Shoked, Nadav | February 17, 2016

Spite’s role in property law is garnering much academic attention. Yet spite remains strikingly misunderstood. Commentators partaking in the reinvigorated debate over property rights’ nature often point at the law’s prohibition on spiteful uses of property by owners as indicating that property law is sensitive to individuals’ goals and attitudes when distributing powers. This assertion draws on a long line of judicial, legislative, and scholarly pronouncements to the effect that the prohibition on spite is an intent-based, subjective test banning acts whose motivation is malicious. This Article illustrates that this perception is deeply flawed—descriptively and normatively. Exploring the forgotten history of spite law, this Article finds that in practice the spite prohibition never policed mental states. Rather, the spite prohibition was utilized, in different legal subfields and at different times, to stealthily introduce objective public policy limits to curb owners’ freedom of action when property law formally accorded the owners absolute powers. Spite law thereby performed a constant, and exceptionally important, role in the development of American law: it blunted the effect of rules sparing owners the need to consider the impacts of their property uses, and it paved the way for the explicit, and exhaustive, regulation of property uses that eventually dislodged such rules. The Article then proceeds to argue that this choice American law made, to divorce spite’s legal function from the term’s common meaning, is normatively warranted. Fierce scholarly denunciations of acts spitefully motivated ignore the illusory nature of the distinction between spiteful and nonspiteful motivations. This Article demonstrates that, given current property law’s structure and aims, spiteful acts are also, inevitably and always, nonspiteful. Property ownership is inherently spiteful; thus, while certain uses of property can—and must—be deemed unacceptable, property owners’ motivations for picking those uses cannot.