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Property I
Temple University School of Law
Hollis, Duncan B.

I. INTRODUCTION
The bat:
-Whose in first place? Discovery/Conquest; Possession and Capture; Labor/Investment; Family Unity, Fairness, Need?
-These values could allow you to say one owner or multiple owners
-What about when you convey? Servitudes RC’s, how do we bind three parties?
-Estate system, how do you regulate interests of bat over time?
-Got to deal w/ questions of regulation, and how does the govt fit in; when does govt intervene and how; what rules to use, what interests to serve
-Citizens begin to operate w/ expectations governed by govt’s actions; govt gets choice to use old rules or shake it up; if do that have to explain yourself (instrumental, institutionalist)
-Property about how people relate to things and values people bring on how to regulate those things
-Construct arguments w/ precedent, fairness; embrace uncertainty and fact that law is malleable
A. What is “Property”? How do Individuals Relate to It?
What makes property property?
The Bundle of Rights
1. Use or possess
2. Exclude others
3. Transfer
What Limits These Rights?
-Neighbors, Society
-e.g. pooling water into your land, meth lab in basement
-property is never absolute, it is a set of rights to which govt has created set of exceptions based on needs of you and your neighbors and the competing interests
-less about things and more about people; not just about order but relationship b/w you and govt and what sorts of regs should govt impose

B. What Rights are Associated with Prop. Ownership? What Role does Govt Play in Establishing Such Rights?
1. Regulation of the Right to Exclude with Respect to “Private” Property
State v. Shack
-Facts:fed agents wanted to visit migrant workers on farm to aid them, owner of farm wouldn’t let them on farm, agents charged w/ criminal trespass
-Issue: Whether agents committed trespass
Case is an illustration about the right to exclude others and how far the right to be free of trespass will take a landowner; also an illustration of how courts will weigh the parties’ interests as opposed to using formalism
Trespass defined:
Criminal trespass here is trespassing after being forbidden not to enter land; Trespass is the unprivileged intentional intrusion on land by another
cf. nuisance a nonphysical intrusion including noise, smoke
Exceptions are consent, PP, necessity
Rule: Exclusion power defined: Ownership of real property doesn’t include the right to exclude access to govt services; owners can exclude but not at the expense of other’s fundamental rights like access to medical care; title to land does not give you the dominion over others or their well being; No absolute right to exclude
Balancing of Parties’ Rights: Rights of land owners to keep people off land outweighed by rights of migrant workers, weak party, to essential services, govt services, privacy, dignity, right to visitors; owner has burden here
-This is what judges do in property cases; any decision an judge makes will weigh the rights and affect them and result in a winner and loser
Instrumentalist Reasoning: Could have used formalist rules here, but judge made it a balancing case about whose rights society should protect; formalist could havesaid trespassers here were privileged (necessity, PP, consent, PP is probably your best argument)
Desnick
-P suing ABC for trespass by fraud after tricked P into letting on property for expose on his medical practice
-This case is a public policy one; the judge wants to allow people to expose PP violations such as bad medical practices; similar to Shack’s rationale allowing access
Rule: Trespass is unprivileged intentional intrustion on property of another (privileges are consent, necessity, PP; no consent if fraud)
But to be trespass there has to be an invasion of the inviolability of person’s property, that is their property interests (ownership and possession of land); there has to be an invasion of their private space
Here the medical office was a place open to public; judge doesn’t want to mess w/ access to public place
Consent:On the one hand argument is false consent is no consent; Consider the scope of the consent; can’t be exceeded
Food Lion
Scope of consent is exceeded by physical activity only if they’re doing something with the activity you didn’t want, the initial invitation

2. Regulation of the Right to Exclude with Respect to “Property Open to the
Public” vs. Regulation of the Right of Reasonable Access

Uston:
Facts: Black Jack Card Counter kicked out of casino; asks for dec jgmt saying no statutory or CL right to exclude him
Rule: Uston holds that owners opening premises to public in pursuit of property interests have no right to exclude unreasasonably, rather have duty not to act in discriminatory manner; only can exclude if safety or essential operations interference; extends CC rule to all public businesses
-Court is awarding a reasonable right of access here and saying biz’ don’t have right to arbitrarily exlucde public
-Interests Balancing: Casino wants to protect against harm of cheating, Uston wants reasonable access to public place; under Shack the court would weigh security v. reasonable access
-Uston is the minority rule: Majority still retain right to exclude w/out cause and limit duty to serve to CC’s and inn keepers
Exception: CC’s and Inn keepers; Under the CL, they cannot exclude unreaonalby, Uston is essentially extending that rule to all businesses; Reason for this is CC’s and inns more likely to be monopoly, and they hold themselves to provide public service
Rationale: More categorical than Shack but still weighing the interests
Value Judgments: Some exclusions are not policy/factual questions, they’re value judgments based on race, color, religion e.g. Spirit Murdering not letting black person in store

CRA of 1964, Title II (public accommodation statute)
-bars discrimination on base of race, color, religion or national origin in places of public accomodation
General rule is exception for CC’s, Uston extends that rule to all places open to the public; most J’s still say you can exclude unreasonably and arbitrarily e

own; P’s sue claiming their property
-Court says not property, public property when published, not copyrighted, but news has literary element in addition to news event; so it is unfair competition to steal that creation; property interest is selling the news first, and D has duty not to injure P; protect news industry
-Systematic misappropriation of not news was sufficient to justify injunction against INS until commercial value of stories dissipated
-Dissent; Should let legislature make law; institutional reasoning
Moore v. Regents of the University of California:
Hairy Cell Leukemia Case, court says no conversion b/c P gave up property rights in consenting to surgery; Court values interest in R&D higher than patient autonomy, wants rule that propetecs patienst but encourages research and discourages civili liability (formalist), let legislature penalize (institutionalist); Autonomy still there w/ respect to medical decisions and fiduciary duty, informed consent; Patent can’t be P’s property b/c has more to do w/ work then his raw materials
-Just like INS b/c news isn’t P’s property, but here they are protecting the exploiter; both want to protect an industry, different ways of doing

Upton v.JWP Businessland
-Court denies P recovery for termination; P had to raise kids, but court not willing to use that PP reason to overrule rule that employee can be terminated anytime any reason except when violates PP (at will employment more important than raising kids); PP of employer wins out here
-Illustrates what happens when there are two good PP arguments fighting; court has to decide which wins

D. Claiming Property Rights by Family Ties, Need and Gifts;
Should const make states provide min level of govt financial assistace sufficient for poor to avoide severe deprivation, necessary to life? NY does subject to legislative discretion; some courts say welfare imposes obligation on leg to provide funding to keep kids in welfare
-Can mother sue state claming const gives right to raise child in own home?

In Re Marriage of King:
-Court gives house to woman in divorce case b/c man pro gambler and need to provide for children
-This illustrates the concept of need; we value woman’s role as a mother, not woman over man; kids need a mother and a house so mother gets the house to care for kids
-Not just about labor values e.g. welfare, greatest good for greats many, greatest countries protect weakest citizens