What Defines Property? The Three Sticks in the Bundle:
Right to Use/Posses
Right to Exclude (Right to exclude can be limited by PP and people’s liberty interests.)
Right to Transfer
· Property rights are not absolute—property rights are limited by other people and their property rights.
· Remember property interests do not have to be held by one person (ie.landlord owns it and has the right to transfer, but tenant has the right to possess/use and exclude)
Tensions within the Property System
Right to exclude v. Right of access
Privilege to use v. Security from harm
Power to transfer v. Powers of ownership
Immunity from loss v. Power to acquire
THE RIGHT TO EXCLUDE OTHERS: TRESPASS
Trespass and Public Rights of Access to Property–Chapter 2
Trespass (2.1)-Unprivileged intentional intrusion on property possessed by another. It must be a voluntary act. The intrusion occurs the moment the non-owner enters the property. A trespass is privileged and not wrongful if:
a) the entry is done with the consent of the owner;
b) the entry is justified by the necessity to prevent a more serious harm to persons or property;
c) the entry is otherwise encouraged by public policy
Trespass–2.1(1)–Public Policy Limits on the Right to Exclude
Competing rights between–
a) Possessors right to exclude and
b) Right to enter the property.
3 Contexts of cases–
1) Nonowners have rights of access to property of others–ie. Non owner may enter to save a human life.
2) Owners have allowed non-owners to possess all or part of their property–ie. Landlord, tenant.
3) Property opened generally to the public–ie. Shopping center, restaurant, movie theater.
Public Policy Limitations on Right to Exclude:
State v. Shack (NJ) (1971) pg. 106
D’s (MD. And JD) entered onto the private property of an employer/farmer to aid the migrant farm workers. D’s were employed through the Office of Economic Opportunity, a federally funded agency. They refused to leave upon request of the employer and entered onto the property, whereas the employer charged them with trespass.
D’s did not invade any possessory right of the employer, therefore their conduct is beyond the reach of the trespass statute. The employer can’t deny the workers their fundamental rights to privacy, dignity and enjoy associations customary among citizens. “These rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties.”
The holding is defining certain property rights in NJ.
The court is balancing the rights of the farmer with the rights of the worker.
The court rejects categorical reasoning here (Formalism–fitting a situation into a category).
This is instrumentalism (Look at the bro
Reasonable Access to Property Open to the Public
Uston v. Resorts International Hotel, Inc. (NJ) (1982) Pg. 119
Uston was kicked out of casino bc of his strategy of increasing chances of winning at blackjack. Uston says that Resorts has no common law or statutory right to exclude him.
Uston does not threaten the security of any casino occupant, nor has he disrupted the functioning of any casino operations. Uston possesses the usual right of reasonable access to Resorts.
They use Shack. Employer in Shack was not harmed, cited dignity of workers. You argue Shack narrowly if you want to distinguish (pro-Resorts); argue Shack broadly if you if for Uston.
The court is looking at who gains and who is harmed?
1) Trespass is an unprivileged intentional intrusion on property possessed by another.
a. Intent = D engaged in voluntary act (ie. walking onto the property)
b. Intrusion = occurs moment nonowner enters property.
Privilege = 1) entry done w/ consent of owner, 2) entry justified by necessity to prevent more serious harm to persons or property, 3) entry encouraged by public policy (ie stops a crime)