As these examples illustrate, to serve all or any of the goals theorists ascribe to property, law limits owners' freedom in many ways. The checks scholars usually recognize as placed on owners' freedom fall into one of the following categories: (98) limits on what the owner can do with her property, limits on the owner's freedom to exclude, limits on the owner's ability to determine who will own the property in the future, lack of immunity against having the property taken by the government, and regulations of relationships among the owner and the owners of other interests in the property.

Most--perhaps all--of these checks on ownership heretofore appreciated by legal academic writers are negative in nature. They limit what the owner can do with her land, but they do not force her to actually do something with it. (99) As Anthony Honore explains in his famed exploration of the institution of ownership, the acknowledged "social aspect" of ownership is not truly affirmative. "Positive control by the state shades into prohibition. The positive duty to exploit one's property in a socially beneficial way, as opposed to the prohibition of a harmful exploitation, has not been generally imposed or its implications fully worked out." (100) This accepted legal wisdom engenders claims that ownership includes the right to let land lie fallow or gather dust. (101) In light of the disparate property theories this Part reviewed, this state of affairs is wholly justified. Property is promulgated to advance freedom, solely or among other values. Although absolute freedom is unattainable in a society in which every owner is located in proximity to other owners and is able to control others' access to ownership, the complete negation of owners' freedom--the coercion of owners into action--appears inappropriate.

C. Owners' Affirmative Duties in Anglo-American Law: From Status to Contract

In view of these current understandings of ownership, rules were supposedly adopted in Anglo-American property law to free owners from the specter of affirmative obligations. (102) Professor James Harris's important work on the concept of property in law concludes that "property-duty ... rules ... play an insignificant role in modern ... institutions." (103) Property-duty rules "constitute an eccentric anachronism in the modern world." (104) The reason, Harris explains, is that such duties are characteristic of feudal property institutions. (105) Much of the attachment professed by modern thinkers of all three property theories to the owner's freedom, as depicted in this Part, stems from their reaction to feudalism. (106) The feudal social system contradicts modern ideas of individual rights, efficient free markets, and human flourishing. Feudalism was a system in which the King allocated land to lords in exchange for services, such as loyalty and raising armies and goods. In turn, lords allocated rights in the land to those below them on the hierarchical ladder, again in exchange for services, including labor on lands held by the lord, or coming to his aid when called. (107) In such a legal order, in which property relations embodied personal relations taking place in a society defined by inequality, obligation, and static positions, a duty placed on the landholder to actively engage in specific behaviors on his land--to employ it for certain purposes, to put it to productive use, to maintain it--was completely coherent with the system's principles. After all, the whole estates system was founded on this idea of affirmative obligations owed by a land's holder. (108)

But with the dawn of the liberal age, the feudal social order was condemned and eventually overthrown. The feudal conception of property fell out of fashion: law came to prohibit feudal landholding, mandating instead that all land titles be "allodial." (109) Allodial property was defined as "free; not holden of any lord or superior; owned without obligation or vassalage or fealty; the opposite of feudal." (110) As the great legal historian Henry Maine famously put it, law progressed "from [s]tatus to [c]ontract." (111) Feudal property holding was a status ineluctably and immutably carrying duties of loyalty, obligation, and service toward others; modern, allodial, property holding is supposed to entail no similar duties.

If duties to act are to be recognized and enforced against an owner, the owner must freely elect and design them. In other words, affirmative duties can be placed on ownership only through contract--not through the mere status of ownership. For example, Jane, Blackacre's owner, can promise another person that she will produce something on Blackacre or preserve its appearance. She can enter a contract with the Department of Agriculture whereby she promises to take actions to conserve the soil. (112) If Jane leases, rather than owns, Blackacre, her lease might require her to not let it lie fallow and to "cultivate the premises ... in a farmerlike manner and according to the usual course of farming practiced in the neighborhood." (113) In contrast, as the eminent jurist William Blackstone explained, if she "be the [holder of the] absolute ... fee-simple ... [s]he may commit whatever waste [her] own indiscretion may prompt [her] to, without being impeachable or accountable for it to anyone." (114) As a result, "though the waste is undoubtedly damnum, it is damnum abseque injuria [a moral wrong without legal redress]." (115)

This "waste" will only become a wrong with legal redress if, as in the examples of the contract with the Department of Agriculture or the lease, Jane herself consented to refrain from committing it. The obligation in these cases arises from Jane's agreement, rather than from her status as the land's holder. It is personal to her. Jane the person, not Jane Blackacre's owner, may, by her own choosing, become obliged to produce something on Blackacre or to conserve its appearance. (116)

Duties to act on the land that are embedded in ownership, independent of any contract, are supposedly alien to modern, postfeudal property law. Even writers that lament this development acknowledge it. "The disappearance of any long established social system must involve some losses. And so, in the case of feudalism it is regrettable that there could not have been preserved the idea that all property was held subject to the performance of duties...." (117) Or "nothing in American law resembles a sustained account of a ... norm predicated on the idea that private ownership entails obligations to act." (118)

D. The Policy Effect of Current Property Theory's Attitude Toward Affirmative Duties: The Debate over Lenders' Responsibilities

These prevalent accounts, observing that modern American property law has repudiated all affirmative duties not created by the owner herself, exert influence on the development of current laws. The trope that in the modern legal system the owner can let her property lie fallow or gather dust echoes, as just seen, historical concerns and normative values associated with property. It therefore easily impacts judicial attitudes toward property law. The trope's resulting impact has been to decrease the law's ability to confront new challenges. (119)

A striking example is the legal backlash against the response of states and local governments to the housing-market crash of 2008. (120) In the aftermath of the market's collapse, many urban and suburban neighborhoods were dotted with neglected properties, whose owners were, more often than not, long gone. (121) As both policy-makers and researchers believe that such properties are extremely detrimental to their surroundings, (122) cities and states throughout the nation have been devising means to tackle the problem presented by properties whose owners defaulted on their mortgages. A particularly appealing strategy has been to target mortgagees--the banks who hold liens over these neglected or vacant properties. New or revised state and local laws render lending institutions liable for the upkeep of vacant houses and lots after the owner defaults on the mortgage. (123)

Laws and ordinances differ with respect to the specific obligations they institute. (124) The exact moment at which the lien holder becomes responsible for these obligations also varies across jurisdictions. For example, some impose liability on the lender immediately upon the owner's default on the loan. (125) Others tie liability to the initiation of the foreclosure proceedings, (126) and still others to the assumption of possession of the property by the lender during those proceedings. (127) Elsewhere, the obligation applies following the issuance of a foreclosure judgment. (128) Another jurisdiction introduces it upon conclusion of the bidding process at the foreclosure sale. (129) Finally, the duty may come into effect later still, once the foreclosure sale is completed. (130) Though they thereby differ in their details, these laws all subject lenders to upkeep requirements. Minnesota adopted a measure that is even more innovative. The pertinent state statute empowers local governments to expedite the foreclosure process by demanding that the court shorten the mortgagor's redemption period and thereby force lenders or buyers at a foreclosure sale to assume ownership of abandoned residential properties. (131)

These efforts to expand lenders' liability for the upkeep of properties met with stern resistance from lenders, (132) and courts were often persuaded by these lenders' arguments. (133) Successful legal challenges to new lender obligations were based on varied claims. Upkeep ordinances were deemed a regulation of the credit market and therefore preempted by state laws governing the lending industry's business practices (134) or by the federal laws under which certain industry participants operate. (135) Ordinances were also found to represent a form of taxation and were thus potentially subject to state constitutional restrictions on taxes. (136) A city's attempt to ground an ordinance in the obligation the city owes other residents was denied when the court refused to acknowledge any such municipal obligation. (137) Finally, some courts simply determined that mortgagees could not be held liable to the city for the condition of properties. (138)

All these varied doctrinal grounds for denying the imposition of an obligation on lenders rely on one key assumption: the courts conceive maintenance obligations as impinging on the banks' traditional freedom as holders of either the property (postforeclosure) or a lien over it (preforeclosure). (139) These obligations are viewed as new regulations imposed on private interest holders. They are treated as regulations that interfere with property rights and extend beyond the allowable contours of land-use controls. (140) As a new form of regulating property rights, these obligations are, according to the lending industry (141) and the federal housing finance agency's legal position, "onerous," "vague," and "subjective." (142)

In other words, upkeep duties are perceived in the current legal struggle over lenders' responsibilities as external to property holding: they are administrative regulations of private property, or taxes levied on private property. Given that there are many legal limits on the government's ability to interfere with property--to regulate or tax private property--this perception facilitates the striking down of new ordinances imposing duties on lenders. The persistent perception of maintenance duties and other affirmative duties as external to property is an outgrowth of the attachment of American law to the trope of the owner's right to let her land lie fallow or gather dust. Elsewhere, civil-law scholars have arguably been able to sometimes disassociate themselves from this trope. (143) Still its grip on Anglo-American legal thinking has been unwavering, mainly due to the philosophical and historical reasons described in this Part. The resultant hostile approach toward lenders' responsibilities is unfortunate, for as will now be clarified, this trope is simply wrong.


This Part detects a duty to maintain internal to property law--a concept that flies in the face of conventional wisdom, and contradicts the normative justifications for the modern institution of property reviewed in the preceding Part. Later, Part III shows that this last contradiction is illusory as the normative justifications for property in fact demand the duty to maintain. But first, it is necessary to understand the positive manner in which the duty, until now ignored, operates. Current law imposes the duty to maintain on the owner through multiple doctrines. The effect of these varied doctrines can best be grasped when they are categorized in accordance with the sanction they employ: potential monetary liability or potential loss of land. This Part is divided accordingly: it first uncovers doctrines that establish the duty through monetary sanctions, and second, it reveals doctrines that do so via forfeiture. The duty that crystallizes from these different rules will then be summarized and tied to other elements recognized as inherent to ownership.

A. Rules Imposing the Duty To Maintain Through Financial Liability

One way for property law to establish a duty to maintain is to render an owner who neglects her land vulnerable to financial liability--in the form of damages or an injunction mandating repairs. Property law contains a wealth of rules exposing owners to such liability. Counting mostly common-law doctrines, but concluding with statutory expansions, they include waste law, negligence law as applied to harms to outsiders generated by the land's conditions, negligence law as applied to harms to outsiders generated by unauthorized entrants to the land, negligence law as applied to harms to trespassers, private nuisance law, public nuisance law, support-rights law, affirmative-covenants law, easements law, landlord-tenant law, building codes, and farming law.

1. Waste Law. Waste is a property-law doctrine that explicitly targets those who fail to maintain their land, and therefore, it is a natural starting point for this Part's exploration of doctrines imposing a duty to maintain. At the same time, waste applies only to confined settings. The doctrine solely regulates the uses of lands in which several parties hold interests not equal in status and effect. It empowers the person to whom possession of the land will inevitably shift at the conclusion of a lease or a specific person's lifetime to bring suit to halt the present possessor from committing waste therein. (144) In current American law, it similarly limits the freedom of those holding land subject to a mortgage, to protect the mortgagee's security. (145)

Waste law thus applies to tenants, life tenants, and mortgagors. The waste these interest-holders are prohibited from committing encompasses two kinds of behavior. One is "affirmative waste": injurious acts the holder perpetrates on the land, such as razing a building. (146) Another form is "permissive waste": harms done to the property through the holder's failure to act. (147) This form of forbidden waste imposes on the present holder an affirmative duty to maintain the property in good repair. (148) Thus, a holder of a lease, life estate, or mortgaged land is liable for waste if she, for example, fails to pay property taxes, (149) allows a house to deteriorate, (150) permits farmland to lie untilled, (151) stands idle as weeds infest the land, (152) stops watering a lawn, (153) or ceases to prune and fumigate an orchard. (154)

As these examples illustrate, waste law creates a conspicuous duty to maintain, which applies to holders of certain present estates. Unlike waste, the various doctrines to next be inspected in this Part are not quite as patent in their concern with a duty to maintain land, and thus have never been recognized as serving such a duty. But in actuality, these doctrines set a duty to maintain. Furthermore, because the rules presented in the subsequent Sections cover a markedly more diverse--sometimes all encompassing--group of holders of interests in land, they are much more consequential than waste law.

2. Negligence Law. All owners--not just those subject to waste law (tenants, life tenants, and mortgagors)--are subject to a duty to maintain premised on negligence law. Negligence law presents a neglectful landowner with the specter of liability for injuries off the land caused by the condition of her land, for injuries to outsiders inflicted by unauthorized entrants to the landowner's land, and for injuries to trespassers.

a. Liability for Conditions Causing Injuries Off the Land. Owners of land are constantly under threat of liability for physical harms that their land's condition may inflict on outsiders. Liability in negligence for such damages often results from acts the owner committed--such as improper construction of an awning, the subsequent accumulation of water on the sidewalk due to this improper construction, and the injury to a passerby who slipped on the frozen water. (155) But liability can also be imposed when the owner did not act. Liability can be imposed in cases in which the owner's neglect of her land caused injuries to others. Such negligence liability arising from neglect creates a duty for owners to maintain their land. A cursory review of cases illustrates this point.

In several cases, owners were found liable when vegetation on their land blocked sightlines of motorists on adjacent roads, (156) or interfered with sidewalks. (157) Owners were charged with damages when trees collapsed on neighbors' properties, (158) and when tree trunks or roots damaged adjoining properties. (159) In other cases, the owners lost in court when a tree's swinging dead limbs prevented the use of a neighbor's driveway, (160) and when structures damaged by fire later collapsed on adjacent lands. (161) Lawsuits against owners were also successful when pieces of structure fell on roads, (162) and when weeds facilitated fire. (163) An owner was even found liable for the explosion of a faulty gas-line located on her land although she was legally proscribed from attending to that gas-line. The court ruled in that case that the owner was under a duty to demand that the city, which had installed the gas-line and held exclusive rights to handle it, fix any leak therein. (164) In perhaps the most extreme of the cases imposing liability, one owner was found negligent when she took no measures to protect a downhill neighbor from natural landsides. (165)

The general rule applied in all such cases is that an owner must exercise reasonable care to prevent conditions on her property that foreseeably lead to an unreasonable risk of harm to others beyond its borders. (166) This duty burdens all owners with the responsibility to inspect their property and to secure any object located therein. (167) Originally, the duty only covered artificial conditions the owner created (such as structures), (168) but, as the cases indicate, the duty has expanded to "natural" conditions as well. (169) The recently adopted Restatement (Third) of Torts reflects this trend and imposes liability for natural conditions, as long as the owner "knows of the risk or if the risk is obvious." (170) A few jurisdictions go further by jettisoning knowledge requirements, (171) imposing strict liability when a diseased tree falls, (172) or suggesting that dilapidated conditions alone suffice for an inference that the owner's property ignited fire in adjoining properties. (173) Even without such easing of the prerequisites for liability, negligence law as currently applied to harms endured outside the land places on an owner of land a duty to maintain her land up to a reasonable standard.

b. Liability for Acts of Unauthorized Third Parties. A defendant's liability in negligence for risks generated by her land's condition stands out in tort law. Its basis is not the defendant's actual control of specific hazardous activities harming the plaintiff, as is normally the case in tort law, but rather, the defendant's inherent control of the land she owns. (174) Through the same rationale, an owner's liability in negligence extends to the harms inflicted by others, whom she does not control, when they acted on her land, which she does control. For example, an owner was liable when trespassers used her land as dumping grounds and the debris they jettisoned spread fire to neighboring properties; (175) when a fire erupted after trespassers smoked on her property; (176) when her house fell into visible disrepair attracting fire-setting vandals; (177) when trespassing motorcyclists used her land as a track, causing water damages to neighbors; (178) and when an unknown trespasser raped a neighbor's child in the owner's vacant apartment. (179)

In such cases, the owner is deemed responsible for the conduct of entrants whose acts she does not control because as the owner, she could have controlled their entry. (180) When the owner neglected her land she created conditions enabling trespassers to enter, and when she later failed to police the trespassers' behavior, she facilitated their dangerous acts. Negligence law holds her liable for consequent harms to outsiders, and thus, it generates a duty to maintain land so as to render it inhospitable to risky entrants and hazardous activities.

c. Liability for Injuries to Trespassers. Negligence law also presses owners to maintain their land through the threat of liability for harms incurred by individuals on the land. The common law holds an owner responsible for injuries sustained by others while on her land. Had such liability extended only to injuries suffered by individuals to whose entry the owner consented, it would not have amounted to a duty to maintain: an owner desiring to let her land grow wild could have simply refrained from inviting entrants. But liability cannot so readily be preempted. Law empowers a broader group--not solely invited entrants--to seek remedy when injured on another's land. Because owners can be liable for injuries suffered by unpermitted entrants--trespassers--the duty toward entrants enforces on all owners a duty to maintain.

In the common law, owners owe an entrant a sliding scale of duties of care linked to the legal status of the specific entrant. (181) Trespassers occupy the bottom rung of this hierarchy. Accordingly, a landowner owes the trespasser "the lowest standard of care.... The landowner is bound only to refrain from reckless, willful, or wanton conduct toward the trespasser." (182) Standing alone, this rule places on the owner no duty to maintain the land. It only imposes a duty to avoid certain acts on the land. However, most jurisdictions assign a higher status to some trespassers--known trespassers--and the correlating higher duty of care they merit does entail a duty to maintain. This category of trespassers consists not solely of trespassers whose presence the owner discovered prior to their injury. (183) It also counts trespassers whom the owner did not discover, but of whose presence she should have been aware: foreseeable trespassers. (184) An owner is deemed to have such constructive notice of a trespasser when, for example, her land is habitually and manifestly trespassed, (185) or if it houses a dangerous condition naturally attractive to children (the "attractive nuisance" doctrine), (186) such as a timber stack (187) or pool. (188)

When the trespasser is known or foreseeable, the "standard of duty is the protection of others against an unreasonable risk of harm." (189) This duty is not a light one; indeed, it is similar to the duty owed to invitees. In fact, the Restatement abolishes the distinction between the duty owed to most trespassers and that owed to permitted entrants. (190) Courts thus found owners liable in cases involving injuries to trespassers resulting from uninsulated electric wires, (191) furrows, (192) waste-induced fires, (193) a collapsing dump, (194) an unmarked barbed wire fence, (195) a pond, (196) and a river-crossing. (197)

Naturally, the duty to protect trespassers has its limits. Some courts note that liability is restricted to conditions presenting risk of serious bodily injury. (198) Liability is also sometimes confined to injuries sustained due to conditions the entrant should not have noticed herself, (199) or to those arising from artificial conditions. (200) Furthermore, whereas in extreme cases the duty toward trespassers imposes a duty to reconfigure the land, (201) often the owner can dispense with her duty by giving trespassers adequate warning of dangerous conditions. (202) Still, through negligence liability toward trespassers, the law imposes on an owner a duty to maintain her land so as to limit the development of, or the risk posed to others by, dangerous conditions on the land. (203)

3. Nuisance Law. Negligence law renders an owner liable when others or their properties are injured due to the unreasonable condition of the owner's land. It thus incentivizes an owner to maintain her land to prevent accidents. This incentive to maintain is reinforced through nuisance law, which exposes an owner who fails to maintain her land to financial liability even when its neglected state does not precipitate an accident. A nuisance claim does not require the plaintiff to sustain an injury, as it protects individuals not from interferences with their bodily integrity or the wholeness of their property, but rather from interferences with their use or enjoyment of the property. (204) Such interferences need not result in physical injury, and they may affect one private owner's ability to use or enjoy her land or the whole public's ability to do so.

a. Private Nuisance Law. In the typical nuisance case, an activity one owner engages in on her land detrimentally affects another owner's enjoyment of her land without physically harming it. For example, there may be liability for nuisance when one owner's business, operated on her land, exposes another owner's land to loud noises or foul odors. (205)

Similar detrimental effects sometimes result not from the owner's activities on her land, but from her failure to act and regulate her land's conditions. An individual's ability to enjoy her property is decreased when a dilapidated property is located in the vicinity, and hence that dilapidated property can qualify as a nuisance. For example, courts found neglectful owners whose lands became hubs for illegal activity, such as drug dealing, liable for nuisance due to their neighbors' lost sense of safety and the resultant decrease in the value of their properties. Such suits were upheld despite the fact that the owner-defendants neither participated in, nor authorized, the illegal activity taking place on their property. (206) As one court explained, "[a] property owner cannot knowingly allow his property to become a haven for criminals to the detriment of his neighbors and deny that his property has become a nuisance because the resulting criminal activities are those of third parties." (207) Owners, another court declared, must "take all reasonable measures available to them to control their property." (208)

To further broaden owners' nuisance liability for failing to maintain their properties, some states have turned to legislative reform. California's Street Terrorism Enforcement and Prevention Act (209) renders a space used by gang members a private nuisance for which its owner may be found liable. (210) Even more prominently, some state statutes now explicitly define as nuisances all decrepit and untended properties that adversely affect the value of surrounding properties or represent a hazard to the wellbeing of their dwellers. In accordance, nearby owners are empowered to bring private nuisance suits. (211) These recent expansive interpretations of the term "nuisance," in conjunction with the rulings extending liability for illegal activities by third parties, transform private nuisance law into a tool that imposes on owners a duty to maintain.

b. Public Nuisance Law. An owner's neglect of her land does not solely interfere with one neighbor's, or a handful of neighbors', enjoyment of their properties. Rather, it often impacts a broader community--sometimes an entire neighborhood. Property law has a separate category of rules to regulate such interferences with the wellbeing of whole swaths of the public--the aptly titled public nuisance law. With case law burgeoning since the 1990s, (212) public nuisance law is now an even more profuse source of a duty to maintain than private nuisance law.

In general, "[a] public nuisance is an unreasonable interference with a right common to the general public." (213) This broad definition can easily be used to impose obligations on owners to act on their land, because, as one court explained, an unreasonable interference might be inaction that "works some substantial annoyance, inconvenience, or injury to the public." (214) The requirement is not that some individual be actually annoyed or injured by the owner's failure to act; it suffices that such failure tends to inconvenience the public. (215) Thus, under public nuisance law, owners were found liable for not treating still water on their land that may have contributed to the spread of malaria; (216) for retaining abandoned bridge piers; (217) for permitting corn to obstruct a public road; (218) for not removing a dead tree; (219) for allowing runoff water to freeze on an adjacent sidewalk; (220) and for not securing abandoned buildings. (221) As these examples illustrate, public nuisance law creates an obligation toward the community to reasonably maintain one's property. (222)

4. Servitudes Law. When established through negligence or nuisance, the maintenance standard the duty to maintain imposes is grounded in reasonableness. A harsher maintenance requirement extending beyond a reasonableness standard is instituted through servitudes law--including support rights, affirmative covenants, and easements.

a. Support Rights. All landowners have an absolute right to lateral support: "to have the soil in its natural condition supported by the soil of adjoining land in its natural conditions." (223) In light of this "original right incident to [every man's] property," (224) which "stands on natural justice, and is not dependent upon grant," (225) law imposes on all owners a duty not to interfere with the lateral support their land provides to neighboring lands. (226) The neighbor's right for such support of her land is a servitude--it is a nonpossessory interest burdening another owner's land. (227) A breach of this right of the neighbor exposes the owner to liability, even if she behaved reasonably. (228)

The duty to respect the neighbor's right to support is first and foremost a negative obligation. (229) The typical interference with lateral support occurs when excavation works disturb a neighboring land's support. (230) The duty is, however, transformed into an affirmative obligation--a duty to maintain--in cases involving retaining walls. When a wall on one owner's land supports the soil of another's, courts hold that the owner has "the obligation to maintain the wall to support the [neighbor's] land." (231) The owner is liable if, even while behaving reasonably, she fails to maintain the retaining wall whose conditions deteriorate, thereby causing the neighboring land to subside. (232) An owner might even be forced to construct a wall to prevent her land from eroding onto another's land. (233)

The duty to maintain retaining walls is a duty attached to the ownership of the property on which the wall is situated, that is, it runs with the land. Not only is the owner who built the wall responsible for its maintenance, but so too are her successors. (234) In this important respect, the affirmative duty to maintain retaining walls goes beyond the typical negative duty not to interfere with lateral support. Most courts hold that subsequent owners are not liable for their predecessors' withdrawal of lateral support. (235) Even if the effects of the withdrawal are felt during the current owner's tenure (that is, only then does the neighboring land subside), she is not responsible for excavations performed earlier. Liability attaches to the excavating owner, not to the land. (236) Thus, in most states, if an owner excavated and removed support for neighboring land, her successor is freed from any duty. If, however, that owner replaced said support with a retaining wall, the successor carries a duty to maintain the wall. (237) This result is best explained when support duties are conceived as duties to maintain. An owner is subject to a duty to maintain the support provided by her land to neighboring soil as that support existed at the time she assumed ownership. (238)

b. Affirmative Covenants. Servitudes for support are "natural." Other kinds of servitudes must be created by private parties. Yet these other servitudes may also institute a property-law duty to maintain. For, although non-natural servitudes are always traceable to an agreement between owners, they are rights and duties in property, rather than in contract, meaning that they run with the land. (239) In other words, an owner must abide by the servitude even if she herself was not a party to the agreement creating it. Servitudes that oblige all future owners to perform an act on the land--for example, maintain it--are called affirmative covenants. (240)

Examples of affirmative covenants are obligations to provide heat to a building, (241) to conserve a historic structure, (242) to care for a fence, (243) to keep a sewer in good condition, (244) to maintain a bridge and replace it if destroyed, (245) to landscape, (246) and to preserve land in a manner preventing declines in the value of surrounding properties. (247) The most popular affirmative covenant nowadays is an obligation to pay homeowners association fees to fund the maintenance of common premises. (248)

The onus on an owner of land subject to an affirmative covenant to maintain can be weighty. She will be obliged to carry the costs of abiding by the covenant, regardless of her choice to refrain from using the land, and even when the land cannot be used. The case of Pocono v. MacKenziew (249)represents this extreme result. The MacKenzies held vacant land subject to an affirmative covenant to pay association fees. After purchasing the land, they discovered that it could not meet municipal sewage requirements, and therefore could not be developed. Consequently, they were not only unable to use the land, but they also could not dispose of it. When the land was put on the market, no buyers materialized; when offered to the homeowners association as a gift, the association declined; and, when property taxes were withheld, the locality refused to take possession. (250) Still, the court decided that the MacKenzies must abide by the affirmative covenant and pay the association fees. As a result, the property became a negative-value asset.

Affirmative covenants lead to a similar eventuality in other, less extreme, scenarios. For example, in several cases owners were forced to maintain golf courses in accordance with an affirmative covenant even when the courses became unprofitable. (251) In these and similar cases involving affirmative covenants, courts have held that as long as the covenant--that mandates the maintenance of a golf course, payment of fees for maintenance of common premises, or any other obligation--meaningfully benefits others, it must be enforced against the owner. (252)

c. Easements. As seen, the law of servitudes benefits the holder of a servitude--for example, of a support right or of an affirmative covenant--by empowering her to force the owner of the subjected land, known as the "servient estate," to maintain that land. With respect to another category of servitudes, easements, the law of servitudes performs the reverse. Easements are servitudes whose holders have the right to enter another's land and do something on it. (253) Examples of easements are a right of way or a right to install pipes. An easement thereby benefits its holder. But it also places a duty on her. The holder of an easement may not exercise her easement in a way that places an undue burden upon the servient estate. (254) This restriction engenders a duty to repair and maintain an easement to prevent injury to the servient estate. For example, the owner of a right of way may not stand idle as the cattle guards along the road deteriorate and fail to protect livestock on the servient estate. (255) The owner of an irrigation easement may not allow it to overgrow with vegetation, become obstructed by debris, and gush with polluted water. (256) Thus, easements law, albeit mostly concerned with privileging a holder of an easement to use another's land, also places on the holder of an easement the duty to maintain the portions of land that her easement covers.

5. Landlord-Tenant Law. Servitudes mandating maintenance play a key role in one specialized area of property law: landlord-tenant law. The lease creating the tenancy is a series of covenants--obligations between the landlord and the tenant. (257) In addition to these explicit and voluntary promises, there are implicit covenants that courts or legislatures insert into all leases, regardless of the parties' desires. Many such legally created obligations impose on landlords assorted duties to maintain. These include a duty to maintain the building's common spaces in a safe condition (258) and to protect tenants' premises from third parties' illegal activities. (259) Most prominently, the obligations to which a landlord is subjected by law encompass a warranty of habitability: the unwaivable obligation to maintain leased premises in livable conditions. (260) The warranty, often drawing on detailed municipal codes, consists of specific and rigorous requirements, such as the provision of heat and water, garbage removal, and the insulation of windows. (261)

Given that the warranty is inherent to landlord-tenant law, the potent duty to maintain it institutes endures for as long as the landlord-tenant relationship lasts. Thus, owners who seek to evade the duty--because they cannot afford, or do not wish, to maintain their properties--can simply opt to avoid or abandon the rental market. In some jurisdictions, however, this course of action is unavailable because owners' ability to control their statuses as landlords is restricted. Anti-eviction laws (enumerating allowable causes for removing tenants), (262) rent-control laws (setting maximum rates for rent increases), (263) or condominium-conversion laws (regulating the transformation of rental units into individually owned units), (264) limit a landlord's ability to terminate a landlord-tenant relationship, even after the lease expires. (265) Such laws might even ban the owner from removing the unit from the market and moving into it herself. (266) In tandem with obligations to maintain leased properties, any such restriction on the owner's ability to terminate leases generates a duty to maintain units that is costly, and in radical cases, even impossible, to escape.

6. State and Local Statutory Maintenance Obligations. The duties a landlord owes to her tenant draw on both common-law and statutory origins. There are also rules imposing a detailed duty to maintain that are fully based on statute. These rules supplement the common-law doctrines reviewed earlier in this Section. Building laws and ordinances, which most states and cities now boast, present a prime example. They enforce maintenance standards on all owners regardless of the use to which they put their property (that is, even if the property is not leased) through fines and repair orders.

Although the specific maintenance standards vary by jurisdiction, their characteristics can be gauged through Chicago's building ordinance. (267) Chicago requires owners to keep their buildings or units in "a clean, sanitary and safe condition" (268) and "exterminate any insects, rodents or other pests therein." (269) Every lot must "be graded and drained so as to prevent the accumulation of stagnant water." (270) The foundations must fully support the building, and all exterior walls and roofs must be whole. (271) In addition, like many of its peers, (272) Chicago singles out vacant properties for particularly invasive treatment. The owners of such properties must, among other obligations, register their properties with the city and pay fees; (273) retain an occupied local address; (274) carry liability insurance; (275) keep all grass below ten inches high; (276) preserve windows, doors, porches, decks, and stoops in sound condition; (277) light exit areas; (278) prevent trash accumulation; (279) and secure the building. (280) Importantly, these and other building code obligations may be enforced against an owner whether or not the neglect presents a danger to outsiders. (281) These extensive maintenance obligations under state and local laws illustrate that the characterization of property rights as encompassing a freedom to let property lie fallow or gather dust is simply inaccurate--at least in urban or suburban settings.

7. Farming Law. Although the owners of rural lands are mostly not subject to building codes, they too cannot let their lands lie fallow or gather dust. Like all other owners, they are subject to negligence and nuisance liability for damages arising from the state of their lands. (282) There is solely one category of rural cases in which courts remain loath to impose liability in negligence or nuisance: cases in which damages result from the spread of noxious fauna or flora from neglected farmland. (283) However, even in such instances, owners are not shielded from the specter of legal responsibility. Since the early twentieth century, statutes impose a duty to maintain in many of these situations, sometimes going as far as to criminalize a farmholder's failure to combat wild plants. (284) Thus, owners' liberty to neglect, or let their rural land lie fallow, is very limited.

Indeed, the particular practice of letting rural land lie fallow has become the subject of legal challenges. When agricultural land is farmed ineffectively or not at all, sand, soil, and weeds can blow onto neighbors' lands. Nevertheless, at an earlier time, courts were unwilling to entertain negligence or other claims against farmers who let their land lie fallow--cleared, unirrigated, and unplowed. (285) Over the years, however, courts began to condition their approval of such practices on proof that leaving land fallow for a certain time is "in accordance with good farming methods" in the specific area and for the particular crop. (286) This requirement renders precarious the legal status of neglectful owners who let their rural land lie fallow for no persuasive reason. (287) This line of decisions amplifies the duty to maintain that already burdens rural owners, and specifically undermines the supposed general right to let one's property lie fallow.
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Title Annotation:Abstract through II. Current Property Law: A Duty to Maintain Embedded in Ownership A. Rules Imposing the Duty to Maintain Through Financial Liability, p. 437-481
Author:Shoked, Nadav
Publication:Duke Law Journal
Date:Dec 1, 2014
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