Professor Boudreaux
Property Spring 2014
The Concept of Property
· Most of property is common law
· Types of Property:
o Real: land and things attached to land (buildings, fences, and trees)
§ In English law – source of economic social and political power
§ The US is dominated by real property
o Personal: tangible and not attached to land; personalty or chattel (chairs, patents, stocks)
o Intellectual: creations of mind (intangible)
· Private property is a human invention, and exists to the extent that it is recognized by the government (legal positivism); natural law theory does not impact modern property law (the idea that natural rights exist as a matter of fundamental justice regardless of government).
· Considerations in making judicial rulings à encourage good behavior, the ease of administration, and whether it helps society as a whole
· 5 Theories Used to Justify Recognition of Property Rights:
o Right of First Possession à being the first one somehow justifies ownership rights (a persistent and respected notion)
o Encourage Labor à a person is entitled to property produced through his own labor (when mixed with natural resources) because value was created with the added labor à newly applied in copyrights and patents
o Maximize Social Happiness à distribute and define property to promote the welfare of all citizens (economic utilitarianism). The law and economic variant of utilitarianism considers the efficiency from an economic standpoint and ignores any non-monetary benefits of environmental preservation (contrary to the ecological approach to land ownership).
§ For optimal level of production:
· Universality – all valuable resources must be owned by someone (maximize use of economic resources)
· Exclusivity – so there is an incentive to improve the property (and gain the “fruits” of labor)
· Transferability – must be transferable in order to gain from trade
o Ensure Democracy à provides the owner with economic security in order to make political decisions for the common good (not as prominent of a theory à most people get economic security from wages now). Also the idea that property makes people more independent (less dependent on the government).
o Facilitate Personal Development à personhood theory is that property is necessary for personal development, because there is an emotional connection to it (which should be protected). It is suggested that a right to personhood property (emotional) should have priority over a conflicting claim by the earner of non-personhood property (with no emotional connection).
All the theories help form the foundation of property law; it is a blended system (theories may overlap)
· Must balance OWNER’S RIGHTS with the INTEREST OF SOCIETY in general
o Law evolves with geography, technology, economy, and social forces
o Role of Custom à laws may be based on tradition, but courts have to choose among competing rules à some goals are administrative efficiency, certainty, and social order
· PIERSON v. POST (Post was hunting a fox with hounds; Pierson knew, but killed it for himself)
o Fox was found to be in possession when mortally wounded, and pursuit alone is not enough to “occupy” or possess the animal à must be trapped without escape of wounded/killed
o Natural Animals: only can be acquired by “occupancy” which means actual possession
§ If mortally wounded, then possessed (if escape is impossible)
§ If encompassing or trapping animals it is possession because this involved LABOR
§ Mere pursuit à no possession
Once there is possession à it becomes personal property
o Rule à capturer gets the fox à easier to administer (bright line test);
§ But means that some people may over-consume as a result
o Dissent: times have changed and the law used was old à property in animals can be acquired without bodily touch, as long as the pursuer has a reasonable prospect of taking with the intent to convert; it benefits society more for the plaintiff to hunt the foxes. Should have let the arbitration of sportsmen decide the decision (what is the custom today?)
· Pierson v. Post was a case of first impression and was not bound by law à it illustrates the first possession approach to property à THE RULE OF CAPTURE (must have mortally wounded or trapped animals) – probably sued because of pride or principle
· Ownership = title
o Have a “bundle of rights/sticks,” but property rights are not absolute
o May exclude things like necessity or nuisance
o Rights include the right to transfer, exclude, use, and destroy
o Right to transfer is the right to “alienate” à to take title and give to someone alien to you
· Legal Realism – law is about experience, rather than logic; the law can change with the times and circumstances based on society (Oliver Holmes). This is the opposing view from “natural law”.
· Right to Exclude: an owner has the broad right to exclude a person from his property through the tort doctrine of trespass.
o R,2nd à guilty of trespass if someone intentionally (voluntarily) enters land possessed by another, regardless of whether there is any harm; or if someone causes another thing/person to enter
o Privilege: is not trespass à most common privilege is consent; may also be by necessity
o Sometimes people may be allowed to discriminate on who they exclude, because the right to privacy and the right to exclude are homeowner rights à unless a statute or exception applies (like a restaurant owner; or if the establishment is very open to the public and excluding is unfair)
· JACQUE v. STEENBERG HOMES (easiest path to deliver a mobile home was through defendant’s property)
o J sued for intentional trespass à awarded nominal ($1) and punitive damages
§ An award for nominal damages can support a punitive damage award (no compensatory)
o Considered private and societal interests (there is harm in every trespass, regardless of compensatory damages – loss of the right to exclude)
§ There is also potential for harm for intentional trespass (adverse possession) so the individual has a strong interest to exclude trespassers – there was actual harm
§ Society’s interest in preserving the integrity of the legal system
§ Must punish intentional trespass to preserve the integrity of the legal system
· Jacque v. Steenberg says that the right to exclude is absolute, even if unreasonable (easier rule to apply – bright line rule), which is contrary to the State v. Shack case
· Trespass: trespassers can interferes with the efficient use of land à the right to exclude is important to incentivize incurring costs and reaping rewards to maximize economic value (the theories of property). Trespass is a tort. Trespass on the case is possessing someone else’s personal property)
o Trespass occurs regardless of any actual damage
o Cyberspace à most statutes have statutes restricting spam
o Trespass to Chattels à liability for possession of chattels
· STATE v. SHACK (defendant entered migrant farmworker land to give medical attention)
o Defendant charged with trespass, however à the rights of privacy, dignity, and necessity outweigh property interest because they are too fundamental
§ In this case à wanted to aid workers, and consult with them without supervision by the owner/farmer
§ NECESSITY can justify the entry onto private land à the right to real property is NOT ABSOLUTE à cannot use property to injure the rights of other people (well-being of other people is the first priority of the law)
· Cannot deny the opportunity for charitable aid to works on his property, and maybe have visitors as long as there is no harm (however the “visitor” allowance was dicta so this is not 100% clear – probably not allowed)à NO TRESPASS
§ The workers were actually living on the property à owner gives up some right to exclude, even if they are not tenants (court tried to make the decision narrow, limiting it to workers receiving government assistance)
· Human Values: property rights serve human values and are also limited by them
o Non-owners also have a right to property access if there is NECESSITY or an important social policy
o Some scholars say property rights are dynamic and instead of accepting the “right to exclude” courts should consider the and balance the interests
· Right to Use: traditionally an owner had an absolute right to use, as long as he did not harm the rights of others. A limitation was the doctrine of nuisance and the spite fence. Statutes / Ordinances can also impose zoning restrictions.
o Spite Fence: an owner cannot erect an unusually high force solely to annoy his neighbor
· SUNDOWNER v. KING (Sundowner sold motel to King, then build another next door. King built a spite
fence to restrict air and light)
o Spite Fence: cannot erect a structure with the only purpose of annoying a neighbor m
open and notorious (all in sight and noticeable), adverse and hostile, exclusive (not using by anyone else), continuous (but not necessary to be used constantly), and met the required statutory time.
o Rewards the adverse possessor’s work on the property
o THEME FOR ALL 6 ELEMENTS à HAS TO TREAT THE PROPERTY AS THE REAL OWNER WOULD
· State of Mind: not that important with tort law – in the Gurwit case they believed it was their land
· VAN VALKENBURGH v. LUTZ (adverse possession dispute)
o Actions à Lutz farmed the land, built a dwelling
o NOT Adverse Possession à must be protected by a substantial enclosure or usually cultivated or improved à no proof of enclosure, and no improvement
§ Even though Lutz farmed, the entire land was not utilized à also Lutz KNEW it was not his land and the statute requires that occupation must be under a claim of title (this is jurisdiction specific)
§ Also already was granted an easement, which was Lutz admitting the land wasn’t his (another subtle factor – chasing after children)
o State of Mind: Lutz knew he didn’t own the land à does not matter in most states, as long as the original owner has slept on his rights.
· Adverse Possession & the Environment: may not be such a bad thing to abandon land/ leave it in a natural state, with the problems of over development and depletion of resources
· Color of Title: when someone has a deed, judgment, or other written document that is invalid for some reason. The required period for adverse possession is usually shorter for someone holding color of title.
· Some state may require notice to be filed before someone gets adverse possession, or require payment to the original owner.
Owning Personal Property
· A thief cannot adversely possess personal property, but an innocent person that buys stolen property may be able to adversely possess it. (can also adversely possess intangible property)
o Who Wins: since the good faith purchaser death with the thief à HE LOSES the property, because it will encourage good behavior à purchasers must be very careful before buying something (the person in the best position to prevent the situation will lose; so the original owner will most likely win)
o Since personal property is moveable, it is not as likely to be “open and notorious.”
· Replevin: recovering possession of personal property
· O’KEEFE v. SNYDER (plaintiff’s painting were stolen from gallery; S purchased them and claimed title by
adverse possession and argued O was barred by expiration of the limitation period)
o Impleaded a 3rd party (Frank) who sold the paintings to S.
o Discovery Rule: the SOL period begins when the owner knew or should have known who lawfully possessed the property.
§ This delays the accrual of the SOL, but the burden is on the owner à must conduct due diligence to find stolen property
o Adverse Possession of Chattels: same adverse possession requirements as for property, but not open/notorious because moveable
§ A subsequent owner can BUY another person’s adverse possession time (so that the time period necessary for adverse possession transfers).
§ Discovery rule shifts the burden of proof at trial from the possessor (to prove elements of adverse possession) to the owner to show he didn’t know/should not have known
o Ultimately settled the case.
o Title: if paintings are stolen, the thief does not have title, and cannot transfer good title to others. If the seller had “voidable title” then, under the UCC, he can transfer good title to a good faith purchaser.
