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The Duty to Maintain SHOKED IN PRINTER (DO NOT DELETE) 11/18/2014 6:30 PM THE DUTY TO MAINTAIN NADAV SHOKED† ABSTRACT 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. TABLE OF CONTENTS Introduction ............................................................................................. 439 I. Current Property Theory: Ownership as Freedom from Duties to Act ............................................................................................. 446 Copyright © 2014 Nadav Shoked. † Associate Professor of Law, Northwestern University School of Law. For invaluable comments, I am grateful to Jane Baron, Bethany Berger, David Dana, Hanoch Dagan, Nestor Davidson, Erin Delaney, Ezra Friedman, Andrew Koppelman, Ariel Porat, Joseph Singer, Laura Underkuffler, and participants at the Big Ten Junior Scholars Conference (August 2013) and at the Progressive Property Conference (May 2014). Matthew Cohen and Adam Green provided exceptional research assistance. SHOKED IN PRINTER (DO NOT DELETE) 11/18/2014 6:30 PM 438 DUKE LAW JOURNAL [Vol. 64:437 A. The Key Role of an Owner’s Freedom in Property Theories .................................................................................. 446 1. The Key Role of an Owner’s Freedom in Right- Based Property Theories ................................................. 447 2. The Key Role of an Owner’s Freedom in Utilitarian Property Theories ............................................................ 449 3. The Key Role of an Owner’s Freedom in Relational Property Theories ............................................................ 450 B. Limitations on an Owner’s Freedom in Current Property Theories ................................................................. 453 C. Owners’ Affirmative Duties in Anglo-American Law: From Status to Contract ....................................................... 456 D. The Policy Effect of Current Property Theory’s Attitude Toward Affirmative Duties: The Debate over Lenders’ Responsibilities ..................................................... 458 II. Current Property Law: A Duty To Maintain Embedded in Ownership ..................................................................................... 463 A. Rules Imposing the Duty To Maintain Through Financial Liability ................................................................. 463 1. Waste Law .......................................................................... 463 2. Negligence Law .................................................................. 465 3. Nuisance Law ..................................................................... 470 4. Servitudes Law ................................................................... 473 5. Landlord–Tenant Law ...................................................... 477 6. State and Local Statutory Maintenance Obligations ...... 478 7. Farming Law ...................................................................... 480 B. Rules Imposing the Duty To Maintain Through Loss of Property ............................................................................. 481 1. Eminent Domain ............................................................... 482 2. Improving Trespasser ........................................................ 483 3. Adverse Possession ............................................................ 485 4. Nuisance Abatement and Abandoned Properties Rehabilitation Statutes ..................................................... 486 C. Summary: Property Law’s Duty To Maintain and Its Relationship to Rights to Destroy and Abandon .............. 489 III. The Normative Standing of the Duty To Maintain ..................... 492 A. Elements of the Duty To Maintain Explained by Right-Based Property Theories ........................................... 493 1. The Duty To Maintain as Embodying Actual Contracts ........................................................................... 493 SHOKED IN PRINTER (DO NOT DELETE) 11/18/2014 6:30 PM 2014] THE DUTY TO MAINTAIN 439 2. Legal Rules Imposing the Duty To Maintain that Draw on Explicit Contracts ............................................ 494 3. Legal Rules Imposing the Duty To Maintain that Draw on Implicit Contracts ............................................ 495 B. Elements of the Duty To Maintain Explained by Utilitarian Property Theories .............................................. 496 1. The Duty To Maintain as Embodying a Hypothetical Contract ............................................................................ 496 2. Legal Rules Imposing the Duty To Maintain that Directly Institute the Hypothetical Contract .................. 501 3. Legal Rules Imposing the Duty To Maintain that Indirectly Institute the Hypothetical Contract ............... 502 4. The Scope of the Hypothetical Contract .......................... 505 C. Elements of the Duty To Maintain Explained by Relational Property Theories .............................................. 507 D. Summary: Revisiting the Debate over Lenders’ Responsibilities ...................................................................... 509 Conclusion ................................................................................................ 512 INTRODUCTION 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 1. See infra Part I.A–C. 2. See infra Part I.A; see also SIMON GARDNER & EMILY MACKENZIE, AN INTRODUCTION TO LAND LAW 181 (3d ed. 2012) (“[The] paradigm idea of ownership” is “dominium,” which “supposes that an owner has rights to do anything he likes with the ‘owned’ asset.”). 3. GARDNER & MACKENZIE, supra note 2, at 190–92. 4. Rylands v. Fletcher, [1868] L.R. 3 (H.L.) 339 (appeal taken from Eng.). SHOKED IN PRINTER (DO NOT DELETE) 11/18/2014 6:30 PM 440 DUKE LAW JOURNAL [Vol. 64:437 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 5. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 388–90 (1926). 6. Civil Rights Act of 1964, 42 U.S.C. § 2000a(a) (2012). 7. E.g., N.J. STAT. ANN. § 2A:34–23 (West 2010 & Supp. 2014). 8. Cf. Vernon Park Realty Inc. v. Mt. Vernon, 121 N.E.2d 517, 519 (N.Y. 1954) (holding unconstitutional an ordinance that prohibited an owner from using one specific property for any purpose but parking). 9. Cf. Palmer v. Thompson, 403
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