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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 right

      The extent of the public invitation to use that property, and
–          The purpose of the speech activity 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