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Property I
University of Denver School of Law
Wiersema, Annecoos

Annacoos Wiersema

Property Law Fall 2014

What is Property?

Ownership is not just power over things, but relations among people.

· Property is a system as well as an entitlement.

· Property is relative.

· Legal entitlement granted to an individual or entity but the extend of the legal right is partly determined by rules designed to ensure that the property system functions effectively and fairly


Social Context

Right to exclude non-owners

· One of the most fundamental property rights

Right of access

· When public policy demands access

· Eminent domain

Privilege to possess and dispose

Can not hurt others

· Devalue other’s property

· Threaten security

· Harm


· Alienability

· The more owners in a piece of property, the less it is available for transfer, efficient market, best use of property

Power of Ownership

· Goes to and is used for purposes consistent with grantor’s intent

Immunity from loss

· Should not have to fear seizure or damage to their property

Power to acquire

· If property is needed to benefit the greater good

Contractual Freedom

· Free to develop human relationships

· Deregulation/less governmental intervention

Minimum standards

· Bounds defining what is acceptable

· Imposed by law

· Property ownership and ability to transfer depends on:

o Attributes of property

o Social interest

o Relativity of title – who else has interest in property (Married, family, government, private, commercial, etc)

· Recurring themes:

o Social context – treat property differently depending on whether it is owned

§ Individually – jointly

§ Family members – non-family

§ Private — government

o Social welfare

§ Reasonableness requirements

· Efficient bargaining

· Compromise

· Minimizes costs of property use on others

o Distributive justice – Distribution of wealth can be equated to property rights

o Individual vs. Shared ownership

§ Shared ownership – traditionally recognized (tribal ownership). Coownership still exists today. Property can be unique and not simply replaced with similar lands elsewhere.

Normative Approaches

Positivism and realism

Rules promulgated by authoritative government officials for reasons of public policy

Separation of law and morals

Predictability > moral correctness

Justice and Fairness

Judges interpret gaps, ambiguities, and conflicts in existing laws

Protects individual rights, promotes fairness and ensures justice

Utilitarianism, social welfare and efficiency

Costs v benefits of rules/institutions

Adopt rule to maximize social utility and welfare

Social relations

Legal rights are correlative

Entitlement for someone means weakness for someone else

Human flourishing

Promote human well-being.

Plurality of goods that are valuable and not fully commensurable

Value intangibles

Libertarian and Progressive

Minimize government regulations and progressives hope to promote more equal opportunities to acquire property.


Trespass (common law) is an unprivileged intentional intrusion on property possessed by another.

· Intentional – The entry to the property is a voluntary act

o Involuntary – someone carried you

o Still voluntary even if you did not know the property was owned by someone else

· Intrusion – Entering the property of another is an infringement on the right of possession by owners.

· Unprivileged –

§ Entry is done w/ consent of the owner – Desnick

§ Entry is justified by necessity to prevent a more serious harm to persons or property Ex: firefighters

§ Entry is otherwise encouraged by public policy

· Shack – serving fundamental rights

· Uston – property open to the public

Limits on the Right to Exclude

The right to exclude is a fundamental right of property owners. However, property rights are not absolute; they are relative. Where the right of entry is privileged, it is not wrongful and is not trespass.

· State v. Shack –Privilege to

§ Ad gag laws – gagging people who are going in undercover. Not relying on common law, but going to legislature and asking them to make it criminal.

· Uston v. Resorts International Hotel, Inc. – When a property owner wants to exclude others, but has opened their property to the public, the courts take two approaches. The majority rule says that places open to the public have the absolute right to exclude unless they are a common carrier or caretaker. The minority rule says a property owner must allow reasonable access to to all.(Uston)

o Facts: Uston is a card counter in blackjack. Casino excludes him.

o Holding:

§ If you hold yourself open to the public, any exclusion you make must be reasonable.

· Make money off customers

· Give up some of your rights to exclude (at least unreasonably)

§ Reasonable exclusion = disruptive to regular and essential operations on the premises

§ Court will not suggest card counting is disruptive because there is a separate commission that regulates casinos and even they have not said it is disruptive

· Majority rule exception for common carriers and innkeepers

o Caretakers providing accommodations

o We do not want to allow common carriers and innkeepers to be monopolistic as they provide for basic needs and services to people.

§ Shelter

§ Ability to travel

o Some argue that retail/clothing stores are necessity (but then counter argument is that they are not monopolistic and there is plenty of competition to provide alternatives for people.

· Minority rule (Uston) expands majority rule on who cannot exclude:

o Casinos are not monopolistic in character.

o Gambling is not fundamental necessity

o Absolute right to exclude leads to discrimination therefore we can’t have it

· Market-correction:

o Businesses, in their own interests, will reasonably include everyone.

o Counter – some businesses do better when they are exclusive (country clubs, Chick Fil A hiring gays, etc.)