Outline for Property (Michael Waterstone)
PUBLIC VS. PRIVATE RIGHTS OF ACCESS TO PROPERTY
Trespass
Unprivileged intentional intrusions on property possessed by another
o Property right = right to exclude
o But right to exclude is not absolute- it conflicts with other rights
§ Layers of conflicting rights from common law, state statute, state constitution, federal statute and federal constitution-
· Common law = floor, must be interpreted in light of statutes
o Entry = privileged if
§ Entry is with owner’s consent
§ Entry is by necessity to prevent some greater harm to persons or property
§ Entry is otherwise to be encouraged by public policy
State v. Shack
o Farm owner was not allowed to bar access to his property by federal legal aid workers seeking to help his employees
o Owner’s interest in excluding people from his property must be weighed against interests of others (in this case of the migrant workers on the farm but can also be general public)
o NOT a constitutional ruling or a ruling on federal law
o Holding = ambiguous
§ Narrow interpretation: those providing government services may enter private property
§ Broad interpretation: migrant workers residing on private property may receive whatever visitors they want
o Policy Considerations
§ Owner’s right to exclude
§ Desire to avoid feudalistic Paternalism
· Farmer is like plantation owner or feudal lord
· Ownership does not = sovereignty- this situation looked too archaic
Desnick v. American Broadcasting Company
o Target of investigative exposé could not collect against ABC for trespass despite the fact that journalists and “testers” obtained access to plaintiff’s clinics based on false pretenses (i.e. that they were going to run a nice story and that testers were actually seeking treatment)
o Big issue = Consent
§ Consent = Waiver of the Right to Exclude
§ Consent is not valid if obtained through fraud- so someone pretending to be a meter-reader to get into a private home is bad
§ BUT- a business holding itself out to public “consents” to anyone coming onto its property seeking its services- regardless of what ulterior motive they have
· Ex: restaurant can’t sue a critique who gave them a bad review for trespass
BUT- no absolute right of access for journalists
o See Food Lion (p. 118): Fourth Circuit (Posner) says reporters committed trespass when they secretly videotaped meat packing process at supermarket that they had been invited to visit. It was OK that they entered the supermarket- but consent to physical entry does not include consent to videotaping
Public Policy Considerations re: obtaining consent by fraud
o Pro Trespass
§ Efficiency/social benefit: Consumer protection- we want investigative journalists to do their thing
§ Rights:
· Normal Expectation of owner is simply that people will come for the services he offers, not that they will do anything in particular with those services
· Trespass law protects ownership, NOT privacy
o Anti-trespass
§ Efficiency/social benefit: Deceit is bad- this behavior violates bedrock social values
§ Rights:
· imposition of an unreasonable burden on business owners- owner has only given implied consent to enter for reasonable business purposes, not to screw him over
Note: business owner can always put up sign that says “no reporters”- Majority Rule is that you can exclude whomever you want as long as you are not an innkeeper or common carrier- see below
Right to Exclude
Majority Rule: you can exclude anyone you like for any reason unless you are an innkeeper or common carrier
o The idea was that the above businesses were more likely to be monopolies that provided necessities
Minority Rule: Uston v. Resorts International (Right of Reasonable Access)
o Casino could not arbitrarily keep out this dude who developed a strategy to increase his chances for winning money at blackjack.
o General desire to serve the public creates obligation to refrain from unreasonable exclusion
o Can exclude if presence threatens public
Hard case: homeless people in a department store
o Store should have right to exclude (Pro Majority Rule)
§ Precedent/Judicial Role:
· Rule exists for a reason: innkeepers and common carriers run substantively different businesses that hold themselves out to the public as always ready and willing to serve
· Anyway, even if the rule is stupid, that is for the legislature to remedy by statute, not courts
§ Rights
· Right to exclude is central to what it means to hold property
· Store holds itself out only as a place to shop, not a place to stay- people seeking shelter is not within the scope of the invitation
· Why drop responsibility for vast societal problem on one particular set of property owners?
· This is not about beating up on the homeless- its just that they are entitled to be cared for by all of society, not just a particular group of businesses
§ Efficiency/Social Utility
· Businesses have no incentive to exclude people unreasonably and are the ones in the best position to know who must be kept out to continue running profitably- court’s should try not to second-guess proprietary decisions
· W/o Majority Rule business owner faces prospect of a lawsuit anytime she asks anyone to leave
o Store not have the right to exclude unreasonably (Pro Uston)
§ Precedent/Judicial Role:
· innkeeper and common carriers provide services today that are no more essential than those provided by Wal-Mart, so why should the former operate on the basis of special restrictions but not the latter?
· Stores are now public accommodations in a way that they weren’t when the majority rule came into being- so they should be treated as such
· Judge has duty to make common law make sense
· Legislature on state and federal level have expressed clear intent to avoid exclusion, so adopting Uston rule would not conflict
§ Rights
· Store has opened itself to the general public- so plaintiffs should have basic right to enter it like everyone else
· Right of entry for homeless imposes no extra obligation on the store because they do not threaten the store’s economic viability
· Weak privacy interest re: public accommodation: Fundamental distinction is that you have the right to keep anyone you want out of your home for whatever nasty reason- not so when you open a business up to the public
§ Social Utility
· Businesses DO in fact exclude unreasonably all the time and such unreasonable exclusion might actually be good for them in the short-run (ex: segregation by white-owned businesses in the South)- so government has got to step in
· No lawsuit problem
o Rule 11 and the like- lawyers are sanctioning for bringing stupid cases, so they are unlikely to take a case unless they think there’s a chance of winning, which means most of the suits brought will at least have some merit
o In fact, we already have lots of legislation prohibiting certain kinds of exclusion, but the number of lawsuits brought continues to be quite small
Public Accommodations Statutes (Race/Sex)
Basic principle underlying also these statutes is that, while you can keep anyone you like out of your own home, your privacy interest is greatly reduced when you operate a public accommodation
Civil Rights Act of 1964, Title II, § 2000: see text on pp. 128-9 (upheld in Heart of Atlanta Motel)
o Originally intended to be a compromise act- so it is NOT all-inclusive
o a) All persons have right to full and equal enjoyment to places of public accommodation as defined in this section w/o discrimination “on the ground of” race, national origin, religion, color
o b) Sets forth what constitutes a place of public accommodation
o Arguments from homeless hypo
§ Store
· Textual analysis: retail stores are NOT on the list in subparagraph b-
· Intent analysis: the list was meant to be exhaustive: If enumerated list includes restaurants, motion picture houses, etc but NOT retail stores than retail stores clearly were not supposed to be included
§ Plaintiffs
· Textual analysis: list in subparagraph b is not exhaustive- just illustrative- “each of the following” is not an exclusive phrase, and “as defined in this section” in subparagraph a could modify “establishments that serve the public” rather than the actual enumerated list
· intent analysis-
o notion of what constitutes a “public accommodation” is sufficiently fluid and language is ambiguous enough to think retail stores might be included
§ NOTE: some would say that the term “public accommodation” should be interpreted in light of what it means today (as defined under the ADA, for example- but this is a VERY controversial approach)- most say that legislative intent should be based on the Congress that actually passed the statute
o Congress might just have stuck limited phrases and enumerated list in to keep the statute from being thrown out by the SC as overly broad- 1964 CR Act had to be grounded on Interstate Commerce clause because of The Civil Rights Cases-
§ As a matter of fact, SC currently says that the list is exhaustive, not illustrative- so currently there is no right to reasonable entry for retail stores under CRA of 1964
State Statutes-
o States regulate public accommodations- some to a greater extent than the federal government
o See NJ Law Against Discrimination on p. 137- much broader, includes “affectional or sexual orientation”
o On the other hand- MS specifically says that any discrimination not prevented by federal law is legal in MS
Dale v. Boy scouts of America
o NJ SC
§ An organization such as defendant constitutes a “place of public accommodation” despite not being literally associated with a specific location- what was important was broader solicitation-
§ BSA was also not a private organization since its only category for exclusion seemed to be a statutorily suspect one (given NJ law against Discrimination)- sexual orientation
o NJ SC overruled by US SC:
§ boy scouts have right under 1st Amendment to expressive association that allows them to exclude gays
§ Dissent: boy scouts were not founded for purpose of excluding homosexuals- so there expressive rights would not be violated by having to include gay people
o Policy problem: Private clubs (see also- Jaycees, Kiwanis) represent extremely hard case because restricting membership serves an expressive or associational function that is constitutionally protected BUT we don’t want businesses just declaring themselves to be private clubs to get out of their obligations under public accommodations statutes
o If you are selling stuff for profit, its very hard to demonstrate private club status
o Other important factor: how selective you are- selectivity must go beyond the suspect category- thus
§ Supreme Court forced Jaycees to admit women because sex was the only restrictive category they were using (Roberts v. United States Jaycees)
§ In contrast, Kiwanis club was allowed to continue to discriminate since it used more than just suspect category to exclude
o Boy Scouts were hardest cases- they seemed to be excluding people on the basis of nothing but sexual orientation and religion- non-profit nature of organization combined with First Amendment rights probably tipped the balance
Public Accommodation Laws (Disability)
Americans with Disabilities Act (see pp. 152-157)- highlights
o Limits traditional right to exclude & right of private property owner to use their property how they wish
o Renovations that must be done to existing structures to comply with ADA must be “readily achievable”- i.e. easily accomplished without much difficulty or expense- factors to consider are-
§ nature and cost of contemplated renovation
§ financial resources of the facility or the entity that owns it
§ type of operation being run
o Disabled people must be afforded equal benefit to a good, service, facility, privilege or advantage being offered by an entity- the benefit cannot be different or separate
o Existing structures must be reasonably modified unless owner can show that modification would fundamentally alter the nature of the facility
o Discrimination includes failure to remove architectural barriers where such removal is readily achievable
o No accommodation for the disabled that requires a “direct threat” (significant risk that cannot be avoided) to health and safety of others is required
o New structures must be readily accessible- existing facilities that are renovated must be altered in such a way as to make the renovated part accessible to the disabled “to the maximum extent feasible”- primary function of renovated facility must be accessible to bathrooms, telephones, drinking fountains
o Private clubs and religious organizations that are exempt from Title II of CRA of 1964 are also exempt from ADA
Singer’s notes
o ADA was deliberately left somewhat vague- almost any kind of discrimination seems to be illegal, but then there are more specific prohibitions – do they cancel out the wider previous provision?
o Conditions under which public accommodation must make a renovation are not consistent
§ When change is unreasonable
§ When alteration would fundamentally alter the nature of the goods or services
§ When renovation poses undue burden
§ When renovation is readily achievable
Langdell hypo- if renovating a library where 90 percent of people use the “back” entrance, does ADA require that law school spend lots of doe to install a life so that the “front” is also accessible (architects refuse to add a ramp)
o YES
§ § 12183(a)(2) says “to maximum extent feasible” building must be made accessible to disabled- a lift is certainly feasible
§ Interpret this section in light of what already got said by 12182- if you can’t build a new building whose front entrance is not accessible by disabled, why should you be able to spend 20 million bucks completely gutting and rebuilding an old building and not have to drop an extra hundred grand on a lift
§ “readily accessible to the maximum extent feasible”- could mean create the most access that you possibly can
o NO
§ All you need is for building to be accessible without undo hardship- it doesn’t matter what entrance we’re talking about
§ “to the maximum extent feasible, make building readily accessible”- so “maximum extent feasible” actually limits “readily accessible”
o Remember, there are also lots of factors other than ADA
§ Bad press for university
§ University’s own rules about access for disabled
§ Local and state law
Lara v. Cinemark USA (p. 159)- movie theater containing stadium seating did not violate ADA by having seating for disabled only in the very first row, which are the absolute worst seats
o What is important is that there were lines of sight comparable to those afforded to the general public- as long as seats were open to everyone, not just disabled, its fine
o Other courts could disagree with this result since theater was forcing disabled people to take worst seats in the house
United States v. Hoyts Cinemas Corp. – Stadium seating violated ADA b/c Lines of Sight were not comparable
Free Speech Access Rights
Central question is still: when does owner have the right to exclude?
o Constitution generally does not apply to private property- so there is no fundamental free speech right of access
o 1st Amendment does not prohibit private property owner from restricting speech on their property, even if opened to public
§ See Dale above: Dale had free-speech right to be open about his sexuality, but boy scouts had right to keep him out because they objected to his message
o BUT there are some free-speech limitations on private owner’s right to exclude
§ Marsh v. Alabama-US SC said that private enterprise that assumes all the qualities of a local government (in this case it was a wholly company-owned town) is subject to the same limitations as a local government would be subjected to
§ NJ Coalition Against War v. JMB Realty- NJ Supreme interpreted state constitution to guarantee free speech right of access to major shopping mall because the extent to which such malls had replaced public central business districts created a compelling public interest
· CA SC has ruled similarly
· This is definitely the Minority Rule
· Some state constitutions give right to free speech in privately owned shopping centers
o Still, most of country follows Lloyd Corp. v. Tanner
§ Property does not lose is essentially private character merely because it is opened to the public for limited business purposes- so no free speech right of access so long as exclusion is not carried out in a discriminatory manner
§ Defendant’s general prohibition on solicitation in its shopping mall (which was used to kick out some Vietnam protestors) was fine under Federal law
Debate
o Pro free speech right of access
§ Rights:
· free speech is one of the most fundamental rights that we accord to our citizens. If places where the public congregates are privately as opposed to publicly owned, should the right of free expression really be trumped by the right to property
· Its not like the other side is getting totally screwed anyway- they still can impose reasonable limitations based on time, place and manner (just as government can)- its just that they can’t censor content
· In opening his property to the public, owner gives up privacy interest and part of his own right to exclude
§ Statutory Interpretation:
· some state constitutions go farther than 14th Amendment- say “no person shall be deprived of liberty without due process of law”- nothing about st
sion is presumed to be non-permissive- so it is for true owner to prove that he did in fact give permission
· Majority – Adverse possessor’s state of mind is irrelevant
· Min. 1 – Intentional dispossession – adverse possessor must be aware that he is occupying property owned by another
· Min. 2 – Good Faith – only innocent possessors are protected
§ Irony: if someone is one your land for 9 years and 364 days, and the statutory standard is 10 years, you are better off telling them on the 365th day “you have permission to be on my land” since you might not be able to eject them forcibly
o 5) Consistent with Statutory time period- varies – usually 10-20 years
§ Statutory period ends once owner brings lawsuit to get adverse possessor off the land
No adverse possession of government land
Three types of Adverse possession cases
o Possession: Brown v. Goble
§ Plaintiffs tried to get a two-foot strip of land on the edge of their property that had been on the neighbors’ side of the fence (and was used by them) for 50 years. Judgment for plaintiff overturned because the former could not disprove defendants’ assertion that they actually did not know the land belonged to them and so could not have given permission.
§ Adverse possession can be transmitted by tacking (i.e. adverse possessory rights to strip of land connected to a parcel of property can be passed from title-holder to his successors)
o Color of Title: Romero v. Garcia
§ Plaintiff prevailed in suit to quiet title on land for which she was actually not the title holder due to a procedural mistake in the deed because she proved that she had been paying taxes on the land and making use of it (i.e. acting like an owner) for the statutory period
§ A deed that is void on procedural grounds plus acts of possession are sufficient to make someone the true owner of a piece of property
§ Don’t have to prove you used entire thing, borders of what you get are determined by flawed deed
§ NOTE: some states have a shorter statutory period for possession when there is actually a deed that just happens to be void
o Squatters: Nome 2000 v.Fagerstrom
§ Fagerstroms (who were native Alaskans) were given title to part of a plot of land that they occupied as a seasonal camp for 20+ years because they built permanent structures on it. They did not get title to the parts of the plot where the just used the trails and occasionally picked up litter.
§ Seasonal use of property in an area where property is generally used seasonally is enough to claim adverse possession
§ Nome 2000 tried to argue that Fagerstrom’s, as Native Alaskans, did not intend to adversely possess the land because their notion of possession was different-
· this is totally idiotic b/c actual intent of adverse possessor is irrelevant, its an objective test
· Better strategy? Perhaps they could have said that possession was not open and notorious
o This property was in the middle of the backwoods of AK- why should owner who buys large amount of land for mineral rights have to keep track of what is happening on each little piece of it? What is important is that the true owner had notice- so perhaps they could have argued for a heightened standard in rural areas
· What the idiots seem to have argued instead was that there should be a different standard ONLY for native Alaskans
o How to get rid of an adverse possessor?
§ Send them a letter saying “you have my permission”
§ Start an eviction proceeding
§ Get sheriff to throw them off the property
§ Self-help:- but this is risky
o Is adverse possession a good thing?
§ NO
· Formal Realizability
o Boundaries of all our property are recorded- allowing long-terms trespassers to come in and take over messes up what would be a fairly concrete formal system
o Objective Rule would be easier
· Social Utility/Efficiency:
o Adverse possession is based on a lot of murky stuff that is open to interpretation- so it lead to lots of litigation and transaction costs
o Uncertainty costs: without clear property rights people have a disincentive to invest and develop
o We want people to be careful before they go out and build themselves a house in the woods- make sure the property actually belongs to them
o If adverse possessor is really more efficient user of land, he should buy it from owner
o Coase: When transaction costs are low, we should stick to status quo- whoever owns the property gets to keep it
§ BUT- adverse possession itself has been Anglo-American law since 1200- so one might say that really it’s the SQ and if contracting costs really are low the entitlement should go to adverse possessor
· Rights: simple- if this is my land, its my land- I should not have to always be policing the borders- adverse possessor is the one who was negligent
§ YES
· Formal Realizability:
o notion that record title holder is always clear is not really true- records can conflict, be incomplete or unclear
o Protect settled expectations of adverse possessor, creates security b/c allows people to act based on socially established relationships
o This is not a great argument since actually records usually are fairly clear- but some amount of predictability might be a small price to pay for having a system that results in more efficient land use
o Most people don’t actually get surveys done before they decide to build a house, developers frequently make mistakes- so actual use of property is less than reflective of formal system than of informal customs
o Adverse possession is NOT that unpredictable
§ Must result from long-standing property arrangements based on usually lengthy statute of limitations
· Social Utility/Efficiency
o Land goes to people who value it more because they have already been in possession of it
§ This is basically caused by the endowment effect- you value something more if you already possess it because you think of it as your property
§ Often “true owner” didn’t even know she had the property until recently- so this is kind of like bestowing a windfall on her
§ Adverse possessor has invested in the land, made it her own
§ Someone who actually lives somewhere values that place as her home; someone who just owns it values it in dollars- all things being equal, we should privilege personal interests over fungible ones
o See above- since many mistakes have already been made, if we suddenly decided to have a bright-line rule based entirely on ownership as dictated by the system of title millions of people would suddenly find themselves occupying property that didn’t belong to them- people’s expectations come much more from established behavior than written records
o Unfair bright-line rule could lead to more litigation than a reasonably fair standard that generally converges with people’s normal expectations
o People invest in reliance on the established order, which includes longstanding property arrangements- interfering with these could have deleterious effects- people need to be secure in knowing that they own the land their house is built on
