When is your property not your property?

Property. It’s a concept so instinctive that toddlers can grasp it (to a fault). And yet, when it comes to defining the extent of one’s property rights, the issue quickly becomes fuzzy and fraught with political implications. 

But is that really necessary? In this week’s episode of “E Hana Kakou”, I sat down with Christina and Timothy Sandefur, authors of Cornerstone of Liberty: Private Property Rights in 21st Century America. The Sandefurs pointed out that our concept of private property is often defined by our ability to use that property in the way we wish. While most of us can accept reasonable restraints on that right (in the form of regulation), things become more problematic when we try to define what is “reasonable” under the law.

In Hawaii, this can be seen most starkly with the advent of the “shared” economy. Residents of Hawaii have been putting up friends, family, and friends of friends in their homes for years. Maybe we even accepted a thank you gift in exchange. However, the moment that money enters the equation, our home becomes a short-term rental and the government enters the picture with regulations and taxes.

It’s a similar case when it comes to ride sharing. Who hasn’t accepted a few dollars in gas money in exchange for giving someone a ride to the airport? The difference between that and ride sharing businesses is a matter of degree, but it once again plunges us into serious questions about property and regulation. The state government is struggling to figure out how it wants to regulate ride sharing in relation to the already heavily-regulated taxi industry. (Sadly, no one seems to be asking if we should consider loosening the taxi regulations rather than just creating new ones for Uber and Lyft.)

There’s no argument that government regulations on how you use your home or your car are an intrusion on your property rights. The real question is whether that intrusion is warranted.

In our conversation, the Sandefurs shared the very interesting way that Arizona has approached this problem of balance. The state passed a law that requires the government to pay property owners when it takes away some property right. Called the “Property Ownership Fairness Act,” it ensures that the state balances regulation with compensation. Moreover, a separate, more recent law deals directly with the issue of home sharing by limiting the state’s right to regulate “aesthetics.” In other words, the state is permitted to regulate (and limit property rights) for the sake of health and safety, but can’t outlaw an industry or prevent people from sharing their homes.

The point, says Christina Sandefur, is to clarify where the legal presumption lies. People should be presumed to be free to use their property as they wish and government should be forced to consider the costs of regulation before acting.

It may seem like Hawaii has a long way to go before we get to that point, but we can start by demanding that government think about the long-term costs of regulations. In a state where property is so valuable, we should be fighting hard against giving up any of our property rights.

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