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Property (Land Finance)
Temple University School of Law
Baron, Jane B.

Property – Spring 2009
Prof. Baron
A. Property as Power: trespass and the (non-absolute) right to exclude
·         the more an owner has opened his property to the public, the more likely it is that the courts will find public rights of access
·         “Keep off” letter can usually be sent to everyone with a few exceptions (shack & Desnick)
o       Ownership does NOT give right to exclude everyone all the time
1.   ”Private” Property
i.       Trespass- Trespass is an unprivileged intentional intrusion on property possessed by another. 
a.      Intent requirement met if D engaged in a voluntary act such as walking onto the property. Not necessary to show the trespasser intended to violate the owner’s rights.
b.      Trespass is privileged and thus not wrongful if:
1.      The entry is done with the consent of the owner
2.      The necessity to prevent a more serious harm to persons or property; or
3.      The entry is otherwise encouraged by public policy
c.      Trespass Remedies: Three kinds of relief
1.      Damages payable to the injured party by the wrongdoer
2.      Injunction ordering the wrongdoer to cease the wrongful conduct or remedy any harm to the property cased by the trespass
3.      Declaratory judgment stating the legal rights against the other party.  
ii.     Right to Exclude Others from Property Not Absolute: Exceptions/Defenses
a.      Public Policy Limits on the Right to Exclude
1.      Necessity (private or public) may justify entry upon the land of another. State v. Shackownership of a farm did not include the right to exclude government employees who were providing health and legal services to migrant workers living on the farm to carry out federal statutory mandate.
o    CANNOT send “keep off” letter
o    Property rights cannot interfere with the needs of another human being Activities relevant to dignity, destiny, well being of workers (are okay)
o    POLICY: Communication is key for aid to this isolated disadvantaged segment of society
§         Competing goals: Welfare of migrant farm workers or interest in owner’s right to exclude
2.      Where there is no invasion of the specific interests that the tort of trespass seeks to protect, there is no trespass. Desnick v. ABC(undercover report on unethical cataract practices)
o   CANNOT send “keep off” letter
o     To enter upon another’s land without consent is trespass – there was consent here)
o    Owner has no power to exclude when he has given consent to entry, even if it was procured by fraud 
o    If the objection is not to the presence of the person on the property but the fraud the person perpetuates, there is no trespass.
o    Here, no trespass because no interest protected by trespass had been infringed (no interference with his ownership or possession of land)
o    POLICY  There would be more stringent rules if this were the home or somewhere that intimate details could be revealed
§         Competing goals: invading privacy v. exposing dangerous practices for the public good
2.   “Property Open to the Public”
·         A landowner that makes their property open to the public may have additional limits on the right to exclude.
i.       Public Property Right to Exclude:
a.      Majority View (common law / Nevada) – Absolute right to exclude w/o cause (so long as consistent with state/federal civil rights laws)
o       CAN send “keep off” letter – where property is open to public (except on basis of race/if you are innkeeper)
o       Exception: special obligations on innkeeper & common carriers
§         Policy:  (why the exception for innkeepers)
1) Inns are monopolies (denying service = denying ability to travel)
2) Inns provide necessities (denial would place individuals in risk)
3) Innkeepers hold themselves as ready to serve the public and the public relies on this representation
b.      Minority View (trend / NJ) – When property owners open their premises to the general public in the pursuit of their property interests, they have no right to exclude people unreasonably. (Uston)
o       CANNOT send “keep off” letter – Where property is open to public
o       Uston v. Resorts International Hotel, Inc. (casino is not allowed to exlude professional gambler that could count cards)
§         Changed the common law rule by extending that right of reasonable access to all business open to the public.
§         These owners have a duty not to act in an arbitrary or discriminatory manner.
§         Can exclude those who disrupt the regular and essential operations of the premises or threaten the security of the premises and its occupants
§         Right of reasonable access to casino b/c P does not threaten security of casino, even though he has a strategy for winning that increases odds in his favor.
v     How do we define reasonable exclusion?
c.      POLICY – Competing goals: Tension between right of amusement place owner to exclude unwanted patrons v. patron’s competing rights of access
ii.     Public Accommodations Statutes and Anti-Discrimination Policy
o       CANNOT send “keep off” letter -on grounds of race
o       CANNOT send “keep off” letter – if you are an innkeeper
§         Race and Sex Discrimination (violation of civil rights as assault on dignity/destiny)
§         Common Carriers:if engaged in interstate commerce, then they are prohibited from all forms of unreasonable discrimination.
§         The Civil Rights Act of 1964: Intended to rectify aspects of racial segregation. It does not prohibit discrimination on the basis of sex in public accommodations nor does any other general statute.
§         The Civil Rights Act of 1866: regulates race discrimination only. It wasn’t until decisions in 1968 and 1976, that it was interpreted to apply to private conduct as well.
B. SOURCES OF PROPERTY RIGHTS – May own what is unowned

ice v. Associated Press –P does have a property right in the news it gathered, but it is a limited property right that extends only against competitors in the news business
o       Once AP released the news, it is like the news “escaped” then it is free to be the subject to recapture by another.  (once new is communicated = becomes common property)
§         AP does NOT have property right against someone in the public, only its competitor
o       However, this was not decided on property grounds—case turns on unfair competition. (right to exclude where there is unfair competition)
§         AP has a property right against INS based on unfair competition (quasi-property between competitors).
§         “reaps what it did not sow” – INS took advantage of AP’s labor, gets profits for itself and deprives AP of increased profits
v Unfair compensation = NO property right
§         Must define “unfair” so social goal of “maximum production of news fast” is also achieved
o       Labor is a “way” but not the only way of acquiring property
o       POLICY: fear of monopoly
§         Competing goals – Unfair compensation v. efficient news production
ii.      No liability for employer terminating at-will employee – However, liability may be imposed on an employer if an employee is terminated for a reason that violates a public policy.
a.      Upton v. JWP Businessland – single mother fired for refusing to work long hours
o       no established public policy that requires employees cannot work long hours
§         Social goal of single mothers being able to effectively raise and take care of their children does not prevail against employer’s right to fire at-will employees.
o       POLICY- Competing Goals: employers’ right to employ whoever they want on whatever conditions they want v. protection of mother’s interest in staying at home to raise her child (Labor v. maternal labor)
iii.    NO property interest in cell tissue
a.      Moore v. Regents of the University of California -A Cancer patient’s cells were removed during an operation and later cultivated into a patented cell line without his knowledge
o       Property interests are granted in part to reward labor but also to encourage activities that are useful to/needed by society at large.
o       Here, there is no property interest in human cells
§         cells are not unique
state statutes may limit control over excised cells