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.