Property I Outline

Property Milot Spring 2017

Introduction: Defining Property and the Uncertain Right to Exclude

Introducing Property’s Instrumental Role

Traditional v. Modern View

Traditional: private property is one of complete dominion and control, absolute right to exclude anyone
Modern: property is defined as an ongoing effort to achieve particular instrumental goals and to make their society better

Pierson v. Post

Issue: How do you determine who owns an un-owned, wild animal killed on public land?
Basic Rule: (ferae naturae) In order to have ownership over a wild animal, here, a fox, you must have occupancy over it.
But how is occupancy defined?

Is it killing or mortally wounding the animal and then taking physical possession (as D argues)? Or,
Is it active pursuit with intent to capture (as P argues)?

Held: Occupancy requires that you have either…

Actual corporal possession or capture
Mortal wounding + continued pursuit

Mortal Wounding= deprive animal of its natural freedom
Continued pursuit= intent to possess and ability to control

Here, P was in pursuit but did not inflict a mortal wounding or deprive the animal of its liberty so he did not achieve occupancy.
Instrumental Goal: want anybody to be able to hunt the pesky fox and don’t want to flood the courts with decisions about whether someone was in pursuit

Ghen v. Rich

Issue: Did the ship have prior rights to the whale after mortally wounding it, but then leaving it in the water to turn up on the beach?
Holding: Yes. Despite lack of continued pursuit of the whale, the original ship has occupancy of the whale.
Court relied on custom in the whaling industry to make this narrow holding. Incentivized the continuance of a socially beneficial career with certainty that the whale will be yours if you hunt it.
Instrumental Goal: protect the whale industry that needs a unique rule for occupancy based on the circumstance

Takeaways from fox and whale case:

Property law is relative to policy goals
Courts look at

Precedent
Custom
Instrumental goals of the law **uniquely prominent in property law

Property rights are like a bundle of sticks that can be divided among different actors, if you have enough of the rights you are deemed to have ownership. But, ownership does not mean you have all the rights.

Right to exclude
Right to transfer
Right to destroy
Right to Use
Right to copy or reproduce

The Right to Exclude on Land not Generally Open to the Public

Jaque v. Steenberg Homes

Facts: Steenberg wanted to cut across the land of Jaque to deliver a house, but Jaque affirmatively said no. S did it anway.
Issue: If J had the right to exclude, S violated that right, and the jury awarded nominal damages, then why are punitive damages being challenged?
Rule: Punitive cannot be sustained on nominal alone.

Exception: Punitive can be given for intentional trespass that causes no/little damage.

Why have this exception:

Deter intentional trespassers who know they will cause no actual harm
Actual harm is caused no matter what because it erodes property rights, diminishes confidence in right to exclude, and encourages people to take the law into their own hands
Property, unlike contracts law, does not allow efficient breach

State v. Shack

Facts: Migrant farmworkers was injured and two gov. employees came on the farm to speak to the two migrant farm workers, but the owner of the farm wanted to be present for the discussion. Owner had a right to exclude, government violated.
Held: Ownership of real property does not include the right to bar access to governmental services available to migrant workers and hence there is no trespass within the meaning of the statute.
Reason: Right of the migrant worker to be heard and helped outweighed the right of the property owner to exclude.
Takeaway: Property rights are relative. Property rights trump economic efficiency but human rights trump property rights.

Cohen’s Famous Definition of Property Rights

“That is property to which the following label can be attached:

To the world,

Keep off X unless you have my permission, which I may grant or withhold.

Signed, Private Citizen.

Endorsed, the State.”

Takeaways:

Applies against the whole world
Fundamental right is the right to exclude
People expect State protection of that right

Categorizing Property

The Taxonomy of Estates

Four Forms of Property:

Real Property- land and real estate
Personal Property- chattels
Intellectual Property
Estates- individual rights to posses property based on the duration of the possessory interest

Defeasible Estates: Estates can always be set up to terminate early

Must be accompanied by a description of who will take possession of the property when the estate ends

Interest

Note:

Estate= how long does the possession last, duration oriented
Interest= what possessory rights one has in the property

Future Interest:

Includes

When you can take complete possession and
Current rights

Types:

Vested: the holder of the interest will definitely come to possess
Contingent: certain condition must happen before the interest will become possessory

Present Possessory Estates: a right at the present time to possess a particular piece of property

Fee Simple: a perpetual estate with no natural termination. If you die, you still have the right to transfer it. (favored)
Life Estate: an estate that lasts for the life of the particular individual, terminates at death so no right to transfer at death

Disfavored because complicated and messy. Purchasers of a property with a life estate must deal with remaindermen for every decision.
Duration:

The life of the holder or
Pur autre vie: for the life of an identified person other than the holder

Leasehold or Term of Years: an estate that lasts for a defined period of time
Fee Tail: an estate that passes from the holder to his issue, which includes children and all further descendants

Only recognized in four jurisdictions as the modern trend is to favor unencumbered estates and the alienability of property

White v. Brown

Facts: Will said that White could “have my home to live in and not to be sold.” White says fee simple was given, heirs said only life estate was given.
Issue: Is it a fee simple or a life estate with reversion going to the heirs by operation of law?
Held: Fee simple
Reasons:

The grantor had a fee simple and it is presumed that the grantor intended to grant her same estate unless the language clearly says otherwise. Here, it does not say otherwise.
The law prefers fee simple over life estate if there is ambiguity in the language of the will.

Intent of the grantor is to be read from the language of the will.

Estate Name

Effect

Duration

Language to Create

Future Interest

Fee Simple

All rights, including right to convey upon death (transferable or assignable at life or death)

Forever

“And his heirs” (not required under modern law)

None- a few simple is perpetual and does not naturally terminate

Life Estate

Possession, but cannot waste, no right to convey upon death

For the life of the grantee

“For life” (not required under common law)

(of holder/3rd person – pur autre vie)

Yes

Fee Tail

Possession, but cannot waste, no right to convey upon death

Until original grant