Property—Professor Render—Spring 2012
1. INTRODUCTORY PRINCIPLES
a. What is property?
i. A system of rights and obligations
1. Comprised of:
a. A set or bundle of rights
i. Present possession, future possession, right to transfer, etc.
b. Which are severable
c. Are not absolute
d. And which never operate in isolation
i. Always operate in a larger social context
ii. When property law privileges one interest, it necessarily burdens another
2. Concerning the relations of people
a. ‘your bundle of rights mean nothing if I am not obliged to respect them’
i. Force of law
ii. If the law does not validate your rights to the property, you are not the owner
3. With respect to valued resources
a. Includes personal property, real property, and intangible resources (ex: interest in an on-going business)
2. INITIAL DISTRIBUTIONS
a. What principles guide or justify initial distributions?
i. Possession (first in time)
1. No other rights already in existence
2. Mechanism of fairness for exclusive possession (others cannot claim it later)
3. Creates incentive for discovery and expanding civilization
4. Easy to administer
ii. Ownership evidenced or earned by labor (Locke’s view)
1. Rules should reflect the notion that if we have done something to improve the property in question, we should have claim to that property
2. Incentivizes development of land for individuals as well as the greater good
iii. Most efficient distribution (Utilitarianism)
1. Ignores the first two principles
2. Who can make the best use of this resource? That person should have property rights
iv. Distribution that maximizes fairness or equality (distributive justice)
1. Distributions should be done based on fairness
2. Everyone should have an ability to exploit the resources to the best of their abilities
b. Goals of Property Rules
i. Must efficient use of valued resources
ii. Internalizing externalities
iii. Decreasing conflict
iv. Increasing certainty
v. Promote human valuesàautonomy, dignity, freedom, etc.
c. Acquisition by Discovery
i. Discovery vs. Conquest
1. Discovery: sighting or finding of previously unknown or uncharted territory
2. Conquest: Taking possession of enemy territory by the conqueror
3. Neither mode is very relevant in present times
ii. The United States has exclusive title to land because of the discovery and conquest of America by Europeans
iii. For all parcels of land in America, the chain of title begins with the United States government.
d. Acquisition by Capture
i. Actual control/possession of the animal (including mortal wounding/snaring without abandonment) confers ownership
ii. Ratione sole: The conventional view that an owner of land has constructive possession of any wild animals on the owner’s land
1. Domesticated animals: Title remains with the owners of the animals
a. Ex: farmer has a herd of cattle that leave the land and return
2. Rule of Increase: Owner of the female animals always owns the offspring
iii. Oil & gas: Because of the “fugitive nature” of oil and gas, courts have treated them similar to wild animals, and therefore should be governed by the rule of capture
1. “They belong to the owner of the land, and are part of it, so long as they are on or in it, and are subject to his control; but when they escape, and go into other land, or come under another’s control, the title of the former owner is on”
e. Acquisition by Creation
i. Moore v. Univ of California (1990)
1. Moore did not own the cells taken from his body that were developed into cancer medication
a. Didn’t expect to retain possession after their removal, therefore he can’t sue for conversion
b. The patented cell line was “factually and legally distinct” from the cells taken from Moore’s body, and the patent rewards the ‘inventive effort’ not the discovery of raw materials
c. Did not want to make those who are engaged in socially useful activities potentially civilly liable
d. Did not want to recognize and enforce a right to sell one’s body for profit
3. THE RIGHT TO INCLUDE/RIGHT TO INCLUDE
a. Almost a uniform right to exclude. Property law almost uniformly rejects any ‘right’ to trespass
i. “One of the most essential sticks in the bundle of rights”
b. Exceptions:
i. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises
ii. Reliance Interest in Property (Covered More in Easements)
1. When owners grant rights of access to their property to others, they are not unconditionally free to revoke such access. Non-owners who have relied on a relationship with the owner that made such access possible in the past may be granted partial or total immunity from having such access revoked when this is necessary to achieve justice
2. When people create relations of mutual dependence involving joint efforts and the relationship ends, property rights must be redistributed among the parties to protect the legitimate interests of the more vulnerable persons
iii. Non-owners have a right of access to property based on need or on some other important public policy.
4. ACQUISITION BY FINDING
a. The finder, though he does not acquire an absolute property or ownership, he has ownership against all by the true owner
i. Subsequent finder (initial finder loses and it is found by another): initial finder wins. First finder has superior title to subsequent finders
b. One who finds even by a tortious act (ex: trespassing) holds superior title to a subsequent wrongdoer
c. General rule of law is that the finder of a lost article is entitle to it as against all persons except the real owner, and the place in which they were found does not make any legal difference
d. Lost vs. Mislaid vs. Abandoned
i. Lost
1. Public: Finder against all but true owner
2. Private Home: usually landowner against all but true owner
a. Unless landowner never had possession
ii. Mislaid:
1. Bank notes on the ground (lost), bank notes on the counter (mislaid)
2. Land owner against all others
iii. Abandoned Property:
1. True owner has no intention of returning for the property (fact-specific)
2. Public: Finder
3. Private Home: Land owner, depending on the circumstances
e. Agent of a Principle: If a janitor finds property, they are not entitled to it, the landowner is
5. ACQUISITION BY GIFT
a. Traditional view
i. Donor must transfer possession to the donee (hand over the property)
ii. With the manifested intention to make a gift to the donee
iii. Acceptance of the
i. However, if the encroachment of an adjoining owner is a small area and the fact of an intrusion is not clearly and self-evidently apparent to the naked eye, there must be actual knowledge by the owner
g. Other resolutions of boundary disputes:
i. Doctrine of agreed boundaries: If there is uncertainty b/w neighbors, and oral agreement to settle the matter is enforceable if the neighbors subsequently accept the line for a long period of time
ii. Doctrine of acquiescence: Long acquiescence is evidence of an agreement b/w parties fixing the boundary line
iii. Estoppel: Comes into play when one neighbor makes representations about the location of the common boundary, and the other neighbor then changes her position in reliance on the representations or conduct
1. Ex: Swimming pool example. A builds a swimming pool, B claims it encroaches on his land by 5 feet, so A moves the pool back 5 feet. A few years later, a survey shows the pool is actually
h. Time tacking: I’ve been here recently, but I am tacking my time here to my predecessors’ time to gain AP
i. Requires voluntary transfer of title
ii. Must be in privity of possession
i. Land tacking: I have a piece of deeded land, and I am encroaching upon another piece of land not in the deed. This land that is encroached upon can be tacked on to the deed.
j. Disabilities: Statute of limitations is extended if specific disabilities are present.
i. Ex: immaturity, incapacity, etc.
ii. A disability is immaterial unless it existed at the time when the cause of action accrued
k. Adverse Possession Against the Government: Under common law rules, adverse possession does not run against the government, state, local or federal.
i. Rationale: The state owns its land in trust for all people, who should not lose the land because of the negligence of a few state officers or employees
l. Discovery Rule: In an appropriate case, a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered the facts which form the basis of a cause of action.
i. Shifts the emphasis from the conduct of the possessor to the conduct of the owner.
1. Focus no longer be on whether the possessor has met the tests of AP, but whether the owner has acted with due diligence in pursuing his personal property. By diligently pursuing their goods, owners may prevent the statute of limitations from running
ii. Under the discovery rule, the S.O.L. on an action for replevin begins to run when the owner knows or reasonably should know of his cause of action and the identity of the possessor of the chattel.
iii. Used primarily for adverse possession of chattel, not real property
1. O’Keefe painting case
m. Surface vs. Mineral Rights: If mineral rights are conveyed to another party, possession of the surface does not translate to possession of mineral rights. Possessor of surface land must also make attempts to possess mineral rights
