Wednesday, 31 May 2006

Q: Do you have an inviolable right to do whatever you want on your property?

I'm going to answer that question in the title above by linking to an earlier piece on neighbourly relations, and I need to answer it because of misunderstandings like this from people who should know better:
I don't subscribe to the notion that you have an inviolable right to do whatever you want on your property. I'm comfortable with not being able to build a 100 foot high fence as it may block your neighbour's views...
The 'notion' being argued against in that extract is a straw man. The notion being suggested, by me at least, is something quite different.

But first, an introduction: let me tell you about something called 'freedom.' Freedom in this context means to be free from physical coercion; in other words, having political freedom means that you're free to do whatever you're able and whatever you damn well please as long as you don't initiate force against anyone else. My freedom ends, in other words, where your nose begins. In this respect you might call your neighbour's nose your 'side-constraint,' just as his nose is yours -- which meams some of us do get more freedom than others.

Now, under common law, which is what I would propose to repair to once the RMA is abolished, you have the secure right to peaceful enjoyment of your property. And as both you and your neighbour would enjoy that same right, his right of peaceful enjoyment is your side-constraint. Your freedom ends where your neighbour's peaceful enjoyment begins. The 'side contraints' for land use under common law require you to take account of, among other things, your neighbour's rights to light, to air, to support, and to road access and the like. These are significant side constraints, but they are both objective and reciprocal -- your neighbour is equally constrained to recognise your similar rights.

So how are neighbourly issues resolved under common law? How for instance might I ensure my view or a neighbour's tree was retained? Voluntarily, as I explained here.
Voluntary agreements and the use of easements and covenants is the key. If, for example, I want to protect my existing view over your land, then I can negotiate with you to buy an easement over it for that purpose, and that easement would be registered on the title, and legally protected. It might be that my neighbour doesn't want money; it might be that he values very highly the stand of trees on my property. How highly? Highly enough perhaps to ask for a restrictive covenant over those trees to be registered on my title, in his favour. We shake hands. We have agreement.

We each have want we want, we each have security over what we want, trees and view are both protected, and not a bureaucrat or resource consent was needed to do it--just common sense, the tools of common law, and respect for each other's property rights. Sounds pretty good, doesn't it.
And no room for the Jackie Wilkinsons of the world -- or, at least, no house room for them.

LINKS: Tree chopping - Kiwiblog (DPF)
The 'right' to a view - Not PC (Peter Cresswell)
Cue Card Libertarianism - Freedom - Not PC (Peter Cresswell)
Cue Card Libertarianism - Common Law - Not PC (Peter Cresswell)

TAGS: Common_Law Conservation Environment Property_Rights RMA

Labels: ,


Blogger iiq374 said...

Actually I would argue that the Government (local / national) should be serving the same role here as in all matters, as a market facilitator.

In other words co-ordinating those disparate parties that want to protect a stand of trees on anothers land into a cohesive bargaining block to buy the said easement. But if not enough people are actually willing to front up and buy an easement for what it is worth to the owner then the owner does as they wish...

Then you would have no issue about what happens if they cut it down - either an easement exists or it doesnt. If there is an easement then they've commited a criminal act and the aggreived parties don't even need to spend their own money to prosecute...

31 May 2006, 13:02:00  
Blogger iiq374 said...

PS - PC can you change your settings to not have popups for comments? Plays nasty with coComment...

31 May 2006, 13:03:00  
Anonymous Willie said...

LOL it's so funny watching the Torys either attack the person or funniest still - go completely silent, when someone comes forward with a well formed argument. AKA Duncan B on DBF comment and your post PC.

31 May 2006, 13:06:00  
Blogger Graeme Edgeler said...

PC says: "If, for example, I want to protect my existing view over your land, then I can negotiate with you to buy an easement over it for that purpose, and that easement would be registered on the title, and legally protected."

This is inaccurate. The common law does not recognise/will not enforce easements seeking to protect views. (It will enforce an easement preventing the building of structures above a certain height, which might protect a view, but you can see how this differs).

31 May 2006, 13:35:00  
Blogger PC said...

- Graeme, thanks for pointing out the specifics of how such an easement can be enforced.

- IIQ:"Actually I would argue that the Government (local / national) should be serving the same role here as in all matters, as a market facilitator."

If you substitute "could" for "should" you might have a case, but then anyone "could" do that, couldn't they.

- Thanks Willie. Any word on when Rodney will release policy to support the abolition of the RMA? He'd have my support for that. ;^)

- "PS - PC can you change your settings to not have popups for comments? Plays nasty with coComment..."

Done. :-)

31 May 2006, 13:51:00  
Anonymous Anonymous said...

PC said:

"When the productive have to ask permission from the unproductive in order to produce," said author Ayn Rand, "then you may know that your society is doomed."

I agree with Ayn Rand there. Commissar Wilkinson is the unproductive of the society. She does not employ people or to produce for the society. She and her vandals raided Sound City in dominion road earlier this year to inflict property damage to a productive member of the society who pays tax that pays for her (Wilkinson) wages. The owner also employes other people that they all pay tax. The owner of Sound City is a producer and Wilkinson are leechers and blood suckers of society.

What is the difference between unproductive members of the society such as Jackie Wilkinson and the dole bludgers? They are the same, except that one leeched off the Auckland City Council and the other one leeched off the government. But the government and Auckland City don't produce for the society, they steal from its citizens.

31 May 2006, 14:18:00  
Blogger iiq374 said...

PC - by my "should" (rather than could) I was basically meaning that it was the only role they should play (if any).

In the instance of certain items like historical buildings etc because many people will not front up with proper value until there is actually a perceived threat I do not see that "requiring" a permit (which is free to get) before starting the destruction is a bad thing in the process. Only that the destruction can be stopped.

31 May 2006, 14:39:00  
Blogger PC said...

Ah, IIQ, I see. We're back really to the argument about recycling, aren't we. Remember:

"PJ O'Rourke points out that when used items have real value -- Ferraris for example -- they don't need to be 'recycled,' they get sold. 'Recycled' is what happens to stuff with no value, or with so little value only a government regulation can make enough people care."

31 May 2006, 14:45:00  
Anonymous george said...

Years back [pre-RMA] a neighbouring farmer contacted DoC, forest and bird and a few other crowds. He got them to go over his property and earmark what they thought was 'important'

They were delighted and came back with all sorts of coloured-in, shaded and coded maps refering to an index of features. He thanked them and a few months later put the whole lot into history with a dozer.

We were mortified at this-in-your-face vandalism. He simply said he could not trust the bastards as far as he could throw them, one day they would come back without invitation and wreck his business, now they had no reason to.

He appears to have had prophetic qualities or been just a good judge of behavioral tendencies. He farms his property today relatively free of the harassment that everyone else in the district is having with meddlers. Remove the meddling enablement [the RMA] and a lot more features would have been voluntarily preserved.

31 May 2006, 22:04:00  
Blogger iiq374 said...

PC - almost agree ;-)
This is what happens to stuff with so little marginal value only government co-ordination can attribute enough peoples marginal contribution into a meaningful whole.

A tree might only be worth 1c to me, in which case I'm not going to argue for it - but if it is worth the same 1c to the entirety of NZ then that makes it worth $40,000 to the country. Which might be enough to buy that tree. The issue is efficient co-ordination of the marginal benefits.

1 Jun 2006, 15:19:00  

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