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Real Property
University of Dayton School of Law
Reilly, Tracy

Real Property I Outline
Fall 2012
I.   Defining Property:  The Bundle of Rights
A.  Property= the law defines property as rights among people that concern things.  
1.  Two Categories of Property
i.  Real Property= Rights in Land + Improvements
·         Things attached to the land
o   Below:  oil, gold, minerals
o   Ground level: garage, pool
·         Blackacre- placeholder name used for fictitious estates in land, tracts of land, parcels of land
ii. Personal Property= Everything Else
·         Tangible property (chattels)
·         Intangible property- products of the mind, rights of authorship, trademark law, copyright law
            B.   What Types of “Rights” Among People?
                        1.  Property as a “Bundle of Rights”
It is common to describe property as a “bundle of rights” in relation to things.  The most important rights in this metaphorical bundle are:
i. The Right to Exclude- “Sine Qua Non” (most onerous, most important)
a. Balance of Rights between Blackstonian concept of “absolute” property rights v Intervening societal forces that limit absolute ownership
A. Jacque on the Blackstonian end of the spectrum, Shack on the societal forces end
b. 5th Amendment and the Right to Exclude: denial of right to exclude by government action amounts to taking property without just compensation
v  Jacque v Steenberg:  ∆ crossed ∏’s land after he was denied permission in order to deliver a motor home (snow, sharp curve to drive around)
o   Rule:  Kaiser Aetna v US- private landowner’s right to exclude others is one of the most essential sticks in the bundle of rights commonly characterized as property
o   Holding:  ∏ sued ∆ for intentional trespass, Judgment for ∏= $1 nominal damages, $100,000 punitive damages
§  Case illustrates landowner’s right to exclusion at work
v  Jacque HYPO:  A kid crosses ∏’s property on his bike, does ∏ get same punitive damages?
o   No- the facts matter, the kid did not intentionally trespass
v  State v Shack:  2 gov’t workers, lawyer and, health care provider, went to farm to speak with immigrant worker to provide assistance, worker resided in a camp on the property, owner called the cops on gov’t workers when they tried to see immigrant worker, criminal trespass charges brought
o   Rule:  Title III-B- Economic Opportunity Act of 1964, landowner cannot exclude gov’t workers from his property to the possible detriment of others
o   Holding:  Conviction reversed, remanded to enter judgment of acquittal
§  Case illustrates limitation on right to exclusion
v  Shack HYPO 1:  Reilly invites Ryan to a party at her house and tells him to bring a friend but don’t bring Britney Spears or Alicia Keys.  How can she dictate who he’s allowed to bring?
o   Excluding Britney and Alicia is not to the detriment of others, the difference is that they are would-be party guests not gov’t workers providing assistance to immigrants
v  Shack HYPO 2:  If Oliver Stone wants to make a documentary about immigrant workers, can landowner bar them?  Can you bar members of the press? If you bring 1Ls and an IT guy, are they now members of the press?
ii. The Right to Transfer- sell, bequeath/deed, rent/lease
iii. The Right to Use and Possess- farm, live, fish, oil
iv. Compensatory Rights- vandalism
                        2.  Scope of Property Rights
Under our legal system, property rights are limited, not absolute. They exist only to the extent that they serve a socially useful justification.
§  Not all sticks must be present for ownership
§  Law balances competing interests, swinging pendulum
C.  Property Categories
1.  Acquiring
2.  Losing
3.  Splitting (temporal, spatial)- neighbors, eminent domain, zoning
4.  Using (conflicting uses, entitlements)
II. Justification for Private Property?
The answer to this question is crucial because the justification for private property must necessarily affect the substance of property law. American property law is based on a subtle blend of different—and somewhat conflicting—theories.
A. First Occupancy (aka First Possession)
First occupancy theory reflects the familiar concept of first-in-time: the first person to take occupancy or possession of something owns it.  This theory is a fundamental part of American property law today, often blended with other theories.  One major drawback of this theory is that while it helps explain how property rights evolved, it does not adequately justify the existence of private property.
B. Labor-Desert Theory
The labor-desert theory posits that people are entitled to the property that is produced by their labor.  Strong traces of this theory linger in American property law, sometimes mixed with first occupancy theory.  There are several notable objections to this theory, one of which is that the theory assumes an infinite supply of natural resources.
C. Utilitarianism: Traditional Theory
Under the traditional utilitarian theory, property exists to maximize the overall happiness or “utility” of all citizens.  Accordingly, property rights are allocated and defined in the manner that best promotes the general welfare of society.  This is the dominant theory underlying Ame

  The further you get down this chain, the less likely the true owner is to recover
§  Don’t want a system where everyone has to produce a receipt for everything they’ve bought
§  Relativity of Title:  Where was it found? What is it? Who’s competing for it?- protects the prior owner all the way back to the true owner
                                    ii. Finder’s Law Disputes                                                                                              
                                                a. Finder v True Owner
                                                b. Finder v Subsequent Possessor
                                                c. Finder v Owner of Locus in Quo
                                    iii. Finder’s Law Multi-Factor Test (Balance Test between Finder and Landowner)
                                                1. Category:
§  Lost (favors finder)
§  Mislaid (favors landowner- assumes that someone mislaid the property & will return for it)
§  Abandoned (ALWAYS favor finder- voluntarily relinquished, won’t be put to good use so there is no reason to reconnect it with the true owner)
§  Treasure Trove- consisting of gold, silver, currency, or the like intentionally concealed in the distant past by an unknown owner for safekeeping in a secret location.
2.  Public Place v Private Home
§  More likely to be awarded to the landowner in a private home
o   Privacy and the right to exclude
§  Expectancy- better title to something than someone who just visits/passes through
3.  Embedded v Non-Embedded
§  If it is in the landowner’s soil, it most likely will go to them- don’t want people digging around on other people’s property trying to find things
4.  Relationship Between Finder and Landowner
§  Employer/employee= respondeat superior
5.  Behavior of the Parties
§  Finder’s behavior at the time of find – were they trespassing?
§  Good behavior may matter as well
v  Finder’s Law HYPO 1:  Person wandering with a metal detector goes onto somebody’s land and finds valuable pieces of a statue embedded in the land.