PROPERTY ONE OUTLINE
[Note (takeaway is rule and other impt considerations)]
GENERAL
v Fairness and Economic efficiency are two overarching considerations in property law
v Property denotes the legal relationships among people
BUNDLE OF STICKS
· Alienability (right to sell, gift, will or otherwise transfer)
· Right to use
· Right to exclude*Pinnacle of property
· Right to devise
· Right to inherit
· Right to possess
· Right to modify
CERTAINTY
· The doctrine that every person is subject to the ordinary law within the jurisdiction
· Ensures society’s good will is advanced as it sets parameters for consistency and acceptable behavior.
· Protects expectations
· Personal: expression without fear of persecution
· Business: invest without fear of losing wealth
· Ensures
· Less litigation because resolution from certainty happens outside the courtroom
· Less complication because people can accurately predict the law
· Lower costs of administering judgment
· Ronald Coase Theorem: “Given well-defined property rights, low bargaining costs perfect competition, and perfect information, resources will be used efficiently.
WASTE
Property hates waste and will always move to prevent it
ALIENABILITY
Property is best used and least wasteful when easily transferable
LEGAL FICTIONS
· Constructive Possession
· Government owns everything unowned (like unclaimed land and animals)
·
ng no one owns (Res nullius)
Priority of possession – first in time, first in right; gives legal possessor stronger right to someone who comes after
First in Time – the first person to take possession of an un-owned thing owns it; prior possessor prevails over a subsequent possessor (depends on whos on the receiving end! – Indians were screwed bc they were savages)
Ratione soli – soil and everything in real property that belongs to the owner of the property.
WHY IS TRESPASS WRONG?
· it promotes the idea that might = right
· discourages competition; rewards bad behavior (no property protection à disincentive for efficient property use)
· it promotes self-help
Johnson v. McIntosh: (Indians): Discovery gives title to discoverer; taking possession of un-owned things is the way to acquire ownership of them. Only government could divest Indians of land, therefore P did not have a claim to the land.
Law of the land is unquestionable; Court of the conqueror cannot rule against the conquest.
Minimized the 1st in time doctrine. Marshall couldn’t rule otherwise or else all the colonies would lose their legitimacy (circumvented by rule of conquest!)
Promoted certaintyàknowing that you can buy land and wont be taken away)
economic efficiency àyou can use the land; expansion out west (think manifest destiny)
