This essay and the longer paper it is based on, “How the Gentry Won: Property Law’s Embrace of Stasis,” were written for the Law of Abundance project at the Johns Hopkins University Center for Economy and Society.

When “YIMBYs” first appeared on the scene, it appeared to many as though they had come out of the blue. YIMBYism was a radical departure from the norm of American land use politics, in which the only groups involved were developers of specific projects, neighborhood groups opposed to growth, preservationists, and “housers” interested in subsidized housing but without any interest — and some hostility — to broader housing growth. That there might be individuals and groups committed to increasing housing supply by reducing the strictness of land use controls on ideological groups was almost unthinkable. 

But it turns out YIMBYism is part of a long American tradition. From before the Founding through most of the 20th century, American property law promoted development, active use of land, broad ownership, and liquid property markets, far more than did the property law of our English forebearers. This happened for reasons good and bad, but the pro-developmental tradition played an important role in the tremendous rates of economic growth America saw in the 19thand first half of the 20th centuries. Only in the 1970s and 80s was this tradition rejected, not only in land use, but across all of property law. Conservatism, conservation, externality limitation, and localism replaced dynamism, changes in uses and owners, and national markets as the goals of property law. 

Examples abound of how early American property law systematically favored development, liquid markets, and active use and how it differed from British law in this respect.

  • British property demarcation (emulated along the East Coast of the United States) followed the practice of “metes and bounds,” defining the boundaries of property ownership by reference to physical landmarks but with no regularity. Through legal interventions like the Public Lands Survey System, most of the country was divided in property lots organized into rectangles and squares. (Ever wonder why the country looks like this when you fly over it?) Other interventions, like the 1811 Commissioner’s Plan to lay out Manhattan in a street grid, did the same thing. These efforts – which in the case of New York City involved an aggressive system of eminent domain to acquire land for road improvements – created clearly demarcated property boundaries, reducing information costs for purchasers and developers. The result was more liquid markets and more development.
  • American eminent domain law promoted railroad development by – in sharp contrast to British law – adopting the “benefit-offset” rule. When property was taken for a railroad, the government paid compensation, but offset the amount it paid by the benefit the parcel received due to the railroad coming. This wasn’t strictly fair as other properties benefited, too, and it was much opposed by big landholders. But American law, eager for new railroads, reduced its cost by reducing the amount of compensation that had to be paid. 
  • American law rejected the “fee tail” which large landholders used to keep estates in the family hands, again in contrast with the British. It also made foreclosure much easier. These rules, as Claire Priest shows, were designed to encourage lending and growth, even when doing so led to disruptions to long-settled residential patterns. 
  • Notably, America gave out huge amounts of land but split it among settlers who each got relatively small parcels, encouraging active use, whereas the British handed out huge parcels in their colonies to future landlords.

One could go on, but there are plenty of later interventions of this type as well. From the creation of the American housing finance system after the Great Depression to anti-monopoly takings that redistributed land, like Hawaii Housing Authority v. Midkiff, American property law was defined by its desire to encourage active use of properties, building, and mobility. Sometimes this meant encouraging greater respect for property rights; sometimes this meant doing violence to the interests of the landed classes. Either way, the goal was more. More development, more liquid markets, and more mobility, with less concern paid to protecting existing residents of communities from change or externalities. 

But in the 1970s and 80s this all changed. That land use regulations, particularly in our richest regions, changed during this period is quite well-known. Zoning prior to this period created harms – particularly racial exclusion and fiscal hoarding by rich towns – but also promoted growth by providing suburban builders and buyers some short-term certainty about the nature of neighborhoods. Until the 1970s and 80s, land use regulations were not strict or broad enough to have a substantial effect on housing prices at the regional level. But in the 1970s and 80s this changed, as many economists have shown, harming economic growth and mobility. 

And it was not only zoning. 

  • Covenants – agreements among landowners about how land in neighborhoods will be used and how to fund local public goods – have always been a part of American property law. But in this period, they became ubiquitous and, due to a variety of legal interventions, effectively permanent, rather than subject to expiration. Today, most new homes are built inside these “common interest communities,” complete with homeowner’s associations, and are effectively impossible to redevelop, forever. 
  • The “conservation easement” took off after Congress approved a tax break for landowners who donated to governments or, more commonly, to nonprofit trusts that promised not to develop their land (or develop it further). These easements often do not provide public access and allow existing owners to keep using their land. (For instance, President Trump received this tax break for promising not to further develop his Bedminster Golf Course. Conservation easements now cover land the size of the state of Pennsylvania, and effectively impose permanent limits on redevelopment.
  • Property taxes: Following Prop 13 in 1978, property taxes in California and increasingly around the country did less to promote “highest and best” uses of land and allowed long-standing property owners to pay little in taxes — rewarding incumbents with limits on reassessments but punishing new homebuyers and developers. This reduces dynamism and development. 

The faults of modern property law also include sins of omission, like failures to update the forms of ownership, to rein in conditional forms of ownership that restrain title transfers, or to do anything to promote land assembly (packaging parcels into a single site). All of property law moved away from the traditional American embrace of more and became content with less. Today, American property law serves to protect existing landowners and communities from change and external harms, while not doing enough to promote economic growth or the interests of the huge number of Americans who do not own property. 

What does this history tell use? It shows that YIMBYs have a far broader field of potential changes to focus on than zoning (and even broader than related areas like building codes, subdivision requirements, and historic preservation.). To generate the type of growth and reductions in housing costs that they – or rather we – want, YIMBYs will need to promote changes in tax, the law of servitudes, and even forms of ownership. Going beyond that, mundane changes such as overhauling systems of property registration and bold ones such as antitrust challenges to property-owning cartels would push in the same direction — re-embracing America’s tradition of a pro-development property law.

Rick Hills is William T. Comfort III Professor of Law at New York University. David Schleicher is Walter E. Meyer Professor of Property and Urban Law at Yale University.