The Value of the Right to Exclude: An Empirical Assessment

This paper empirically estimates the value of the right to exclude to private property owners. Property theorists have long deemed the right to exclude fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of any empirical evidence. No one has attempted to estimate the value of the right to exclude until now.

In this article, we set out to fill this void by measuring, for the first time, the value of the right to exclude. To that end, we use the passage of the Countryside and Rights of Way Act in England and Wales in 2000 as a natural experiment to provide some empirical insight on this issue. We show that the Act’s passage led to statistically significant and substantively large declines in property values in areas of England and Wales that were more intensively affected by the Act relative to areas where less land was designated for increased access. While property prices may not capture all social value, our findings provide a critical input to the debate regarding access to private property. Given that the access rights provided by the “right to roam” included in the Act represent seemingly minimal intrusions on private property, our findings indicate that property owners view even small restrictions on their right to exclude very negatively.

If one believes that the effect of laws are quickly and accurately capitalized into property values, our results suggest that the welfare effects of the right to roam in England and Wales were negative on net. While some individuals may value the access achieved by the law, the negative effects borne by property owners are even larger. However, even if full capitalization is not assumed (for example, if one believes that gains accruing to trekkers who are not involved in real estate transactions such as tourists or day trippers do not get reflected in property prices), our results do provide some basic inputs to a regulatory impact analysis of the law that have previously gone unquantified. The subjective costs of the law to property owners appear to be substantial.      

We believe that our findings are of significant importance to lawmakers in the US as they provide an empirical basis for policymaking in the realms of property and land use. In the US, private property rights enjoy constitutional protection under the Takings Clause of the Fifth Amendment. Hence, any attempt to formalize a general right to roam or other intrusions on the right to exclude may require the government to pay just compensation to affected property owners. Our study suggests what the compensation amounts are likely to be. This information would allow law-makers to make better decisions about the social desirability of various land use measures. We would like to emphasize that our findings should not be read as a call against the adoption of a right to roam, or any other public privilege. Such conclusions would necessarily hinge on potentially controversial beliefs about the extent and accuracy of capitalization in property values. Our only goal is to furnish a much needed empirical foundation that would permit law-makers to conduct a more precise cost-benefit analysis of different policies.

Jonathan Klick and Gideon Parchomovsky are Professors of Law at the University of Pennsylvania Law School.