INTRODUCTION :: Property interests, unlike contracts, tend to adhere to a limited set of specific forms-the numerus clausus principle. Much scholarship in the past decade has focused on this distinction in an attempt to understand both the nature of and the reasons for the limitation on property forms within the common law. While these limitations on form are central to the common law, equally significant are the temporal limitations embedded in property law-property interests typically exist for a specific time period. Even the fee simple, a property interest of supposedly infinite duration, is limited in time by several overarching rules often referred to as “rules furthering marketability.”
Like the numerus clausus principle, these temporal limitations have been relatively tenacious, limiting the longevity and remote vesting of property interests for much of the recent history of the common law of property. The most infamous and controversial of these limitations is the somewhat quirky rule against perpetuities. But recently, many of these limitations have begun to disappear. In several discrete but significant areas of property law, temporal limitations are expanding beyond recognition or are disappearing altogether, giving rise to more enduring and, in some cases, more fragmented property interests. So while limitations on the forms of property interests remain relatively stable, limitations on the duration of some property interests are disappearing, giving rise to a growing number of perpetual property interests.
This Article explores the emergence of longer-lasting property interests in a number of discrete areas of property law: the longevity of servitudes in historic and environmental protections, the ever-growing timespan of intellectual property rights, and the disappearance of the rules against perpetual interests. While the demise of these and other temporal limitations deserves recognition itself and will be the focus of a major part of this Article, my primary interest is whether these changes tell us something about shifting cultural attitudes to our system of private property. If, as a number of prominent sociologists have argued, an exploration of social attitudes toward time is indispensable to an understanding of cultural conditions, then exploring temporal limitations in property law will presumably help us better understand what Margaret Radin has called “the Cultural Commitments of Property.” The emergence of potentially longer-running property interests, with their embedded expectations of stability and permanence, is particularly compelling, considering that it has occurred at a time when speed, flexibility, and impermanence are dominant features of our social conditions. In short, the emergence of perpetual property within the larger context of the twenty-first century and “time-space compression” is nothing short of paradoxical.
Part II of this Article begins with a brief exploration of time in property, from the abstract theories that justify and delineate entitlements, to the concrete doctrines temporally constraining ownership interests. The institution of private property, Carol Rose has argued, functions within the expectations of “an agrarian or a commercial people-a people whose activities with respect to the objects around them require an unequivocal delineation of lasting control . . . .” The primary contention in this Part is that the temporal realities in private property are essential to the inherent conditions and broader social expectations in a commercial or agrarian society.
Part III addresses the changes in property law affecting temporal limitations, beginning with those concerning the control of property in the distant future. Here the two most notable changes are the slow disappearance of the rule against perpetuities and the rise of perpetual servitudes in the areas of environmental conservation and historic preservation. In addition, this Part will look at the increasing longevity of intellectual property rights. The second half explores the reclamation of property from the past, in particular the meteoric rise in repatriation claims. Most of the changes discussed in this Article are based in U.S. law, but I also draw on material from other common-law jurisdictions with the expectation of making at least tentative claims about shifts in the cultural significance of some private property interests within common-law systems.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital