Select Page

Property I
University of California, Hastings School of Law
Carrillo, Jo J.

 
Property
Carrillo
Spring 2014
 
 
 
I.                   Concepts of Property
a.       Why Recognize Property
                                                              i.      Why we recognize property influence what we consider to be property and vice versa
                                                            ii.      Property exists only to the extent that is recognized by the government, an approach called legal positivism.
                                                          iii.       Property is a human invention, it is necessarily based on reason
                                                          iv.      natural law theory: the idea that certain rights naturally exist as a matter of fundamental justice regardless of government action
b.      5 Theories of Property:  (Articulated in every case)
                                                              i.      Protection First Possession (first come, first serve)
1.      The notion that being there first some home justifies ownership right is a venerable and persistent theory
a.       Most scholars don’t explain/ conclude why
2.      Property rights were often allocated to the first possessor
a.       first person to possess something that was previously un-owned has the first legal right to ownership
3.      Pierson v. Post → actual or constructive possession (mortal wounding)
a. The fox is tangible property
b.First is who takes possession of the case. The expanded rule was first was depriving it of natural ability.
c. CONTROL: WHO WENT OUT TO TAKE CONTROL. WHO HAD CONTROL FIRST OR WHEN AN ANIMAL IS DEPRIVED OF NATURAL LIBERTY AND THE PERSUIT CONTINUES AND EVENTUALLY IS CAPTURED THE CAPTURER OWNS THAT ANIMAL
4.      Personal Property is everything that is not Real Property
a.  real property: is land and structures on land. Anything affixed to the land 
5.      Possession 2 concepts
a.  I want this
b.And I want to keep it
6.      Abandonment
a.  When you relinquish the property right in this way you no long have any property right
 
                                                            ii.      Encourage Labor
1.      Each person was entitled to the property produced through his own labor,
a.       Incentivizing labor make a commitment to working so reap an economic value
b.      Tax, Payment, Patent,
c.       Limitation to reasonable justification of expectation on reward and resources are limited, take what you want until you hurt someone
2.      A person mixed his own labor with natural resources, he acquired property rights in the mixture, John Locke
3.      Before the labor was added the thing had no value, value arose and thing became private property
4.      White v. Samsung → Samsung tried to gain from her persona, which she had developed through her labor in Publicity
a. Right of Publicity:
                                                                                                                                      i.      The court says that the district court erred in granting summary judgment to Samsung on White’s common law right of publicity claim.  The court refers to Eastwood v. Superior Ct, which laid out 4 elements that may be pleaded for the common law right of publicity claim:
1.      Defendant’s use of plaintiff’s identity;
2.      Appropriation of plaintiff’s name, picture, or likeness (identity) to defendant’s advantage, commercially or otherwise;
3.      Lack of consent; and
4.      Resulting injury
                                                          iii.      Maximize Societal Happiness
1.      Utilitarian theory, recognize property in order to maximize the overall happiness of society
2.      Best promotes the welfare of all citizens, make the world better
 
3.      3 Basic Features which system of property rights must have
a.       Universality
                                                                                                                                      i.      An economy that is prevented from using all products certainly would be smaller than the same economy where all products could be used (India – cows)
b.      Exclusivity
                                                                                                                                      i.      If an owner is unable to exclude others from the use and enjoyment of the property, then the owner has no incentive to improve the property
                                                                                                                                    ii.      If the owner doesn’t have the right to exclude others from their land then opportunists would simply take advantage
c.       Transferability:  Transfer is the Right to sell
                                                                                                                                      i.      Ability to buy, lease land
                                                                                                                                    ii.      If there is no transferability then one cant gain from trades
4.      Lockian Limitation: can continue to have societal happiness until you start to hurt someone
5.      Johnson v. McIntosh → Native American Case à NA have the right to live, possess the land à The NA can sell land but Title will not be recognized by U.S. Government Law/ Court à government owns the land, and your rights derive from them à Right to transfer did not exist bc the Title would not be recognized à had Indian Title: right to posses but not the right to transfer the Title
 
                                                          iv.      Ensure Democracy
1.      Under Stand the Relationship with property and the state: it changes the person’s relationship with the sate.
a. Personal security and personal independence from the government are guaranteed in a system in which rights of ownership are protected through public institutions
2.      Person takes a stake in society through property ownership will provide political and social benefits to all bc a person cares more and makes more of an effort to become involved
a. Want to encourage/ maximize property rights
 
                                                            v.      Facilitate Personal Development
1.      Hegel Theory: Property is necessary for an individual’s personal development
2.      Person owns something they will protect it and encourages them to be more productive,
a. Property is an extension of the body, property represent personal and emotional value
b.Personhood theory: loss of property causes pain that cannot be relieved by object’s replacement
 
A. What is Property
a.       PROPERTY IS EVERYTHING THAT ISNT PERSONAL PROPERTY
b.      Property is defined as rights among people concerning things
c.       Property is often described as a bundle of rights or more informally a bundle of sticks
                                                          vi.      Right to transfer (very important)
1.      Right to sell
2.      Right to give
3.      Right to hypothecate: encumber: use property to get borrowed funds, get security/ cash for equity in your land
4.      Cases
a. Johnson v. McIntosh → Native American Case à NA have the right to live, possess the land à The NA can sell land but Title will not be recognized by U.S. Government Law/ Court à government owns the land, and your rights derive from them à Right to transfer did not exist bc the Title would not be recognized by U.S. Gov/ U.S. Courts
b.Moore v. Regents of the University of California → doctor's added labor to the cells à Right to Transfer
                                                        vii.      The right to exclude: Broad Right to Exclude
1.      Right to know when someone wants to share
2.      Right to know when someone wants to prevent sharing
3.      Critical to idea of property
4.      Limitations
a. Consent
b.Public and Private Necessity
5.      CASES:
a.       Jacque v. Steenberg Homes, Inc. à (D) sold a mobile home to P’s neighbor à Steenberg asked Jacque for permission to move the home across P’s land several ti

                            i.      Preventing frivolous claims: under the dominant view adverse possession is seen as a special statute of limitation for recovering possession of land. Thus, like any other statute of limitation, it bars lawsuits based on stale, unreliable evidence, thereby protecting the occupant from frivolous claims. It also provides the occupant with security of title, thus encouraging the productive use of land.
1.      4 Problem: witnesses die, people’s memories fade, evidence gets lost the cost of looking back into time is high,
2.must bring an action of ejectment within the statute of limitation or barred from filing suit,
a.       the landowner becomes DIVESTED: right to own is taken away
 
                                                                                    ii.      Correcting Title Defects
1.  “Howard v. Kunto” see below
2.      Link the property back to the sovereign
3.      Title needs to be correct so that you can sell it later
4.      Marketable Title Rules:  Good Title this helps the market run effectively and efficiently
 
 
                                                                                  iii.      Encouraging GATEKEEPING (development)
1.      A legal tool to encourage economic development. It reallocates title from the idle owner to the industrious squatter promoting productive use of the land
2.      Reliance Principle: suffer more when something is taken from us than when we don’t have that something in the first place
a.       Johnson v. M’intosh à  Farming is industrious use of land
b.      Private property systems delegates managerial authority to the individuals
                                                                                                                                                              i.      Protect resources w/in their boundaries
c.       AP is a way to fire “gatekeepers” to hire better gatekeepers who’ve shown a greater eagerness to play gatekeeper role
                                                                                  iv.      Protecting Personhood:
1.      A thing which you have used and owned for a long time you resent a person when they take it away from you
2.      Reliance theory = we suffer more when it’s taken away, then we do if we don’t get it in the 1st place
 
d.      ELEMENTS OF ADVERSE POSSESSION: ALWAYS ASK WHERE IS THE MOMENT OF TRESPASS? THE ENTERY, DON’T START COUNTING UNTIL ALL THE ELEMENTS ARE MET
                                                                                      i.      Started Dispute
1.      WE NEED A START DATE à DATE OF FIRST TRESPASS
a.       Upon the start date à should give a reasonable RO notice
b.      Owner can negate adverse possession “the right to pass”
                                                                                                                                                              i.      Automatic
                                                                                                                                                            ii.      Claims of every person who enters the property subordinate to the owners claim
–          Usually land owners exercise the right to exclude b/c of liability