Property Outline
1. Property, Possession and Ownership
A. The concept of property
1.In some societies ownership is common by social collectives such as families or clans.
2.Five theories used to justify private property
1. Occupation Theory
2. Labor Theory
3. Contract Theory
4. Natural Rights Theory
5. Social Utility Theory
3.Property consists of a bundle of rights
0. Right to Possess
1. Right to use
2. Right to Exclude
3. Right to alienate
a. More of these rights you possess, the more significant is one’s ownership.
4.Real property consists of land, and buildings, while personal property consists of chattels and intangibles. (e.g. – stock, bank account)
5.Posner – Economic Analysis
1. Property decisions made as a cost analysis.
2. Value is maximized when every valuable resource is owned by someone, has exclusivity and ownership rights are alienable.
6.Radin – Market Inalienability
0. Argues that some things should not be commodified. Body is not fungible – cannot pass in and out of one’s possession without effect on that person as long as its market value is given in exchange.
. Reproductive capacity would be seen as a scarce good with high demand
b. Market rhetoric changes our views.
1. Traditional liberal thinking – right to hold property inalienable, property rights themselves totally alienable.
7.Sunstien – Property and Constitutionalism
8.Ellickson – Untenable case for an unconditional right to shelter
0. Inherent tension between providing welfare and encouraging work
1. Proposed entitlements (e.g. – right to shelter, minimum income) tend to discourage work, while existing entitlements encourage it.
B. Possession and Ownership
1.Judicial Remedies for protection of Property
0. Wide variety of “real” actions were available at common law but most fell out of use when ejectment became available
1. Developments in the US
. Detinue fell out of use
a. Tr
st the true owner finder of lost property does not acquire possession
If finder knows or has reasonable means of discovering identity of true owner but keeps property could be liable for conversion
Successive finders – if someone finds something, that was previously possessed by someone else, the previous possessor will have a better claim to it.
Finders rights could also be limited if the property was found on land belonging to another
Finders rights also affected by statute as every jurisdiction has statutes related to finders issues
Classification of property important
Lost Property
Unintentionally misplaced and forgotten
Goes to finder under statutory guidelines
Mislaid Property
Intentionally placed and forgotten
