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Property I
University of Denver School of Law
Wiersema, Annecoos

Property Law-Spring 2015

Test Taking Tips

1) Policy Discussion use on the test:

a) Policy will help rule explanation

b) Analysis when close, reinforce one side of the argument.

c) Must understand how it contributed to the court’s reasoning

d) Policy helps shape reasoning underneath of legislative materials

2) Allocate time proportionate to percentage value of the question.

3) Read question three times

4) Read call of the question to figure out what she is looking for.

5) Always discuss the three types of notice

Intro Information

1) Owner Rights to property included in the “bundle of sticks:”

a) Right to exclude

b) Right to use and dispose

c) Right to transfer

d) Immunity from property being taken or damaged w/o consent

2) Many property law rules are geared not to protecting individual entitlements, but to ensuring that the environment in which those rights are exercised is one that maximized the benefits of property ownership for everyone and is compatible with the norms underlying a free and democratic society.

3) Decision Rules:

a) Fairness

b) Intent

c) Possession

Limits on Owners Right to Exclude


1) Common Law-unprivileged intentional intrusion on property possessed by another

a) Intent- met if enganged in a voluntary act

b) Intrusion occurs the moment the non-owner enters the property

c) Can occur above or below surfact

2) Tresspass is prvilieged, not wrongful if: (EXCEPTIONS)

a) Entry is done with consent of the owner

b) Entry justified by necessity to prevent more serious harm to person/property

c) Entry is encouraged by public policy

Public Policy Limits on Right to Exclude

1) State v. Shack- migrant workers, lawyer, and health service representative

a) Rule: Real property rights are not absolute and necessity may justify entry upon lands of another.

b) Maxim of common law is property cannot be used to injure the rights of others. Rights are relative and there must be an accommodation when they meet.

i) Property rights are not absolute. Flexible sometimes and strict sometimes

ii) Property rights are human rights

c) Also right of owner v. rights of parties having consensual use to the property at issue

d) Policy: Employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. These rights are too fundamental to be denied based on an interest in real property and too fragile to be left to the unequal bargaining strength of the parties.

i) Property rights serve human values

(1) Migrant farmer’s well-being must be of consideration.

e) Use federal statutes to determine what rights are given to the farm workers

f) Considerations of trespass:

i) Bargaining Power

ii) Tenant or not

iii) Interference with property activities

iv) Public or Private Property

v) Migrant farmers needs

vi) Security of Property

g) Rule Explanation: States conduct was beyond reach of the trespass statute because the employer denied the workers privacy, opportunity to live with dignity and to enjoy associations customary among our citizens.

2) Desnick v. American Broadcasting Companies

a) Trespass: to enter upon another’s land without consent. Diluted by concepts of privilege and implied consent

i) No implied consent when express consent is procured by a misleading action. Some exceptions when procured by fraud. (Investigative journalist, food critic, etc.).

(1) No categorical exception for reporters, like firefighters have, needs to be determined on a case by case basis

(2) Policy: investigative journalist are protecting consumers from harmful products and services

ii) Fraud is ok when the action does not violate the specific interests the tort in question protects.

b) Rule explanation: although the test patients gained entry by misrepresenting their purchases, the entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law trespass protects; it was not an interference with the ownership or possession of land.

3) Ad Coelum: Property owners have a column from the heavens to hell.

a) Entry on surface is clear: Any body part extending onto property

b) Entry above: if it does not interfere with surface owner’s use of land, does not give rise to trespass. Airplanes

c) Entry below: “The law of trespass need no more be the same two miles below the surface than two miles above” Texas Supreme Court

4) Trespass to Chattels: allows owners of personal property to recover damages for intentional interferences with the possession of personal property

a) The plaintiff must allege some injury to the property or show either dispossession intentional using or intermeddling with it. Mere touching of the object is not enough.

5) Right to roam: US has switched to a fencing-in system. Owners of cattle have duty to keep their cattle of another’s property.

6) Graves- individuals may have rights to access to cemeteries to visit the graves of their loved ones even if those graves are located on private property David sold to a subsequent owner.

Limits on the Right to exclude from Property Open to the Public

1) Uston v. Resorts International Hotel (Minority of commercial right to exclude)

a) Rule: Majority-places of amusement and resort enjoyed an absolute power to serve whom they pleased. Does not include innkeepers and common carriers. As long as it is not for prohibited reasons such as race, religion, or origin.

i) Owner have virtually absolute discretion to exclude from privately owned property for any reason not specifically prohibited by law

ii) Policy:

(1) Amusement facilities survival rely on bringing in public business, so they will not kick out people for unreasonable reasons.

(2) Inns and carriers are more likely to be a monopoly, they provide necessities, and they hold themselves out to serve the public. (Does this make any sense? Sounds like amusement also)

(3) Rigid rules like the majorities carry two advantages. One they clarify who has the power to control a particular resource, thus quickly settling disputes. Second, they promote transactions by identifying who owns a particular set of rights in land, thereby clarifying is a power to sell it

b) Rule: Minority (early common law) – members of the public enjoy a right of reasonable access to all businesses that hold themselves out as open to the public. Cannot exclude people for unreasonable reason.

c) Rule explanation (minority): the plaintiff does not threaten the security of any casino occupant, nor has he disrupted the functioning of any casino operations, absent a valid contrary rule by the commission, plaintiff possesses the usual right of reasonable access to the blackjack tables will

Trespass Remedies

1) Injunctions are available to remedy a trespass when trespass is continuous in nature.

a) Continuing-someone is personally present on the land or leaves on object on the land

2) Glavin v. Eckman (protecting right to use)

a) A harm to the way owner wanted to use the property

b) Rule: Replacement or restoration cost have been appropriate measure of damages when, diminution in the market value or v

ed under 1964 Act

b) Private establishment

c) Not a listed place in the statute as a public accommodation

d) Argument that the 1964 act applied

i) List is non-exhaustive

ii) Highlight the purpose of the act

iii) Historical context

(1) Why the act was established – to eliminate discrimination

(2) We have moved on from 1964 and retail stores should be included in the list of places that everyone should have access to

(a) Application should be broad and not narrow


Beach Access and the Public Trust

1) Matthews v. Bay Head Improvement Association (QUESTION ON THIS CASE)

a) Rule: the public’s right to enjoy title lands includes a right of access over privately held dry sand lands.

i) This does not mean that the public has unrestricted right to cross at will over any and all property bordering on the common property. The public interest is set aside so long as there is a reasonable access to the sea.

b) Can still charge a membership fee but they cannot restrict access in general

c) Public Interest Doctrine: grants rights to use the beaches

d) Policy:

i) health, recreation, and sports are encompassed in an intimately related to the general welfare of a well-balanced state

e) Property owners interests v. non property owners interests

2) Alternatives to grant public beach as access other than Public interest

a) Dedication: involves a gift of real property from a private owner to the public at large. Requires offer and acceptance.

b) Prescription: the public has used property possessed by another for a particular purpose for a long time, the public and acquire such rights permanently even if they were never had them originally or if they had previously been reduced to private ownership’s.

c) Custom: long-standing, uninterrupted, peaceable, reasonable, uniform use of the beachfront by the public for recreational purposes conferred continuing rights of access

The Right to be somewhere and the Problem of Homelessness

1) The rules of property prevent the homeless from doing any of these acts in private, since there is no private place that he has a right to be. And the rules governing public places prohibit him from doing any of these acts in public, since that is how we have decided to regulate the use of public places.

a) Use the bathroom, sleep, eat, or sit.


1) Nuisance- means by which the common-law property addresses land-use conflicts.

2) Rule: Provides remedies for conduct that causes substantial and unreasonable interference with the use and enjoyment of land. (Flexible)

3) Two steps of Nuisance analysis:

a) Does the plaintiff have a right to be secure from this kind of harm, or does the defendant have the right to engage in this activity? Which party has the basic entitlement? (Considerations under Dobbs)

b) Deciding which remedy to use to vindicate the entitlement? (See remedies)