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

– 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

A. 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 chose
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

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.
b. Place that invites public necessarily limits its rights to exclude people
– Court’s worried about subtle discrimination in public places.
c. 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:
(a) Free speech trumps property rights (not according to Lloyd)
(b) Property rights trump free speech (Ds in Pruneyard)
(c) US constitution doesn’t require either, it’s up to the individual states (Pruneyard)

– Lloyd Corp v. Tanner
– Tanner distributed political handbills in the interior of a privately owned mall
– RULE: 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.
*Private property owners can define the invitation that is given to the public.
– 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)

– NJ Coalition v. JMB Realty Corp
– JMB, which owns several private indoor malls, banned the Coalition from passing out political leaflets in its malls.
– RULE: (based on State v. Schmid)
– 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.
*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)

d. 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

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

B. The Legitimacy of the Property System

– No property right is absolute – each is limited by rights of others
– Positivists: identify law w/the commands of the sovereign (the rules promulgated by authoritative government officials for reasons of public policy
– Rules may be intended either to protect individual rights, promote the general welfare, increase social wealth, or maximize social utility
– Separate law and morals
– Emphasize that moral judgements may underlie rules of law (they’re not fully or consistently enforced by legal sanctions
– Legal realists: (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
– Normative law: what it should be
– Positive law:
– Some rules can be both

it – had intent to hold onto lost property
(2) Mislaid: owner intentionally left it somewhere and forgot where
(3) Abandoned: owner doesn’t want it anymore, intends to leave it, property goes to finder (except if on private property)
– Passage of time sometimes = abandoned

3. Conflicts between true owner and finder
– Finder of lost or mislaid property doesn’t acquire title to it against true owner.
– True owner has right to recover lost property from finder
– If you find a wallet on your property, inly yours if left by a trespasser
– Finder has a right to keep property that was abandoned since original owner relinquished rights
4. Conflicts between finder and 3rd parties
– Finder has right to prevail over everyone but true owners.

5. Conflicts between finder and owner of premises where property was found
– Objects belong to owner of property if finder was trespassing.
– If finder was an invitee on property w/landowner’s permission, Cts are divided.

6. Unjust enrichment
– Enrichment that’s unjust w/no justification and no other remedy available
– Inequitable to allow one to be enriched by the labor and expenditures of another who acted in good faith and in ignorance of any adverse claim or title.
– Elements:
– Someone has to be enriched
– Someone has to have been impoverished
– Connection between enrichment and impoverishment
– There must be an absence of justification or cause for the enrichment and impoverishment
– No other remedy at law available to Plntf.
7. Bona fide purchaser theory (you can only convey what you own)
a. Bona fide purchaser: thinks what he is buying isn’t stolen
– One who obtains stolen items from a thief never obtains title to or right to possession of them.

C. Labor, Investment and Possession

1. Wild Animals
a. Justinian’s Institutes: animal is yours when completely under your control (captured) because it’s unable to recover its natural liberty
b. Theories of ownership:
1) possession (killing)
2) mortal wound and continuing chase
3) catching w/o killing it
4) pursuit (time/distance)
5) pursuit w/specific weapons
6) pursuit w/reasonable probability of success
– e.g. a property owner has “temporary title” (ownership) over ducks on his land that a neighbor can’t interfere with

*A person who first captures resources is entitled to the resources. Another way of putting this rule is: Whoever is prior in time wins. This rule has been applied to many different kinds of resources.

Trespass: an unlawful act committed against the person or property of another; wrongful entry on another’s property.
Pierson v. Post