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Property I
Temple University School of Law
Baron, Jane B.

Property Final Outline
Spring 2013
Prof. Jane Baron
Stability, limit disputes, preserve peace & order
First in time, first in right vs. laborer
Reward diligent property owner, reduce/mitigate waste
Family unit, family values
                                             1.      2 views of Property
a.      Zone of freedom to do what you want (create restrictions via covenants, impose conditions via defeasible fees)
i.        Regulation is exceptional & should only exist to handle extreme problems (Rule Against Perpetuities, No restraints on alienation)
b.      One person’s exercise of “freedom: always limits the freedom of another (If M is free to build anywhere, P can’t have solar collectors.  If Pollock can build a marina, other’s no longer have a residential development)
i.        Therefore every rule has a counterrule (Implied reciprocal negative easements, “waste” between life tenants & their remainder)
II.     The Function of Property
A.    Property as power: trespass and the (absolute?) right to exclude
                                          1.      “Private” Property (Right to exclude)
a.      Owners’ rights to exclude others from their property (generally associated with how much an owner has opened their property to the public)
i.        Non-owners may have rights of access to the property of others even if the owner has excluded almost everyone from the property (i.e. to save a human life)
ii.     Owners have allowed non-owners to possess all or part of their property (tenants rights to receive visitors)
iii.   Property that has been opened generally to the public (shopping center, restaurant, movie theater).  Generally prohibited from discriminating on illegal grounds, such as race or sex.
b.      State v. Shack (NJ 1971): Tejeras was seeking to help migrant workers who needed medical aid for removal of sutures.  Shack wanted to discuss legal problem w/another migrant worker.  Farmer-employer may not assert a right to isolate migrant worker in any respect significant for the worker’s well-being, cannot deny the worker opportunity for aid, but is entitled to pursue his farming activities w/o interference.  Migrant-worker must be allowed to receive visitors of his own choice.  This does not open employer’s premises to general public. Tedesco’s property interest did not extend to the right to exclude individuals providing access to governmental services for the benefit of migrant farm laborers and therefore there was no trespass. A man’s right in his real property is not absolute. Necessity, private or public, may justify entry upon the lands of another.  The employer may reasonably require a visitor to identify himself and to state his general purpose. The employer may not however deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among citizens.
i.        Themes: redistribution of power, property rights v. human values
c.       Trespass is privileged and now wrongful if:
i.        Entry done w/consent of owner
ii.     Entry justified by necessity to prevent more serious harm to persons or property
iii.   Entry is otherwise encouraged by public policy
d.     Jacque v. Steenberg Homes (WI 1997): Steenberg Homes used easiest route of delivery, across Jacque’s land, to deliver a mobile home despite protests.  Only alternative was covered in 7’ snow w/sharp curve.  Awarded $100K in punitive damages.  A private landowner has the right to exclude other from his land. This right however has no practical meaning if the State will not enforce it.
i.        Landowner’s right to exclude others from her land is “one of the most essential sticks in the bundle of rights that are commonly characterized as property”
ii.     Court has “long recognized every person’s right to exclusive enjoyment of his own property for any purpose which does not invade the rights of another person”
iii.   A right is hollow if legal system provides insufficient means to protect it.
e.      Limitations on rights to exclude others from your property:
i.        Discrimination
ii.     Rent controls/limitations on eviction
iii.   Adverse possession
iv.   Public access to private beaches
v.      Protecting homeowners who’ve defaulted
f.        Property rights are redistributed from owners to non-owners:
i.        To protect the interests of the more vulnerable persons in reasonably relying on the continuation of the relationship
ii.     To distribute resources earned by the more vulnerable party for contributions to joint efforts
iii.   To fulfill needs of the more vulnerable person
g.      Shack v. Jacque – 3 interpretations
i.        Right to exclude is fundamental right of property law – Jacques is the norm
ii.     Right to exclude is not central to property law.  There are exceptions.  Shack is the norm.
iii.   Neither case is typical.  Both involve extreme, emotionally charged facts.
                                          2.      “Property open to the public”
a.      Uston v. Resorts International Hotel (NJ 1982): Resorts has excluded Kenneth Uston from blackjack tables b/c card counting.  The more property is devoted to public use, the more it must accommodate to the rights of the general public.  Right of reasonable access to public places (Donnell v. State, 1873).  Uston doesn’t threaten security or disrupt the functioning of the casino, allowed in.  When property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude people unreasonably.
i.        Rights of owner to exclude unwanted patron v. patron’s rights of reasonable access.  Individual rights v. property rights.
ii.      Circular logic!
b.      State v. Schmid: Court ruled students have constitutional right to distribute literature on private university campus, wouldn’t protect unreasonable exclusion.
c.       When property owners open their premises to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably?
i.        Except…NJ not the norm. Madden v. Queens County Jockey Club (NY 1947): right of reasonable access applies only to innkeepers & common carriers.  Places of amusement & resorts enjoy “absolute power to serve whom they please”
B.     Sources of Property Rights
                                          1.      “Discovery” and “Conquest”
a.      Johnson v. M’Intosh (1823): 2 claims to the same land.  Johnson’s claim based on grants obtained from Indians, McIntosh’s land conveyed by U.S..  Indians have no right to transfer land titles because absolute ultimate title was acquired by discovery. (Discovery gives title)
i.        Native Americans treated land as common property.  Property rights derived from possession.  Native Americans didn’t “possess”/live on land (nomadic)
ii.     Native Americans are “fierce” and “savage”, “whose occupation is war”, no form of government.
iii.   Need to maintain stabalization of land titles already given by US gov’t,
                                          2.      “Capture” and “Possession”
a.      Pierson v. Post (NY 1805): Post hunted, pursued the fox; Pierson killed & captured the fox.  Pursuit vests no property right unless, perhaps, the animal is actually taken or mortally wounded.  Land is unowned – property established by occupancy. 
i.        Desire to limit disputes, preserv

op arresting homeless persons for “innocent, harmless, and inoffensive acts” such as sleeping, eating, bathing, sitting down in public and ordered the city to establish 2 “safe zones” where homeless people who have no alternative shelter can remain.  The City does not have enough shelter to house Miami’s homeless residents.  Consequently, the City cannot argue persuasively that the homeless have made a deliberate choice to live in public places
ii.     No one is free to perform an action unless there is somewhere he is free to perform it (Jones v. City of Los Angeles, 2006).  Rules of property prohibit homeless person from doing many acts (sleeping, urinating) in private, since there is no private place he has a right to be.  And rules governing public places prohibit from doing acts in public, as they are regulated.
III.   “Private” Control of Land Use
A.    Conduct in the absence of agreement
                                             1.      Property and theft: Adverse Possession
a.      The concept of “relatively good” title: A title is not absolute, but relative – may be good against one person but not against another with a better claim.
i.        Tapscott v. Lessee of Cobbs (1854): Thomas Anderson died in 1800, leaving executors to sell estate.  Sarah Lewis in Sept. 1825 for $367.50.  Tapscott took possession of the land in 1842 w/o a title.  Elizabeth Cobbs, heir to Sarah Lewis, claims title.  Mrs. Lewis died in possession of the premises, no proof of vacancy at time of Tapscott’s trespass.  Heir (Cobbs) has right to presumptive possession under law.  Property rights are relative! In case between 2 people who don’t have proper title, prior peaceable possessor prevails. 
                                                                                                a.      Conservation of peace & order! (Pierson v. Post)
b.      Title good against the “true” owner – Adverse possession
i.        Nome 2000 v. Fagerstrom (AL 1990): Nome 2000 holds title to a tract of land (mineral survey 1161).  In 1987, Nome 2000 filed suit to eject Charles & Peggy Fagerstrom, who claimed they had acquired title by adverse possession:  possession provides for 10yr limitations period for actions to recover real property.  Property was rural, likely to be used in Spring/Summer for recreational activities.  Fagerstroms met requirements for adverse possession of northern portion, but not southern portion of property.
                                                                                                a.      Possession: land must be used during the statutory period in the way an average owner of similar property would use it.
                                                                                                b.      Open & Notorious Use: Fagerstroms had outhouse, fish rack, picnic area, building materials on property for entire year.  Campter trailer for 13 weeks, “evinced a purpose to exercise exclusive dominion over the property”.