Take Five: Squatters’ Rights

In this podcast, free to Silver, Gold, and Charter subscribers, we explore the war being waged by American governments--Federal, State, and Local--against the rights of property owners.

Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina

5 Responses

  1. Eric Peterson says:

    “It’s as if government is the actual owner”

    It’s my understanding that here in Virginia the King granted ownership of the land to Lord Fairfax or someone like that, who then divided and deeded the land to subsequent owners. I ought to know more about this, but my deed is stored at the courthouse:

    “All deeds, deeds of trust, deeds of release, certificates of satisfaction or certificates of partial satisfaction, quitclaim deeds, homestead deeds, grants, transfers and mortgages of real estate, releases of such mortgages, powers of attorney to convey real estate, leases of real estate, notices of lis pendens and all contracts in reference to real estate, which have been acknowledged as required by law, and certified copies of final judgments or decrees of partition affecting the title or possession of real estate, any part of which is situated in the county or city in which it is sought to be recorded, and all other writings relating to or affecting real estate which are authorized to be recorded, shall, unless otherwise provided, be recorded in a book to be known as the deed book.”

    The prior owners signed my deed, and the prior owners signed their deed, and so on, presumably back to the original grantee. Who is the real owner? I can say I am the owner and the sheriff will come to remove a trespasser. But I pay a type of rent for that service and other government services. But it’s unclear that I own anything unlike my ownership of particular items like my car. Do the heirs of King George own it? What about the paleo indians who built a permanent residence nearby and lived in it for 2,000 years?

  2. Dom says:

    Mr. Peterson,
    That is an interesting point. We have a general Western, Christian, and specifically Anglo legal and cultural heritage. But when considering this or that particular town or county, how much should, say, the original colonial charters be accounted? I don’t know enough to say whether such a thing would even make much difference although it certainly could.

  3. Thomas Fleming says:

    Thanks for posing extremely interesting and well nigh impossible questions. The status of held originally acquired under Royal charter and passed down is a difficult issue that can only be discussed–though not answered–by specialists. I do know, for example, that in SC such land was not subject to the state’s restrictions on riparian rights, specifically, the terms of the original grant, which included tidal marsh, have been held to be valid. Nonetheless, such lands would not, I believe, be exempt from confiscation for unpaid taxes or under Eminent Domain. The King’s heirs would have no claim whatsoever, since the states, during and after the Revolution, unfairly seized the property of royalists and more or less voided all entanglements with the government of Britain. Interestingly, they also voided the royal charters that had been granted to several American cities and then rechartered them as creatures of the states–an act manifestly unjust and illegal, unless one takes the position that a democratically elected government can make up its laws as it goes along. I find it interesting that none, so far as I know, of the vocal supporters of states’ rights has ever condemned the states’ usurpation of the rights of cities and counties. Jefferson, I believe, understood clearly that Americans could only maintain their liberties in a deconsolidated federation of polities and, in a famous letter, took it down to the level of the ward or neighborhood, roughly corresponding to the demes of which ancient Attica was made up,

  4. Eric Peterson says:

    Thanks for that detailed answer and since I just read about the other Jefferson, I assume you are referring to him. I am involved in possibly the second lowest level of government, being a director in my HOA. The lowest level is groups of neighbors who sometimes organize to oppose the HOA board.

    Regarding land ownership, the HOA has a right of way to 25 feet from the center of every road. We own 15 feet from the side and rear lines of any property. By owning I mean we can build a temporary road, bury a gas line, string electric wires, and do other things that might benefit the community. As part of owning the roads we assess all the owners for upkeep of the common area and roads.

    But we also are responsible for prohibiting “…any person to create, assist in creating, permit, continue to permit the continuance of any unreasonably loud or disturbing sound of such character, intensity, volume, carrying power or duration as to disturb the comfort repose, health or safety of any individual unless the sound is made in activity conducted for the preservation of the health safety or life of some person” These days such mundane enforcement activity might be assigned to Kamala Harris. But it is our assignment and the same covenant prohibits the “use of firearms except for self-defense”. That might actually get her attention.

    Our board chose (poorly in my opinion) a few years ago to “federalize” (in the modern usage) firearms use ban by being added to the county code prohibiting use of firearms except for self-defense in about a dozen subdivisions. Without that designation we will not get county enforcement against “recreational” firearms use unless that use results in an immediate danger. The county Board of Supervisors wisely refused our particular request (having approved many others) They essentially said that our HOA and groups of neighbors should work it out among themselves.

    The point is that we can govern ourselves or punt (give in to the folks who want higher authority). How do we best use “our” properties for individual and collective enjoyment and productive use? The answer is self-government. While we vote for various representatives, the bottom line is we must defend our liberties as locally as possible so that we can control and de facto own our properties.

  5. Thomas Fleming says:

    Thanks for your excellent post of wise observations. I have no comment to make except to express general agreement.