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Kaplan: Government overreach threatens private property rights

Published: Friday, July 11, 2014 5:30 a.m. CDT

The Fourth of July, with its parades and fireworks displays, symbolizes and celebrates the freedoms and rights we have enjoyed for more than 230 years. Among these rights, as secured by common law and the U.S. Constitution, are a series of private property rights. There are about 1 million Realtors in the National Association of Realtors, all sworn to protect your private property rights.

Government, according to the Constitution and Bill of Rights, is supposed to protect our private property rights. But government is not altogether fulfilling its obligation.

Four years ago, I was inspired to run for public office in my community because I felt the local government had trampled on a basic property right.

Somehow, the Cary Village Board got the notion that it was all right to charge commercial property owners a fee or tax to put up a “For Sale” or “For Rent” sign. It wanted a $90 permit fee for a simple metal step-in sign in front of commercial properties. I believed the ordinance a violation of my clients’ private property rights, ran for office, won, and worked to get the absurd rule banished. The thing that concerned me most was that seven citizens sitting on the Village Board didn’t see that blatant violation as a problem. None of them felt it was their job to protect our private property rights.

This is where Realtors come in. The above is a small example of where government has gone wrong when it comes to protecting your private property rights. Here’s another: Just look at the proliferation in Illinois of what are called transfer taxes. These are taxes that you must pay to your local municipality when you sell your residential or commercial property. I haven’t seen any yet in McHenry County.

My research shows at least 69 municipalities in Chicago and collar counties charge up to 1 percent of your sale price when you transfer the deed to a new buyer. Looking for sources of revenue, municipalities have found property transfers easy pickings. When you get money, they get money.

Local governments are making you pay a tax for the privilege of selling your property. Realtors fight this contemptuous practice, but they don’t always win because the citizens are complacent and not willing to hold their elected officials accountable for this abuse.

Another screaming example of where governments have deviated from their obligation to protect private property rights is the improper use of the eminent domain laws. These laws allow governments to take private property from one party so that it can be used “for better purpose.” Initially, these laws were designed for the public good. They have morphed into a sinister tool of some taxing bodies that need to be held in check. The governing body is required to pay for the property, but what if you don’t want to sell your property? Why should you have to? I see this practice as trampling on private property rights, and it is getting more prevalent.

So private property rights allow you to acquire, use and dispose of your property as you see fit. Our free enterprise system encourages and facilitates that basic sequence of events. But what if a group of your neighbors don’t like who you are selling your property to? They get wind of a transaction you are contemplating, and they rise up and protest that sale transaction attempting to block it. They may not like the look of the buyer, his skin color, the truck he drives, the number of kids he has, his level of income, etc. Do these neighbors have the right to their opinions? Yes, of course. 

But they don’t have the right to stand in the way of your sale unless that sale encroaches on the quiet enjoyment of their own property. Fortunately, there are Fair Housing Laws in this country that protect people from discrimination of all kinds. Red flags should go up all over the place when Realtors spot this kind of prejudice and discrimination. Come to think of it, you shouldn’t need the admonitions of the Realtor community to figure out any kind of discrimination is wrong when it comes to the sale of private property.

• Bruce Kaplan is a senior broker associate with Premier Commercial Realty in Lake in the Hills. Reach him at brucek@premiercommercialrealty.com or via www.premiercommercialrealty.com.

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