Many of us have heard the old adage that “possession is nine-tenths of the law.” But what about spirit possession?
Maureen E. “Molly” Brady, the Louis D. Brandeis Professor of Law at Harvard Law School, helped us get into the Halloween spirit by sharing a mixed bag of creepy legal treats. Here, the property law expert tells us about the possible origin of the jack-o’-lantern, what happens if you need to sell your haunted house, and why you should add “cursed land surveyor” to your costume rotation.
Harvard Law Today: A few years ago, you tweeted about a document you discovered during your research, which suggested that the origins of the jack-o’-lantern might have had something to do with property law. What did you find?
Molly Brady: I have always been interested in community memories of boundaries, and how we have traditionally viewed the boundary as both a site for establishing exclusion, but also of coming together. I was researching the history of celebrations involving boundaries, and came across this holiday, Terminalia, which is a Roman festival where you would decorate your boundaries with garlands and drink wine and have honey with your neighbors.
I was reading through the customs associated with boundaries in a book, which was from the early 20th century, when I came across a sentence that said that both jack-o’-lanterns and will-o’-the-wisps — which are in different sources either as a mysterious light or, apparently, some kind of mischievous gnomes — have their origins, in folk belief, in the idea that these were people who had falsely measured boundaries. Apparently, all the way back into Roman culture and beyond, there is this idea that the people who tinker with boundaries are especially bad, or likely to live on past their deaths, continuing to mislead people.
This speaks, I think, to property’s social importance. But also, I just thought it was an awesome tidbit. In one source I’ve read, will-o’-the-wisps, in Germany, were known as “cursed land surveyors,” which is kind of amazing. This Halloween, you should watch out for the cursed land surveyors, not witches and zombies.
This Halloween, you should watch out for the cursed land surveyors, not witches and zombies.Molly Brady
HLT: I want to ask you about Stambovsky v. Ackley, a New York property law decision regarding the sale of a home that was purportedly haunted. What is the case about? And what is “caveat emptor”?
Brady: Caveat emptor is basically “buyer beware.” Although that was the traditional, harsh rule, after decisions like Stambovsky and after the passage of some state statutes, sellers had a duty to disclose things that they knew that were material and often undiscoverable by the buyers. Let’s say that you knew that the house you were selling was actually sinking into the ground, but that would not be easily detectable on a one-time visit. You might have to disclose that material condition to the buyer or else you would be in breach of your duty to disclose. The buyer could possibly get damages and might even be able to obtain what is a quite extraordinary remedy called rescission, where they can get out of the sales contract on the grounds that you hadn’t met your duty to disclose.
In this famous Stambovsky case, which is a part of a lot of property courses, including now my own — you can’t have a real estate transactions class in October and not teach Stambovsky — Ackley is selling her house in Nyack, New York. Before the sale, she had gone to Reader’s Digest and apparently quite loudly publicized that the house was haunted. But Stambovsky bought it allegedly not knowing that apparently it was full of poltergeists, and so he brings one of these actions to rescind the contract on the ground that she should have disclosed that the house was haunted. She says there was an “as is” clause in the contract. She also says traditionally, the rule is caveat emptor — that buyers have to beware.
But here, the court says the most meticulous inspection wouldn’t have shown that the house was haunted by poltergeists, and so Ackley was obligated to disclose the haunted reputation. It also seems important to the court that she was the one that created the reputation for the haunting by publicizing that information.
It’s a great decision, because I think it is a great example of a latent defect, or one that a prospective buyer couldn’t discover with an inspection, which is the sort of thing we generally want sellers to disclose. The court seems to assume that the property value would go down because it was haunted, although interestingly, my students always push back on that. They’ll often ask, “Why wouldn’t somebody want to buy a house that’s haunted?” And I think that that’s a great criticism of the decision — that there might be some people out there who would want to buy it and turn it into an attraction or something like that. But it’s a good case for illustrating that duty to disclose, and also, because in one sentence, the court says that the house is haunted “as a matter of law.” (Of course, we think they meant that as a matter of law, the house’s reputation is that it is haunted.)
HLT: What would happen if someone wanted to sell a property where something horrible — and perhaps more verifiable — occurred? I’m thinking here about a home that was the site of a terrible crime, or where a notorious criminal lived. Must a seller disclose that?
Brady: This is an area that I think has recently changed a little bit, or might be changing, partly due to technology. What you are talking about are cases that fall under the heading of “stigmatized property,” which is property whose value suffers because of something that occurred there, whether that was a crime or an infamous person lived there. Stambovsky is actually also a “stigmatized property” case.
There are some other cases in the ‘80s and ‘90s that did say that sellers were liable for not disclosing some stigmatizing event that had occurred in the past. But I would say that the more modern trend has been that psychological stigma, even though it might reduce the value of property, is not usually the sort of problem that a seller has to disclose. In part this is because the information age makes it easier to do your diligence on the property and find out that kind of thing, whereas you imagine that if Stambovsky didn’t have access to Reader’s Digest or wasn’t a frequent reader, he plausibly could not have found that out. Today, there are actually websites, including one — this is quite morbid — called diedinhouse.com, where for $12, you can get a report that identifies everything that has ever happened at the property. It’s like a Carfax, but for stigmatized property.
Because of that, I think the more modern trend at common law is not to treat the failure to disclose the stigmatizing condition as creating liability for sellers. Additionally, there is recognition that some events, while terrible, increase the value of properties, somewhat paradoxically. I think one need only look at Netflix to see how famous criminals can sometimes become cult sensations, no pun intended. That might actually be a selling point for someone. In addition, as time goes on, it just becomes more and more likely that more and more properties are going to have crime happen or for people that live in them that are associated with infamous events. And so, I wonder if some of the change in liability is due to that as well.
There is recognition that some events, while terrible, increase the value of properties, somewhat paradoxically … One need only look at Netflix to see how famous criminals can sometimes become cult sensations, no pun intended.Molly Brady
HLT: What other hair-raising property law cases do you know about?
Brady: A student recently emailed me about an interesting case. Have you heard of the Westfield watcher incident? This was also a duty-to-disclose case in the end. There is a Netflix series based on this story. Basically, a family moved into a house in Westfield, New Jersey, and they started getting creepy letters from a watcher that said things like “this house belongs to my family” — weird comments like that. They received a bunch of these letters and ended up moving out and suing their sellers for failing to disclose. Apparently, the sellers had received one letter, whereas this family received a lot of letters from this person. The buyers sued on the Stambovsky theory, saying, “you should have told us that there was this frightening letter writer off in the distance,” but they lost on that claim, in part because the court said that it was a one-time incident for the sellers — since they had only received a single letter. It would just create too much of a slippery slope in real estate to make sellers responsible for disclosing that sort of one-off thing, the court reasoned.
HLT: Let’s turn to the undead. You recently wrote a Wisconsin Law Review article on zombie state constitutional provisions. Sounds spooky. What are they?
Brady: There is a phenomenon known in legislation when there are laws on the books that have been declared unenforceable by a court. The term for these is “zombie laws” — the idea being that these laws might come back, might reanimate, if, for instance, the court changes its position. So, actually, after Dobbs v. Jackson Women’s Health Organization, a lot of the laws that were invalid under Roe v. Wade came back once Dobbs revisited Roe. These were examples of zombie laws.
I was interested in how state constitutions also have a lot of similar provisions, including some that, for instance, expressly sanction racial discrimination, or otherwise permit things, for example, in violation of child labor laws. One of the reasons I thought state constitutions were an interesting thing to examine apart from legislation is that state constitutions are often trickier to change, and so in that way, their drafters have a lot of “dead hand control.” Which is another great Halloween term, by the way.
In property law, we have these things called covenants, or promises put in by some earlier grantor that run with the land. They’re hard to change. They’re usually the purview of homeowners associations. So, we see a lot of dead hand control where some covenant from the 19th century might carry on through to today, even though it has long outlived its creators. I thought some of the considerations around covenants — such as should we try to remove them, what’s the harm in them remaining — resemble the problem with constitutions because they similarly apply for long durations, whereas legislation can often change or be repealed in a more easy process. So, the zombie article was taking up some examples of these provisions in state constitutions that are unenforceable, but that remain, and then using some analysis of the dead hand control problem from covenant law to think about whether we should really be focusing energy on removing those provisions or whether energy is best directed elsewhere.