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共有与共管

Abstract

 

Co-ownership refers to legal relations in which two or more entities have equal

rights to the use and enjoyment of property. Co-ownership relationships may

satisfy the preferences of some owners, and predefined categories of

co-ownership, as opposed to contractually defined relations, may allow parties

to satisfy these preferences at relatively low cost. However, shared ownership

results in coordination and externality problems, which the law attempts to

mitigatein numerous ways, including judicial oversight of ‘reasonableness’ (as

in the law of waste) or fiduciary duties; ending the co-ownership relation

(through the right of partition) or providing rules that seek to optimize the joint

decision-making process (such as compulsory unitization). A major area of

growth in shared ownership is in condominium developments, where entities

own some property individually, while co-owning common facilities. This

permits parties to take advantage of economies of scale and the joint provision

of common goods. Condominium arrangements are governed by a combination

of contract, statute and judicial law, and typically include democratic

decision-making structures intended to minimize the sum of decision-making

costs(gathering information, voting, and bargaining) and the cost of erroneous

decisions.

JEL classification: K11, P32, H41

Keywords: Cotenancy, Co-ownership, Condiminium, Cooperative, Communal

Ownership

 

1. Introduction

 

Co-ownership refers to legal relationships that entitle two or more entities to

equal rights to the use and enjoyment of property. Although it most often arises

in the context of real property, co-ownership may apply to any type of property.

Co-ownership also takes numerous legal forms. The category includes tenancy

in common, joint tenancy, indivision, marital estates such as tenancy by the

entirety and community property (all of which are referred to here as

‘cotenancy interests’), as well as condominium ownership of common areas.

Other important examples of co-ownership include the relationship of

neighboring landowners with interests in underground oil or gas reserves and

communal arrangements such as kibbutzim, Hutterite or other planned

communities.

 

 

In each case, the central economic and legal problem is how conflicting

preferences and actions of the co-owners can be coordinated. In the absence of

such coordination, owners may overindulge in activities that impose costs on

their co-owners and underinvest in projects or activities whose benefits are

shared with co-owners. The legal mechanisms used to cope with these

externality problems range from doctrines that impose liability on co-owners

for engaging in inefficient activities (such as the law of waste), to legally

mandated common decision-making (as in compulsory unitization statutes), to

forced termination of the co-ownership relationship (partition). In addition,

successful coordination and decision-making in co-ownership situations often

depend on social sanctions and norms outside the domain of law. This article

explores the law and economics literature in three major related areas: common

law and civil law co-ownership; condominium ownership; and communal

ownership.

 

A. Cotenancy Relationships

 

2. Overview of Cotenancy Relationships

 

The common law forms of co-ownership include tenancy in common, joint

tenancy and tenancy by the entirety, each discussed below, as well as

coparcency (not discussed because it has largely fallen from use) and tenancy

in partnership (outside the scope of this article). Civil law forms of

co-ownership, also discussed below, include indivision and community

property.

 

If parties own property as tenants in common, each is considered to own an

undivided interest in the whole property. That is, each cotenant has the right

to use and possession of the entire property; and none has the right to prevent

any cotenant from making use of or possessing the property. A cotenant

generally need not account to other cotenants for the use value derived from the

property, nor for income received from the property, although where a cotenant

makes use in a way that permanently reduces the value of the land (such as

extracting minerals), most jurisdictions require that the income be shared. An

interest as tenant in common is freely alienable and devisable, with the

transferee becoming a tenant in common with the other cotenant(s).

 

The rules governing joint tenancy are generally the same as those for

tenancy in common, with the exception that a joint tenancy interest is

extinguished by the death of a joint tenant, leaving ownership in the surviving

joint tenant(s). However, a joint tenant may transfer his interest in the property

during life, at which point the transferee becomes a tenant in common with the

remaining co-owner(s).

 

Joint tenancy originated in the economic and social conditions of feudal

England, in which the division of landed estates among numerous heirs would

have impaired the ability to render feudal services to the lord. As feudalism

passed, so too did this imperative for joint tenancy. Responding to the

coordination problems inherent in concurrent ownership, England abolished

legal concurrent interests in 1925. In England, a grant or devise that would

formerly have created a legal concurrent estate is now deemed to create a

beneficial concurrent estate, with the legal title to property held in trust for sale.

Upon sale, the proceeds are allocated to the co-owners. Thus, the inefficiencies

of concurrent legal ownership are avoided.

 

Tenancy by the entirety, recognized in approximately 20 US jurisdictions,

can exist only between married couples. Like joint tenancy interests, entireties

property is subject to survivorship rights. However, most jurisdictions impose

limitations on the ability of either spouse to alienate any interest in entireties

property without the consent of the other spouse. Thus, entireties property is not

freely alienable nor can it be attached by creditors (in most jurisdictions).

 

The civil law equivalent to common law cotenancy is ownership in

indivision, under which each co-owner has an undivided ownership in the

whole property. Any co-owner in indivision may use or possess the entire

property, although changes to the property require the unanimous consent of

all co-owners. Like tenancy in common, property owned in indivision may be

transferred by deed or by will.

 

Community property exists in eight US states and in most civil law

countries. While the specifics of community property vary from jurisdiction to

jurisdiction, most provide that the earnings of each spouse during the marriage

(and anything bought with those earnings) are owned equally by the spouses.

Control over community property may be vested in one spouse or in both,

depending on the type of property and the jurisdiction. Upon death of a spouse,

typically one-half of the community property passes through the decedent's

estate, while the other half is owned by the survivor.

 

Whilethere is little reliable information on their prevalence, cotenancies are

obviously quite common. Hines (1966) analyzed recorded deeds in Iowa,

finding that while joint tenancy essentially disappeared around the turn of the

twentieth century, it increased rapidly in popularity beginning in the late 1930s.

By the 1950s, nearly half of all recorded deeds created joint tenancies, almost

entirely between husbands and wives (Iowa does not have community property

nor does it recognize tenancy by the entirety). Griffith (1961) provides survey

data indicating that, between 1957 and 1961, married couples in California (a

community property state) took title in joint tenancy over 85 percent of the

time. Lewis (1994, p. 446, n.204) cites studies showing that joint ownership of

land increased from 0.4 percent in 1890, to 22.2 percent in 1920, to 54.8

percent in 1940 and to almost 80 percent in 1960, and that a small survey of

California and New Jersey deeds from 1989 showed 65 percent co-ownership

in California and almost 69 percent in New Jersey.

 

The historical pattern of changes in co-ownership appears largely

unexplored in the legal and economic literature, and we know just as little

about decisions to use co-ownership today. Hines suggests that joint ownership

reemerged in this century partly out of the desire of mortgage lenders to avoid

the fragmentation of ownership upon the death of a mortgagor. The preference

for joint tenancies may also have been encouraged by tax factors and changes

in the social status of women and in attitudes toward the ownership of property

by women. This story is fragmentary at best, and the study of choices between

sole and co-ownership, and among forms of co-ownership, offers a ripe area for

historical, economic and sociological investigation.

 

3. Creation of Cotenancy Rights

 

One of the central benefits of cotenancy relationships is the ease with which

they can be created. For parties who desire such a relationship, co-ownership

can be adopted without the difficulties and expense of drafting a contract or

partnership agreement, contemplating future needs or contingencies, or

providing for conflict resolution or remedies should the co-owners later find

themselves at odds. And the choice between forms of co-ownership allows

parties to choose a form that fits common patterns of needs. For example,

community property and tenancy by the entireties attempt to provide rules that

will serve the needs of many married couples. To the extent that the law of

co-ownership succeeds in fulfilling the desires of co-owners, it may serve as a

valuable means of reducing the transaction costs inherent in negotiating,

establishing, and enforcing shared ownership arrangements. Moreover, when

disputes do arise, litigation or settlement costs may be reduced if the parties’

rights are clearly established by law, rather than requiring judicial

interpretation of a unique partnership agreement in each case.

 

These advantage also carry with them certain potential costs. Because

cotenancy relationships are so easily created, parties may enter into

co-ownership relationships without adequately considering whether the rights

and obligations established by law are truly appropriate to their needs. The

result may be lower initial transaction costs at the risk of increased future

disputes.

 

Co-ownership interests may sometimes be created by careful forethought

and design. For example, in some European and Latin American countries,

married couples may choose among several concurrent ownership regimes for

their property, choosing to hold their property individually, to hold property

acquired from earnings as community property but inherited property as

separate property, or to hold all of their property communally. Often, however,

cotenancies arise casually or even accidentally. Co-ownership may begin by

several heirs inheriting property (thereby becoming tenants in common), a gift

from a parent to several children, acquisition of property by a married couple,

or divorce of a married couple who own property together, to provide just a few

examples. Thus, although it is possible for co-owners to contractually define the

terms of their co-ownership, many co-owners do not explicitly consider the

rules governing their relationship. Rather, they trust that the default rules

specified by law will adequately suit their needs (Lewis, 1994, pp. 389-394).

Moreover, studies of other areas involving ongoing relationships indicate

systematic divergence between actual and perceived legal rules, and

demonstrate that parties’ actions are often governed by norms formed

independently of the legal regime. While it appears likely that many cotenants

misapprehend their legal rights, the absence of data leaves a tremendous void

in our understanding of the economics of concurrent interests.

 

B. The Economic Problems of Co-Ownership

 

4. Coordination Among Co-owners

 

As Demsetz (1967) points out, one of the functions of individual ownership is

the internalization of costs and benefits associated with the use of property. As

demonstrated by Hardin (1968), with communal property, such as a public lake

or common grazing area, the costs of an individual’s resource use may be borne

by the community at large while the benefits are realized by the individual

alone. That is, the benefits are internalized while the costs are externalized.

This leads to suboptimal resource use, as individuals maximize their own

benefit at the expense of the community. The classic example is the factory

spewing pollution into the (commonly owned) air.

 

Co-ownership creates a similar situation, in which each cotenant may seek

to use the property to maximize his or her personal benefit while externalizing

some costs onto co-owners. Alternatively, free rider problems may prevent a

co-owner from taking measures that confer benefits on other cotenants if the

cotenants cannot be compelled to contribute to the cost of those measures. For

example, consider neighboring landowners whose properties lie over a common

pool of oil. Each owner has an incentive to pump the oil as quickly as possible

to keep the neighboring owners from getting it first. This race may lead to an

inefficient investment in oil pumping and overly-rapid depletion of the pool.

The same problem can be envisioned when a co-owned property contains

minerals or lumber which can be taken by any co-owner. Or consider the

dilemma faced by co-owners of a property who disagree on whether it would

benefit from new improvements (perhaps one lives on the property, while the

other does not). Who makes the decision? If it need not be unanimous, can a

cotenant who wants to build force the other cotenant to contribute? And who

gets the increase in value from the property? If the law does not provide an

adequate means to address problems like these, shared ownership may lead to

an inefficient use of resources.

 

As Coase (1960) demonstrated, in the absence of transaction costs

co-owners would negotiate to an optimal resource use regardless of initial legal

entitlements with respect to their joint property. Initially, many co-ownership

situations may appear to have low transaction costs because they have a limited

number of owners, who know each other, are often closely related, and can

easily negotiate together (Ellickson, 1991, pp. 273-275; Ostrom, Gardner and

Walker, 1994). Thus, cooperation among co-owners is likely to be the rule.

 

However, in bilateral monopoly situations, that is, where small numbers of

parties are locked into negotiating with each other, strategic bargaining may

stymie the negotiations. Moreover, because co-owners are often family

members, emotional factors having little or nothing to do with the co-owned

property may prevent cooperation. Lewis (1994, p. 389) notes that these

problems are exacerbated by the legal rules governing cotenant

decision-making: decisions in a co-ownership situation generally are not

resolved by majority rule (either by person or interest), but must be unanimous.

Where each co-owner has certain absolute rights over the property and

cooperation breaks down, transaction costs may be quite high. Thus, as

Ellickson (1993) argues, an economic analysis of co-ownership must concern

itself with both the quality of the decisions made (the minimization of

deadweight losses) and the cost of making and enforcing these decisions

(transaction costs).

 

The problem of coordination among co-owners has engendered a number

of legal responses. One primary response is the law of contract: generally, if the

co-owners can agree on their respective rights and obligations, the courts will

enforce that agreement. This permits parties with special needs to craft a

relationship that meets their situation.

 

If the parties are unable to agree, however, the law establishes a series of

default rules and an exit option to mitigate the bilateral monopoly problem.

Thus, the law may impose liability on one co-owner toward the others, for the

rental value of the property or for damage done to the property. Or co-owners

may be treated as standing in a fiduciary relationship, forcibly aligning the

parties’ interests by proscribing one co-owner from profiting at the expense of

others. And cotenants generally have an absolute right of partition - that is, the

right to terminate the cotenancy relationship. The economic literature on each

of these legal remedies is discussed in the following sections.

 

5. The Right to Rental Value

 

In most US jurisdictions, a party in possession (the ‘in-tenant’) need not pay

rent to his co-owners even though the co-owners (‘out-tenants’) are not using

the property. Only if the in-tenant is guilty of ‘ouster’ - denying the out-tenants

the right to use the property - must rent be paid (although other exceptions,

such as offset rights upon partition, complicate the picture). In a minority of

jurisdictions, the tenant in possession is liable to his co-owners for their

proportionate share of the market rental value of the property.

 

The inability of out-tenants to collect rent from a tenant in possession may

result in the inefficient use of the property. Where one cotenant is living in or

otherwise using the property without paying rent, and values that use less than

the fair market value, the property is not being used optimally. And while an

out-tenant has the right to sell his interest in the property, a sale will not result

in a reallocation of the property to an available superior use because the

purchaser will simply step into the shoes of out-tenant, with no right to evict

the in-tenant or compel the payment of rent. Thus, because the in-tenant may

impose half of the cost of his use of the property on the out-tenant, the in-tenant

may continue to use the property despite valuing its use less than would other

potential tenants. This is one of the simplest examples of co-ownership

resulting in an inefficient use of resources.

 

Perhaps the first explicitly economic treatment of co-ownership was offered

by Berger (1979), who identified the fundamental problem as the conflict

between protecting the incentives for a tenant in possession to make productive

use of the property and protecting the property interest of the tenant

out-of-possession, concluding that a net leasing paradigm would lead to legal

rules that enhance economic efficiency. This approach would entitle the

out-tenant to its proportionate share of the market rental value of the property

under a net lease less certain expenses normally paid by the landlord in a net

leasing situation (for example, mortgage payments). All other expenses (such

as repairs, improvements, taxes and insurance) would be borne by the tenant

in possession, who receives the primary benefits of such payments. Such an

approach would provide efficient incentives for the use and improvement of the

property by permitting the cotenant making such use or improvements to

realize the value generated by them.

 

Although Berger identified economic policy concerns, his methodology was

that of traditional legal, rather than economic, analysis. Berger offered neither

a model based on specified assumptions of human behavior nor empirical data

to support his conclusions. Rather, he analyzed the confusion in co-ownership

law by analogy to two other legal forms, partnership and net lease

arrangements, choosing between these two paradigms on the basis of their

apparent efficiency and intuitive fairness. Nevertheless, Berger’s article

provided a starting point in the economic analysis of co-tenancy by identifying

some of the systematic effects of the law on cotenants’ rights and suggesting

that economic efficiency might provide a useful guide for reform.

 

Fifteen years after Berger’s article, Lewis (1994) offered another analysis

of cotenants’rights that draws heavily on economic concepts. These fifteen

years witnessed a tremendous increase in the amount and sophistication of

economic analysis of legal topics, and Lewis’s article reflects this increased

understanding. Although Lewis (1994, n.248) explicitly denies the intent to

provide an ‘extensive law and economics evaluation’, her analysis builds on

concepts derived in the law and economics literature. Lewis argues that

cotenancy is best viewed as a relational contract and that default rules must be

designed to prevent each owner, caught in a bilateral monopoly, from making

suboptimal use of the property in an attempt to maximize personal benefit at

the expense of co-owners, and to prevent strategic considerations from reducing

the benefits realized by all.

 

Lewis(1994, p. 439) also poses an interesting hypothesis on the relationship

between ownership rules and the broader economic landscape, suggesting that

the nonliability of in-tenants may have been derived from historical conditions

in a largely agrarian economy, in which the rental value of land was low

compared with the value of the labor used to farm it. In this situation, it would

be of little use to make a cotenant who is farming the property liable for the

rental value of the property because the liability would be too low to justify the

litigation costs. Given the general rule against rental value liability, the

exception for ouster was needed to prevent a cotenant from taking advantage

of other cotenants by denying them use of the property. Lewis then argues that

in a modern economy, in which the use value of property is reflected in

significant market values, the minority rule (which imposes rental-value

liability on the tenant in possession) will result in more efficient use of

co-owned property. Lewis concludes that the minority rule should generally

control, while ‘noneconomic’ policies (preserving family unity and furthering

home ownership) should trump the allocative efficiency of rental liability in a

narrow range of circumstances. In this way, Lewis acknowledges the efficiency

costs of pursuing her preferred policies, and clearly separates the normative and

positive components of her analysis.

 

6. Fiduciary Duties in Co-owner Relations

 

One area of investigation that has been largely ignored is the existence and

extent of fiduciary duties between cotenants. The imposition of a fiduciary duty

on a cotenant may mitigate some coordination problems by preventing one

cotenant from taking advantage of others. Courts have found fiduciary

relationships to exist between co-owners in some contexts, but there is no clear

principle on which one can rely to determine when co-owners will be regarded

as fiduciaries, nor is the scope of the fiduciary duty among co-owners clear. For

example, cotenants are often held to be bound by fiduciary duties in acquiring

the co-owned property at a tax or mortgage foreclosure sale, but not in

purchasing interests directly from each other.

 

While the economic analysis of fiduciary relationships has received some

attention, as by Cooter and Freedman (1991), the questions of fiduciary duty

among co-owners have not been addressed in the law and economics literature.

For example, is there an economic rationale for applying fiduciary duties to

some (or all) situations among co-owners? If so, what are the proper limits of

fiduciary duty in co-ownership relationships? How can a duty of loyalty be

applied when the putative fiduciary has an interest that is coextensive with that

of the putative beneficiary?

 

7. Waste

 

The doctrine of waste is another example of a rule designed to reduce

transaction costs. While any co-owner is permitted to use the property, the

doctrine of waste prohibits any owner from using the property in a way that

unreasonably harms the interests of his or her co-owners. This reasonableness

requirement mitigates the bilateral monopoly problem: the parties may

negotiate to any solution they like, but if one party insists on acting

unreasonably to the detriment of his co-owners, the law provides a remedy.

Knowing this, parties are less likely to hold out for an unreasonable (that is,

disproportionate) share of the benefits of ownership.

 

8. Voting Controls

 

The bilateral monopoly problem is caused largely by the right of any cotenant

who does not consent to a course of action to ‘hold out’ and either use the

property as he sees fit regardless of the desires of other co-owners, or to

prevent other co-owners from acting without obtaining his consent. This has

been a major problem, for example, in the ownership of oil and gas reserves.

Traditionally, a landowner owns not just the surface, but also all minerals

existing under the land. Thus, a pool of oil or gas is owned by everyone who

owns land above the pool, and oil or gas has traditionally belonged to whoever

first extracts it (the ‘rule of capture’). The rule of capture creates inefficient

incentives, rewarding owners for pumping faster than their neighbors, and so

encouraging overinvestment and overproduction. As Murray and Cross (1992)

point out, this is a classic prisoners’ dilemma situation: every owner would be

better off if they could all cooperate to limit their drilling to the efficient level,

but each has an individual incentive to defect from the agreement and drill

additional wells. Moreover, a consensual agreement to cooperate may be

unobtainable (or obtainable only at very high cost) due to the need for

unanimity, the number of parties who must agree and, accordingly, the risk of

holdouts who seek exorbitant prices for their consent.

 

The primary corrections to the problems raised by the common law rule of

capture have been statutes mandating conservation or compulsory unitization.

Conservation statutes limit the number and location of wells and the rate of

production, thus countering the overproduction induced by the rule of capture.

As Murray and Cross (1992, p. 1119) point out, however, such statutes

establish limits that will be inefficient for different reservoirs and geologic

conditions, sometimes permitting too much activity and sometimes too little.

In other words, by adopting a substantive rule, the law risks imposing an

inefficient decision on all of the parties.

 

A superior solution may be to resolve the holdout problem through a

procedural mechanism without imposing a particular substantive rule on the

co-owners. In the area of oil and gas law, this has been done through

compulsory unitization statutes, which have been adopted by almost all US

states with significant oil and gas production except for Texas. Under a

compulsory unitization statute, once a specified percentage of landowners over

an oil field vote to unitize, all owners (including those who did not consent)

must join together in the cooperative development of the field, sharing pro rata

in the costs and production. In this way, the owners’ interests are aligned to

maximize the profit realized from the production of the field, rather than

engaging in negative-sum competition to extract the oil or gas first.

 

Another example of the holdout problem arises in the co-ownership of

patents. As Merges and Locke (1989) point out, in the United States, any

co-owner of a patent not only has the right to make use of that patent itself, but

to assign all or part of its interest in the patent to others. In this way, any owner

can authorize (through partial assignments) any number of other parties to

make use of the patent, thus depriving its co-owners of the central benefit of a

patent right: exclusivity. France, England and Japan adopt a more consistent

view, under which a co-owner may use the patent without consent of other

co-owners, but no transfer may be made without the consent of all of the

co-owners.

 

The concept that each co-owner has absolute rights in the property has

generally prevented the adoption of majority rule provisions in the law of

cotenancy. In contrast, when parties establish co-ownership by contract (such

as partnership agreements or condominium developments), it is common to

provide for voting regimes to prevent the holdout problem from imposing

undue costs on the parties.

 

9. Partition

 

The law’s ultimate solution to the bilateral monopoly problem inherent in

cotenancy is partition of the property, available in both common law and civil

law jurisdictions. Any joint tenant, tenant in common or co-owner in indivision

has an absolute right to seek a judicial order partitioning the property, an order

which can take one of two basic forms: partition in kind or partition by sale. In

partition in kind, the property is divided into separate parcels, with each

co-owner being granted title to one or more parcels; if proportionate parcels

cannot readily be created, the court can order co-owners receiving more

valuable parcels to make a payment, called owelty, to those receiving less

valuable parcels. In partition by sale, traditionally available only if the property

could not be physically divided (for example, a small lot containing a house),

the court orders the property to be sold and the proceeds allocated among the

co-owners in proportion to their interests.

 

Relatively little has been written on the economics of partition, although

some preliminary matters appear clear enough. Partition serves as an ultimate

protection against deadlock when co-owners disagree on management of the

co-owned property, and each tenant therefore has an inalienable right of

partition (although courts will sometimes enforce limited or ‘reasonable’

restrictions on the right to partition). Partition by sale permits a tenant to

receive her share of the market value of the property by compelling her

co-owners to join in the sale of the undivided whole. Thus, any co-owner who

consistently attempts to extract a disproportionate share of the value of the

property runs the risk of causing a cotenant to seek partition. In this way, the

right of partition serves as a check on opportunistic behavior by cotenants.

Moreover, partition does not require the court to determine whether the parties

have acted reasonably or fairly, as remedies for waste or breach of fiduciary

duty require. Thus, partition may be a relatively low cost mechanism for

resolving co-owner disputes, at least where sale of the property is inexpensive

compared with litigation.

 

While the Act of 1539, creating the action for partition in England,

permitted only partition in kind, the Partition Act of 1868 permitted partition

sales where such ‘would be more beneficial for the Parties than a Division of

the Property between or among them’. In 1925, English law was further

modified to require the partition sale of co-owned real property unless the

co-owners agreed upon a plan of division. In the US, most jurisdictions have

statutes preferring partition in kind, permitting partition sales only where

partition in kind would prejudice

the interests of the co-owners. Thus, partition in kind is generally held to be

preferred to partition by sale.

 

Reid (1986) argues that American courts generally honor this rule in the

breach, ordering partition sales unless substantial factors dictate the contrary,

and that this judicial preference is a manifestation of the courts’ tendency to

adopt economically efficient rules. Partition sales may generally be more

efficient than partition in kind because many parcels lose value when divided,

and because of the risks of error inherent in the judicial valuation required for

a partition in kind, relative to the efficiency of the marketplace in valuing

property interests. Moreover, judicial division involves substantial litigation

costs which can be reduced or avoided by partition sale.

 

C. Condominium and Cooperatives

 

10. Introduction to Condominium and Cooperatives

 

One of the most important and fastest growing areas of co-ownership is the

condominium. In a condominium development, each property owner has an

individual interest in a defined parcel of property, and shares in the ownership

(typicallyas tenant-in-common) of various common spaces and facilities. Thus,

in a typical multi-unit residential development, each owner owns an apartment

unit plus a proportionate interest, with all of the other owners, in the common

elements, such as hallways, lobby, elevators and recreational facilities. This

hybrid form of ownership can be contrasted with a cooperative, in which a

corporation owns the real property, with each shareholder in the corporation

being entitled to a proprietary lease to a specific apartment. (Although

condominium and cooperative forms can be and are used for commercial

properties, the vast majority are residential.) In addition to these two common

forms of common or collective ownership of real property, recent years have

seen an explosive growth in the United States of property owners’ associations

(‘POAs’), in which a group of property owners may own in common various

facilities, such as recreational facilities or streets, and/or jointly provide services

such as security, landscaping or utilities. The expenses of each of these

common ownership structures are paid from assessments imposed on the

owners.

 

The economic advantages of private ownership are well documented in the

legal and law and economics literature (see, for example, Demsetz, 1967;

Ellickson,1993). Among other things, private ownership internalizes costs and

benefits, improving the efficiency of resource use. Private ownership also

fosters contractual relations and trade, further internalizing externalities

present in common ownership. Given these advantages, the historical

persistence and recent expansion of condominiums, cooperatives and

homeowners’ associations, forms that combine private and common ownership,

require some explanation, as do the mechanisms used by condominiums,

cooperatives and property owners’ associations to resolve the difficulties

inherent in collective ownership. Following the literature, this article will focus

on these issues in the condominium context. This article does not attempt a

comprehensive review of the law and economics of condominiums, which

would necessarily address a host of issues such as fiduciary duties and agency

theory, consumer protection and securities laws, zoning, rent control and tort

law. Rather, this article focuses on those issues central to the co-ownership

aspect of condominiums: the coordination and control of the condominium

development.

 

11. The Rise of Condominium Ownership in the United States

 

The condominium is an ancient form of real property ownership, dating back

to Roman law. While it continued as a viable form of ownership in civil law

countries, including much of Europe and, later, South America, condominiums

only became possible in the United States with the passage of enabling statutes

beginning with Puerto Rico in 1958, and spreading to over 40 states by 1963

and all 50 by 1968. The dispersal across the United States of statutes permitting

the creation of condominiums is a phenomenon that has received remarkably

little formal analysis. The sudden adoption of a legal institution that has long

been available deserves study, yet research discloses no attempts to model the

dispersion and adoption of condominium laws or to explain the timing and pace

of this remarkable institutional change.

 

This legal change was matched by a marketplace response, as condominium

developments spread rapidly in the United States during the 1970s and 1980s.

A partial explanation for the popularity of condominium ownership may be

found in separating the demand for home ownership from the demand for

housing services. Rental housing provides a tenant with housing services, while

the owner/landlord obtains an investment. As discussed by Ioannides and

Rosenthal (1994), home ownership serves tax and investment purposes apart

from the provision of housing. Where a consumer desires housing in the nature

of a unit in a multifamily structure, but also desires the tax and investment

benefits of ownership, a condominium may be superior to either owning

detached housing or renting an apartment while investing in other real estate.

This explanation, however, does not explain why condominium demand would

have increased over time.

 

Hansmann (1991) suggests that the rise of condominium ownership in the

United States may be attributable to an increase in the tax advantage of

ownership over rental housing caused by the failure to tax the imputed rental

value of owner-occupied housing (offset only in part by accelerated depreciation

for real estate investments during the 1970s and early 1980s). Hansmann also

identifies numerous other factors affecting the relative desirability of

condominium or cooperative ownership versus owner-occupied housing,

including risk and liquidity concerns, landlords’ market power, rent control

regulations, the high costs of changing residence and the costs of collective

governance. Lewin (1982) similarly attributes much conversion activity to tax

preferences granted to home ownership, arguing that this tax subsidy has

distorted housing markets to the disadvantage of low income tenants.

 

The conversion of rental units to condominium ownership in the 1970s and

early 1980s spurred a considerable debate over the adoption of regulations

intended to limit conversions. Proponents of such regulations argued that

conversions reduced the stock of rental housing, which increased rents,

transferred wealth from poorer to wealthier persons, and deprived tenants of

their legitimate expectations of tenure. Muth (1983) notes that even at the

height of the conversion craze, a relatively small share (well under 1 percent

per year) of the rental housing stock was converted to condominium form, thus

limiting the plausible effect of conversions on rent levels. Moreover, of

converted units, roughly 90 percent were purchased by former renters, thus

reducing the demand for rental housing nearly as much as the supply. Nor do

the data suggest that tenants in converted buildings are concentrated among the

poor or elderly, persons who might be particularly vulnerable to hardship upon

conversion (Muth, 1983; Lewin, 1982, p. 136).

 

Various jurisdictions have responded to the perceived problems caused by

condominium conversions with regulations intended to slow or stop conversion,

or to enhance tenants’ rights. For example, New York will only allow

conversion of apartments to condominiums if a specified percentage of tenants

agree to purchase their units, thus compelling the developer to offer units at a

below-market ‘insider’ price to existing tenants. Various jurisdictions also

restrict the ability to evict tenants in a conversion situation, particularly

protecting elderly or low income tenants, or provide tenants with rights of first

refusal. The legal literature appears largely devoid of attempts to quantitatively

evaluate the effects of these policies.

 

12. The Economics of Condominium Management

 

A defining characteristic of condominiums is the combination of individual and

common ownership. A fundamental legal and economic question, therefore, is

where the line between individual and communal ownership should be drawn.

While relatively little has been written on this question, the common ownership

of some shared goods, such as recreational facilities, can clearly be explained

by economies of scale, and others, such as roofs and supporting structures, on

the basis of nonexcludability. De Geest (1991) notes that the observed patterns

of common and several ownership can be explained in another manner as well:

as attempts to internalize externalities through individual ownership, while

placing the costs of certain types of failures on the owners as a group because

the group can insure at lower cost than could individual owners. Thus, items

that provide their benefit primarily to one owner (internalized benefits) should

belong to that owner so that he or she bears the costs of maintenance and care

or the loss upon destruction (internalizing the costs). Items whose benefits are

dispersed among the owners (externalized benefits) should be paid for by all

(externalized costs), and the owners as a group should bear the loss upon failure

or destruction, to minimize the cost of insurance.

 

13. The Provision of Public Goods

 

An important function of condominium developments is the provision of public

goods. A public good is one that is nonrival (use by one person does not

diminish the availability to others) and nonexcludable (anyone within the

relevant community may use the good, and cannot be excluded at reasonable

cost). For example, residential condominiums typically provide and maintain

common hallways and lobbies, elevators, external structures, landscaping and

perhaps recreational facilities. Rules and regulations regarding activities by

residents, intended to reduce negative externalities, are also public goods

shared by the unit owners.

 

Profit-maximizing condominium developers should seek to provide an

optimal level of public goods to unit purchasers. Public goods provided by the

developer include not only physical elements, such as recreational facilities,

elevator sand HVAC systems, but also the rules that will govern the community

on an ongoing basis. Thus, developers should seek to create rules and

governance structures that will maximize the satisfaction of purchasers by

reducing conflicts among the purchasers and encouraging efficient

decision-making.

 

While it makes sense that developers should attempt to design rules and

governance structures that are value maximizing for unit purchasers, there is

intriguing evidence of at least some systematic failure. Cannaday (1994)

presents regression results on the value of alternative covenants on pet

ownership. Analyzing data on the sale of condominium units in a submarket

in Chicago, Cannaday shows that, after adjusting for other relevant factors,

covenants on pet ownership substantially affected the value of condominium

units. That is, a condominium in a building with a ‘cats only’ covenant would,

on average, sell for approximately 5.6 percent more than the same unit in a

building that barred all pets. In contrast, if the covenant permitted large pets,

including dogs, the value would have dropped by approximately 11 percent.

This is superficially consistent with survey data indicating that renters prefer

cats to dogs by a 2 to 1 margin, but this study and similar studies by Sirmans

and Sirmans (1991) and Marshall (1990) raise intriguing questions: have

buildings permitting dogs really surrendered approximately one-sixth of their

market value by adopting a suboptimal covenant? Are condominium developers

unaware of this simple rule change that would immensely increase their return

on investment? Why haven’t market forces levelled this inequality of prices

through the greater adoption of ‘cats only’ covenants?

 

14. Transfer of Control from Developer to Purchasers

 

As discussed above, a profit-maximizing developer will seek to provide an

optimal level of public goods to potential purchasers. However, the case annals

document recurring problems with the transition from developer control to

resident control, a period during which the interests of the developer and the

existing residents diverge.

 

Typically, the condominium documents provide that each resident must pay

a proportionate share of maintenance costs, even though the developer retains

control of maintenance decisions until a specified number of units have been

sold. As Knapp (1991) shows, when only a portion of units has been sold, the

developer may desire a less-than-optimal level of services because the benefits

of additional services flow to existing owners, while the costs are shared by the

owners and the developer. Conversely, owners prefer a level of maintenance

that is higher than the optimal amount. Moreover, these amounts will change

over time: the developer will agree to provide more maintenance as additional

units are sold because the cost is shared by more residents, while residents will

seek lower levels as they bear a higher proportion of the cost. If it is difficult to

specify and monitor maintenance levels accurately, this problem may not be

soluble through contractual precommitment to perform specified maintenance.

Assuming that residents and developers are aware of this latent conflict, Knapp

Predicts they will contract to transfer control from the developer to the residents

at some time determined to minimize the costs of this conflict. By agreeing to

relinquish control at a set time, the developer provides assurances to early

purchasers that more optimal levels of maintenance will be provided, thus

increasing the amount they will be willing to pay for their units.

 

Various jurisdictions have passed statutes mandating that control be

transferred to developers after a given percentage of units have been sold.

Knapp’s model indicates that the optimal time for the transfer of control

depends on the utility derived by residents from the public goods, a factor not

estimated by Knapp’s study. Thus, the model does not provide a method for

determining when control should be transferred in a particular case, nor permit

evaluation of the levels set in these statutes or of observed practices, in which

transfers typically occur after 50 percent to 80 percent of the units have been

sold (with occasional examples ranging as low as 25 percent or as high as 100

percent).

 

15. Creation of the Governing Structure

 

Ultimately, many of the same types of decisions must be made for a real estate

project regardless of its ownership structure. Decisions regarding the level and

nature of investment and maintenance expenditures, rules of behavior in

common areas and mechanisms for resolving conflicts among neighbors are

needed in apartment buildings, office buildings, shopping malls, cooperatives,

and residential or commercial condominiums. However, the different

management mechanisms of these diverse ownership and management options

invite investigation and explanation.

 

Hansmann (1991) notes that collective decision making may result in

inefficient decisions for a number of reasons. For example, decisions will be

suboptimal if residents have divergent interests and an unrepresentative

coalition achieves dominance in collective decisions, perhaps through a low

cost of time or because they are strategically able to dominate the process. In

contrast, a landlord may be able to implement efficient policies more easily

than a collectively managed cooperative or condominium, because there are

fewer opportunities for tenants with divergent preferences to act strategically.

Moreover, the process of collective decision making may be considerably less

efficient than decision making by a landlord because it requires numerous

owners to gather information, meet, negotiate and vote, all of which may be

costly. Thus, collective decision making, as in a cooperative or condominium,

is more likely to prevail among a homogeneous group of residents, while

multi-unit facilities housing diverse occupants (whether apartments, retail

stores, offices or, especially, mixed uses) are more likely to be centrally

managed.

 

Acondominium may be created either by conversion of an existing physical

structure or by the creation of a new one. In either case, an initial set of

documents (bylaws or condominium declaration) establish the responsibilities

and entitlements of unit purchasers, and will provide mechanisms for

monitoring, enforcing and modifying these initial rules. Typically, fundamental

decisions are controlled by the declaration or bylaws and can be changed only

by a vote of the unit owners. Day-to-day decisions are made by a board of

directors elected by the owners pursuant to the declaration or bylaws. Various

voting schemes are used in different developments, and for different types of

decisions within individual developments, including: majority, supermajority

and unanimous voting requirements; equally weighted votes, votes weighted by

the area of each owner’s unit, or votes weighted by the value of the owner’s

unit.

 

As discussed by Ellickson (1982) and others, the governing documents, by

establishing initial rules and the procedures by which those rules are enforced

and modified, are akin to the constitution that provides the fundamental rules

of governance for a country. Thus, our understanding of condominium control

and management can build on the public choice literature, which seeks to

explore the economics of voting and constitutional design. Public choice theory

provides a framework for analyzing the means by which collective decisions are

made, considering the different stakes faced by various constituencies and the

transaction costs of gathering and maintaining voting blocs.

 

Ellickson (1982) uses a public choice model to explore the governance

structure of condominium associations, suggesting that members will seek to

minimize the sum of: (1) costs of value maximizing decisions that are not

adopted; (2) losses to member from measures adopted over the member’s

dissent; and (3) the costs of decision making. Moreover, members will

generally prefer that the association be barred from coercive measures that

simplyredistribute wealth because such measures will impose costs, while any

predictablere distribution will be nullified through adjustments in the purchase

price of the various units. In other words, redistributive regimes will impose

costs for no expected benefit. Thus, purely redistributive measures, like changes

in voting rights, shares of ownership in the common elements or allocation of

expenses, will be subject to a unanimity requirement. Conversely, members will

wantvalue-creating measures to be passed without high administrative costs or

risks of holdouts, and so such measures should not require unanimity. However,

requiring a simple majority creates some risk of reallocation, so risk averse

purchasers will tend to prefer some level of a supermajority requirement.

Ellickson also suggests that a ‘taking clause’, requiring that compensation be

paid to unit owners who lose objective value through an amendment, would

help to ensure that association measures are truly value-creating rather than

redistributive.

 

The public choice analysis is explored in more detail by Barzel and Sass

(1990), who empirically test various hypotheses on voting costs and

constitutional design in condominiums. Following the seminal work on voting

and public choice done by Buchanan and Tullock (1962) and on corporate

voting by Easterbrook and Fischel (1983) among others, Barzel and Sass

consider how the two major costs of voting (the resources expended in attempts

to use the voting process to redistribute wealth - ‘rent-seeking’ - and

decision-makingcosts such as information gathering and strategic bargaining)

affect the design of collective decision making in the condominium context. By

hypothesis, a profit-maximizing developer will seek to minimize these costs,

thereby maximizing the price that purchasers will pay for units.

 

Among the predictions of this theory, Barzel and Sass suggest that

developers will attempt to minimize conflicts among purchasers. While this

problem is relatively easy to solve where the purchasers’ interests are purely

financial (as in voting by corporate shareholders), it is exacerbated in the

condominium context by the fact that purchasers, each of whom has a different

utility function, are direct consumers of the goods and services being voted on.

Different preferences lead to the possibility of voting majorities transferring

wealth or utility to themselves at the expense of minorities. This problem will

be further exacerbated where units are heterogenous, causing unit owners’

interests to differ in accordance with their types of unit. The possibility that a

majority will impose policies that benefit themselves at the expense of a

minority will lead to deadweight losses as parties engage in rent-seeking and

in defensive strategies to protect themselves against rent-seeking.

 

These problems can be mitigated by harmonizing the interests of different

unit holders in various ways, such as providing homogeneous units and

amenities to all purchasers and providing for the transferability of units (for

example, if families vote for an assessment for an elaborate playground, owners

without children may capture their share of the value by sale of the unit to a

family with children). Barzel and Sass focus on three particular attributes

controlled by the developer: the allocation of assessment liability and voting

rights; the decision of which issues will be subject to voting control and which

will simply be within the discretion of board; and the rules under which

decisions are made (majority, supermajority or unanimity requirements).

 

Barzel and Sass predict that investment or commercial condominiums will

provide fewer protections against redistribution (because the interests of voters

are pecuniary rather than consumption, creating fewer divergences in interest).

In contrast, residential condominiums are predicted to have greater protections

against redistribution, such as more unanimity or supermajority requirements.

Moreover,condominiums with more homogeneous units (measured by size and

value), which are relatively immune to redistribution because unit owners’

interests are similar, are predicted to have fewer supermajority requirements in

order to reduce the costs of decision making. By contrast, developments with

great variation among the units are predicted to have more and higher

supermajority requirements, because the higher decision costs are worth

bearing to assure purchasers that they are protected against redistributive

decisions. In fact, these predictions are confirmed by the data.

 

Various other predictions from this model were also confirmed by empirical

data, including predictions that, all else being equal, developments with more

he terogenous units would have more amenities installed by the developer

(because subsequent agreement among unit owners would be relatively harder

to obtain than in homogeneous communities), that deviations from the

predicted voting structure would tend toward ‘one unit, one vote’ systems and

would increase with the number of units in the community (because the cost

and difficulty of value and area based voting, as opposed to simply counting

owners, increases with the number of voters).

 

These findings have interesting implications in light of statutes or

regulations requiring diverse ownership mixes. For example, New York City

requires that certain developments have both commercial and residential space.

Other jurisdictions require developments to provide accommodations for a

minimum percentage of residents with low incomes. Such mandated diversity

will bring with it higher decision-making costs and reduced flexibility, as

supermajority requirements are used to reduce the risks of redistribution and

rent-seeking.

 

Barzel and Sass note that developers can reduce unit owners’

decision-making costs by making binding decisions in advance. De Geest

(1992) shed further light on this idea by comparing the laws and practices in

Belgium, France, Italy, the Netherlands and Switzerland, finding that a simple

majority is generally sufficient to control acts of maintenance or conservation,

supermajorities are generally needed for improvements or changes in rules

concerning the use of public goods, while unanimity rules are imposed for

changes that would redistribute rights or change fundamental architectural

aspects. De Geest explains this tiered structure in terms of ‘ex ante

determinable goods’ (public goods for which advance determinations can

generally be made that will be valid for the life of the building) and ‘ex ante

indeterminable goods’ (public goods for which not enough information is

available to make optimal decisions in advance).

 

Fundamental decisions such as the location and nature of common facilities

or major architectural structures (ex ante determinable goods) can be

predetermined for the life of the condominium project, and so parties can

choose to purchase or not purchase a unit with full information on these

aspects: in other words, ‘revelation of preferences via entry and exit decision

is preferable to voting’. (De Geest, 1992, p. 304). Changing these decisions on

less than a unanimous vote would impose a cost on losing voters which could

have been avoided at lower cost by implementing the new option as the initial

choice.

 

However, for decisions that cannot be settled ex ante, some mechanism is

needed that appropriately balances the quality of the decisions made (or the

deadweight losses of inefficient decisions) against the costs of arriving at the

decisions. Examining public choice theory for guidance, De Geest rejects the

log rolling model offered by Buchanan and Tullock (1962), suggesting that

such deals are not generally feasible in condominium decision making because

too few items are on the agenda at any given time. De Geest argues that, absent

log rolling as a mechanism to reveal the intensity of preferences, a simple

majority voting scheme minimizes the cost of value-maximizing decisions that

are rejected because the required majority is not reached (deadweight losses).

Moreover, majority voting is likely to reduce error costs (other things being

equal, it is presumably less likely that the majority will be wrong), and

maintenance and conservation decisions are likely to spread their costs and

benefits evenly across the community so concerns about redistributive motives

are minimized. Thus, De Geest argues, it appears that for ex ante

indeterminable goods, majority voting will tend to minimize deadweight losses

and transaction costs.

 

Decisions that are partly ex ante determinable (that is, decisions influenced

by factors that are likely to change only slowly), typically require some level of

supermajority, a regime suggested to minimize the sum of four costs: costs

imposed on ‘losers’; costs of optimal decisions not made because the required

supermajority is not benefitted; costs of strategic behavior (optimal decisions

foregone because benefitted parties could not reach agreement); and negotiation

and voting costs (time, effort and resources spent in decision-making).

 

De Geest (1992) also seeks to explain why votes are generally allocated

according to the value of the owners’ units rather than on a ‘one person, one

vote’ basis, suggesting that unit values are likely to reflect the intensity of

preferences more accurately than per capita voting. Further light is shed on this

question by Barzel and Sass (1990, p. 751), who note that while the costs of

gathering information needed to vote intelligently may be borne by the

individual voter, the benefits of better voting are shared by all. Thus,

information gathering provides positive externalities and will be characterized

by free riding and underproduction. However, while the costs of information

gathering do not vary with the voter’s stake, the benefits increase

proportionately: in other words, voters with more at stake will invest more in

information. For this reason, allocating voting power in proportion to the value

of the owner’s interest may provide more efficient incentives for gathering

information and improve the decision-making process.

 

Evidence that public choice theory predicts voting regimes in

condominiums shows that developers and lawyers use reasoning similar to that

of economists in designing voting regimes. However, if condominium evidence

is to be used to test public choice theory, it will ultimately be important to

evaluate whether different voting regimes, other things equal, change the value

of the units. In other words, when a developer puts in place a voting regime

which the theory would predict to be inefficient, does the value of the

condominium development go down, or do the units fail to appreciate as

quickly over time (as conflicts between unit owners develop)? As Barzel and

Sass recognized, condominium declarations provide a remarkable set of data

for testing these types of questions. Their article provides an important step

both in testing public choice theory, and in understanding voting and control

issues in condominiums.

 

16. Conflicts Among Unit Owners

 

Generally, externalities affecting neighbors are dealt with through the law of

nuisance. In the condominium context, however, many ‘nuisances’ are handled

through association rules or covenants that control the permissible uses of the

premises. There have been few attempts to analyze the economics of rules in

condominiums or homeowners’ associations. De Geest (1991) briefly considers

the works of Calabresi and Melamed (1972) and Shavell (1984, 1987) in the

context of condominium rules. Calabresi and Melamed distinguish between

property rules (the owner of an entitlement may not be deprived of that

entitlement without the owner’s consent) and liability rules (the owner may be

deprived of the entitlement upon payment of compensation). Shavell identifies

factors that may lead to ex ante regulations, as opposed to rules of ex post

liability. Regulations may be preferred when parties may be unable to

compensate for the harm done or enforcement of a liability rule will be too

difficult (for example, because the victims are too dispersed). Liability rules

may be favored where regulators have inadequate information to establish

optimal rules in advance. Considering these factors, De Geest concludes that

a system of liability rules, rather than regulations, would seem preferable in

condominiums - a conclusion at odds with the observed reality. De Geest

concludes that the difficulty of assessing accurate damages upon breach (how

much does your music playing harm your neighbor?) militates against liability

rules and in favor of ex ante regulations. Parties whose preferences are

inconsistent with those regulations may then choose whether or not to join the

community. The result is to permit a market decision about purchasing or not

purchasing a unit to establish the values of rules, rather than relying on

self-serving testimony in a liability determination.

 

As Ellickson (1982) points out, the condominium community is formed by

voluntary consent by unit purchasers to the initial governing documents; thus,

it represents an actual social contract as contrasted with the many hypothetical

social contracts of political philosophy. Accordingly, courts have generally been

willing to accord a strong presumption of validity to provisions contained in the

condominium association’s initial documents. Subsequent actions or

enactments, however, are often subjected to a test of ‘reasonableness’. Ellickson

(1982, p. 1530) argues that, consistent with the contractarian basis of the

condominium, this reasonableness standard should be based on consistency

with the condominium’s original purposes, rather than external criteria.

 

Natelson (1990) provides a further insight into the regulation of conflicts

among unit owners. Where a unit owner complains of an association rule that

existed at the time the owner purchased his or her unit, courts generally reject

the challenge. This is in keeping with a least cost avoider rationale, and with

De Geest’s discussion of ‘ex ante determinable goods’: the purchaser could

avoid the conflict by researching the rules in advance and not purchasing in the

development if the rules are not acceptable. In contrast, existing owners cannot

easily avoid the conflict and in fact may have relied on the challenged rule in

choosing to purchase their units. For rules enacted after an owner has

purchased a unit, courts generally uphold condominium rules that are

‘reasonable’, a standard that, Natelson argues, is applied to mean ‘Pareto

superior’. That is, courts uphold rules whose benefits exceed their costs if the

benefits and costs are equally shared, because every owner is made better off.

If a measure’s benefits do not exceed its costs, courts tend to find the measure

unreasonable and so invalid. However, if the measure’s benefits exceed its

costs, but the measure imposes a net loss on a subset of owners (that is, the

measure is Kaldor-Hicks superior but not Pareto superior), courts generally

uphold the measure while requiring the payment of compensation to the

harmed owners. Thus, measures are upheld only if some parties are made better

off and none worse off - a Pareto superior outcome.

 

17. POAs and Condominium Boards as Local Governments

 

Local governments provide various public goods, and are constrained in their

actions by various constitutional (and other) limitations. In the United States,

for example, they are required to obey the dictates of the First Amendment, the

equal protection clause, and the due process clause. However, as we have seen,

in many respects condominium associations and POAs exercise powers similar

to those of local governments: assessing ‘taxes’, providing common goods such

as recreational facilities, garbage collection, security and dispute resolution.

POAs also exercise control over what have typically been considered public

spaces, such as streets, roads and parks. Moreover, these entities, like local

governments, are typically governed through some form of representative

democracy established through a governing constitution. To the extent that

these private entities may substitute for and exercise the prerogatives of local

governments, yet are governed by a differing legal regime, we may expect to

see people choose between membership in a POA or life in a traditional

community. This choice is not only an economic decision, but may affect the

relationship between citizen and government in important ways.

 

Much more work remains to be done on the economics of consensual private

‘government’ and its relation to local and state governments. A systematic

analysis of these issues is offered by Foldvary (1994), who argues that the

spread of local, consensual governmental institutions, which provide benefits

tied to land ownership, can provide an efficient and just social order, essentially

displacing local governments. Foldvary points out that many items commonly

considered public goods, such as security, parks or recreational facilities, are

actually tied to a physical locale, and so provide all or most of their benefit to

those who own property within a specified area. These items can therefore be

provided by a market financed by ‘land rents’, such as condominium

assessments. Accordingly, Foldvary argues, the market can provide many items

that are commonly considered ‘public goods’ for which the marketplace is

inadequate. Foldvary supports and illustrates his analysis with a series of case

studies of communities within which collective goods are provided by market,

rather than governmental, mechanisms.

 

Foldvary provides an attempt to expand the Tiebout model of competition

among local governments in the production of public goods, to cover the

creation and operation of private quasi-governmental entities. This is an

important direction for scholarship if the recent growth of private common

interest communities is to be analyzed in the context of their competition and

coexistence with more traditional local government structures.

 

D. Communal Ownership

 

18. Communal Ownership in General

 

In addition to the common and civil law cotenancy relationships and

condominium and cooperative relationships discussed above, co-ownership

regimes include communes, kibbutzim and other structures for shared

ownership of land. As Ellickson (1993) has described, these communal

ownership structures must address the externality problems common to all

forms of co-ownership. However, due to the larger number of co-owners,

monitoring for improper behavior becomes substantially more difficult. These

monitoringproblems have caused most attempts at communal ownership, from

Woodstock-era communes in the United States to collectivized farms in the

Soviet Union and China, to fail.

 

However, some communes have survived, such as Hutterite communities in

the United States and Canada and some kibbutzim in Israel. To do so, the

community must have an effective mechanism to promote effort and

cooperation by members. While the ideal mechanism might be socialization or

inculcation of norms so that members voluntarily contribute, successful

communes have had to rely in large part on intrusive social controls. As

Ellickson (1993, pp. 1346-1357) shows, successful communes tend to enforce

equality in ownership (consumer goods are distributed to all households or to

none), limit privacy, closely monitor members’ behavior, and actively use

material and social sanctions (gossip, ostracism or even expulsion) to punish

undesirable behavior. Decisions are often made in a participatory manner. This

is a time-consuming process, but tends to be made easier by the homogeneity

of the members and, crucially, it allows information on the activities of

members to be widely shared. Exit from these communities is typically

discouraged by requiring departing members to forfeit all or most assets. The

Hutterites have also maintained an isolation from the outside culture. While

this is less often the case at kibbutzim, it is also true that more than half of the

children born on the kibbutz choose to leave (Ellickson, 1993, p. 1361).

 

Thus, some communes have succeeded in overcoming the deadweight losses

associated with communal ownership by incurring heavy costs in

decision-making, monitoring and enforcement. Or, put another way, some

communities have succeeded in establishing equality and close social ties by

rejecting the classical liberal values of liberty, privacy, diversity and

self-determination.

 

E. Conclusions

 

19. Potential Areas of Future Research

 

Co-ownership is typically characterized by repeated, long-term interactions

between parties, a situation which calls for several modes of analysis seldom

utilized in the existing law and economics literature on co-ownership. For

example, many co-ownership situations rely on norms and enforcement

mechanisms outside of the formal legal structure. Most cotenancy relationships

are part of a broader relationship which may provide the context for implicit or

explicit expectations or functional rights different from the formal rules of law.

However, the literature is short on description and analysis of the extra-legal

mechanisms by which co-owners coordinate their activities.

 

Indeed, there has been remarkably little written on the economics of joint

decision making and resource use in the cotenancy situation overall, perhaps

because the disputes tend to be small and private and the situations personal

rather than commercial. Moreover, the conceptual problems in a full

exploration of this domain are daunting: it is likely that relations between

co-owners will submit best to game theory analysis, a field that has blossomed

relatively recently. However, the successes of game theory are still quite

limited, and generally rely on the ability to specify clearly the objectives and

decision-making criteria of the parties. By contrast, many co-ownership

situations are familial and thus emotional, perhaps rendering them more

difficult to analyze than many other small group interactions. In this regard,

Rose (1992) applies game theory in a rich psychological context to explore

negotiations between men and women, providing one example of the type of

work that ultimately may help shed light on the patterns of decision-making

and control among co-owners.

 

Acknowledgements

I am grateful to Ronald H. Silverman and two anonymous referees for helpful

comments on an earlier draft of this entry, and to the Hofstra University School

of Law for its generous financial support for my research.



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