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Property I
University of Oklahoma College of Law
Guzman, Katheleen

Property Outline Spring 2009

I. Rationales for Private Property (Property Theories)
· Theories Generally
o What are the attributes of property?
o Exclusivity. The right to exclude others from using a thing is the essence of private property.
· Three theories not covered in detail in class
o Blackstone, commentaries on the Laws of England (1809):
o Property is the sole dominion which one man claims and exercises over the things of the world, in total exclusion of the right of any other individual in the universe.
o Carol M. Rose, Canons of Property Talk, Or, Blackstone’s Anxiety (1998):
o Property regimes consist of some individual rights mixed with some rights shared with neighbors, mixed with still more rights with the larger community, all held in relatively stable but nonetheless changing and subtly renegotiated relationships.
o Felix S. Cohen, Dialogue on Private Property (1954):
o Where the private citizen announces to the world that they have, endorsed by the state, the exclusive right to something unless otherwise granted permission by them to use.
a. Many shades of gray in defining private citizen, what the world consists of, who the state is, so the definition of property must reflect the fact that property merges by imperceptible degrees into government, contract, force, and value.
o Posner, Economic Analysis of Law (1973):
o Property is an economic concept. If people see value in something; it is property.
a. How this differs from Bentham:
i. There are things that we value that the law does not recognize as property. (Drugs or scalped tickets). The law doesn’t protect them, but they are property
o Posner states that the law should promote efficiency. An efficient system will have:
a. Exclusivity: Converse to Locke’s theory. Unless you have a high degree of control over something, you will be less inclined to create it or more of it or you will be less inclined to expend any effort to make things.
b. Transferability: Legal right to sell or give property away to maximize their value or so that the property’s value can be realized.
c. Universality: If the resource is limited then someone should own it.
o Broadcast Frequency Rights Example – not an efficient system because those who could make the best use of the broadcast frequency were unable to access them. Solved by auction; better than giving them to people based on the need for a certain type of station (that wasted too many resources trying to convince the FCC of your use).
o Garrett Hardin, The Tragedy of the Commons (1968):
o Rational people seek to maximize their gain. On a common property, they will do so until the property becomes unusable if there is no cost to them to keep the property useable.
o The tragedy occurs when multiple people seek to maximize their gain on a common property and destroy it because the loss of that property does not affect their goals.
a. This can occur by taking something out of the property that causes damage to it or by putting something into the property that causes damage to it.
o What is a commons?
a. A property that can be used without any restriction of its use.
o Real life examples:
a. National Parks – Overuse of parks because there is no limit to their use and they are more accessible by people.
II. Introduction to the Concept of Property: What is Property?

Property: The legal relationship among people to a res or an intangible subject…basis of expectation…the expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand toward it

Conversion: the wrongful exercise of ownership or possesory rights over the personal property of another

Property: The legal relationship b/t or among persons or entities w/ respect to a “thing”

Series of rights (This is basically what ownership is)

Destroy or consume
Enjoy the fruits and profits of

· You do not have to have all of these to be considered the owner
· The can be multiple owners…as long as you have a right in a thing, however short, you are a owner (divisibility)
· One owner can have greater or better rights than others

Property is the rights to (or in) a “thing” not the thing itself

What the law (Government, society, etc.) will allow or recognize

Private Interest In Land

Feudalism: The land of the country is not owned by the persons who to the outward eye appear to be the owners, but is held by them from somebody else…implies subordination…one man is deliberately made inferior to another…in return for land (which they were still allowed to hold) and usually military service the overlord was to protect the holders
Social political factor leading to its entrenchment in England:

The dangers of Europe and the need for protection
It became entrenched in England by the Normans who concurred England and imposed the Feudal system on them
Apart from cattle, land was practically the only from of wealth so people when they transferred it did not want to part with it completely

US: Traces of feudalism were found in the beginning of Colonial America but after the revolution they disappeared almost altogether. Although land can escheat to the state still

This is what the colonists were trying to escape
Lots of land

In re O’Connor’s Estate Sup Ct. of Nebraska (1934) pg. 248
Inheritance tax: tax on land when it is passed by inheritance, will, or by transfer made in contemplation of death

Adams County contends that since escheat is mentioned in the statutes providing the order and method of distribution of real estate in intestate estates the Legislature must therefore have intended to classify the state as a beneficiary
The court disagrees finds for the state and reverses the district court jgmt
When O’Conner dies there are circumstances when an inheritance tax is due

1. Transfer through a will (testate succession)
2. Transfer inter vivos (gift) in contemplation of death [gift causa mortis] 3. By inheritance (no will)…intestate succession…any heirs i.e. those who take in absence of a will? Look at state statutes of decent and distribution/intestacy scheme

Adams argued that because the state was listed in the statute at the bottom of the list of heir (escheat to the state) that it should be taxed like an heir…ct says the state is not taking as an heir but instead it is a reversion (escheat) to the state (not a transfer)
What is commonly termed ownership is in fact just tenancy

People/state > Banowsky> LePak> Greybill> rest of the world


Physical: hz/v
Proportionate: co-ownership Ch 14
Time based: temporal (estate) Ch 11, 12,13
Use: conceptual Ch 16

This is basically defining ownership Þ identifying and describing property
Transfer: at death (wills and trusts); in

the sale of real estate
The K provided if the seller was unable to covey title to the premises free and clear of any defects then the buyer could reject the purchase and recover any money they had paid along with reasonable fees for title examination
The deed to the land in question was conveyed to the D (seller) by the words “and assigns forever” with no mention of “heirs” required for a fee simple conveyance made in Connecticut
P are suing to recover their deposit a title fee
July 5, 1955 closing: transfer pmt for deed


Whether the D’s deed operated to convey the totality of the fee to the grantee w/o a flaw or defect which would render the title offered to the Ps unmarketable…
Whether the title offered by the D was unmarketable thereby furnishing a valid excuse for the refusal of the Ps to accept it


Marketable Title: title reasonably free of defect or doubt
To create an estate of inheritance in land by deed, it is necessary to use the words “heirs”
Where the common law rule is in effect, as it is in Conn., a grant to a grantee and “his assigns forever” vests only a life estate in the grantee
Executory interval: time period which allows you to inspect property…K that allows you to buy if it passes inspection
A deed can be reformed to vest a fee in a grantee where the word “heirs” is omitted if it can be determined from the clearly expressed intent of the parties that the fee was intended
You are limited in your transfer to what you own
K is a promise to perform…deed is the performance
If there is a defect in the title then it is not marketable title and the K has been breached

The title in question is not free from doubt…the P’s are not required to guess as to whether the court would find the title good or not…found for the P

Doubt is what makes this title unmarketable
Should have said something like “to grantee and his heirs and assigns forever”

Possible fixes: quite title, buy future interest e.g. reversionary interest + LE= FSA, sell your LE via quitclaim deed, adverse possession

“To the heirs of A”
a. What happens when you say “to the heirs of A” rather than “to A and his heirs”?
i. The intent is for the heirs of A to get the property, not A.
b. There is a distinction between heirs and devisees.
i. Devisees are who give your property to.
ii. Heirs are the people who get your property when you die if you don’t have a will when you die (intestate).

Living person does not have heirs

As long as a person is still alive, the heirs of that person cannot be determined.
If granting land to heirs of someone, that may be void because the heirs of that person have not been determined if that person is still alive.