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Property I
Temple University School of Law
Mandel, Gregory N.

Property Outline
Spring 2008 – Prof. Mandel
I.        Introduction
a.       Property – legal relationships among entities with respect to things
b.      Critical property rights:
                                                               i.      Use – includes alteration – but limited by copyrights and laws
                                                             ii.      Alienation – to get rid of it from your property – dispose/transfer/sell – but can’t sell it for something illegal
                                                            iii.      Exclusion
                                                           iv.      Possess – share it with others
c.       Legal rights are limited by the legal rights of other people or criminal law or contracts
II.      Original Acquisition – how do property rights come to be
a.       Discovery – identify previously unclaimed property
                                                               i.      General rule is first in time first in right
                                                             ii.      Johnson v. M’Intosh – Native Americans only have right of occupancy, can’t transfer rights, b/c possession by the Europeans by conquest or purchase from the natives is how the country was settled, so should be recognized as the guiding principle 
1.       Native view of property was usufructory – person on land had right to use but only as long as you were there using it
2.       Possession – factual v. legal
a.       It’s all about legal possession – legal conclusion based on social goals
b.      Possession means what we want it to mean to achieve the goals of law – not factual, is a legal construct based on our goals
                                                            iii.      Chain of title – transactions or conveyances of a parcel of land which move it from owner to owner over time
b.      Conquest – take it by force – is this original acquisition? Depends on view of conqueror
                                                               i.      General rule is that title goes to the victor
c.       Capture
                                                               i.      General rule is first in time first in right
                                                             ii.      Pursuit of an animal alone does not give you possession – must capture or mortally wound the animal (certain control) and continue pursuit – Pierson v. Post – fox hunting
1.       Judges make empirical statements – make sure to question what statements are based on – is it really fact based or as assumption
2.       Dissent – possession if pursuer has reasonable prospects
                                                            iii.      If you are on your own land have ratione soli – common law right to take wild animals found on your own land
                                                           iv.      Ghen v. Rich – whaling case – adopt custom of the whaling industry – based on usage principle – the person who kills the whale has property rights
1.       Court is concerned if don’t adopt custom the industry will be harmed – probably not true – empirical assumption – will figure out another way to survive unless the industry is already barely surviving
2.       Should custom apply or be a factor – consider:
a.       Is it a good way to do things
b.      Is it fair and just – to the industry – to others
c.       Are there competing customs
d.      Do the customs align with societal goals
                                                             v.      Unlawful to maliciously hinder someone’s trade unless you are doing it to establish a lawful alternative or competition – Keeble v. Hickeringill – duck pond
1.       Looking at social goals – broader rule
a.       What happens when there are competing interests – don’t always know – balance the rights – what weight do we give
2.       Malicious – injury w/o furthering trade
3.       May be about more than trade or occupation – also property rights
a.       Even if not furthering a trade if you are on your own property you may be alright
4.       Conservation – first amt rights of free speech v. right to practice a trade
a.       Whose interest benefits society more
                                                           vi.      Externalities – Harold Demsetz – how private property rights come to being – economic analysis
1.       Externalities exist whenever a person makes a decision about how to use a resource w/o taking full account of the effects of the decision – effects external to the person – leads to misallocation of resources
a.       Cost/benefit created by one person’s actions which the actor does not reap the cost/benefit of
b.      Can be positive or negative
c.       Actor doesn’t know the full scope of cost/benefit so they don’t take them into consideration when deciding how to act – don’t act in most beneficial way
2.       Original regime of property ownership was communal
a.       Each member of the community has the right to use the property but cannot exclude others
b.      Results in many externalities b/c the full cost of the activities are not directly on the owner of the property right – they are shared
c.       Tragedy of the Commons – each person makes small individually rational decisions that destroy the community – a socially irrational outcome
3.       Solution = Internalize
a.       Make sure each person faces full social costs and earns full benefits – encourage each person to act with socially responsible behavior
b.      Have to balance twin goals of efficiency (get as much done as cheaply as possible) and equity (fairness)
c.       Privatize – let free market dictate result – each person will make decisions to maximize their wealth
                                                                                                                                       i.      Demsetz thinks this is solution but ignores problems associated with collective action – still have to agree on how to privatize
d.      Government solution – gov’t passes laws to limit usage of common land
e.      Collective action – community agreement on usage – ex. Fisheries – agreement of who is going to fish where
                                                                                                                                       i.      Problem –
1.       free riders –maybe 10% won’t agree b/c then they can still act in socially irresponsible way
2.       hold outs – make you pay more for their agreement
3.       transaction costs – costs a lot to have negotiations – tough and expensive to get agreement and then have enforcement costs
4.       Utilitarian view of property – privatize to promote efficient use of resources
d.      Creation

1.       Jacque v. Steenberg Homes – landowner has right to exclusive enjoyment of his land for any purpose which does not invade the rights of others
a.       Trespass is almost entirely about the right to exclude – when someone violates a property owner’s right to exclude – unprivileged intentional intrusion on the property possessed by another – intent has to do with acts that are volitional
2.       State v. Shack – property rights are not absolute – landowners may not deny those on their property from receiving aid from certain sources – right to exclude has certain limitations based on the rights of others
a.       Different people’s property rights can conflict (Moore) or there may be public policy reasons (Shack)
b.      You may have property rights in same property as someone else – or you may not have all the sticks in the bundle
c.       Property rights do not give you unlimited dominion over people on your property – have to consider interests of others
d.      People on your property (migrant workers in this case) should be able to receive visitors so long as they don’t cause trouble
e.      Labor – altering the property, if you created it, labored on it, it’s yours and you have rights – tied to capture and creation or considered separately
                                                               i.      Locke’s labor theory of property – natural rights theory
1.       Every person has the right to their body and the work produced by it
2.       When person has mixed his labor with property he has made it his own
III.    Subsequent Acquisition – once one entity has property rights how do those get transferred
a.       How property is subsequently acquired
                                                               i.      Land Transaction – Purchase
1.       Recording system
                                                             ii.      Find
                                                            iii.      Adverse possession – Theft + Time
                                                           iv.      Gift
IV.    Land Transactions
a.       Statute of Frauds – some kinds of contracts are not valid unless written
                                                               i.      Transfer or creation of an interest in land, other than a lease of less than three years, is not valid unless it is written, signed by the party to be bound, contains a description of the land and states a price
                                                             ii.      In some cases if there is no price stated the court will imply a reasonable price
                                                            iii.      Exceptions to Statute of Frauds: