Journal Article

Tenancy In “Anticommons”? A Theoretical and Empirical Analysis of Co-Ownership

Yun-chien Chang

in Journal of Legal Analysis

Published on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School with the support of the Considine Family Foundation

Volume 4, issue 2, pages 515-553
Published in print December 2012 | ISSN: 2161-7201
Published online August 2012 | e-ISSN: 1946-5319 | DOI: http://dx.doi.org/10.1093/jla/las011

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This article argues that a resource held in tenancy in common is likely to be underused and underinvested, and is thus better characterized as anticommons. Nevertheless, tenancy in common does not necessarily create tragedy, as under most legal regimes each co-tenant has a right to petition for partition at any time, and after partition, new owners are likely to utilize the resource more efficiently. Using data from Taiwan, this article finds that cooperation among co-tenants does not fail as often as the literature has suggested. In 2005–2010, at least 82.5 percent of the co-ownership partitions were conducted through voluntary agreements, while only about 7.5 percent of the partitions were ordered by the court. In addition, using multinomial logistic regression models, this article finds that the court tends to order, and the plaintiffs tend to petition for, partition by sale when partitioning in kind or partial partition would create excessively small plots. (JEL code: K11)

Journal Article.  15171 words.  Illustrated.

Subjects: Jurisprudence and Philosophy of Law

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