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Ownership Rights and the Rites of Ownership

Published online by Cambridge University Press:  27 December 2018

Neal Milner
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Abstract

Using condominium owner and landowner narratives about their property, I consider how people answer the question, What does it mean to own something? These property narratives are framed around three sets of social practices, myths, and beliefs which I call rites of identity, rites of settlement, and rites of struggle—the rites of ownership. According to these narratives, ownership requires that the person possessing the property carry out these rites. Their sense of entitlement—ownership rights—is framed by these rites. Following the rites makes one a deserving property owner. Property rights are seen as protectors against arbitrary, unpredictable changes in status that violate these owners, sense that they are entitled to keep what they had worked so hard for and planned for so long. I conclude with a discussion of the value of property narratives for understanding the link between law and culture.

Type
Articles
Information
Law & Social Inquiry , Volume 18 , Issue 2 , Spring 1993 , pp. 227 - 253
Copyright
Copyright © American Bar Foundation, 1993 

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References

1 Rose, Carol, “Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory,” 2 Yale J. L. & Humanities 37 (1990).Google Scholar

2 Id at 53.Google Scholar

3 Id at 53, 55. See also Carol Rose, M., “The Comedy of Commons: Custom, Commerce, and Inherently Public Property,” 53 U. Chi. L. Rev. 711 (1985).Google Scholar

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7 Under the act lessees living in single-family residential lots within tracts of at least five acres in size are entitled to ask the Hawaii Housing Authority to condemn the property on which they live. If in a public hearing HHA determined that the public purposes of the act will be served by condemnation, then the agency directs the parties to negotiate a sale price. If negotiations fail, then parties must submit to compulsory arbitration.Google Scholar

8 Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).Google Scholar

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11 Throughout I use the following terms interchangeably: lessor and landowner; lessee, condominium owner, condominium dweller, and leaseholder. The lease issue applies also to people who live in cooperative apartments, but I refer only to condominiums because in the entire state there are only 29 leasehold coops involving a total of 400 people. See id. at 19–30.Google Scholar

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16 I am a condominium townhouse owner who lives on land leased from the Bishop Estate, the largest lessor in the state. Many activists in the anti-leasehold movement come from my neighborhood and from my townhouse complex. I have not been directly involved in these activities, but I have contributed money and I signed one of the petitions included in the testimony to be discussed below.Google Scholar

17 It is not likely that the ethnic and racial distribution of those supporting the bill reflect the population of condo owners as a whole. According to a survey, Chinese and haole (the term typically used in Hawai'i to describe Caucasians) are overrepresented compared to the rest of the population, while Hawaiians and Filipinos are very much under-represented; see Tune, Honolulu Advertiser. My very rough tally, made by using the surname in the testimony as an indicator of ethnicity—a method that is even more unreliable in Hawai'i than elsewhere because of the large degree of intermarriage—indicates that haoles are overrepresented among people giving testimony, while the Chinese are under-represented. Indeed, as I will argue later, those who testified in favor of the bill were overwhelmingly haole. Almost 90% had names that were not Asian, Hawaii'an, or other Pacific Islander, while almost two-thirds of the landowners had Asian or Hawai'ian names. My educated guess is that a greater percentage of the landowners with non-Asian names come from ethnically mixed families than is the case of their counterparts who supported the bill.Google Scholar

18 The numbers in brackets designate the testimony's file number in my file. Since the materials are public documents, I use the true names of the participants.Google Scholar

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20 This was a most surprising finding. I expected that haoles would typically tell these stories. According to Elvi Whittaker, The Mainland Haole: the White Experience in Hawaii (New York: Columbia University Press, 1986), haoles who have moved to Hawai'i from the mainland commonly make sense of their present lives by discussing the historical route that brought them to that place. These stories, which are somewhat like the lessors' family stories, do not appear. Relying on Whittaker, I had originally intended either to focus on these haole arrival stories or to compare them to the landowners' statements. The question of why these stories do not appear is an important one because of Whittaker's contention that they offer a key into understanding haole culture, a subject that needs much inquiry. I can think of two reasons why the testimony lacks such stories. First, Whittaker encouraged people to tell these stories. She asked them to describe themselves in these terms. It may have made a difference if I had interviewed the reformers and asked them to discuss why they moved to Hawai'i. One such story does appear in an interview for a documentary made about the leasehold controversy (Mark Delorme, transcript of audio from “Condominiums: The Politics of Leasehold,” at 22–26 (n.d.); video available at University of Hawaii Sinclair Library, 1991) (“Delorme, ‘Condominiums’”), although most of that story does not appear in the documentary itself. It should be noted that the husband and wife telling that story were both born in Hawai'i and had strong family ties here. Second, property and home owning are not discussed in Whittaker's study, and property may raise another set of responses. The only full lessee family story in my study matches Whittaker's haoles. The storyteller tells why he moved here, where he, his wife, and their two children settled, and how they chose the neighborhood where they bought the townhouse where they still live. He then goes on to describe why he stayed, how his children progressed from elementary school through the public schools, Honolulu Community College, and the University of Hawaii. “In short we became full fledged citizens of Hawaii with all the rights and privileges thereof” [169].Google Scholar

21 No churches or social organizations testified in behalf of the lessees, while two churches and the Odd Fellows testified against the bill. See, for example, [218].Google Scholar

22 Perin, Everything in Its Place. See also Sally Merry's discussion of settled and unsettled people in Getting Justice and Getting Even 60–61 (Chicago: University of Chicago Press, 1990) (“Merry, Getting Justice”).Google Scholar

23 From a formal legal standpoint, it is not possible to have owned land in Hawai'i for 200 years because land was not available for private ownership, nor was it commodified until well past the mid-19th century. The family that claimed 200 years of ownership has probably occupied the land for that amount of time, purchasing or getting title to it about 100 years ago.Google Scholar

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28 A part-Hawai'ian landowner who lives on land inherited from his grandfather talked about the taro patches and poi mill that used to be on the land where he lives today. The ties to the past are very visible even though the land is no longer farmed: “The original poi mill was not completely destroyed—our office was built where the poi mill once stood. I live in my great grand mother's original home in the Manoa Valley” [320].Google Scholar

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32 Compare Alfred Winslow Jones Life, Liberty and Property (Philadelphia: Lippincott, 1941).Google Scholar

33 Delorme, “Condominiums.” The state's lieutenant governor who supports a cap on lease rent used similar justifications. “Nothing is sacrosanct” in society, he argues. There is a broader “social contract” that governs contracts between individuals. Ibid.Google Scholar

34 Perin, Everything in Its Place (cited in note 15); Scott Donaldson, The Suburban Myth (New York: Columbia University Press, 1969); Judith I. De Neufville & Stephen E. Barth, “Myth and the Definition of Policy Problems: An Exploration of Home Ownership and Public-Private Partnerships,” 20 Pol'y Sci. 181 (1987).Google Scholar

35 In a fascinating study of changes in English copyright laws, Mark Rose shows how gradual but basic cultural changes in what was regarded as the natural order of things converged with active interest group politics to broaden the copyrights protection given to authors. When English society accepted the view that authors had their own original voice rather than simply being communicants of transcendent messages, it became easier to recognize the author's rights in law. See Mark Rose, “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship,” 23 Representations 51 (1988).CrossRefGoogle Scholar

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40 Rose, Carol M., “Crystals and Mud in Property Law,” 40 Stan. L. Rev. 577 (1988), identifies two tendencies in property law, “crystals” and “mud.” Crystal tendencies stress clarity and clear prediction. Their objective is to treat all parties, including friends and neighbors, in the same distant manner. Mud tendencies stress flexibility, not clarity. Policies that reflect this approach focus their attention on the relationship between parties. Mud approaches assume that even people with whom another person has no connection should be treated as part of the community.CrossRefGoogle Scholar

The discourses of both the landowners and the leaseholders intersperse both crystal and mud ideas. On the one hand, the landowners take a strong crystal approach when they argue “a lease is a lease is a lease!” On the other hand, while the landowners were more than willing to label the lessees as persons outside the community, these same landowners wanted the law to recognize the special needs that emanated from their desire to keep their land as a family legacy. The lessees reverse this pattern. Their stories, particularly about identity, describe a world of cool and distant relationships, yet their interpretation of contract law stresses the need for flexibility.Google Scholar