PROPERTY
OSOFSKY
SPRING 2011
COMPETING CLAIMS TO PROPERTY RIGHTS IN LAND
MEANS OF ACQUIRING PROPERTY
Introduction to Property; Competing Claims of Sovereigns
1) What is Property in a legal context?
a. Rules that distribute and regulate property
b. Those roles define what property is and what can be done with it
c. Many laws of are not geared to protect individual entitlements but to ensure that the environment in which those rights are exercised is one that maximizes the benefits of property ownership for everyone and is compatible with the norms underlying a free and democratic society
2) What are the forms that Property takes?
a. Land
b. Interest in land
c. Natural bounty: water, gas, oil, wildlife
d. Personal items (car, etc.)
e. Monetary and fungible items: stocks, bonds, money, partnership interests
f. Copyrights, trademarks, etc.
3) The Sovereign –
a. The sovereign (gov’t) decides the existence and contours of property rights within its territories
i. Establishes the scheme for property in the land under the territory it governs
b. Controls certain aspects of both public and private property
i. Some rights remain with the sovereign and are regulated by the sovereign
ii. Some rights are distributed to private owners, but continue to be regulated by the sovereign
4) Rights and responsibilities of Property ownership
a. All property ownership entails both rights and responsibilities
i. Regulation is a fundamental part of property law
b. Freedom of disposition: gives property owners the power to sell it, give it away, or write a will identifying who will get it when they die
i. Although owners are free to disaggregate property rights in various ways, and to impose particular restrictions on the use and ownership of land, that freedom is not unlimited
ii. “Sticks in the property bundle”
c. How are property interests subdivided?
i. Among the present and future interest holders
ii. Among co-owners
iii. Among landlords and tenants
Conquest & Competing Claims
d. Island of the Palmas
i. Case determines which nation-state has sovereignty over this territory, and can control the property rights associated with it
ii. Two ways to assert control over land
1. Discovery: sighting land + completion through taking possession within a reasonable time
2. Effective Occupation: peaceful and continuous display of State authority over land
iii. Key Point: you can never give away more rights than you actually possess
1. Native Inhabitants rights: whatever the conquesting parties decide to give them
Acquisition by Discovery
iv. Discovery Doctrine à Sighting or finding of previously unknown or uncharted land gives exclusive title to those who made it
e. Johnson v. McIntosh
i. – P purchased land from Indians in 1773 and 1775; D granted land by US gov. in 1818; P brought action for ejectment.
1. Discovery of land by the European nations gave them title to the land and the exclusive right to apportion the land subject only to the Indians’ right of occupancy, which only the government could extinguish
2. Since Indians neither held ultimate title to the land nor the exclusive right to dispose of the land as they wished, they could not convey it w/out the endorsement of the sovereign
3. Since the sovereign never ratified the conveyance, transfer to P was invalid
ii. Restriction of land transfer by Indians
1. Reasonable and necessary for the courts because the restriction is indispensible to the property system under which the U.S. was settled
iii. Indian Title
1. A right of possession, but not a right to transferrable title
a. Can be extinguished by the U.S. gov’t rather easily upon the discovery doctrine
iv. Key Rule: The act of discovery (conquest) gives the discovering sovereign the power to extinguish the native title of occupancy
5) Tee-Hit-Ton Indians v. U.S.
a. Competing Claims of Title:
i. Tee-Hit-Ton: “Continually claimed, occupied, and used the land from time immemorial”
ii. U.S. Gov’t: Sovereign conquest
iii. Conquest gives the conqueror an exclusive tight to extinguish Indian title
iv. Unless the gov’t expressly grants the Indians a legal interest in land, they will only have right to possess, but never the right to grant, sell, or get just compensation for a taking of the land
1. Indian Title = possession over land amount only to a license that can be revoked at will by the U.S. without compensation
2. Mere Possession does not constitute ownership for 5th Amendment purposes
b. State Gov’t power
i. Because the federal gov’t has exclusive power over commerce with the tribes, The Non-intercourse Act invalidates treaties made by states with the Indian tribes for land
1. Usually have to pay the Indians for the land, unable to get possession back
Government Grant
c. Homestead Acts and Land Grants
i. Adopted a mixed approach; sold some, kept some, gave some away
ii. Main reason for getting rid of the land was “the promotion of the basic postulate of American social structure”
1. most granted under specific conditions rather than being sold to colleges or railroads
a. 130 million acres to the railroads
iii. Homestead Act of 1861
1. Gave the head of a family who had settled “in person” on land and “improved” it the first claim to buy the land, at the minimum gov’t price instead of land speculators
iv. Morrill Act of 1862
1. Granted land for settlement based on congressional representation
2. For Colleges for the Benefit of Agriculture and Mechanic Arts
a. hopelessly inconsistent laws
i. variety of policies followed
1. Some land for free, some for sale
d. Squatters
i. Sometimes the gov’t would condition title to land and sometimes it wouldn’t
ii. Perennial problem was what to do about squatters who entered tribal or federal lands without a permit or patent (grant titles of land)
1. Sometimes they used force to remove them
2. Other times pressures and politics of settlement caused the President to look the other way
a. U.S v. Nation of Sioux Indians (1980) President Grant told the army to stop trying to keep settlers off Sioux land
b. Squatters in OKLA told the gov’t to enforce land they had illegally taken from the Indian tribes and the gov’t often obliged
ill is written, the intestacy statute takes effect
i. Some grant the surviving spouse the entire property, while other states divide the property between the surviving spouse and the children
c. Homestead Laws
i. Almost all states have adopted laws designed to protect the interest of a surviving spouse and children in the family home from the claims of creditors of the deceased spouse
1. Allow the spouse to live in the house until she dies
Division of Property
d. In Marriage Re King – trial court awarded the Mother the house and awarded each spouse the personal property in their possession
i. Key Rule: In a divorce, a division of the marital estate which favors one party is justified if there is reason for it
1. With the Dad being a professional gambler, the court was justified in awarding sole ownership of the house to the wife in lieu of child support, keeping in mind the bests interests of the children
2. Not always the case; court can order the sale of a home and splitting of the proceeds if the facts present that would be in the best economic interests of the parties involved
e. O’Brien v. O’Brien – the divorcing wife of Dr. O’Brien claimed a marital property interest in his medical license
i. Key Rule: A professional license may constitute marital property (MINORTIY RULE)
1. Dr. O’Brien’s medical license was the most valuable marital asset and an equitable division of its value was proper
2. The court noted the disfavor of maintenance awards because they force dependence on a spouse after the marriage was terminated
a. Almost all states reject this NY holding
b. Graduate degrees are not “property” devisable under statutes that provide of equitable distribution of property acquired during marriage
c. They can’t be exchanged or inherited; they cannot be acquired by money; total value is very speculative
i. NJ S.C. upheld award that allowed spouse to recoup financial contributions she made to her spouse’s professional training
7) Unmarried Partners
a. Watts v. Watts – when the unmarried cohabitants split up, the woman sued the man for breach of contract in order to obtain equal share of the wealth accumulated during the relationship through the joint efforts of both parties
i. Key Rule: An unmarried cohabitant may assert a contract claim against the other cohabitant so long as the claim is independent of the sexual relationship and is supported by separate consideration
1. Court found there was either an expressed or implied-in-fact contract to share the property accumulated through both parties efforts