PROPERTY CARILLO SPRING 2015
CHAPTER 1 – THE CONCEPT OF PROPERTY
I. Purposes of Property
A. Property Law system is based on the concept that property is a human invention, not the result of divine gift or natural right
B. Legal Positivism: Property exists only to the extent that is recognized by the government
C. Natural Law Theory: The idea that certain rights naturally exists as a matter of fundamental justice regardless of government action
D. Traditional View: Property right is a right to a thing. Good against the world
E. Modern View: Property is a collection (bundle of rights) with content that varies according to context and policy choices
II. Theories of Property (justifications for recognizing private property, no one theory is accepted as the only justification)
A. Protecting First Possession
1. First-come, first-serve
a. First in time has a superior right to a thing (first in time is first in right)
b. A person owns something because they are the first to take possession of it
c. Practical explanation for how unowned things become property
d. Describes how property rights arose, but not why it makes sense for society to recognize those rights
2. Pierson v. Post (Post chasing fox for capture, and Pierson, knowing that it was being chased by another, killed the fox and took it for himself).
a. The fox was a wild animal on unowned land (signifies no ownership)
b. Rule of Capture: depriving an animal of natural liberty (have to kill, mortally wound, or trap without possibility of escape) on un-owned property
c. Actual Possession standard – there are 2 elements of possession:
i. Want and intent to possess (state of mind)
ii. Actually possessed (must control it)
B. Encouraging Labor
1. Assuming unlimited supply of natural resources, Locke argued when a person “mixed” his own labor (owned) with natural resources (unowned), he acquired property rights in the mixture
a. Each person is entitled to the property produced through his own labor
2. Reasonable expectation that the labor produces something of some utility
a. There is a push to encourage labor and innovation/activity
3. White v. Samsung (Samsung ran an ad featuring a robot depicted as Vanna White (dressed like her, with her features, flipping letter tiles, etc.) without her permission and without paying her. White sued for misappropriation of image without consent).
a. The ad was based on her likeness
b. Vanna White has an identity à She has control over the identity and excludes other from using the identity
c. Alleged enough facts to show prima facie case of misappropriation because they commercially exploited her celebrity likeness without consent
d. Labor theory of property is reflected most in this case
e. Common law right of publicity cause of action may be pleaded by alleging:
i. Defendant’s use of plaintiff’s identity
ii. Appropriation of plaintiff’s name or likeness to defendant’s advantage
iii. Lack of consent
iv. Resulting injury
C. Maximize Societal Happiness
1. Utilitarianism: We distribute and define property rights in a manner that best promotes the welfare of all citizens, not just those that own property
2. Property is seen as an efficient method of allocating valuable resources in order to maximize one particular facet of societal happiness – wealth
3. In order for an economy to reach its full potential, there are 3 basic features which its system of property rights must have: universality, exclusivity, and transferability
4. Want to take consideration of everyone – collective effort
D. Ensuring Democracy
1. Civic Republican Theory: Property facilitates democracy
a. It helps us better understand our relationship with the state
2. A right to property is a basis for democracy; incentivizes community to be involved democratically
a. Creates economic security to make political decisions = everyone gets a stake
E. Facilitate Personal Development
1. Personhood Theory: Property is necessary for individual development
2. Emotional connection to some pieces of property
a. Each person has a close emotional connection to certain tangible things, which virtually become part of one’s self
3. Recognition of property as extension of self
a. Understanding that people and property come together – what we own is dear to us and helps us become who we are (property helps the person, and the person helps the property)
b. If we take away the property, you harm the person
III. Property Rights
A. Right to Transfer (technically called alienability)
1. Transfer rights
a. Right to sell
b. Right to give
c. Right to hypothecate (relinquish interest)
d. Right to transfer even upon death
2. Owner may freely transfer (alienate) property to anyone
a. But the scope may be limited:
i. Some can never be transferred (ex: right to pensions)
ii. Some may be given away but not sold (ex: body parts)
3. Conversion claim: P must allege certain elements:
a. P has a property interest
b. In the item
c. D has interfered with the possessory right
d. Damages were suffered from it
4. Johnson v. M’Intosh (P was given a tract of land by Indians. The US Government also created the colony of Virginia, including that tract. The US sold a piece of the land to D. P sued D to recover the land and eject D from it).
a. Land title transfers are only valid when made under the rule of the currently prevailing government
i. Land titles transferred by Indians to private individuals under foreign rule before Amer. Rev. are not recognized by the US
b. Through the Rev. War and treaties that followed, the US earned the “exclusive right to extinguish title, and to grant the soil
c. When title originally comes from the US, that title has priority over any conveyance of land by an Indian tribe
d. In order to be traceable in US law, it has to be traced back to a US Patent
i. If it doesn’t title is flawed
5. Moore v. Regents of University of California (Moore has a life-threatening cancer and very special cancer cells. His physician identified that and directed him to come to the UCLA facility and be treated to survive. Physicians failed to disclose to him that they have preexisting economic interest in the cells. They also neglected to tell him that their intention was to excise them and use them to develop a patent cell line without his permission. The patented cell line was lucrative and P sues for conversion on grounds that he owns those cells).
a. Once cells leave a patient’s body, they are no longer that patient’s property and a patent cannot be obtained for an individual’s cells; there must be some form of “human ingenuity” added to the cells
b. The court found that Moore had no property rights to his discarded cells or any profits made from them. However, the court concluded that the research physician did have an obligation to reveal his financial interest in the materials harvested
c. No conversion cause of action
i. Extending conversion in this field will hinder research
a) Court takes utilitarian approach – this would stop people from making advancements and innovation
ii. The patient never expected to retain the cells
iii. The researchers took way something that was nothing and created something – they essentially owned them because the created the value
d. Doctrine of accession – if you take materials from someone and improve them, you must pay/compensate the person who provided them at some point later
B. Right to Exclude
1. To determine how others use the property – if you hold title to a tract of land, you my prevent anyone else from entering upon it
a. Right to refuse when someone wants entry onto your property
2. Jacque v. Steenberg Homes, Inc. (Ste
uction of the land would adversely affect property value of neighbors, produce private nuisance, and is contrary to public policy. Neighbors sue for injunction).
a. Destruction of the house harms neighbors, detrimentally affects the community, causes monetary loss in excess of $39K to the estate is without benefit
b. There are no benefits to balance against the injury
i. To allow the condition of the Will would be in violation of public policy
c. Void due to public policy
E. Rights:
1. The right to transfer can be restricted
2. The right to exclude can be limited
3. The right to use can be balanced
4. The right to destroy is not absolute
F. Key implications of the rights
1. Property rights are defined by government
2. Property rights are not absolute
3. 3. Property rights can be divided
4. 4. Property rights evolve as law changes
IV. Types of Property
A. Tangible property
B. Intangible property
C. Personal property
D. Real property
CHAPTER 2 – OWNING REAL PROPERTY
I. Real Property
A. Generally divided into 2 categories:
1. Real property: rights in land and things attached to land
2. Personal property: rights in movable items and intangible things
II. Adverse Possession
A. Justifications for Adverse Possession
1. Preventing frivolous claims – seen as a special statute of limitations for recovering possession of land
2. Correcting title defects – protecting the title of the person who actually occupies the land (here, lengthy possession serves as proof of title)
a. Correct public titles so that it is consistent
3. Encouraging development – reallocating title from idle owner to the industrious squatter, thus promoting the productive use of land
4. Protecting personhood – a thing which you have enjoyed and used as your own for a long time takes root in your being and cannot be torn away without your resenting the act
a. Important to recognize people’s title to land if they can prove elements of doctrine
B. Elements of Adverse Possession
1. Actual possession – claimant must physically use the land in the same manner that a reasonable owner would
2. Exclusive – claimant's possession cannot be shared with the owner or public in general
3. Continuous – for the required period (typically established by statute)
a. Adverse possessor is expected to use the land in a way that others are using it
4. Open and notorious possession – claimant's possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim
5. Adverse and hostile – states differ on this element
b. Claimant acts against the legal interest of the owner (as a competing owner) and intends to deprive the owner of the property
c. Does not mean emotionally hostile
d. 3 historical approaches:
i. Good faith approach à only available to trespassers who in good faith believe that they own the land
ii. Bad faith approach à only available if you know that it is not you’re land that you are trespassing
iii. Objective approach à Claimant’s state of mind is irrelevant
a. Most states follow objective approach
