Time, Property Rights, and the Common Law

The fee simple is often defined as an estate or interest of potentially infinite duration. This way of speaking suggests that property rights are fixed and permanent – indeed, that they last forever. Similarly, property rights are regarded in classical liberal thought as sources of stability and security that foster individual autonomy and protect owners against the vicissitudes of life. This too suggests that property rights are not contingent upon a particular temporal context, but rather are impervious to the passage of time. When we look at the common law, however, we quickly discover a much more complex relationship between property rights and time. Property rights do not extend infinitely backward in time. Rather, they originate at some determinant point in the past, typically with a grant from the sovereign, but occasionally also with acts of first possession. Further, property rights can be lost through the passage of time. If property comes into the possession of someone other than the owner, and the owner sits on his rights, then, by operation of the doctrines of adverse possession and prescription, ownership may pass to the possessor. Finally, property rights cannot be projected indefinitely forward in time. The power of an owner to tie up his property in the future is restricted by various rules and doctrines, such as the rule against perpetuities, the prohibition on restraints of alienation, statutes forbidding the creation of a fee tail, marketable title acts that limit the duration of defeasible fees, and the changed circumstances doctrine in the law of servitudes