The Value of the Right to Exclude: An Empirical Assessment
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Date
2016
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Abstract
"Property theorists have long deemed the right to exclude fundamental and essential for the
efficient use and allocation of property. Recently, however, proponents of the progressive
property movement have called into question the centrality of the right to exclude, suggesting that
it should be scaled back to allow the advancement of more socially beneficial uses of property.
Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of
any empirical evidence. The actual value of the right to exclude remains unknown.
In this Article, we set out to fill this void by measuring, for the first time, the value of the right to
exclude. To that end, we use the passage of the Countryside and Rights of Way Act in England
and Wales in 2000 as a natural experiment to provide some empirical insight on this issue. We
show that the Act’s passage led to statistically significant and substantively large declines in
property values in areas of England and Wales that were more intensively affected by the Act
relative to areas where less land was designated for increased access. While property prices may
not capture all social value, our findings provide a critical input to the debate regarding access to
private property. Given that the access rights provided by the “right to roam” included in the Act
represent seemingly minimal intrusions on private property, our findings indicate that property
owners view even small restrictions on their right to exclude very negatively.
We believe that our findings are of significant importance to lawmakers in the U.S. as they
provide an empirical basis for policymaking in the realms of property and land use. In the U.S.,
private property rights enjoy constitutional protection under the Takings Clause of the Fifth
Amendment. Hence, any attempt to formalize a general right to roam or other intrusions on the
right to exclude may require the government to pay just compensation to affected property owners.
Our study suggests what the compensation amounts are likely to be. This information would allow
law-makers to make better decisions about the social desirability of various land use measures.
We would like to emphasize that our findings should not be read as a call against the adoption of
a right to roam, or any other public privilege. Our only goal is to furnish a much needed empirical
foundation that would permit law-makers to conduct a more precise cost-benefit analysis of
different policies."
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Keywords
property rights, exclusion