REMUS
PROPERTY
SPRING 2013
I. The Interdependence of Property Rights
1. Right to Exclude v. Rights of Access
A. Trespass (physical property)
· Rule: a trespass is an unprivileged intentional intrusion on property possessed by another
o Intentional means a voluntary act, so trespass even if you enter by mistake
o Exceptions to unprivileged trespass
§ 1) Done with consent of owner (explicit) or implicit
· Desnick v. ABC (p. 3):
o Hidden cameras revealed unlawful eye practice
o Effective consent even though it was based on fraudulent misrepresentation
· Precedents that have deemed consent effective even though fraudulent
§ Restaurant critic
§ Browser feigning interest
§ Dinner guest who is false friend
§ Consumer claiming deal elsewhere
· Ineffective and fraudulent
o Meter reader who is a busybody
o Business competitor stealing trade secrets
· What’s the difference b/w the 2 categories?
o Posner would say trespass protects the core rights of privacy and security and whether those interests are actually being infringed despite fraud is the question
o Social values exist under effective category (want restaurant reviews or fake social niceties) but these are not core privacy/security interests once you admit those trespasses
o No real lines, just court-decided interests
· Food Lion v. Capital Cities/ABC:
o Investigative journalism: revealed unsafe food handling practices
o Trial court says ineffective consent
o Appellate court said it was effective consent initially (no trespass) but became ineffective once the reporters exceeded the scope of their initial invitation (trespass after entry) by videotaping as an employee, not by getting the job.
§ 2) Justified by necessity to prevent more serious harm to persons or property
§ 3) Encouraged by public policy
· State v. Shack: court holds that the ER/owner cannot deny the migrant worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. After balancing and weighing both parties’ interests, the unequal bargaining power and lack of access to health and legal resources outweigh owner’s right to exclude.
o Remedies: damages
§ Nominal: symbolic/ $1
§ Compensatory: recover market value or cost of repair caused by actual harm to person/property
§ Punitive: punish/deter outrageous conduct
· Award for invasion of privacy/security that does not actually harm person/property so cannot be remedied under compensatory
§ Injunction
§ Declaratory: usually brought by person who wants to trespass
B. Right of Reasonable Access to Property Open to the Public
· Right to exclude subject to limitations
o 1) Private Property
o 2) Private Property held open to the public
§ 1) Traditional common law rule: right to exclude
· Private businesses have an absolute right to exclude for any reason
o Discrimination based on race, creed, religion…are exempted because they were protected by statutes
· Exception: Innkeepers and common carriers have a duty to serve members of the public absent a non-discriminatory reason
· 2) Right of reasonable access: Property owner has responsibility to not exclude without a nondiscriminatory or reasonable reason
§ Uston v. Resorts (p. 5) (minority rule): extends the exception of innkeepers and common carriers to include all businesses that are open to the public must not exclude people unreasonably
· The more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property
· Property owners have the right to exclude those who disrupt the business operations (harm to business) or threaten the security of the premises and its occupants (safety to patrons)
o D here does not threaten the security or functioning of the casino so he possesses the usual right of reasonable access
§ Three possibilities:
· 1) Shack controls
o Right of reasonable access depends on harms and D does not harm anyone
o D has strong interest b/c his livelihood depends on card counting, right of association, affront to personal dignity
· 2) Shack is distinguishable
o D does not have a constitutionally protected right to count cards
· Right of owners to protect privacy/security interests
· Rule increases the possibility of business owners being sued and being rational people, they might increase the costs of their goods or act in a way to lessen liability costs
o May want to maintain an open market economy and allow businesses to dictate how they want to run their businesses
o May also want legislatures to decide the majority rule
· 3) It is unclear b/c either the holding or its application is ambiguous
§ Are there good reasons to distinguish innkeepers and common carriers from other businesses?
· They provide necessities that could put someone in harm (no shelter, sleep in the cold)
· In old days, they were more likely to be monopolies so the public did not have other options
· They represent themselves as open to anyone who has money
· The three distinguishing factors have in common that people have come to rely on these services
§ Arguments for Uston
· Distinction b/w innkeepers and common carriers and other businesses no longer relevant
o Could be argued that these distinctions break down if you compare them to groceries or restaurants versus high-end jewelry stores
· Value non-discrimination over right to arbitrarily exclude
o Right to exclude was only exercised after the Civil War and became a substitute for segregation laws. We don’t want to use a rule that reflects our discriminatory past
· Notion of reliance
o Fundamentally unfair for businesses who open their premises to the public to exclude certain individuals for no reason
o 3) Public Property (Matthews p. 6)
· Public trust doctrine: certain resources cannot be the subject of private ownership and must be vested in the state, acting for the public as a whole
· Argument in favor of PTD
o Some places need to be truly public
o Some places are more valuable when held open to use to the public
o Public will take better care of it than if it was owned by an individual/private (marshland)
· Argument against PTD
o Tragedy of the commons: people will be free riders
§ O
the right
o Dedication: express grant from owner to public
o Custom: like prescription but no clear statutory period for public to gain the land after long-standing use
§ These are not applicable to Matthews because there is no long-standing tradition of public access to the land
2. Privilege to Use v. Security from Harm
A. Land Use Conflicts Among Neighbors
· Courts resolve land use conflicts in 4 ways
o 1) Privilege
o 2) Strict Liability
o 3) Reasonableness
o 4) Prior Use
· Remedies
o Dismissal of the complaint
o Damages
o Injunction
o Purchased injunction or conditional injunction
B. Nuisance
· Rule: A nuisance is an interference with the use or enjoyment of land that is both 1) unreasonable and 2) causes substantial harm.
o Substantial: creates harm that is usually offensive to an ordinary person’s senses, e.g., noise, odor, smoke, and dust
o Unreasonable: causes more harm than good. It can be established by considerations of fairness/rights or efficiency/social welfare.
§ Restatement (Second) of Torts §826(a): “Unreasonable” is when the “gravity of the harm outweighs the utility of the actor’s conduct”
· Page County Appliance Center v. Honeywell
o Facts: Page County TV store sues neighboring Honeywell because its computer interferes with TV reception.
o Rule
§ A fair test of whether the operation of a lawful trade or industry constitutes a nuisance is the reasonableness of conducting it in the manner, at the place, and under the circumstances shown by the evidence
· Each case turns on its own facts and ordinarily the ultimate issue is one of fact, not law
· The existence of a nuisance is not affected by the intention of its creator not to injure anyone
§ The standard of normal persons in a particular locality is used to measure the existence of a nuisance
· Plaintiff cannot be unusually sensitive or make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless
§ Nuisance ordinarily is considered as a condition, and not as an act or failure to act on the part of the responsible party
· Nuisance focuses on the result whereas negligence focuses on the conduct that caused the harm
o An individual who comes to the nuisance does not have a nuisance claim even if the party was acting negligently
o A factory that makes noise is not acting negligently but one may still have a nuisance claim
o Court remands the case with instructions to include substantial factor. D’s conduct must be a substantial factor in bringing about the alleged harm.
