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Private-To-Private Takings and the Stability of Property

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Abstract:

Successful property regimes are not static but dynamic. Whilst normally the daily balancing of interests remains hidden within a property regime, there are pressure points that reveal the clash between competing values. It is argued that one of the clearest fault-lines may be seen where property rights are expropriated or 'taken' because such situations require an overt balancing of different interests. Expropriation cases involving the balancing of individual rights against the public interest are often highly visible and divisive. However, this article argues that an even more revealing type of expropriation or 'taking' is when so-called 'private-to-private' takings occur. Here, property rights are either extinguished or reallocated compulsorily between individuals or non-state entities. It is contended that such takings do not form a monolithic category, but instead occur in three different scenarios: (i) against an explicit legislative backdrop authorising the private-to-private taking; (ii) as an in-built part of common law property regimes, albeit against a statutory background; and (iii) as housekeeping or regulatory rules authorising partial private-to-private takings, again supported by legislation. It is argued that the imposition of this loose taxonomy allows for a more nuanced appreciation of the breadth and ubiquity of private-to-private takings. It is concluded that these takings deserve to be scrutinised carefully since they offer a clear opportunity to track the competing values being balanced in a property regime between: (i) protecting established ownership and use of land; and (ii) reallocating or extinguishing this protection to another non-state party. The sheer volume and frequency of private-to-private takings means that they act as revealing barometer of the competing interests and values at play within a property regime.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/09615768.24.2.237

Publication date: August 1, 2013

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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