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Independence day - a look back in history on property rights
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Our desire to own real estate defined the United
States as a country. The Constitution’s fifth amendment says that “… 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.” The intent of our founding fathers was perfect. Over the years though, the reach of federal authority has changed, and economic changes have shaped constitutional thought. In times of economic stress the federal government has extended its reach over property rights.
Wars were fought over property rights
Under the feudal system, kings had absolute power to own property and fought with other countries over possession of property. The feudal practices in Europe were supported by military force to stabilize political power and gain cooperation over the people. Kings had the ability to grant land rights in return for obedient service, thereby creating dependent vassals.
Those that were fed up with feudal practices left Europe for a better life in America. In 1776, representatives of the thirteen United Colonies gathered to declare their independence from a tyrannical English government. The legal basis for their claim to liberty was formed in the Declaration of Independence, which stated the principles upon which civil governments should be established. The British parliament declared the colonists to be outside the british constitution and denied them protection of laws. Until that time, rights of Americans (who were still considered Englishmen by the British) were contingent upon the good graces of the crown.
Our founding fathers crafted the Declaration of Independence and Constitution to break from this feudal notion of property rights. Colonial America believed that that all men are equally endowed by their Creator with unalienable rights to "Life, Liberty and the pursuit of Happiness." The pursuit of happiness included the right of the individual to acquire, possess, protect and dispose of property. American civil government was formed to secure those rights.
Evolution of society
Has evolution of our society has changed how we view property rights? And have we reverted back to a civil government as the giver of rights? Consider how much control our government now has over industry, finance, transportation, agriculture, labor, education, and property. The great depression changed government control over property. FDR’s New Deal in 1932 fostered the redistribution of wealth. The intent was to establish equality between agriculture and industry by controlling commodity prices and easing farm credit and mortgages. The result was government control over labor and farming.
The 5th Amendment to the Constitution of the United States protects property rights, but there are limitations. The amendment states that the government may not take private property “for public use” without “just compensation”. The government has the ability to take property for the good of the community; this is called eminent domain. Each state has its own version of its ability to take private property.
The law provides various ways to protect your interests in your property. But, if you don’t know what they are, or if you don’t do exactly what is required, you could lose your rights. Even if you do, you may have to fight to enforce your rights. Owning real estate does not necessarily grant you the right whatever you want with it. Zoning laws, health and safety regulations, deed restrictions, even homeowner’s associations can limit your property rights. Each state, county, city, and community has special rules, regulations, taxes, forms, and procedures that must be followed. These regulate the sale of real estate and protect the parties involved. So, become educated and informed about the “rules” for the property you are about to buy. If the existing zoning is inconsistent with your intended use of the property, there could be a problem.
Remain faithful to the Constitution
The colonists made a conscious and absolute break from the systems which they knew to be a threat to their right of property. Government involvement in private contracts, and the way we view property rights has changed from the eighteenth century as we became an industrialized society. During times of economic stress though, we must remain faithful to the Constitution. Eminent domain and zoning laws are important and critical to the success of our comunities when they do what they were intended to do - protect the rights of homeowners. It would be a shame to revert back to the idea that civil government possesses all power over all subjects of property.
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