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Property II
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)


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 normative and positive – i.e. expectations that come from fact law exists.
– Law of discovery: discoverer has prior right to any subsequent discoverer to deal w/Indian tribes (1st in time, 1st in right)
– Law of conquest: you have control over inhabitants, can assimilate or separate them
– Quiet title: declare property yours
– Says there’s no other valid title to property
Clears up cloud on title (when you’re not sure who owns it)