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

I.       Functions of Property
A.    Property Rights
1.      Private Property
a.       Right to exclude (Prevent Trespass)
i.         One of the most important rights of property
ii.       Not absolute
01.   Necessity – to save a human life
02.   Tenants and non-owners possessing part of land allowed visitors
i.         State v. Schack – Migrant workers allowed visitation from government agency workers
03.   Consent of owner
i.         Consent through fraud can still grant right to access (Desnick v. ABC)
a.       Must not infringe upon the type of possessory interest the law aims to protect
b.       Product testers etc. can fraudulently gain valid consent
2.      Public Property
a.       IN GENERAL – The more a person has opened up their property to the public the more likely courts will find public rights to access
b.       Inns and common carriers are expected to grant the public a right to access
i.         Right of reasonable access to all public business held in (unusual) (Uston)
ii.       Most states still retain absolute right to exclude without cause limited to inns
B.    Sources of Property Rights
1.      Discovery and Conquest
a.       In America it is about which European discovered the land first
b.       Land title is granted by the government of the US and is the authority
c.       Morality and justice is not the concern here, positive law is
d.       Rights in land ultimately derive from the government and are transferred to others
2.      Capture and Possession
a.       Possession is crucial to claims on land
b.       In order to have claim to a property one must have at some point possessed it (Pierson v. Post)
i.         It is not enough to have been in pursuit of said property
ii.       If there are multiple possessors of the property it is sometimes divided by the strength of the claim (Poplov)
3.      Labor and Unfair Trade
a.       In general: the more labor you put into something the more likely it will be considered property
b.       Substantial investments of time and labor to create something intangible of value may be protected as property (even if not patented/copyrighted)
i.         Protection from misappropriation
ii.       Prevent free-riding – must be in direct competition with P
c.       The Relationship between parties is sginficant – owner may be protected from competitor but not from non-competitor (INS v. AP)
d.       Fair competition is also a consideration
i.         Speed is essential to news release and the ability to copy from another news source discourages fair competition
e.       People have a proprietary interest in their likeness, business use of it is a tort
f.        Autonomy is a continuing theme based on what a person can choose to do witht heir property,
i.         A patient to does not consent to own extracted cells after medical extraction
g.       Mothering doesn’t lead to any property?!? Upton v. JWB Businessland
4.      Family, Need and Fault
a.       Family owned property is governed differently by states
i.         Community property states claim that all property is owned by both spouses
ii.       Separate property states claim each spouse separately owns property
01.   Division is done equitably
02.   Takes into account several factors: need, contribution of income, length of marriage
iii.     Children become a consideration in division of property
b.       Need is treated differently amongst the world such as socialism and welfare
II.   Private Control of Land Use
A.    Conduct in the Absence of an agreement
1.      Adverse Possession and Theft
a.       Relatively good title
i.         First possession does not supersede actual title to land

a.       a substantial and unreasonable interference with the use and enjoyment of land
b.       Reasonable is the largest determining factor
i.         Balancing Approach
01.   Gravity of harm balanced with utility of activity
02.   Can really go either way
ii.       Instrumentalist Approach
01.   If defendant’s actions conflict with a social goal – more likely unreasonable
02.   Example: development of solar power and the right to light
iii.     Legal Rights Approach
01.   Only unreasonable if the behavior of D interferes with a legal right
B.    Agreements Between Neighbors
1.       Servitude – leglal device that creates a right or an obligation that runs with the land
a.       Runs with the land means – passes automatically to successive owners or occupiers of the land or the interes in the lan with which the right/obligation runs
i.         Two Types of servitudes
01.   License – Revocable Informal
02.   Easement – irrevocable
i.         Express Easement
ii.       Easements implied from prior existing use
iii.     Easements by necessity
iv.     Prescriptive Easements
v.       Irrevocable licenses | Easement by Estoppel
2.       Easements – non-possessory right to use land in possession of another
a.       Elements of
i.         No possession right
ii.       Interest in land (not just K, but subject to Statute of Frauds)
iii.     Can’t hold easement on own land – must burden an owner
iv.     Enforcement
01.   Agreement between parties