PROPERTY OUTLINE
Spring 2015
Professor Freyermuth
Right to Exclude
I. When someone owns property, they generally have the right to exclude others from it
II. When property is trespassed upon, there are two ways of compensation:
a. Property Rule- get the property back
b. Liability Rule- get the market value of the damage
III. If the property cannot be given back and the court doesn’t see the market value of the damage as a good enough remedy, the court may award punitive damages (Jacque v. Steenberg Homes, Inc.– Steenberg wanted to deliver mobile home over the Jacques’s property)
a. We want to discourage people from just doing what they want and intruding on property and just paying the fair market value so the property rule is favored
i. a person suffers actual harm every time someone intentionally trespasses
IV. The ownership of real property does not include the right to bar those living on your property access to governmental services. If you are going to open up your property to others living on it, the burden shifts to you to prove that you have a good reason to keep others out. (State v. Shack-doctor and lawyer trespass on land to visit migrant workers)
V. Hypo: If A stole a $1,000 bill from B. The fair market value of the bill is $2,500. Does A have to give the bill back or could A just give be 10 $100 bills?
a. Under the Liability rule, $2,500
b. Under the Property rule, the bill must be returned
c. The court will probably rule that the bill must be returned if it holds some intrinsic value
d. The 10 $100 bills would never be okay
e. What if A spent the bill at the Ritz? Could B recover the bill from the Ritz?
i. If this were a book in question, the true owner could recover the book. However, in this case, B would lose against the Ritz. Why?
1. Because the bill is currency, it is understood that the money doesn’t need to be investigated.
2. Possession and title are equitable (if you paid with it, its assumed that it was yours) so the Ritz would have the power to convey
VI. Externalities: A consequence of a person’s action that needs to be taken into account in their decision making. The law often attempts to deal with problem of external costs by forcing actor to internalize these costs.
Eminent Domain
· In order for the government to acquire land using eminent domain, they must prove that the land will be used for “public use” (Kelo- says that the city transferring her land to private use violates the public use clause)
o Question of public use comes down to what is best for the public
o Many states passed laws saying that no city can take property purely for economic development
· Why was the redress of blight in Berman v. Parker a public use? Why was the redress of an oligopolistic land market in Hawaii Housing Authority v. Midkiff a public use?
o area of low cost housing which would benefit the same people that were displaced. Berman was the owner of a store that he claimed was not in disrepair. The court still decided that it didn’t matter if the one store was not in blight because it was in the best interest of the public to redevelop the entire neighborhood.
§ In Midkiff, the purpose was to eliminate the social and economic evils of land oligopoly (80% of the land was owned by 20% of people so people were forced to be tenants, couldn’t own their homes, thus could not develop their own wealth).
Community Property Rights
· Usually we see this in the context of marital property
· Employees are denied this because of the many diverse parties involved (US Steel Co.)
Possession, First-in-Time, and Acquiring Property Interests
I. Hypo: Freyermuth stole Wells’ book and sold it to Antonio.
a. Wells would have “Prior-In-Time Title”
b. Antonio would have “Derivative Title”
c. In a lawsuit of Wells v. Antonio, Wells would win because Antonio can only have as much of a title as the person he bought it from. Freyermuth stole it so had no title, therefore, no title was passed.
d. We want to encourage those that buy to make sure those that they buy from have property rights to it
e. Prior-in-Time holder will win with the exception of currency
II. Possession is a clear act, whereby the entire world understands that the pursuer has an unequivocal intention of appropriating the animal to his individual use.
Animals
Animals are only property if you have it in your hands (“complete dominion and control”) or mortally wound it (Pierson v. Post)
a. Being in pursuit of an animal generally does not constitute as having possession
b. Sometimes, the court can depend on custom
i. However, custom is not always really in the best public interest
ii. Custom is not usually universal, it changes area to area, so it is difficult to set precedent based on custom
c. If there is a deer on your land, you have “constructive possession” over it, but only until the animal is shot. Once it is shot and still on your land, you have “actual possession” over it.
d. Escape Rule- Once the animal escapes, as long as it is a wild animal and there is no way for a third party to know it belonged to someone, then it becomes subject to the rule of capture again and someone else could take possession of it
III. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. (Popov v. Hayashi- Barry Bonds home run ball)
IV.
V. There is a historical principle that property ownership includes ownership of both the air above and the soil below real estate (Edwards v. Sims- cave under P’s land)
a. Dissent (Logan): believes that allowing a survey is potentially destroying Edward’s property. He thinks that because Edwards was the one that discovered and excavated the cave, and Edwards has the cave opening, he should be entitled by first possession. Lee has no way into the cave so he will not be able to utilize it. It was empty worthless space until Edwards made it valuable.
i. Problem with this? Lee could create his own entrance into the cave (which may not have been as plausible during the time of this case).
b. If Lee owns “from the center of the earth to the sky,” then can he get an injunction to stop American Airlines from flying over his land at 35,000 feet? Why or why not?
i. No, it’s not reasonable and you could not “meaningfully” build 35,000 feet above your land and it is considered “public air space” at that height
VI. First-in-time in Regards to Ideas
a. Common law—No property right in ideas
b. Today, in order to have a property right in an idea, it must be copyrighted, trademarked, or patented. (Joyce v. General Motors Corp.- ideas aren’t necessarily property – telling people your idea makes idea part of the public domain)
c. Patent Law
i. Award of registered patent provides workable surrogate for first in time rule
1. Awardee gets time limited monopoly (20 years for utility patent, 14 years for design patent)
2. No one can exploit the idea without the consent of the holder
ii. Antitrust, business law may constrain abuses of monopoly power
iii. After monopoly period expires, idea enters “publi
ion, Inc. makes distinctions of property:
i. Abandoned property—when the owner no longer wants to possess it and there is proof that the owner intended to abandon the property. Abandoned property becomes property of the finder.
ii. Lost property—when the owner unintentionally parts with its possession and does not know where it is. Lost property becomes the property of the finder once the owner makes no claim within 12 months—duty to advertise that it is found or notify surrondings???
iii. Mislaid property—when the owner voluntarily puts it in a certain place who then overlooks or forgets where it is. The finder of the property acquires no rights to the property. The right of possession of the mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner
iv. Treasure trove—when the property is hidden or concealed for such a length of time that the owner is probably dead or undiscoverable. Treasure trove belongs to the finder against all but the true owner.
v. Courts often make a distinction based on the location of the find
1. When an item is found in a more private location, courts often award it to the landowner.
2. When the finder discovers property in a location accessible to the public, courts often award it to the finder
vi. Courts also make distinctions of who finds the property
1. When an employee finds an object in the courts of their employment, courts usually award it to the employer.
2. When a trespasser finds an object on someone else’s land, courts usually award it to the land owner.
VIII. Bailments
a. Bailment—the rightful possession of an object by one who is not the true owner of the item
b. A bailment requires:
i. Delivery without transfer of ownership
ii. Implied or express acceptance and
iii. An implied or express agreement that the goods be returned
c. A finder is also a bailee
d. The bailee’s standard of care may vary depending upon which party derives the most benefit from the bailment arrangement
i. If the bailment is for the benefit of the bailor, the bailee has a slight duty of care and will only be liable for gross negligence.
ii. If the bailment is for the benefit of the bailee, the bailee has a duty of great care and is liable for slight negligence
iii. If the bailment is mutual, the bailee has a duty of ordinary care
e. The bailee has an absolute duty to redeliver the object of the bailment to the bailor
