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Property I
Rutgers University, Newark School of Law
Deutsch, Stuart L.

Property Outline
Fall 2005
Dean Deutsch

1) RIGHT TO EXCLUDE/ PUBLIC’S RIGHT OF ACCESS
a) Property owner’s right to exclude is not absolute
b) more property owner opens property to the public- more likely that courts will find public rights of access
c) trespass- an intentional intrusion on the land of other
i) occurs the moment the trespasser enters the property
ii) intent requirement is met if there is a voluntary act
iii) EXCEPTIONS:
(a) Consent of the owner
(b) Justified by necessity (ex: to save someone’s life)
(c) Public policy
d) State v. Shack: guests providing gov’t services to migrant workers are not trespassers even if uninvited and unwanted by farmers
i) PROPERTY RIGHTS ARE SUBORDINATE TO HUMAN RIGHTS
ii) Federal constitution is not maximum but minimum amount of rights- NJ supreme court decides to use state law (which entitles more full set of rights than Constitution)
iii) You have title to property but not dominion over individuals who are on your property
iv) Farmer could set reasonable rules- can’t allow all solicitors or peddlers (limit to medical or legal or necessities)

FREE SPEECH RIGHTS OF ACCESS
e) Lloyd v. Tanner (shopping mall case)
i) Invitation to general public can be defined by allowing certain activities
ii) Holding: Privately owned shopping center does not take on characteristics of “downtown business center” and owners are allowed to bar groups from exercising their 1st amendment rights inside the mall
iii) Distinguished from Marsh because shopping center did not take on municipal functions as did company town in that case
iv) Property doesn’t lose its private character because it is open to the public
f) NJ Coalition v. JMB Realty Co.(shopping mall case)
i) Holding: general balancing of 1st amendment rights and property rights
ii) SCHMID TEST:
(1) What is the normal use of the property?
(2) To what extent is the owner’s invitation to the public?
(3) What is the purpose of the expressional activity in relation to the use of the property?
iii) Court says that regional shopping centers are the modern equivalent of the downtown business district
iv) Community shopping centers are not accessible
g) Green Party v. Hartz Mountain(handbilling in shopping center with onerous requirements)
i) Reaffirmed Coalition; can use “reasonable business judgment” standard to develop rules for handbillers
h) Ex: $1 million dollar liability insurance, indemnification of owners against all claims and limits on handbilling from 1/1 to 10/31 were too onerous of restrictions
2) LABOR, INVESTMENT, POSSESSION
a) INS v. AP
i) AP: claims they own property rights to the stories they write
ii) News is not real property
iii) Quasi-property: news is quasi-property; ownership only exists betwee

o how much of the aquifer is underneath your property
(4) Prior Appropriation Test: the first person who invests in withdrawing has the rights (almost exclusively used in the western states, esp. arid western states)
(5) System of governmental regulation: typically in the form of a permit system in which a person can use the amount of water granted in the permit from the state or local agency; sometimes government determines how much water will be granted in permit based on prior appropriation
ii) Surface Water:
(1) Historically the person who owned the banks that led up to the water was the person who held the water rights
(a) Water rights can be transferred
(2) Riparian Ownership: gives a person a right to water but usually does not specify how much water; this was usually determined by:
(a) Prior appropriation
(b) Correlative rights
(c) Reasonable use test
3) ADVERSE POSSESSION
a) 2 Primary Historical Justifications:
i) land should be developed
ii) way of redistributing land
b) Modern justification:
Need for a dispute resolution mechanism to determine who should own title to land