Private Property Rights Recognized at the Highest Level

By Nancy Goldstein

Ownership of real property comes with a bundle of rights.  One of those rights, the ability to exclude others, is now on the forefront.  It has been raised again by the United States Supreme Court in the case published on June 23, 2021:  Cedar Point Nursery v. Hassid, No. 20-107 (S. Ct. June 23, 2021) .  This decision is a major victory for property owners, particularly as it relates to access. It begins to answer the question, can a public agency regulate private property rights?

In finding that California’s access regulation [Cal. Code Regs. tit. 8 § 20900(e)(1)(C)] constitutes a per se taking, the court found that when the government restricts an owner’s ability to use his own property, that is a taking.  This ruling opens the door, finally, to the protection of private rights which have been subjugated mercilessly by the relentless expansion of public rights.  Although this ruling pertains to a taking, arguably, like in a case of trespass, one may seek an injunction in lieu of damages to prevent this intrusion into property rights.

The right to exclude is “a fundamental element of the property right.”  Kaiser Aetna v. United States 444 U.S. 164, 179-180 (1979).  Where the government appropriates a right of access to private property, that, like a physical taking, requires compensation.  “The right to exclude is not an empty formality that can be modified at the government’s pleasure.”  Cedar Point Nursery, supra.

There are other regulations in California that restrict the right to exclude.  Under the California Coastal Act, Public Resources Code sections 30000 et seq, the Coastal Commission is routinely invading private property to make public access available.  The Commission’s novel approach is that “traditional property law” allows local agencies to invite the public to use easements over private streets to access public parks.  Relying on language in the Coastal Act, which encourages expanding access to beach and parks, the Commission ignores the requirement that private property rights must be balanced with expansion of public rights.

The Cedar Point Nursery ruling stems the tide that has been gradually erasing private rights.

The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude. The right to exclude is “one of the most treasured” rights of property ownership. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982). According to Blackstone, the very idea of property entails “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” 2 W. Blackstone, Commentaries on the Laws of England 2 (1766). In less exuberant terms, we have stated that the right to exclude is “universally held to be a fundamental element of the property right,” and is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. United States, 444 U.S. 164, 176, 179–180 (1979); see Dolan v. City of Tigard, 512 U.S. 374, 384, 393 (1994); Nollan v. California Coastal Comm’n, 483 U.S. 825, 831 (1987); see also Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730 (1998) (calling the  right to exclude the “sine qua non” of property).

Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation. The Court has often described the property interest taken as a servitude or an easement. Cedar Point Nursery, supra.

“The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, “[p]roperty must be secured, or liberty cannot exist.” Discourses on Davila, in 6 Works of John Adams 280  (C. Adams ed. 1851). This Court agrees, having noted that protection of property rights is “necessary to preserve freedom” and “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.” Murr v. Wisconsin, 582 U.S. ___, ___ (2017) (slip op., at 8).”  Cedar Point Nursery, supra. 

Questions remain as to how this ruling will be applied to regulatory agencies in California.  As constitutional rights are at stake, these cannot go unanswered.