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Property I
Elon University School of Law
Parrish, Robert A.

Property 1: Parrish: Fall 2012

1. First possession

· Whoever was there first is the owner

· Parrish: First person to claim previously unowned property is its owner

· Shortcomings: Describes how rights arose, but not why we have these rights

· Modern use: Most land has been claimed, this isn’t as important

2. Labor

· We earn property that is produced through our labor

· Parrish: Closely related to personhood

· Shortcomings: Applied more easily when not everything is already owned (e.g., copyrights and patents)

· Modern use: Many things are owned now; productive use plays a big rule in adverse possession

3. Social utility

· Recognizing property rights promotes the welfare of all citizens

· Ownership provides security, which increases productivity and happiness

· Parrish: Property rights are provided for stability of society

· To reach its full economic potential, a property rights system must have:

o Universality

o Exclusivity

o Transferability

· Shortcomings: Economically driven, which can preclude environmental concerns about land use

4. Democracy

· Giving each person a “stake in society” promotes civic responsibility

· Private ownership also decreases reliance on government/officials/wealthy

· Parrish: Those who have ownership rights in real property will be invested in the improvement of the republic (and will do things with their land that will benefit the republic)

· Shortcomings: With move away from farming-based economy, wages from a job are often seen as more important for civic independence than property ownership

· Modern use: Job provides stake in society, land ownership is less important

5. Personhood

· People develop personal connections to tangible things, and having control over those things is important to personal development

· Johnson v. M’Intosh, tribes had personhood argument

· Barn being torn down

· Parrish: Closely related to labor

· Shortcomings: What boundaries should be set for personal attachments? Should someone who is personally attached to a thing have more right to it than someone who is otherwise attached to it?

Rules: Certainty versus flexibility

· Certainty

o Absolute rights

o Easy to apply — cost effective

o Discourages litigation

o Predictable

o No exceptions — can lead to unfair results

o Hard and fast rules don’t age well

· Flexibility

o Limited rights

o Case by case basis

o More disputes — more litigation

statutory grounds

Right to use

· Traditionally, landowner had the right to use property in any way he wished, as long as he didn’t harm the rights of others

o Limitations:

§ nuisance (common law doctrine)

ú Intentional

ú Nontrespassory

ú Unreasonable (usually the most difficult question: Does the conduct cause more harm than good?)

ú Substantial

ú Interferes with the use and enjoyment of the plaintiff’s land

§ the spite fence (in some jurisdictions)

§ zoning ordinances

§ other legislative/municipal restrictions

Right to destroy

· “dead hand control”: rights are more easily applied when someone is alive; don’t want to afford too much power to the dead

· Does it interfere with someone else’s ability to use and enjoy their property?

· Does the conduct cause more harm than good? (social utility)

Transfer cases

Johnson v. M’Intosh

· Basic facts: Tribes tried to sell their land to a third party. The government said no.