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Property I
University of Denver School of Law
Ziegler, Edward H.



Spring 2012

What is property?

1) Definitions

a) Simplest def = a legal right involving a thing (external object)

i) Property that is NOT an external object = IP (patents, copyrights), debt owed, borrowers rights

ii) External objects that are NOT property = the air, rain/water in the sea, the moon/sun, wild animals

iii) Most of the time property is something of value

iv) Property that has no value = toxic waste site

v) Something of value that is NOT property = the air

b) DEFINITION = a state created legally enforceable interest

2) Basic characteristics of property ownership

a) 3 rights (PUT):

i) Right of exclusive Possession

ii) Right of exclusive Use

iii) Right of Transferability

b) These are limited by gov’t police power regulation and power of eminent domain

3) Acquisition of property

a) Gift

b) Inheritance

c) Purchase/exchange

d) Gov’t grant

e) Find it

f) Steal it

g) Operation of law

i) i.e. you get kicked out of a bar but leave your coat behind…you have a license coupled w/an interest to re-enter the bar to claim your property

4) Types of property

a) Real = Land + Fixtures + things on/under the land

b) Personal = everything else

i) Tangible – exists as external object

ii) Intangible – doesn’t exist as external object

c) Real can become personal when severed from the property (i.e. crops growing = real; crops harvested = personal)

d) Personal can become real if affixed to the realty

5) “Bag of sticks”

a) Who owns what “interest” in the property?

i) Ownership of property is thought of as a bag of sticks b/c different interests are at play

ii) How are these interests lawfully created, transferred, terminated?

b) RIGHTS B/T OWNERS OF PROPERTY INTERESTS (or relationships b/t people)

i) Diff people own diff interests in same property

(1) A has fee simple for land X

(2) B has an easement on land X

ii) Diff people own same interests in same prop

(1) A & B both own a fee simple for land X

iii) Diff people own same interests in diff prop

(1) A has fee simple on land X

(2) B has fee simple on land Y, which is next door

iv) Diff people own diff interests in diff prop

(1) A has fee simple on land X

(2) B has fee simple on land Y

(3) C has easement on land Y

6) Common law legal claims to land

a) Riparian Rights: right to use water on or under your land

b) Lateral and subjacent support: absolute right of NOT having a neighbor interfere with land supports or eroding your land; can sue if the building collapses. (not coming back to this)

c) Ejectment (eviction, is a remedy): right to recover present possession of the land.

d) Surface water runoff: a tort claim, sort of like a wet nuisance; basically a right to be free of neighbor damaging your land with this

e) Trespass

f) Private nuisance

Core tensions w/in property law

1) Competing ideas

a) Stability and predictability v. Flexibility and change

i) People have to rely on property laws to facilitate the functioning economy

ii) Important for laws to change to keep up w/a growing society

Recurring themes

1) Benefits in general

a) Incentives & wealth generation

b) Efficient utilization of resources

c) Individual liberty

d) Individual dignity

e) Social justice

f) Personal morality

2) Social benefits

a) Increase in economic wealth, which in turn enhances certain human values:

i) Enlightenment/education

ii) Skill/technical ability

iii) Respect/self-esteem

iv) Affection/human bonding

v) Health/well-being

vi) Fairness/justice

vii) Distribution of wealth

viii) Power/control of behavior

3) Economic prosperity

a) What causes economic prosperity?


(1) Property & K rights

(2) Free markets

(3) Rule of law (enforced by courts/culture)

ii) But also…:

(1) Good gov’t supporting policy

(2) Transparency in gov’t policy

(3) Transportation infrastructure

(4) Culture of work ethic & entrepreneurship

(5) Culture of openness and trust

(6) Culture of innovation & flexibility

(7) Culture of education & skill

b) What makes America wealthy?

i) Natural physical resources 2%

ii) Built infrastructure 18%

iii) Intangible social institutions 80%

(1) Private property rights

(2) Role of gov’t

c) USA in 19th century = liaise-faire unregulated capitalism….USA 21st century = managed and regulated capitalism

4) Role of federal gov’t

a) Support & management of private markets through REGULATIONS

b) Private property rights are modified by taxing/spending power, police power regulation, and eminent domain power

c) How do we determine what is efficient and what is fair?

5) Constitutional protection of private property rights

a) Doctrinal protections are NOT quite clear

b) Rights are more so from philosophy/perception and culture/social values

Theories of property

1) Approaches by courts

a) When existing laws are unclear, courts must choose b/t competing possible rules of law

b) Courts must consider various norms

2) Justification theories

a) Labor theory

i) Focuses on rewarding hard work – the person

t to determine

(2) “A normal person’s normal use”

(3) Extraordinary sensitivities are NOT protected or used to determine substantiality


(1) Use balancing of interests to determine – what’s the nature of the conduct and is it reasonable under the circumstances?

b) Doesn’t require tangible, physical invasion, like trespass

i) Odors or noise could give rise to a nuisance claim, but not a trespass claim

c) Do NOT normally extend to AESTHETIC harms (i.e. Turtle Man as your neighbor)

i) See note #1 pg. 853 in CB

d) Psychological harm

i) If caused under “normal” circumstances (i.e. ferocious, violent dogs), COULD be a nuisance; but if b/c of extraordinary sensitivities (i.e. terrified of dogs but neighbor’s dogs are nice), it NOT a nuisance

ii) Funeral home as neighbor = nuisance? Old law…

2) Remedies

a) Actual

b) Punitive

c) Permanent

i) i.e. cement factory case – P gets damages equal to the permanent loss in value to the property

ii) Courts don’t like these b/c allows people to take other’s property

d) Injunctive relief (equitable discretion)

e) Courts look at:

i) What could D do to mitigate the substantiality of the harm?

ii) Did P try to mitigate the harm (i.e. close the shade to block the neighbor’s light)?

Water rights

1) Private property and capturing water

a) Riparian doctrine – water belongs to those who own the land bordering the water course

i) Riparians share the right of reasonable use of the water

ii) Disputes over water are resolved by granting riparian owners rights to use water in streams or lakes bordering or passing through their property and denying such rights to nonriparian owners

iii) Reasonable use doctrine

(1) Use of the water by riparians is not absolute

(2) Requires consideration of the relative interests of the parties, cost of preventing the harm, and benefit of the activity that interferes w/access to the water

(3) Prohibits substantial harms to the interests of riparian owners when such harms are unreasonable

iv) CL Riparian rights cannot be severed from the land; they’re purely incident of owning the land