Abstract:
Technology is rapidly transforming the landscape of land ownership and housing transactions, creating new types of consumer risk and new regulatory challenges. As markets, legal systems, and housing consumers navigate the new opportunities and risks of “platform real estate” (or “PropTech”), the underlying land laws, policies, and practices that produce the material context and legal framework for real property transactions, and against which consumer risk and regulation must be understood, require “re-scaling.” In this article, we offer a theoretical framework for this re-scaling project, drawing on our earlier work to develop Resilient Property Theory (RPT) for analysing complex, large-scale property questions using methods that—in a departure from liberal property theories—pay attention to the public role of the state. Against a backdrop in which narratives of private property law defined real property transactions as “private realm” activities, while consumer law and policy provided the vehicle for state-backed regulation of specifically defined transactions based on a risk-based approach, this article brings the state back into view to reflect on new configurations of risk in consumer housing transactions. In the de-materialized realm of the “network society,” networks, platforms, and innovations are recalibrating housing transactions. In this data-driven world, land transactions are financialized, depersonalized, and increasingly remote from the materiality of land and the consumption of housing. As new capabilities in digital land transaction systems reach back into the underlying law of ownership, official (state), insider (global capital markets), and outsider (social movement activists) networks have evolved to leverage their relative positionality. This article uses techniques developed in RPT to examine the re-scaling of risk in real property and housing transactions through digital network technologies. We consider the implications of resilience needs in the network society in relation to the public sovereignty of the state, the private sovereignty of land ownership, and practices of resistance to public and private sovereignty through “housing hacktivism.” Finally, we argue that conceptions of consumer vulnerability and risk and embedded ideas about the relationships between private property law and consumer law and policy in real property transactions must evolve to take account of these effects.
