“Dissolving Condominium, Private Takings, and the Nature of Property”

Updated 16th January 2015 - It may be odd, even a lost opportunity, to deliver a paper to English legal scholars on a form of ownership that hardly exists in England. Condominium enables the subdivision of multi-unit developments into multiple titles, and has become the principal instrument for subdividing ownership within buildings in the common-law world, except England. Dissolving condominium results in the termination of individual titles; former title holders become co-owners, as tenants in common, of land that had been held as private and common property within condominium. A number of jurisdictions are asking whether the dissolution of condominium should require the unanimous consent of title holders or whether a supermajority vote is sufficient to terminate individual titles. Although this paper focuses on condominium, its first claim—that the non-consensual dissolution of condominium is a form of private takings—applies to other legal instruments that subdivide ownership within buildings, including those that operate within England. The paper then suggests that to characterize non-consensual dissolution as a takings reveals that the choice between a unanimity rule and a supermajority rule is also a choice about the role of property within multi-title developments, and, as condominium becomes more pervasive, about the nature of property in land.