Meredith Render for University of Alabama’s Property Law in Spring of 2015
What is Property?
I. In general, the law defines property as a system of rights and obligations that concern the relations of people with respect to valued resources. In other words, property consists of a package of legally-recognized rights held by one person in relationship to others with respect to some thing or other object which are severable, not absolute, and never operate in isolation.
A. Right to possess
B. Right to use
C. Right to dispose/alienate/include
D. Right to exclude
E. Right to occupy
F. Right to sell or transfer (limited by grants or terms)
G. Right to exclude and include (most important right – right to exclude means power over people)
H. Right to keep people off your property or invite people onto your property
I. Right to use your property (this right can be limited by things such as zoning restrictions, the EPA, water rights of others)
J. Right to destroy
II. Definitions
A. Property
1. Does not exist in the physical. It is a matrix of abstract concepts, a bundle of sticks that encompasses the rights of the owner. Those rights are not fixed or real, it depends. They define the relation between the owner and other parties. It is a limited and qualified legal interest.
2. Real property
A. Land (includes surface, minerals, support rights)
3. Personal property
A. Tangible personal property – chattels/goods
B. Intangible personal property – interest in an on-going business
B. Ownership
1. A thing capable of ownership but is owned belongs to the person that acquires actual or constructive dominion and control over it and has the intent to assert ownership over it
C. Chattel
1. Moveable objects, personal property
Foundations of Property
I. Rights are a creature of the state
A. (Legal Positivism)
1. Rights are what the state declares them to be
B. Constitution (enumerated rights)
II. People have inherent rights that precede the state
A. Natural Law Theory
1. Government exists to enforce and preserve our rights
B. Declaration of Independence (inalienable rights)
C. Source can be divine or philosophical
III. What principle(s) guide or justify property distributions?
A. Possession (first in time)
B. Ownership evidenced or earned by our labor (Locke’s view)
C. Most efficient distribution (Utilitarianism)
D. Distribution that maximizes fairness or equality (distributive justice)
IV. The function of property rules
A. Promote the efficient use of valued resources by:
1. Internalizing externalities
2. Decreasing conflict (which is wasteful)
3. Increasing certainty (which leads to investment and innovation and overall increase in value)
B. Pragmatically promote human values (e.g., autonomy, dignity, and freedom)
C. Satisfy expectations that are grounded in notions of justice (i.e, fair distribution; first in time)
V. Why do we protect possession?
A. Rewards use
B. Decreases resort to self-help which is dangerous and costly
C. Prevents possessor from over-protecting the valued resource (i.e., building a fortress or fence around the resource)
D. Increases certainty o
– the “saucy intruder”
D. Don’t want laws that are customary to be out-of-step with the custom because they might be detrimental to the industry.
E. Where a violent or malicious act is done to a man’s occupation, profession or way of making a livelihood there can be legal action.
1. Court makes the distinction between interference and competition. For example, it is okay for someone to build a nicer business next to yours to decrease business however it is not okay for someone to stand outside your store with a gun to decrease your business.
III. Acquisition by Creation
A. Property in one’s person
1. General rule is that a person does retain ownership in what he creates.
2. But, he does not retain ownership in cells (biological material) after it has left their body.
A. Strictly an issue of morality, taking the opposite rule to its logical conclusion can be quite devastating (e.g., people not getting donated organs because others can buy them)
3. However, it is possible for a physician can breach their fiduciary duty to disclose their personal interest unrelated to the patient’s health. A person does not retain ownership interest in cells (your biological material) after they have left their body.
B. Accession
1. Mode of acquiring new property that involves labor creation of value or the addition of new materials.
