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

I.       ASPECTS OF PROPERTY RIGHTS AND CLAIMS
–         Property;
–          A person has a property interest if he has any right w/regard to something the law will protect against infringement by others
–          Real: land and any structures on it
–          Personal: all other types
*Property rights serve human value. (Human rights prevail over Property rights)
*Supremacy clause: Federal law supercedes state law; a state cannot interfere with the applicability of federal law.
–         Possession v. Title
–          Possession: have dominion and control over land or personal property (no title necessary)
–          Title: “ownership” (i.e. tenant in apt has possession of it but landlord has title)
–         Rights in land derive from government and are then transferred to others.
–         Government has often distributed property based on possession even when possessors violate prior law.
Actual possession of a contested resource often creates a presumption of a right to possess that may be rebutted only by evidence of a superior claim
i.                    PUBLIC RIGHTS OF ACCESS AND THE RIGHT TO EXCLUDE
Right to Use: not absolute – court balances if individual right to control your property outweighs right of others to it or other’s harm
Right to Exclude – depends on who/what (is it essential?)/why excluded (no absolute right to exclude)
*Right to exclusive possession
a.       Why should there be a right to exclude?
1)      Self-fulfillment: use property as we choose
2)      Cost to owner: burden on owner to have to prove that the reason for excluding is legitimate
3)      Market will solve (market theory): if one person excludes, another will benefit from excluded person’s business
–          Questionable that money should be made from discrimination
(a)    Creates stereotypes – stereotypes harmful b/c the stronger they are, the harder on market b/c we hurt market efficiency
(b)    Hurts profits
(c)    Pain of exclusion – people excluded are hurt

ii.                  PUBLIC RIGHTS OF ACCESS TO PROPERTY: RULES LIMITING THE RIGHT TO EXCLUDE NONOWNERS
State v. Shack
–          Tejeras and Shack entered upon private property against the orders of the owners of that property, to aid migrant farm-workers employed and housed there
–          RULE: real property rights are not absolute; and “necessity, private or public, may justify entry upon the lands of another – this rule is based upon the basic rationale that “property rights serve human values” (i.e. First Amendment Right to Freedom on Speech)
–          This case illustrates the central limitation on the right to possession or use of private property (i.e. it may not be used to harm others)
*Employer, property owner, does however have a right to require guests to identify themselves and state the purpose of the visit.
*Supremacy clause: Federal law supercedes state law.
–     The rights granted in the Constitution are not that extensive; a person needs positive law created by a state to further protect their rights.
A.     Place that invites public necessarily limits

vity in relation to the use of the property
–         Malls replace downtown retail and social centers (aka publc centers)           
–         Free Speech (based on Marsh v. Alabama) “shopping centers = downtown district. Districts and private owners cannot interfere w/ exercise of free speech.”
–         Expressional rights = private property rights.
–         Mass communication.
*Malls have a general invitation.

–          Pruneyard – case where US Supreme Court decided that each state can decide whether or not it wanted to allow the right to access.

–          Mohn v. Martz Mountain Industries (Mill Creek)

ii.                  Federal v. State property laws
–          Federal constitutional protection of property rights distinct from property rights in state statutes or common law
–          Federal constitutional law defines minimum level of protection for property rights that the states may not infringe
–          As long as state’s don’t deprive citizens of core property interests protected by constitution, they are free to define and restrict property rights

iii.                Labor organizations
–          Federal statues provide some rights of access for free speech purposes (e.g. to picket)