Real Property Boudreaux Spring 2015
Five Theories of Property
Protect 1st Possession
“First come, first serve”
Encourage Labor
John Locke’s Theory of Labor:
If a person mixes his own labor with natural unowned resources, he acquired property rights from the mixture
Maximize Societal Happiness
The idea that owning things creates happiness
[Ex: Homeownership]
Ensure Democracy
Everyone has a right to private property, free from gov’t interference which is the necessary basis for democracy
Facilitate Personal Development
Each person has a close emotional connection to certain tangible things which eventually become a part of one’s personhood (self)
Choosing a Legal Rule
Approach to Real Property Laws
1) What kind of BEHAVIOR does this encourage people to do? Does it affect in a positive way?
2) Is it an EASY rule to administer
3) Does it HELP society
4) Does this seem like a FAIR rule?
Basic Facts: Dispute over personal property (fox); No one owns the fox because it is a wild animal that is up for grabs
Majority Opinion [Tompkins] – Pierson should get the fox; He thinks about how this will affect people’s behavior in the future (in the absence of NY precedent) and looked backwards to ancients scholars theories (Justinian/Blackstone/Puffendorf)
Dissent [Livingston] – If one has a reasonable prospect of capturing/taking they should have ownership; This is a lot more difficult to administer and judge
Pierson v. Post
Rule of Capture
Those who occupy or capture have ownership
· It is (1) an easy rule to administer (2) that will help society
· Keep in mind you can’t abuse this rule by overconsumption
Natural Law vs. Legal Realism
· Judges (back in the day) stuck to the ideals that the world, in a sense, is fixed and unchanging and one should let rules of nature guide them. Make simple and straightforward rule. Starting in the 19th century, this ideal fell out of favor.
· The idea that things change, attitudes and ideals change so law should change with it; “The life of the law has not been logic, it has been experience.” –Oliver Wendell Holmes, Jr.
Property Rights
Right to Exclude
Implemented through the tort doctrine of trespass
Jacque v. Steenberg Homes, Inc.
State v. Shack
Basic Facts: Steenberg repeatedly asked Jacque for access to his property in order to deliver a mobile home and was repeatedly rejected. He did it anyways (with no harm to the property) thus committing a trespass.
Richard A. Posner- Right to exclude is important because if we allow people to trespass, people can des
s because the person that is unhappy with it can always settle (pay the other side to win the case)
Presumption of Rule
(1) Know the presumption (rule/law)
(2) Figure out who is challenging the presumption
–Burden of proof lies with them
(3) Does this challenge prove an exception to the presumption?
Prah v. Maretti
Right to Destroy
An owner of real property retains the right to destroy his/her own property
There is some question, of course, if there is something of substantial value and the owner is insane or incompetent to handle his/her affairs [Examples-valuable paintings, legal papers]
Owning Real Property
Adverse Possession
OO’s Options:
(1) File QUIET TITLE- taking Apr to court with intentions of having their deed recognized
a. Remedy Sought: Apr is EJECTED
b. Potential Problems: OO’s may have slept on their rights and lost ownership
i. Apr example has put money into fixing up the house and keeping the value up, paying taxes, light bills, water bills
ii. Land is valuable and one should be expected to keep up with it
