Property Outline
Klein – Spring 2016
Limitation on property rights
Limits to wasting property – public policy (dead hand control; case involving woman who wanted to destroy home for proceeds to go to devisees) and two property owners (present and future) fighting waste because it would effect property value
Rules against perpetuities (limits w/ LiB + 21 years)
Limitation w/ landlord/tenant relationship – landlord must provide the right of quiet enjoyment and implied habitability
Covenants are restrictive to property rights because of public policy can limit the property
Most common limit is eminent domain
I. Property
i. Property – the legal relationship among people in regard to a thing. (i.e., Joe owns a watch, it is his property. The words “own” and “property” refer to the legal relationship Joe has with other persons in regard to the watch).
ii. Someone may hold a property interest if he has any right that the law protects against infringement by others. Property can be tangible (land and chattels) or intangible (intellectual). If a claim to a resource is not recognized by law, it is not property in a legal sense. Once recognized by law, a claim becomes a legal right.
iii. The most important distinction between title (roughly what the law person thinks of as “ownership”) and possession (dominion and control over something). Divided title is a unique feature of Anglo-American property law where a title to real property can be spread among numerous owners and in several different ways.
Ownership consists of a number of different rights called a “bundle”; not all property has every right in the bundle. Rights are not absolute. For example – the right to exclude others is subject to limits imposed by society.
Waste (non-use)
Methods to transfer – sale, inter vivos (among the living), devise (gift by will), or heirs (by intestate succession (without a will))
Exclude
Property as a relationship among people that entitles owners to include or exclude use or possession of the owned property by other people
Exclusion is not absolute
*Jacque v. Steenberg Homes, Inc. – the right to exclude as an essential feature of property
Facts – Steenberg had to deliver mobile home to Jacque’s neighbor. Jacque’s refused Steenberg’s request to drive over land. Steenberg did it anyway. Jacque’s sued for intentional trespass.
Rule – As a practice of public policy, landowners have a right to exclude people from their land.
*State v. Shack
Facts – Shack entered private property of π to aid migrant workers on π’s land. π’s sued Shack because π refused to allow Shack on his land.
Rule – the ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property. “Title to real property cannot include dominion over the destiny of persons’ owner permits to come upon the premises.”
Note – although right to exclude is very important it is not absolute to promote the rights of others whether the right is constitutional or property rights.
Destroy
Eyerman v. *Mercantile – right to destroy
Facts – Owner of house directed executor of will to destroy house and sell land. Plaintiff’s asserted that the home will adversely affect their property rights.
Result – Court said that owner could not destroy her home after death because of servitude and historic preservation laws.
Rule – When a landowner attempts to compel his successor in interest to do something to the land that is against public policy, a court may deem the condition void.
Note – historic preservation laws preserve common heritage and limits homeowners. Servitudes are contracts that adopt rules that will bind future homeowners by way of voluntary agreements (i.e., HOA)
Dead hand control – attempting to control land after death
v. Property theories advanced to justify the institution of private property
a. Occupation theory – the simple fact of occupation or possession justifies legal protection of the possessor’s claim to the thing
b. Labor theory – a person has a moral right to ownership and control of things he produces or acquires through his or her labor
c. Contract theory – private property is the result of contract between individuals and the community
d. Natural rights theory – the natural law dictates the recognition of private property
e. Economic theory – the legal protection of property rights has an important economic function: to create incentives to use resources efficiently
f. Equality Rights – the institution of private property really protected man’s natural equality of rights. Equality of rights means that every man has the right to grab. The institution of property was an agreement among men legalizing what each had already grabbed.
II. ACQUIRING AN INTEREST IN PROPERTY
Normally, one gains title to something by acquiring it from another with the others consent. There are a few ways to gain title from possession, For example, (1) wild animals, (2) finding lost articles, and (3) adverse possession. Keep in mind that the concept of possession is important because once a person has gained possession she has the rights superior to the rest of the world. But, what constitutes possession? For the finder to acquire these special rights he must take the property into his possession (intent to assume dominion and physical control over the goods)
1. Acquisition by Discovery (real property) – FIRST IN TIME
Discovery – gives better title to property; first non-native nation that discovers is the best COT
Johnson v. *M’Intosh
Rule – first “discovery” confers title to real property
Conclusion – M’Intosh had a better COT because England had title from discovery while Johnson had a title from NA which only had an aboriginal title which didn’t have a right to transfer their land
Legal realism
Proudon – property = theft; if you take it,
o the animal as against the landowner, even though the landowner was never in actual possession or control of the animal. Landowner would have “constructive” possession of the animal.
Constructive possession – fiction to award title to one party (encourage constructive possession if its good public policy)
Example – treat O as owning animals on his land
Social policy to discourage trespass
Relativity of title – title to property that may prevail over some people, but is not absolute and will not prevail against another who has superior claim (only look at parties inside court and determine who has better COT)
Rule of Capture and Other Fugitive Resources
Cases w/ fugitive resources – things that move under their own power or by gravity (animals, gas, water, or oil)
English rule – groundwater was governed by absolute ownership, which allowed each owner over an aquifer to withdraw freely without regard to effects on neighbors. Essentially the rule of capture – owner’s pump could induce water under the land of his neighbor to flow to his well; whoever first captured the water was really its owner
American rule – reasonable use rule is a rule of capture but with the slight addition that wasteful uses of water, if they harmed neighbors, were considered unreasonable and unlawful
Prior appropriation – the person who first appropriates (captures) water and puts it to reasonable and beneficial use has a right superior to later appropriators
Externalities – spillover effects of an action that affect others other than the actor
Can be good or bad
Generally, actors don’t think about externalities (more likely to have negative effects that people consider)
i.e., negative – if money is involved, people won’t think about it unless something makes you think about it
“Tragedy of the Commons” – no one owns anything and no one can exclude others
“freedom of the commons brings ruin to all” – Gary Harden meaning that tragedy of the commons is bad because there will be nothing left for others because people will take all for themselves.
Cooperation to fix tragedy of commons (need both and know when to use each)
Mutual coercion – mutually agreed upon rules to stop someone
Privatization – giving people their own to do with it as they will
