Render Property Outline Spring 14
What is Property?
1. A system of rights and obligations
a. Comprised of:
i. A set or bundle of rights
ii. Which are severable
iii. Are not absolute
iv. And which never operate in isolation
b. Set of rights may include
i. Present possession
ii. Future possession
iii. Right to use
iv. Right to exclude
v. Right to transfer
c. Owner can transfer all or some to another
d. Heart of ownership lies in the right to exclude.
2. That concern the relations of people
a. Your bundle of rights means nothing if I am not obliged to respect them.
b. Property rights are good against the world – doesn’t matter if other people know about them or not
3. With respect to valued resources (bundle of sticks)
a. Tangible (book; car)
b. Real property (land)
c. Intangible (interest in business)
Function of Property Rules
1. Increase the pie – encourage efficient use of resources.
a. Internalize externalities
b. Decrease conflict – wasteful
c. Increase certainty – leads to investment, innovation, and increases value
2. Promote human values (autonomy, dignity, freedom).
3. Satisfy expectations that are grounded in notions of justice (fair distribution, first in time).
Principles That Guide Property Laws
1. Possession (first in time) (*doesn’t really apply anymore – only when efficiency or utalit.don’t work)
2. Ownership evidenced or earned by labor (Locke’s view) only when efficiency or utalit.don’t work)
a. Want to encourage useful work and encourage people take things that are not being used and make use of them.
b. Don’t want labor for labors sake – want effective labor
3. Most efficient distribution (utilitarianism)
a. Property is scarce
b. Whoever values the property more (willing to pay the most) should end up w/ the property – discourages waste
4. Distribution that maximizes fairness or equality (distributive justice)
Acquisition by Discovery (extinct)
1. First in time
a. First person to take possession of thing owns it.
b. Race for the New World meant ownership had to be consummated by actual possession of land.
c. Indians couldn’t exercise ownership of land because they didn’t use resources in the same way Europeans sought to (for profit).
i. Incompatible visions of property rights
ii. Europeans thought their view of property rights was superior to Indians’ concept of possession
d. Property rights are what the state decides they are.
i. Principle of property rights in US
ii. Marshall: two ways of thinking about property, natural right (from God) and positive law (from government)
iii. You can’t have a property right that precedes the right as the state says it is
1. Are the concepts of “possession” and “ownership merely inventions of the state?
2. Do we only “own” those things that courts recognize as belonging to us?
e. Johnson v. M’Intosh: The discovery of the Native American occupied lands of this nation vested absolute title in the discoverers, and rendered the Native American inhabitants themselves incapable of transferring absolute title to others.
Acquisition By Capture
1. Capture (actual control) required for wild animals (ferae naturae); chasing not enough.
a. Pierson v. Post (fox): actual control over/possession of animal (including mortal wounding/snaring without abandonment) confers ownership
b. Rationale:
i. Competition – fostering a more effective means of capture.
ii. Ease of administration – rewarding capture, an objective act, is an easier rule to administer that protecting pursuit and a prospect of capture.
iii. Want to give property rights to people doing socially correct activities, because then other people will follow.
2. Mortal wounding or trapping so that capture is virtually certain = sufficient control (dominion) – custom can control.
a. Ghen v. Rich (whale): whalers get title even though they didn’t execute final step of taking home carcass.
b. Rationale:
i. Promotes fair competition.
ii. Increases certainty (decrease direct conflict and litigation)
iii. Decrease bad behavior (punish malfeasor)
iv. Ownership earned by labor/hard work (Locke’s view)
3. Can interfere if you want to capture the animal, but not just to interfere.
a. Keeble v. Hickeringill (duck): ratione soli (constructive possession) – owner of land owns wild animals on his land, even if he has done nothing to exercise dominion over them.
a. Rationale:
i. Minimize waste
ii. Discourage bad behavior for interference w/ trade
iii. Disincintivizes tresspass
The Law Of Finders (reuniting TO w/ object)
1. Finder has superior title to all but TO.
a. Armory v. Delamirie (chimney sweep): Finder has relative title over jewel because he found it; court rewarding possession because finder had present possession of jewel when he found it.
b. Rationale for protecting possession:
i. Rewards use
ii. Decreases resort to self-help – dangerous and costly
iii. Prevents over protection of valued resource (fence or fortress)
iv. Increases certainty
2. Finder of mislaid property (O voluntarily places and forgets) goes to LO against all others except TO.
a. McAvoy v. Medina (mislaid purse): Store should get purse because if true owner does come back to get it she will come to barber shop to find it.
i. Rationale: best chance of returning to TO.
3. Finder of lost property (O doesn’t know where it is) goes to finder against all others except TO.
a. Exceptions:
i. Chattel attached or buried in ground
ii.
ii. State v. Shack: The NJ right to exclude “does not include the right to bar access to governmental services available to migrant workers” and so no trespass.
1. Not allowed to contract away what is deemed essential to their health, welfare, or dignity.
c. Requires affirmative obligation to exclude
i. Van Valkenburgh v. Lutz: New York stature at the time, to claim adverse possession the trespasser must have either protected the adversely possessed property by a substantial enclosure or cultivating or improving the property; neither of these were found by the court in this case.
3. State of mind irrelevant; not necessary that AP aware of what they’re doing (objective standard) (US majority rule)
a. Mannillo v. Gorski (encroaching stairs): Connecticut doctrine (majority): state of mind immaterial as long as all other elements of AP met (hostility comes from actions, NOT state of mind).
4. Why allow AP?
a. Efficiency
i. Creates certainty in title
ii. Rewards use/prevents waste
iii. Diminishes expensive conflict – if using for a while, may think own land (Holme’s)
iv. Awards to person who values the land the most
b. Justice
i. TO’s inaction has led to dependence on part of AP claimant; TO now estopped from exercising right to exclude.
c. Labor
i. AP claimant has improved the property; that labor eventually translates into right.
1. Where AP improves property and cost to remove great, TO may be compelled to convey encroached upon land or pay AP for value of improvement.
5. Color of title where claimant holds faulty writing (deed/court order) that purports to convey title to a parcel of property.
a. If good faith claimant enters land under color of title and takes possession of a significant portion, the claimant is in constructive possession of the whole land described the writing even if not using the land.
b. If TO is in possession of any part, color of title has no effect.
i. TO can lose part of land other person gained through adverse possession, but will not lose all.
c. TO must have opportunity to exercise right to exclude
i. Permission to live on land does not imply hostility required for adverse possession
d. Rationale:
i. Clarity of title
ii. Negligent owner – TO hasn’t been checking on property
