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

Comprehensive Property Outline
I. Introduction
a. What is Property
i. Property rights concern relations among people regarding control of valued resources
ii. Property law gives owners the power to control things, and it does this by placing duties on non-owners
iii. Property rights are relational; ownership is not just power over things but entails relations among people
iv. Property rights are not absolute
1. Recognition and exercise of a property right in one person often affects and may even conflict with the personal or property rights of others
2. Property rights are therefore limited to ensure that property use and ownership do no unreasonably harm the legitimate, legally protected personal or property interests of others
a. Owners have obligations as well as rights
v. Owners of property generally possess a bundle of entitlements
1. Privilege to use the property, the right to exclude others, the power to transfer title to the property, and immunity from having the property taken or damaged without your consent
vi. Property is a system as well as an entitlement
1. Property rights must be exercised in such a way or to an extent as to not interrupt the effective function of the property system
a. Rules many times are geared not to protecting individual entitlements, but to ensure that the environment in which those rights are exercised is one that maximizes the benefits or property ownership for everyone and is compatible with the norms underlying a free and democratic society
i. Some rule promote efficiency
ii. Other rules promote fairness or distributive justice
vii. Tensions Within the Property System
1. Each of the basic property entitlements is limited to ensure that the exercise of a property right by one person is compatible with the property and personal rights of others
2. Right to exclude versus right of access
a. Tension between privacy and equality
3. Privilege to use versus security from harm
a. Generally, can use property as you wish, but cannot harm neighbors’ property substantially and unreasonably
4. Power to transfer versus powers of ownership
a. Free to disaggregate property rights in various ways, and to impose particular restrictions on the use and ownership of land; however, that freedom is not unlimited. Oweners are not allowed to impose conditions that violate public policy or that unduly infringe on the liberty interests of future owners
5. Immunity from loss versus power to acquire
viii. Recurring themes
1. Social welfare
a. Clear property rights = facilitate exchange and lower the costs of transactions by clarifying who owns what
i. However – use might be harmful
b. Must be limited to ensure that conflicting uses are accommodated to minimize the costs of desirable development on other owners and on the community
c. Rigid property rights may inhibit bargaining rather than facilitate it by granting owners the power to act unreasonably
i. Therefore = reasonableness requirements may promote efficient bargaining by encouraging competing claimants to compromise in ways that minimize the costs of property use on others
2. Justified Expectations
a. Must balance competing parties’ expectations
3. Distributive Questions
ix. Normative Approaches
1. American Indians
a. Shared – no true ownership – land was spiritual
2. Positivism
a. Follow the rules promulgated by authoritative government officials for reasons of public policy
b. Separate law and morals
3. Justice and fairness
a. Rights theorists attempt to identify individual interests that are so important from a moral point of view that they not only deserve legal protection but may count as trumps that override more general considerations of public policy by which competing interests are balanced against each other
b. Social contract / lockian labor theory
4. Utilitarianism
a. Compare the costs and benefits of alternative property rules or institutions with the goal of adopting rules that will maximize social utility or welfare
b. Class Discussion
i. Property is not inherent in and of the object itself
1. Property is a legal creation
2. Two level game
a. Relationship between actors without rules/rule maker
i. Might makes right?
1. Problems?
a. Insecurity
b. Uncertainty
b. Relationship with rule-maker present
ii. Property
1. Types
a. Real Property
i. Land, Buildings etc
b. Personal Property
i. Book, bags, computers etc – tangible
c. Intellectual Property
i. Intangible – logos, recipes
2. Characteristics
a. Bundle of Rights
i. Transferability
ii. Right to Control/Use/Possess
iii. Exclude
b. Rights are not absolute
i. Can’t use your house as a meth lab
ii. Limitations
1. Can’t infringe on others’ property rights
2. Can’t infringe on society’s rights
c. Sets of rights, that the government has created some excep

nds of another.
g. Law used to recognize almost absolute power over one’s property
i. Now – time marches on toward new adjustments between individualism and social interests
ii. The process involves not only the accommodation between the right of the owner and the interests of the general public in his use of his property, but involves also accommodation between the right of the owner and the right of individuals who are parties with him in consensual transactions relating to the use of the property.
h. This judge rejects categorical/formalist reasoning…instead balances the rights of migrant workers and the property owner
i. The quest is for a fair adjustment of the competing needs of the parties in the light of the realities of the relationship between the migrant worker and the operator of the housing facility
ii. Not the purpose of the court to open the employer’s premises to the general public if in fact the employer himself has not done so
iii. The employer may not deny the worker his privacy or interfere with the opportunity to live with dignity and to enjoy associations customary among our citizens
iv. Conduct was therefore beyond the reach of the trespass statute
3. Class Discussion
a. Criminal trespass statute does not tell us what trespass is
i. Must go to common law to determine what trespass is
b. Must balance rights
i. Tadesco’s right to exclude v. government interests
ii. Migrant’s rights vs. T’s right to exclude
c. Opinion centers on the migrant workers’ rights
d. Opinion rejects categorically/formalist reasoning — instead tries to balance
i. Property is about power; however, government can limit that power
1. Readjusts the competing needs of the parties
a. Judicial Activism?
i. No, simply making a decision – that’s what they do
ii. Any decision the court makes will change the balance of power…some people win some people lose
e. Rights based approach – not only way to go