Unsettling the City

Urban Land and the Politics of Property

Nicholas Blomley

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781135954185
• Edition: 1
• Topic: Architektur
• Subtopic: Stadtplanung & Landschaftsgestaltung

Short and accessible, this book interweaves a discussion of the geography of property in one global city, Vancouver, with a more general analysis of property, politics, and the city.

CHAPTER 1
Welcome to the Hotel California

It’s a comfortable feeling to know that you stand on your own ground. Land is about the only thing that can’t fly away.

—Anthony Trollope, The Last Chronicle of Barset

[T]here is not only argument about what the institution of property ought to be, there is also dispute about what it is.

—C.B.Macpherson, “The Meaning of Property”

What Is Property?

In October 1997, Wade Luciak, the owner of the Hotel California in Vancouver’s Downtown South neighborhood, evicted fifty long-term tenants, and gave notice to fifty more. Rents were increased from the near-welfare rate of four hundred dollars a month that long-term residents paid to a nightly rate of sixty dollars (or eighteen hundred a month). The owner ordered the evictions to make room for higher paying tourists, and because of his concern with a proposed city bylaw designed to discourage the demolition of lower-priced units. Luciak reportedly saw this as an unjustified limitation on his profits and his abilities to run his business as he saw fit. In a media interview he claimed to regret the evictions: “I really think the world of them [his tenants] and they think the world of me.”¹

The story of the Hotel California appears quite obviously to be a story about property. From the brief description, it is easy for any observer to assign and name property’s basic categories. Thus, Wade Luciak is an owner. He owns a building, the Hotel California. As such, we expect him to enjoy certain rights. The building is occupied by tenants. Though they may enjoy certain limited rights, these tenants are ultimately subject to the rights of Luciak to expel them from his property. The city of Vancouver has interests that are seen as external from, and ultimately secondary to, the rights of the owner. “Economic” imperatives (an entrepreneur’s need to earn a profit) are juxtaposed in this story with “political” interventions (the city’s desire to curtail homelessness). In response to this threat, the owner exercises his right to dispose of his property as he sees fit. He has nothing against the tenants; in fact, they are his friends. Blame is fixed squarely with the interventions of the city.

But what is the property at the center of this, and so many other urban stories? For property more generally is far from a self-evident category. It is, claims one eminent theorist, a “social relation that defines the property holder with respect to something of value…against all others.”² To an anthropologist, it is a “network of social relations that governs the conduct of people with respect to the use and disposition of things.”³ Marx pointed to “the relations of individuals to one another with reference to the material, instrument and product of labor.”⁴ Relations and networks, individuals and societies, things of value—these are all ambiguous and slippery concepts.

Yet, despite the potential slipperiness of property, the categories and assignments I used in discussing the Hotel California are familiar for a good reason. They exemplify a pervasive set of conceptions of what property is, conceptions that Joseph Singer terms the ownership model:

What is property? One might think this was a simple question. Property is about rights over things and the people who have those rights are called owners. What powers do owners have over the things they own? Owners are free to use the property as they wish. They have the right to exclude others from it or grant them access over it. They have the power to transfer title—to pass the powers of ownership to someone else. They are also immune from having the property taken away from them without their consent, or they must be adequately compensated if the property is taken by the state for public purposes.⁵

Property, according to this model, is almost exclusively private property. A bright line is drawn between the owner and the state: although the state may intervene to limit the rights of the owner if they threaten harm to others, such interventions are seen as secondary to the core rights of the owner. Property rights are negative rights, in that sense. The ownership model also assumes a unitary, solitary, and identifiable owner, separated from others by boundaries that protect him or her from nonowners and grant the owner the power to exclude. The actions of the owner are imagined as self-regarding: they concern only him or her and the things owned. Mr. Luciak’s property relation thus appears to rest in his right to control the occupation of his hotel rooms: the eviction of the occupants of those rooms (who think the world of him, as he does of them) appears almost as a secondary and unwanted by-product of that relationship.⁶

The ownership model, it has been said, “remains powerful and exerts substantial determinative force in adjudicating and developing the rules of property law.”⁷ As I note below, it shapes understandings of the possibilities of social life, the ethics of human relations, and the ordering of economic life. It also, I will argue, shapes our understanding of what property in the city actually is and how it ought to be structured.

Were we to draw a map of property in the city using the ownership model, the majority of land would appear as privately held. Similarly, private property appears as central to discussions of property more generally, as I shall note below, even to the extent that the two appear synonymous. Second, private property would be distinguished from “public” property, such as streets, parks, and schools. All land appears neatly assigned to either public or private forms of ownership. Such a mapping accords to the ownership model’s categorization of property. Categorization, of course, is central to legal reasoning, providing a basis for determining whether a certain legal rule applies to a particular situation. Legal categorization, it has been argued, is definitional, grouping objects together on the basis of what are assumed to be their inherent and objective properties.⁸

That property is reducible to private property seems commonplace.⁹ Charles Donahue documents a tendency within Western property law to agglomerate “in a single legal person…the exclusive right to possess, privilege to use, and power to convey a thing.”¹⁰ Private property has dominated debates on property, of course, since the very beginnings of political theory.¹¹ Macpherson argues that the centrality of private property to dominant maps reflects the particular moral controversies that it generates. The ascendancy of the capitalist market, he argues, made it natural “that the very concept of property should be reduced to that of private property—an exclusive, alienable, absolute individual or corporate right in things.”¹²

But, as noted, a map of urban property, predicated on the ownership model, would also sustain a second claim: that there are many owners of land, “but, for practical purposes,…only two classes of ownership.”¹³ While private ownership is clearly the expected norm, forms of collective ownership are obviously acknowledged. However, these are carefully hedged: “either ownership is vested in private parties or it resides with organized governments. Thus, in the conventional lore, markets are based on private rights, or, when markets fail, property may be governmentally managed.”¹⁴ As Macpherson notes, state or governmental ownership is of a particular form. State property entails a right that the state creates and retains for itself (for example, public utilities or parkland). In effect, the state is acting as an artificial person or corporation.¹⁵

But the ownership model tells us not only what property is, but what it ought to be. State intervention is presumptively invalid, with the burden of justification resting with the state. As suggested above, the rights of the private owner are seen as legitimately trumping those of the collective, and are deemed both anterior and superior. This places a heavy burden on those seeking to regulate or limit the property right. Put in more popular terms, this conception is made explicit when a homeowner claims, “this is my land, and I can do what I like with it.”¹⁶ Although this may serve useful economic functions, the separation and privileging of property rights also sustains valued political functions—most importantly, that of the liberty of the owner. Maintaining the distinction between owner and state, in this sense, is critical. Property also promises a decentralization and dispersal of power: “Power allocated through property appears to have an independent, nonstatelike quality. It is “private power.”¹⁷

The “ought” of property extends more generally. As I shall discuss below, private ownership is seen as good to the extent that it fosters valued behaviors, including responsible citizenship, political participation, and economic entrepreneurship. By extension, people who do not own property (insofar as the ownership model is concerned) are treated with a good deal of ambivalence, suspicion, and even hostility. This treatment extends to whole categories of people who do not enjoy the full exercise of private property rights, whether they be renters, occupants of social housing, or at an extreme, homeless. The ownership model has other important ethical associations. For example, many would argue that Mr. Luciak should be able to exercise his property rights to upgrade his property not only because of the importance of his essential liberties, but because we approve of his plan to “improve” the property. This would facilitate the “highest and best use” of the hotel, to use a widespread phrase. Property in this sense comes freighted with both economic and political meanings.

And of course, these definitional questions are more than a disinterested taxonomic exercise, but prove immensely consequential. Put bluntly, the adjudication of what is, and what is not property makes important things happen. And of course, what or who qualifies as an owner or object of ownership, and the precise nature of the relationship “against all others” has long been politically charged. Can people be owned, for example? Can individuals exercise private property rights over objects of shared cultural value? ¹⁸ Who is entitled to own? The ownership model is again important here, offering what seem to be persuasive and commonsensical answers. This is important: because of the institutional and ideological investments of capitalist society, naming someone as an owner or something as an object of ownership is important. As I discuss below, property relations acknowledged by the state are granted rights-status. So, put simply, because I am categorized as an owner, I have an enforceable right to my home. Others, such as indigenous people, may pursue a claim to “my” land. However, should a native person decide to camp out in my front garden, I could enlist the power of the state to expel him, using force, if necessary.

The tendency to view property as essentially private, and periodically public, reproduces the wider tendency to view legal orderings as binary, with a privileging of one pole. We should not be surprised by this, given the prevalence of a particular worldview, central to Western law, which offers a powerful view of law, society, and power. This liberal discourse assumes a view of rights, such as those relating to property, as belonging to atomized individuals located in a realm of private liberty, confronting a threatening collective (either the state or other institutions).¹⁹ This clearly fits into the ownership model, with the centrality it accords the individual and the incoherence of collective claims to property.

The ownership model thus offers a consequential categorization of property that affects both the formal workings of the law and everyday understandings of property. Jennifer Nedelsky points to the “tenacity,” “power and significance” of a particular view of property to conceptions of property, politics, and the world.²⁰ Like a more famous Hotel California, it feels like we may be able to check out, but never (conceptually) leave. The reified categories of the ownership model, moreover, remain persuasive in part because they are sustained by spatial categories. In both a practical and metaphoric sense, the ownership model is, in part, a spatial model. This is significant, given that legal and spatial representations, when combined, can have powerful effects. The ownership model presents property as fixed, natural, and objective, transforming “the contingency of social history into a fixed set of structural arrangements and ideological commitments.”²¹ This in part reflects the institutional power of law, reliant upon deeply engrained claims to formalist reasoning, reason, and closure.²² Space, like law, has also been characterized as objective, appearing to have “an air of neutrality and indifference with regard to its contents, and thus seems to be purely formal, the epitome of rational abstraction.”²³ The assumed objectivity of the spatial and the legal render them especially opaque to critical insight. Consider, therefore, what happens when legal categories are simultaneously and recursively spatial categories: when law and space are “spliced” together.²⁴

Practically speaking, the ownership model relies upon spatial boundaries. As Singer notes, “we know the extent and the limits of the property by a physical description of the space that is to be controlled by the owner. The boundary separates the owner from nonowners. The owner’s property rights are absolute within the boundaries of the property and nonexistent outside those boundaries.”²⁵ Like the legal meanings of property, the boundary itself is imagined as determinative and transparent and as serving to separate and divide. These boundaries on the ground, as it were, shade off into metaphoric boundaries, notably that between the public and private spheres.²⁶ Metaphorical boundaries are important to legal liberalism, which Michael Walzer has described as turning on the “art of separation,” predicated on the drawing of lines and the separation of different realms. “Liberalism is a world of walls…,”²⁷ But there’s another spatial metaphor at work here. A number of commentators have alerted us to the centrality of the private home as a model for structuring our thinking on property rights. “For a man’s house is his castle, et domus sua cuique tutissimum refugium,” declaimed Coke.²⁸ Deliberation on property rights, Michael Robertson suggests, frequently turns to the model of the family home as a basis for evaluation.²⁹ Thus, even though the Hotel California was a home of sorts to many long-term residen...