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Property I
University of California, Hastings School of Law
Williams, Joan C.

 
Property: Williams – Spring 2010
PROPERTY OUTLINE: TABLE OF CONTENTS
 
INTUITIVE IMAGE OF PROPERTY AND REPUBLICAN VISIONS…………………………………………………………………….2
REPUBLICAN AND LIBERAL VISIONS……………………………………………………………………………………………………..2
LIBERAL VISIONS……………………………………………………………………………………………………………………………….6
PROPERTY AND PERSONHOOD; PERSONAL PROPERTY; FEUDAL VISIONS……………………………………………………7
FEE SIMPLE AND DEFEASIBLE FEES……………………………………………………………………………………………………….8
LIFE ESTATES, REVERSIONS, EXECUTORY INTERESTS, RESTRAINTS ON ALIENATION………………………………………9
RULE AGAINST PERPETUITIES…………………………………………………………………………………………………………….11
TYPES OF CONCURRENT ESTATES……………………………………………………………………………………………………….13
TICS; RELATIONS AMONG COTENANTS……………………………………………………………………………………………….15
MARITAL PROPERTY; PROPERTY WITHIN FAMILIES……………………………………………………………………………….15
LANDLORD/TENANT LAW…………………………………………………………………………………………………………………17
IMPLIED WARRANTY OF HABITABILITY; RETALIATORY EVICTION; RESTRAINTS ON ALIENATION…………………..18
LAW AND ECONOMICS; LANDLORD/TENANT REVOLUTION; EVICTIONS FROM PUBLIC HOUSING; LANDLORDS’ TORT LIABILITY; LEASE……………………………………………………………………………………………………………………..22
LEASE V. LICENSE; SERVITUDES; EASEMENTS……………………………………………………………………………………….23
COVENANTS…………………………………………………………………………………………………………………………………..28
EXCLUSIONARY COVENANTS…………………………………………………………………………………………………………….29
SERVITUDES……………………………………………………………………………………………………………………………………31
NUISANCE……………………………………………………………………………………………………………………………………..31
ADVERSE POSSESSION……………………………………………………………………………………………………………………..32
DOCTRINE OF AGREED BOUNDARIES………………………………………………………………………………………………….34
ADVERSE POSSESSION OF CHATTELS…………………………………………………………………………………………………..35
EMINENT DOMAIN………………………………………………………………………………………………………………………….38
TAKINGS………………………………………………………………………………………………………………………………………..41
EXACTIONS AND DEDICATIONS………………………………………………………………………………………………………….47
ZONING; TAKINGS…………………………………………………………………………………………………………………………..49
MORTGAGES………………………………………………………………………………………………………………………………….52
INTUITIVE IMAGE OF PROPERTY AND REPUBLICAN VISIONS
 
Layperson’s image of property: “intuitive image of property” – that a person who “owns” a property/thing has full control and use of it.
Lawyer’s consensus: (Grey) ownership of property=”bundle of rights” that shifts over time, not total control.
Andrus v. Allard (1979, SC, pg, 4)
Plaintiff challenges Migratory Bird Treaty Act denying their right to sell their property. (Indian artifacts with protected eagle feathers that they had acquired before the Act.) Court rules that denying an owner’s right to sell her property without compensation is not a “taking” under the 5th because it revokes only one “strand” of the bundle of property rights.
Also, quotes Penn Central – The government must be able to shift/regulate aspects of property rights according to policy/social good without paying for every change.
Hodel v. Irving: (SC, 1987) (US trying to revoke Native American right to pass on property to heirs.) Revoking owner’s ability to pass property onto her heirs without compensation is a taking under the 5th. Essential “strand,” unlike in Andrus.
Bentham: Law creates (ensures) Property; Property is the expectation of gains and uses of a thing possessed.
Approaches to Property Law:
Formalist approach – what rule applies?
Functional approach – what is the social goal?
 Policy v. Law – what is “sufficiently legal” and what is pure “policy”?
Republican Visions of Property:
Jeffersonian: 1) eradicates primogeniture, entail, and grants 50 acres of land to every person of age. Still must protect established property rights (Church etc.) Property=land. Because of republican ideals of small government, limited interference, no “land redistribution” extension. Owning and working your own land only way to be free from the oppressor.
Republican Ideals: (not redistributive) citizenry=political participation in pursuit of the common good. Property was valuable insofar as it stimulated commitment to the republic. Giving an individual property gave the citizen a stake in the republic and independence (from feudal landlord etc.), thereby removing selfish interests and instilling virtue to pursue the common good. Also, Property rights can be shifted for the common good. Virtue.
Contemporary Republican Vision: you have to accept some regulation for the common good
Elitist Vision: Citizens=people that already own property; only citizen with property have the independence and therefore the virtue, to pursue the common good – so only propertied citizens can vote
Egalitarian Vision: Give every person property so they can become (good) citizens and pursue the common good. No redistribution, but giving away available property. Ensures independence and virtue.
ROOTS OF AMERICAN IDEAL OF HOMEOWNERSHIP
Homeownership was a means (after New Deal where FHA and VA programs facilitated home purchase) of moving into middle-class/forced savings. Until lately where loans would inflate bank’s books, and loan officers were encouraged to make as many loans as possible (given commissions). Loan officers didn’t care/take stock of whether borrower could pay the loan back. Banks encouraged this/didn’t care either because they could flip the loans to larger backers and/or sell off the loans as collateral for stock – Wall Street foots the bill… crash…
Americans are OBSESSED with owning a house
Arguing the Rule/Formalist Approach: The rule says… thus (application)…
Arguing the Equities/Functional Approach (Williams term for Public Policy Arguments): Equal (or unequal) right to item – Who deserves the item? The jewel was on the ground; nobody owns it, why should A get it rather than B?
Arguing Creatively: The rule cuts against your client; need to make a creative argument to win.
Blackstonian absolute rhetoric:
Made up in response to Glorious Revolution of 1688
Property rights natural and predate all government
Absolutist strain now the intuitive image
 
Rules:
Replevin (true owner retains ownership up to statute of limitations – adverse possession)
Abandonment
Escheat – without will, or sufficiently enumerated will, and no close relatives for property to automatically revert to, property reverts to the state.
What does it mean to own property?
Right to sell the property
Right to exclude others
Right of possession
Right to alter property
Right to pass down property to generations
Right to divide and sell property
Right to give away property
Right to profit from property
 
REPUBLICAN AND LIBERAL VISIONS
 
America has one of the most unequal stratifications of wealth/income across the pop. In the world.
20% own 80% of the wealth

est, using Property (which predates government) the most efficiently and creates the best i.e. most wealthy society. Government ensures the property rights.
Posner: market designs incentive structures so that if people just follow their own rational self-interest they will generate wealth
 
Liberal Dignity Strain: Property rights and the pursuit of self-interest must be restrained or limited to some degree so as not to offend human dignity (protecting the vulnerable). (Locke’s Proviso): All people are equal and thus should have an equal opportunity to property – one may pursue property to the extent that there is “enough and as good” left for others. Though some debate that this isn’t applicable to money, only to land and goods. Everyone equal b/c all created by God and all subservient to God
See State v. Shack
 
Thomas Skidmore: property rights should go back to the state as people die and be redistributed among the populace
 
State v. Shack (1971, NJ, pg. 96) – liberal dignity vision
F: group of immigrant farm workers in NJ living on farm; attorney and health worker want to talk to two different workers; owner of farm wanted to be present
I: whether camp operator may stand b/w migrant workers and those who would aid them?
A: “property rights serve human values”
Title to property cannot include dominion over the destiny of persons on the premises
Man’s rights to property not absolute; accommodation must be met
Need to think of as landlord-tenant; not prisoners
Functionalist approach: “no profit in trying to decide upon conventional category and then forcing present subject into it”
According to on/off switch Blackstone vision, government services workers were trespassing
H: just because you own property you can’t deny people to basic services
 
Moore v. Regents of the University of California (1991, CA SC, pg. 46)
F: Moore goes to doctor (flies from Seattle) and doctor takes cells and gets a valuable patent on the cells ($3 billion); prior to deciding to do surgery, already decided commercial use for cells
Applies breach of fiduciary duty/consent argument (physician must obtain informed consent)
Denies “conversion” claim (property as on/off switch) – 1) No “image conversion” argument because type of cell involved is common to all, not like DNA. 2) CA Statute already limits property claims to blood/cellular material (provides for disposal etc.) and if conversion were extended, medical researchers would shy away from doing research based on a fear of Property lawsuit.
Concurrence 1): Says regardless, we ought not commodify body parts (the cell line); sacred and venerated human vessel
Concurrence 2): Says – we are commodifying body parts (the cell line) either way because either the giver of the cells owns a piece or the makers of the cell line owns all of it. Either way, it is owned and profit is being made.
Dissent: Bundle of rights argument, so just because CA statute limits the property rights of blood/cellular material, this doesn’t mean that ALL the rights are removed. Moore at least had the right to do with the property exactly what the doctors did with it. Even if he doesn’t deserve a large portion (since he didn’t do the research) he should have some profit, particularly because the (liberal dignity strain) dignity and sanctity of the human body is not such that it can’t be commodified but such that it should be restricted to commodification by another as opposed to the body-owner.