Batman: No Man’s Land, Part 3

This is our third post on the No Man’s Land story arc.  The subject this time is property law with a side of torts.

J. Devlin Davenport, Gotham’s other billionaire playboy, has returned from vacation to discover that the crown jewel of his real estate empire, Davenport Center, has toppled during the quake.  What’s left of the building is now blocking a major road that the city needs to clear in order to expedite relief efforts.  Unfortunately, Davenport demands that the city stop its plans to bulldoze a path through the fallen building, and he further threatens to sue the city “for every cent it has left” (frankly this is likely to be less than zero) and, more importantly, he also threatens the city with an injunction (i.e. a court order prohibiting the city from destroying his property).

In the end, Batman cuts the apparent Gordian knot by commandeering a bulldozer at night and plowing through the building, but did Davenport’s claims have any legal merit?  We don’t think so, for multiple reasons.

First we must explain the distinction between the two main kinds of property, real property and personal property, also called “chattels.”  Real property includes land and things “permanently attached to the land,” typically buildings and other permanent structures.  Personal property is basically everything else, including money and even certain intangible forms of property such as patents.

This is an important distinction because Davenport Center was real property before it fell over but became mere personal property thereafter because it ceased being permanently attached to the land.  The land on which Davenport Center previously sat remained real property, of course.  As personal property left on a public street, Davenport Center itself basically became litter, which Gotham had the right to clean up.  Furthermore, many states have specific laws dealing with the removal of debris following a disaster, and the federal government (specifically FEMA) will reimburse states for the cost of cleaning up debris in declared disaster areas.

Even if Davenport Center were still real property, cities typically have the right to demolish unsafe buildings and even collect the costs of the demolition from the owner.  See, e.g., N.Y. Gen. Muni. Law § 78-B.  Davenport should be thankful that the city didn’t hand him a bill.

Finally, regardless of the property status of Davenport Center and even if it still retained some value, Gotham could claim the tort defense of public necessity and remove it anyway.  Although some state courts have held that, at least in certain circumstances, the government must reimburse the private owner for the damage done, the traditional rule is still that the government is not liable.

Our conclusion is that Davenport didn’t have a leg to stand on, so it’s unfortunate that it took an act of Batman to set things right.

12 responses to “Batman: No Man’s Land, Part 3

  1. I thought that the U.S government had declared the city to not be part of the United States* and presumably whatever state Gotham is in did the same. Would an American court have any authority at all? Following the American Civil War I don’t think it’s been established if a state has any right to say that some land is part of the U.S.A if the federal government says otherwise, but I’m guessing federal opinion trumps state.

    *Which is enough of a headache in itself.

    • We haven’t gotten to that part of the story yet. At this point Gotham is still part of the US. I was kind of surprised by the number of legal issues that presented themselves while reading the early issues, and it’s taking a while to get to the main event.

  2. Not withstanding anything else couldn’t the city just claim eminent domain, hand the guy a cheque for the value of the property (presumably very low at this point) and be done with the whole thing? As far as I know that’s how the City of Los Angeles and California dealt with freeways in the 40s and 50s.

    • Eminent domain is a possibility, though it’s sort of a last resort, not least because (as you point out) the city would have to pay for the taking.

    • Eminent domain can be a real pain these days. In my hometown this year, a decision to take over a long-unused* building to turn it into a much-needed library** was narrowly overturned. That’s not even getting into all the effectively abandoned properties in the town with owners who refuse to use them, take care of them or sell them and help drive property values down.
      Of course considering the fairly obvious crisis the authorities might be able to speed it up a bit.

      *We’re talking grass growing up to an adult’s waist and no inhabitants for close to ten years here.
      ** The current library is in a former mobile home.

      • You can thank the companies who abused it for making it a headache– there are a few high-profile cases of taking people’s small businesses (look up the New York Times’ new headquarters) or not-pretty-and-perfect-but-completely-livable homes via eminent domain to put in a big business or upscale housing that will generate more tax money for the town/city. So a lot of people have gotten concerned about eminent domain.

  3. I love the thought of an “Act of Batman”. I wonder if contracts and insurance would include that kind of thing specifically in Gotham. I know you’ve already talked about this at some length, I just love that wording for the issue.

  4. I’m going to have to check this one out of the post library to see this particular episode out of morbid curiousity, if nothing else. I own a few DC graphic novels, including a couple Batman ones, and maybe I’ll add this one to my collection at a later date. But I’m wondering how the court case you’re talking about even got filed as described.

    If the building is actually blocking a street, the damage is probably so extensive that I can’t think of any way that you’d successfully rehabilitate the structure. (This is my civil engineer side talking.) As a matter of fact, once a building is occupying a street that it didn’t occupy before, I’m pretty comfortable saying that it’s not really a building anymore, as much as a pile of rubble. (Knocking down structures deliberately to block avenues of approach is called “rubbling,” as a matter of fact.) That is, Davenport would have to pay somebody to bulldoze the building out of the way later anyway, so he’d probably jump up and down at the city doing it for free. Though, now that I think about it, I’m wondering if that would that change any possible legal analysis. I.e., could the city file a report from their engineer as part of their pleading saying basically, “This building is a total loss, so the plaintiff will be doing this himself later anyway,” and ask the court to let them do
    it now to enable lifesaving operations?

    My military engineer side is wondering about the practical side of filing a suit over this. Clearing major lines of communication is the type of thing that would be done within the first 24-36 hours. The crews doing it probably aren’t carrying a platbook with them and checking with owners. Unless he was right there when the dozers rolled up, he probably wouldn’t find out about it until after the fact. This is leaving out the fact the court building is probably in the disaster area, since Gotham is the major city in the area, so I don’t know who he’d even file with if he found out about it before it happened.

    • Well, Davenport never actually filed a suit (and it’s not clear that Gotham has a functioning court system); he only threatened to file.

      I think Davenport found out because someone in his employ was at the site and called Davenport when the bulldozers showed up. Evidently the Gotham cell phone system was back up and running fairly quickly.

      You raise some good additional reasons why Davenport’s threats were baseless, though.

      • The cell phone system in Gotham at that point was likely a subsidiary of either LexCorp or Wayne Enterprises. Which would explain the speed of service restoration between Cataclysm and NML.

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