Property
UConn Law
Prof. Berger, Fall 2011
● How to Get Property Rights
○ First Occupancy – often unfair as the first person can claim much more than he needs
■Need to limit – Distributive Justice
○ Mixing labour
■Fair because working the land and then you get what you worked for
○ Want to increase wealth, societal welfare, and equality having easily transferable property rights
■If easy to transfer property ends up with the person that values it the most
● Justifications for Awarding Property Rights
○ Labor/Investment: have you worked to develop it, acquire it?
○ Identity/Personhood: has it become attached to your identity?
○ Distributive Justice: property shouldn't be distributed too unequally, rules shouldn't favor the more powerful over the less powerful.
○ Social Welfare/Efficiency: should distribute property rights so that they benefit society overall. Favor reducing transaction costs and increasing alienability (freedom of action), but may also favor security of past bargains (security of investment).
○ Justified Expectations: should be able to rely on rights you reasonably thought were yours.
○ Institutional Competence: various institutions (markets, courts, legislatures) are best able to decide and enforce particular rules.
● Possession
○ Law often favors possessors
■Possession creates rebuttable presumption of title
● Stroupe v. Wilcox
■Relativity of title
● Law will defend rights of possessors without title over all except true owner.
● Christy v. Scott
■Policy reasons
● Settled expectations
● Keeps property with the party with the most interest
● Economic efficiency based on merit
● Finders’ Rights:
○ Generally, finders prevail over all but true owner
○ Abandonment
■Finder prevails over true owner.
■Justification: if you throw something out without the intention of getting it back, you lose rights against finders
○ Things found on someone’s property while trespassing
■Ownership goes to the people who own the property
○ Things found on someone’s property with permission
■In the home
● Goes to the homeowner
■Buried in the ground
● Goes to the land owner
■In an outside
● Courts are divided
○ Place open to the public
■Cases are divided as to who ownership goes to
● Trespass
○ Civil trespass
■No mens rea requirement
■Intentional (e.g. voluntary) entrance onto someone’s property
○ Criminal trespass
■needs to be knowing or intentional
● Defenses to Trespass
○ Privilege e.g. have easement
○ Necessity: right to exclude limited by needs of the public. The more property the owner has opened to the public, the more the needs of the public will weigh against exclusion
■Private Property: may enter in emergency, fire, etc.
■Public has right to dock in lands bordering navigable waters
■State v. Shack: cannot exclude in ways that would undermine the human dignity and basic needs of people that live there (at least where public policy, as reflected in positive law, suggests concerns for those needs).
■Title II: cannot exclude on the basis of race from public places of accommodation
■Cannot unreasonably exclude from common carriers
● Adverse Possession
○ Elements of Adverse Possession
■Continuous
● For entire statutory period
○ usually 5-15 years
● Tacking on
○ If one person is adversely possessing land and then sells that land to another adverse possessor, the time adds together for purposes of time limits
○ Brown v. Gobble
● Have been there to the extent that a normal owner of similar land would be
○ Nome 2000
■Hostile or Adverse
● without the true owner’s permission
○ all courts
● state of mind of the possessor is irrelevant
○ majority of courts
● small minority of courts
○ need to be in good faith, not know you’re trespassing
● smaller minority of courts
○ need to be in bad faith
■know you’re trespassing
■Actual
● Physical occupation
● Fencing plus use is good, paying taxes is very helpful
● Use land as true owner would
● Ordinary use to which the land is capable and such as an owner would make of it
○ example, a seasonal home need only be used seasonally to be actually possessed
■Nome 2000
■Notorious and Open
● Sufficiently visible and obvious to put a reasonable owner on notice
● Can be constructive notice
■Exclusive
● You control who is there or not
● Does not mean that no one but the adverse possessor can use the property for the statutory period
are held to run with the land.
○ Other easements only run with the land if
■1. it is in writing, and
■2. the original grantor who created the easement intended the easement to run with the land, and
■3. subsequent owners of the servient estate had notice of the easement at the time of purchase of the servient estate (actual, inquiry, or constructive)
● Appurtenant Easements
○ An easement is appurtenant to a piece of property if it benefits that piece of property
○ Strong assumption that easements are appurtenant
■Green v. Lupo
● In Gross Easements
○ An easement that benefits a particular party, not a particular piece of property
○ Must be clearly be expressed in writing
■Covenants Easier just to insert table?
● Negative servitudes
○ Restriction on how land can be used
● Requirements for Covenants
○ Traditional real covenants (for damages)
■1.) Must be in writing
■2.) Intent to run
● most courts assume intent if covenant benefits land
■3.) Privity
● Horizontal privity
■Covenant was created during an exchange of property
● Vertical privity
○ property owner sells property
○ selling entire property
■strict vertical property
○ many courts allow this in the case of leasing
■relaxed vertical privity
