November 2016 Bar Bulletin
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November 2016 Bar Bulletin

The Pervasive Perplexity of Property Law

By Thomas White


Property. Of all the areas of law taught in the first year of law school, property is the most disorganized and pervasive, as if a 4-year-old had slipped into the pantry and thrown flour and chocolate chips all over everything in an attempt to mix cookie dough.

The rules of property law are not complex. But “property” and its case law encompass a massive domain of interrelated concepts. To a first-year student they appear grossly disorganized, like the flour: they cover who owns the tiles on the floor of the pantry; who has a right to walk through the pantry; who has a right to store flour there; and what happens if you store the flour just a little bit over the edge of a shelf and it falls into your son’s hair.

They cover whether your children can get your cookies when you are done baking them; whether you have a security interest in the cookies if your children hold a bake sale; and whether you own the honey a neighbor gathers from the nest of bees at the edge of your property to bake into their cookies.

Where does the boundary of your property lie if the witch who owned it first built a gingerbread fence before she sold it to you? What obligations do you have to the tenants of her oven, young Mr. Hansel and Ms. Gretel? Have they neglected to complain in writing about the implied warranty of habitability?

And property law covers condominium law and all the benefits and burdens of shared ownership — the holdout who never wants to spend money on common elements, and the engineer who gets frustrated when you tell him he can’t turn his entire home into the world’s biggest water cannon.

On its face, property law is just “a bundle of rights.” But it gives rise to a long narrative of stories and ever-
evolving legal concepts that could keep a class of law students busy for a lifetime.

Consider the weeks of classroom lessons you could pull from just two recent property law cases in the Washington Supreme Court. Central Puget Sound Regional Transit Authority v. Airport Investment Co. was a dispute over a statutory attorney fee award under RCW § 8.25.070(1)(a) in a takings case.1 Pendergrast v. Matichuk was a dispute over a few feet of land and “a venerable cherry tree.”2

Curriculum Week One:
Intro to Government Takings

In Airport Inv. Co., Sound Transit condemned an area along the western boundary of a property for permanent use by the light rail and sought a temporary construction easement (“TCE”) to spend three years on a larger portion of the property during construction. AIC owned a 130-room, 1988 hotel on the property. This gave rise to a takings case under the state Constitution.

Curriculum Week Two:
Value Depends on What
You Want It To Be

As a practical matter, the study of property should include some understanding of real-world implications of property decisions rather than just the blackletter law. Here, Sound Transit appraised the value of the property it took at $142,300, while AIC’s appraiser initially valued the property at $485,000.3

This wide disparity suggests that one or both parties allowed their bias to grossly distort their valuation, a normatively problematic effect rarely discussed in the hallowed halls of academia, but pervasive in practice. The distortion penalizes homeowners who do not litigate the value of a taking, but benefits the public by making public infrastructure projects less expensive.

At trial, the claimed difference in value grew to more than $1 million, even though the scope of the taking had been reduced two weeks before trial. This valuation differential, although absurd on its face, is one of the everyday absurdities we create by using an adversarial system of justice: Each side stands to gain by an opening position representing the most extreme, yet believable exaggeration (or minimization) of value.

Curriculum Week Three:
Check the Fee-Shifting Laws

New attorneys may likewise be shocked and dismayed to find that the law is often about money, and how money interacts with politics and social goals.

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