Property I Outline

Property Outline

Kane, Fall 2010

1. Introduction:

Property law concerns legal relations among people regarding control and disposition of valued resources

Private ownership of property leads to more investment and care in those items

i. More responsibility

ii. More rights

Types of Property

i. Real property (land)

ii. Personal property (things/items/chattels)

iii. Intellectual Property (ideas)

Parties

i. Government

ii. Private parties

Takings clause- grant of power to gov’t to take private property for just compensation

i. Used for larger public purpose (highway)

Existence of patents and copyrights create incentives to create

i. Benefits society

Theories of Property:

i. Labor Theory- (Locke)- putting work into property gives one the right to that property

1. Adding value

ii. Personhood- ones individual identity and autonomy is defined by the things which one owns

iii. Utility Theory (Demsetz)- Ownership helps lead to more efficient management of those assets

Justifications for private property:

i. Possession

ii. Labor

iii. Personality

iv. Efficiency (Demsetz)

v. Justice and Fairness

Ownership of Property- Bundle of Rights:

i. Control

ii. Right to use- for purposes of your benefit (limited)

iii. Right to exclude- exclude others from using

iv. Right to transfer- sell, lease, leave in will, etc.

v. Right to just compensation v. government- eminent domain

Properties Defined by Ownership:

i. Private property- Home, area closed to public

ii. Shared Use- public lands (roads, parks, etc.)

iii. Public Accommodations- public expressly invited in (stores, etc)

Sources:

i. Common Law

ii. Statutes

1. Real property- generally state laws

2. Intellectual property- generally federal laws

iii. Constitution:

1. “nor shall private property be taken for public use, without just compensation”

Tragedy of the Commons:

i. Communal ownership of property leads to the degradation of the property.

ii. Absence of control and management.

Externalities:

i. Spillover effects from one’s use

ii. The effects of actions with a property that affect unrelated third parties.

iii. They may be positive (benefits) or negative (costs).

1. Positive:

a. Homeownership promotes community ties and stability

b. Home maintenance and care maintains or increases property values for surrounding neighbors

c. Fireproofing home reduces danger to neighbors

d. Musician playing in park provides entertainment for passersby

2. Negative:

a. Blighted or neglected home has depressive effect on surrounding home values

b. Pollution: water runoff from industrial plant; air discharges

c. Climate change from human activities?

d. Musician playing in park annoys neighboring residents

iv. Property Influenced Relationships:

1. Seller-Buyer

2. Landlord-Tenant

3. Personal: Marriage/Civil unions

4. Testator (will)- Descendants

2. First Possession:

a. Acquisition of Property Theories:

i. Discovery

ii. Capture

iii. Conquest

iv. Creation

Johnson v. M’Intosh

i. Indians sell land to guy/Gov’t grants land to other guy

1. Acquisition by conquest/ discovery outweighs prior presence on the land.

2. Native Americans merely occupants without right to transfer land ownership

Pierson v. Post

i. Fox hunters

ii. Acquisition through capture establishes ownership

iii. Mere pursuit is not enough to establish ownership

Ghen v. Rich

i. Whale hunters kill washes up on shore and claimed by another

ii. Uses industry custom and labor theory to grant ownership to fisherman

1. Not reasonable to expect fisherman to wait for whale to surface

iii. Keeble v. Hickeringill

1. Man scares ducks aware from other man’s decoy pond

2. Man is not allowed to disturb another’s enterprise on his own land

iv. Demsetz p