The Right to Include
Abstract: Recent scholarship has created new interest in the right to exclude. But there is comparatively little analysis of an owner’s right to include. An owner may include others via nonenforcement or waiver of exclusion rights; division of existing rights by contract or property forms (such as easements, leases, or trusts); or creation of new rights (like security interests, condos, and other forms of co-ownership). Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization. Yet inclusion entails costs, including conflicts over use, excessive utilization or inadequate maintenance, and fragmentation. The law authorizes competing institutional arrangements—not only informal and contractual inclusion but also proprietary inclusion—to reduce opportunism, minimize disputes, and ensure the private incentive to include does not diverge from what is socially optimal. Understanding how the law promotes the social use of property provides insights into debates about the property/contract interface, numerus clausus, and right to exclude.
