Exclusion and Exclusivity in Property Law

Abstract

In this article, I propose a model for understanding the concept of ownership that I call the exclusivity model. Like many of the contemporary critics of the bundle of rights approach to Ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of these contemporary critics, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the boundary approach to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for them to explain adequately the many subsidiary rights in things that co-exist with the rights of owners. Indeed, when we look more closely at the structure of ownership in property law, I argue that its central concern is not the exclusion of all non-owners from the owned thing, but rather the preservation of the owner's position as the exclusive agenda-setter for the owned thing. So long as others - whether they be subsidiary property right- holders or strangers to the property - act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda-setter.