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

*Property rights serve human value. (Human rights prevail over Property rights)
Possession v. 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
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)
Public Rights of Access and the Right to Exclude
Right to Use
Right to Exclude
*Right to exclusive possession
Why should there be a right to exclude?
Self-fulfillment: use property as we chose
Cost to owner: burden on owner to have to prove that the reason for excluding is legitimate
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
Creates stereotypes – stereotypes harmful b/c the stronger they are, the harder on market b/c we hurt market efficiency
Hurts profits
Pain of exclusion – people excluded are hurt
– depends on who/what (is it essential?)/why excluded (no absolute right to exclude)
Public rights of access to property: rules limiting the right to exclude non-owners
State v. Shack
*Employer, property owner, does however have a right to require guests to identify themselves and state the purpose of the visit.
-The rights granted in the Constitution are not that extensive; a person needs positive law created by a state to further protect their rights.
Place that invites public necessarily limits its rights to exclude people
Right to distribute materials on another’s land
Right to exclude depends on who you are (can’t exclude if an innkeeper or common carrier and how essential what it is people want to distribute on the land to those who may receive it)
3 options:
Free speech trumps property rights (not according to Lloyd)
Property rights trump free speech (Ds in Pruneyard)
US constitution doesn’t require either, it’s up to the individual states (Pruneyard)
Court’s worried about subtle discrimination in public places.
Free speech rights of access to private property: US Constitution: 1st amendment
Lloyd Corp v. Tanner
The 1st amendment is a prohibition on state action only
The mall is not the functional equivalent of a municipal use b/c it services are not so broad to simulate the function of a city government (as in Marsh v. Alabama where Marsh was a town wholly owned by a private company)
Private property owners can define the invitation that is given to the public.
State constitutions: the right to speak freely
*Malls have a general invitation.
Mohn v. Martz Mountain Industries

Federal v. State property laws
Labor organizations
Hypothetical Rules
Start to define hours, location
Provide a 3’ table and you are restricted to work in limits of table.
Limit of 2-3 people at a time.
Set decimal level of speaking: No bullhorns, microphones
Unless the person approaches table you cannot leaflet to passerby.
Define the size of the leaflet and pick-up the leaflets dropped by patrons.
Penalty: Fine or banned for rest of year.
Federal statues provide some rights of access for free speech purposes (e.g. to picket)
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
(Mill Creek) – case where US Supreme Court decided that each state can decide whether or not it wanted to allow the right to access.
NJ Coalition v. JMB Realty Corp
The Legitimacy of the Property System
-Shopping centers
Right to Use
Power to Transfer
-Restrictions on transfer; imposed by former owner may be held void under the rule prohibiting restraints on alienation.
Power to devise/bequeath, inherit
Immunity from damage
Immunity from expropriation
Right to income
Right to privacy
Right to free speech/association
Right to security
– use the land (Locke: first possession means cultivating the land) – you can talk about anything you want in your house – investment-backed expectations – right to prevent others from taking their property against their will – right not to have property damaged by others(language used after your death) – right to leave property to whomever you wish when you die, subject to inheritance taxes– alienate (power to transfer while you are alive) – right to determine when and to whom to see or give their property – build, get minerals, use natural environment/farm – right to use your property as you see fit so long as you do not use it in a way that violates the rights of others
Theories of property: how do you get it?
First possession
Labor theory
Positivist theory
Rights theories
Consequentialist theories
Social relations theories
Involves legal protection for a particular interest
Acquired by conquest, govt. grant, purchase, through family relationships, by investment of labor or money, and by possession
– property rights grow out of and define personal relationships (utilitarian, etc) – property rights exist b/

erer to deal w/Indian tribes (1st in time, 1st in right) what it should be (Llewellyn) – identify the rules of law that have been explicitly or implicitly adopted by authoritative lawmakers and apply them as they were intended to be applied and have been applied in practice identify law w/the commands of the sovereign (the rules promulgated by authoritative government officials for reasons of public policy
JMB, which owns several private indoor malls, banned the Coalition from passing out political leaflets in its malls.
Speech rights on private property depends on the nature of the use of the property,
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.
: (based on State v. Schmid)
Tanner distributed political handbills in the interior of a privately owned mall
: a privately held shopping center is not so dedicated to public use as to allow private parties the right to exercise their 1st amend rights on its premises.
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
: 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)
: not absolute – court balances if individual right to control your property outweighs right of others to it or other’s harm
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