The Government’s Right to Destroy

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Kellen Zale

Every year, in cities and towns across the country, tens of thousands of property owners attempt to destroy their homes, offices, or other buildings that they own. Whether to clear space for new construction or to rid themselves of unwanted maintenance and expense, property owners often seek to take the proverbial wrecking ball to their property. Yet despite Blackstone’s exhortation that a property owner has “sole and despotic dominion . . . over the external things of the world,” an owner seeking to demolish a building will face numerous legal obstacles.
A wide range of common law and statutory rules—ranging from arson laws and the doctrine of waste, to historic preservation regulations and zoning ordinances, to private contractual agreements such as deed restrictions—operate to limit an owner’s right to destroy her property. These limitations reflect both an assumption that owners will rarely want to destroy something they own, since it presumably has value, as well as a utilitarian judgment that owners should not waste resources valuable to society. The right to destroy is thus a disfavored right compared to the others accorded to owners, such as the rights to use, exclude, transfer, and dispose. As noted by Professor Strahilevitz, Black’s Law Dictionary has even dropped the reference to the right to destroy from its definition of “owner.” However, the right to destroy remains largely unconstrained for one particular type of property owner: the government.

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