Property Outline
Introduction
I. Recurring Themes
A. Social context in which transaction occurs is paramount
1. Commercial vs. private
2. Family relationships, governmental ownership, etc
B. Formal vs. informal sources of property rights
1. Formal grants and deeds
2. Informal oral promises, course of conduct, actual possession, etc
C. Alienability
1. Alienability – idea that property is transferable from one person to another
2. Consolidation vs. disaggregation dilemma
a) May want to limit contractual freedom in order to ensure that particular bundles of property rights are consolidated in the same person
b) Sometimes it is better to disaggregate a bundle and allow owner to sell a part of the whole
3. Must determine when we want things to be alienable and when we don’t
II. Theories of Property
A. Justice, Liberty, or Rights-Based Approaches
1. Obligation to pursue justice and liberty – natural rights and fairness
2. Focus on individual rights over good of the community
B. Utilitarian or Consequentialist Approaches
1. Focus on comparing costs and benefits of different definitions and allocations of property entitlements
2. Rules based not on inherent goodness or morality or fairness but on consequences they produce
3. Goal is to promote general welfare or maximize “social utility”
C. Social Relations Approaches
1. Examine the role property rights play in structuring social relations and the ways in which social relations shape access to property
2. Some focus on relation b/t alternative property law doctrines and conceptions of the proper social order; others on ways in which legal rules distribute power; others on ways in which property law distinguishes b/t commodities we buy and sell in the market and personal property
III. Justificatory Norms
A. Possession
1. Possession of property constitutes useful work even if nothing else is done on the land because it gives clear notice of who is the owner of the parcel
2. Rule rewards labor of using land
3. Relied on for generations
4. Problematic in that someone who grabs something is not a strong enough reason for others to recognize his rights to control it unless those others have similar opportunities to obtain property
B. Labor (Desert)
1. Focus on rewarding hard work; person who does the work deserves or is entitled to its benefits
2. Unlikely to invest in long-tem projects if they know the products of their labor can be seized at will by others
C. Personality and Human Flourishing
1. Focus on role that property rights play in both developing individual autonomy and satisfying human needs
D. Efficiency
1. Increase efficiency by encouraging productive activity and by granting security to those who invest in economic projects
2. Facilitate exchange by clarifying who owns what
E. Justified Expectations
F. Distributive Justice
1. Key question is whether a regulation forces some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
Trespass
I. Generally
A. Jacque v. Steenberg Homes
1. Issue is that damage was nominal and punitive damages were $100,000 – can’t impose punitive damages if you can’t impose compensatory damages
2. On appeal, court determined that punitive damages should be reinstated – there was clear intent, not enforcing rejects right to deny people on one’s private property
3. Steenberg might argue expense, more dangerous not to cross land, no harm
on
1. Civil actions
a) Trespass
b) Ejectment – action to remove someone from piece of property
2. Criminal Trespass
a) Most requires intent – knew he was on property and didn’t have privilege
II. Excluding or Admitting People
A. Generally
1. Real property is land and permanent, immovable structures built on land
2. Personal property is everything else, including both tangible property (think: cars) and intangible property (think: stocks and bonds)
a) Tangible personal property is also called chattel
b) Intellectual property would fall under intangible property
3. Rule of First Possession – wild animals are owned by the person who captures them; lost property is owned by the finder as long as the true owner has abandoned claim to it
B. Remedies
1. Nominal – damages available for trespass w/o proof of harm to property
2. Compensatory – damages to remedy actual harm to the property or persons on it resulting from the trespass
3. Permanent – damages measured by the diminution in the fair market value of the land
Punitive – means to deter trespass from occurring, granted when trespasser’s actions are malicious, oppressive or rude
