By Deborah Goonan, Independent American Communities
Let’s talk about property rights – something that matters to all Americans, and homeowners in particular.
When John Adams and James Madison helped to write the U.S. Constitution, private property rights were deemed the most important right that must be protected by government.
“The moment the idea is admitted into society that property is not as sacred as the laws of God … anarchy and tyranny commence. PROPERTY MUST BE SECURED OR LIBERTY CANNOT EXIST”
“Government is instituted to protect property of every sort …. This being the end of government, that is NOT a just government,… nor is property secure under it, where the property which a man has … is violated by arbitrary seizures of one class of citizens for the service of the rest.”
(Source: National Center for Constitutional Studies)
Gary Pecquet of the Foundation for Economic Education, explains the “bundle of rights” concept with regard to private property rights. Note Pecquet’s comparison of private property rights under the U.S. Constitution to “collective” property rights – which, of course, succinctly describes the restricted property rights of homeowners in Association Governed Residential Developments. (HOAs, Condo Associations) Just substitute the phrase “whims and mercies of the state” with “whims and mercies of the corporate association of property owners,” and the phrase “the state retains ownership” with “the Association retains ownership.” (Emphasis added.)
The economic concept of private property refers to the rights owners have to the exclusive use and disposal of a physical object. Property is not a table, a chair, or an acre of land. It is the bundle of rights which the owner is entitled to employ those objects. The alternative (collectivist) view is that private property consists merely of a legal deed to an object with the use and disposal of the object subject to the whims and mercies of the state. Under this latter view, the state retains ownership and may at any time regulate or even repossess the property it temporarily cedes to individuals.
The Founding Fathers upheld the economic view of property. They believed that private property ownership, as defined under common law, pre-existed government. The state and federal governments were the mere contractual agents of the people, not sovereign lords over them. All rights, not specifically delegated to the government, remained with the people–including the common-law provisions of private property. Consequently, the constitutional rights regarding free speech, freedom of religion, the right of assembly, and private property rights are all claims that individuals may hold and exercise against the government itself. In brief, private property refers to the rights of owners to use their possessions which are enforceable against all nonowners–even the government.
It would seem that all American citizens would be equally entitled to private property rights. At least that was the original intention of the Founding Fathers.
In reality, however, property rights of homeowners have been eroded over the past 5 decades as real estate developers and government have colluded to institutionalize collective ownership of property in the form of homeowners, property owners, and condominium associations.
These days, a homeowner’s bundle of rights is much smaller, with all the restrictions on use of property.
Ironically, at the same time as individual homeowner rights have been continuously restricted, it seems that rights of developers have expanded to unconscionable proportions.
Take, for example, the fact that in Colorado, developers have been allowed to construct homes on unstable hillsides for 4 decades, despite the threat of landslides.
Incredibly, city governments are so fearful of being sued by developers, that they look for creative ways to not deny construction permits, and yet cover their legal liabilities in the process. In Colorado Springs, the law allows the developer to hire an engineer to evaluate the land in question. What are the chances that the developer’s hand-picked “expert” is going to report a hazardous condition that would preclude construction, or require expensive site preparation?
Nevertheless, if the engineer finds potential problems, and the Geological Survey reviews and issues its own report with recommendations, Colorado Springs is not obligated to follow them.
And even worse, home buyers are not told about the land review process and possible risk of landslide that could damage or destroy their private properties.
Thousands of homes on the west side of Colorado Springs are at risk from newly awakened landslides despite 40 years of warnings from geologists and city regulations created to ensure safe homebuilding.
Building continues despite reports
A year after three houses on Regency Drive were destroyed by the 1995 Garrison landslide, the city adopted a geological hazards ordinance. It required developers to hire an engineer or geologist to assess potential hazards, including landslides, on building sites. If problems are found, the reports are forwarded to the Colorado Geological Survey, which provides its opinion and recommendations. City planners say they weigh the two reports to decide whether to build.
The success of the ordinance is up for debate. Of the homes on the buyout list, almost 40 percent were built in 1996 or later. The city plans to examine these issues, spokeswoman Jamie Fabos said.
No warning for homeowners
All homeowners applying for the federal buyout and interviewed by The Gazette said they had no clue about any landslide risk before buying their homes. Those who built their houses said the developer didn’t warn them. Others said sellers and real estate agents never disclosed the problem.