PROPERTY: Fall 2009, Richard Ross
Index (by Subject)
Adverse Possession 14
Against Government 20
Boundary Disputes 17
Good Faith v. Bad Faith 16
Caveat Emptor & Changes to Nondisclosure/Misrepresentation Requirements 65
standard of review/reasonableness & city ordinances 85
& zoning regulations 86
Chain of Title 71
Color of Title 15, 18
Constructive Possession 12, 18
Contingent Remainder & Alt. 32
Fraud & Forgery 72
Types: General Warranty, Special Warranty, Quitclaim 66
of Deed 67
of Possession v. Delivery of Title 51
Double Recovery (Problem of) 13
appurtenant v. in gross 73
by grant 73
by estoppel 74
by implication or necessity 74
by prescription 73
ex ante v. ex post analysis 76
expansion to non-dominant estate/expansion of use 77
negative easement 72, 79, 81
neighborliness doctrine 76
relocation of 79
statute of frauds 75
Executory Interest 28,33
Fair Housing Act 47
& Civil Rights Act 47
Familial Status 49
Mrs. Murphy exception 47, 51
Starrett City 48
Fee Simple 24
Subject to Condition Subsequent 28
Fee Tail 25
Fungible Property v. Heirloom 25, 27, 40
Radin Article 9, 40
Future Interests 32
Holdover Tenant 47, 52
Imagined Audience for Legal Rules 6
Innocent Improver Doctrine 17
Joint Tenancy 36
Labor Theory of Property 8, 26
Landlord – Tenant Law Reform/Revolution 52, 57
Legal Realism 10
Life Estate 23, 25
Bargaining Endowment v. Regulatory Endowment 60
Lost/Abandoned/Mislaid Property 12, 13
Market Inalienability 9
Marketability of Title 64
Naturalist View 10
Notice: actual, constructive, inquiry 69, 71
Partition In Kind v. Sale 40
Persona as Property 8
Positivist View 10
estate & K 52
horizontal & vertical 80
Property Rule v. Liability Rule Protection 18, 40, 77
Protection of Covenants by 84
Real Covenants 79
Recording System 69, 76
Relativity of Title 12, 70
Subsequent Possessors 12
Restraints on Alienation v. Restraints on Use 30
Restraints on Marriage 31
Right to Destroy 11
Right to Exclude 9
Rule Against Perpetuities 32
Rule of Capture 6, 9
Shelter rule 70
Statute of Frauds 61, 75
ry, though held as a custom by those in power – not always for the common good
Ghen v. Rich
Beachcombers and whales.
Custom: when a whale is marked with a lance (which has a specific seal on it), it has been adequately marked as possessed.
Question: Do we follow custom in creating possessory rules?
Results: Customary rules (giving reward to beachcombers) incentivize coordination, letting hunters know where the whales wash up, rather than having to employ a giant beachcombing team.
Custom v. Law:
o Group knows it own needs
o Legitimate expectations: people will follow what they’re used to.
o Implicit ratification: they haven’t rioted, it must be ok.
o Those in control have likely manipulate the system, the beachcombers aren’t unionized.
o Both parties are repeat players, and the parties are fixed on their sides.
o Need an authority, to appeal to and ensure fairness
o Customs may not be as flexible as they need to be. Or maybe be variable from town to town, how do you decide?
Keeble v. Hickeringill
Ducks in a pond.
Keeble: pond owner
Hickeringill: malicious shoots a gun to drive the ducks away.
Keeble was rightfully using his property, creating a pond as a means of livelihood.
You have constructive possession of wild animals on your land, even if you don’t have physical possession.
Hickeringill had an equal right to set up his own decoy pond and compete, but not to hinder Keeble’s property.
Encourage competition: once the ducks are in the commons, anyone can capture them and claim possession.
Prevent maliciousness: Hard to prove, but if it can be proven, we don’t want to honor malicious behavior.
Why they’re difficult
i. No fixed players to coordinate
ii. In unclaimed land
iii. Short term players
iv. High organization costs.
i. First in time: first to put a resource to reasonable and beneficial use has a right superior to later appropriators.
Defined: Where the costs of doing something outweigh the benefits.
Internalizing: institutionalizing these problems, resulting in a change in property rights.
High policing costs
High negotiating costs, not possible to bring full costs and benefits to bear on current users
H. Contexts Favoring Use of Custom: Parking Hypo
1. no power imbalance; no one can coerce the other
2. doing the act a lot, so common knowledge
3. no great incentive for cheating
4. parties have identical goals (diff. roleseach time, but will play each role), therefore incentive to pick fair customs fair to everybody
5. whaling industry in Ghen perhaps not best choice for application of custom since there was a power imbalance, incentive for heating, and parties have different goals
I. Present Applications of Customary Rules
1. use of beach, parking lots/spots, free paper
II. Acquisition of Property by First Possession: Creation (Class 4)
A. Cheney Bros. v. Doris Silk Corp. case v. INS v. AP case
1. Cheney Bros. v. Doris Silk Corp.: creator gets not property right to the idea, but does get it to the physical thing (property right to the actual dress designed, but not the idea)
2. INS v. AP: there is a quasi property right in news
3. Property systems (we are told) are there to protect things of value
(a) a philosopher writes a great article — I am prohibited from copying it and making it my work, but I can read and then talk about its ideas; why no protection for the idea?
(b) depends on your start point: assume that most things are property and only a few narrow exceptions OR that most things/ideas are just out there ad only a few narrow exceptions fall under copyright?
(c) problem with assigning property based on value
i) philosopher’s ideas are valuable to him, but not property
ii) turns out value is circular: the news stories have property value because the court chose to recognize it, but gives no independent criterion to determine if a thing should be or shouldn’t be protected with property rights
iii) descriptive problem: things that are valuable such as dress patterns have not been called valuable, but news stories have been
iv) normative matter: value is subjective
4. Why is copying OK sometimes and sometimes not?
(a) lead time advantage: gives creator time to survive
(b) if lead time advantage not enough, might them something more, a quasi-short term monopoly as in INS v. AP in contrast, court thought there was enough lead time advantage to protect the original dress maker (one season head start)
5. Smith v. Chanel: is lead time, snob appeal, and mystique enough?
6. POINT: Cheney is the norm, INS is the exception
7. HYPO: Bob Mackie dress designer & LL Bean comes along notes his designs and makes knock-offs for half price – (assume no Cheney only INS)
fairness; opportunism of LL Bean
Labor –> personal dessert
serving public interest cuz cheaper
labor –> social utility
protect initial investment
promote, competition desirable
International News Service v. Associated Press
Main points: Competition. Acquisition by creation.
Question: Is there property in news?
There is quasi-property in news: not against the public, but against one another.