Fundamentals of Property
G. Spring 2009
Dzienkowski’s Class
Theories of Property
Property Ownership
– A bundle of rights
Law and Economics
Occupation – 1st in time. Neutral
Private property belongs to him who first seizes it.
Complications: (Visiting? Building? Using? A Land?)
Problem: The Mere fact that someone has seized it does not necessarily justify him retaining it.
Labor- People who use a land ought to be rewarded. (The act of finding sometimes involves labor.)
-Treasures in the sand. (Deal with finders/Adverse Possession)
-Real title to private property is derived from the toil and trouble experienced in creating it.
Issue: But no one has created the land…
Henry George, Phaleas – Private property in land is unjust, but everything else is okay.
Problem: Many people in society create things you use.
-The knowledge for producing an axe handle came from others, who planted the tree, etc?
Natural Rights -Private property is a natural right of nature.
Problem: So? ipse dixit?
Legal Theory of Property Ownership
-Whatever is recognized as such by the law is rightfully private property.
-Bentham. Property is entirely the work of the law.
Problem: Ipse Dixit,
But at least it’s systemized.
Social Utility Theory
Private property is an index of social progress.
(ME- Redistributionary? Justifies Taxation? If it is good for him to hold the cash (for societal benefit), he can; otherwise it must be surrendered.)
Garrett Hardin, The Tragedy of the Commons (1968)
(Oceans, Grazing, Pollution, National Parks)
How to use national parks:
– Allocate rights to enter based on wealth (auction system)
– Based on merit (agreed on standards)
– By Lottery
– First come-First served (long queues)
Legal Theory of Property Rights (Posner)
– 3 Criteria for an efficient system of property Rights
1.) Universality – All resources should be owned. (So that all may be efficiently used.)
2.) Exclusivity – You can protect your property. It is of no use to you economically if your hog might be killed by a car that can travel on your land. Its economic potential is simply less in that case.
3.) Transferability- If it can’t be transferred, there is no way of shifting a resource from a less productive to a more productive use through voluntary exchange.
Allocate property by:
1) Sell land
2) Sell use
Aliment: Sum paid in recognition of a financial obligation.
Bailment
– Out of the business relationship (Always liability for losing.
– Gratuitous (heya friend, watch my computer) Usually Liable for losing.
Conversion- (Take/Use)
Basic Property Rights
Right To Exclude People from the Property
Limited By: Public Accommodations Laws, and other privileged rights of access to property possessed by others.
Privilege to Use Property
Limited By: Nuisance law, and other doctrines used to protect the security of other owners and the community.
Immunity Right
– Right to keep your property until you want to part with it.
Limited By: Adverse possession, Statute of limitations (title clearing)
Mineral Rights
US- Rule of capture: Don’t own oil until extract it.
– Can’t gain land by a slant drill (Is not open or notorious)
– Could maybe gain adverse possession by drilling on someone’s land by mistake.
– In TX, the mineral estate is dominant.
Rights After Death
Dead Hand Control
– Kings had dead hand control (for 300 years tell how they will use the property.
In the US can make it apply to children, but cannot control grandchildren. Can control property 1 life+20 years. (~120)
Conv
b) A manifested Intent to Control
IN POPOV. Court Adopted Gray’s Rule:
– Actor must retain control of the ball after incidental contact with the people and the things.
– P did not establish that he could have still retained contact by a preponderance. Therefore he did not retain full possession.
BUT He was attacked.
RULE: When actor undertakes significant steps to achieve possession of abandoned property and the effort is interrupted by the unlawful acts of others, the actor has a pre-qualified possessory interest in the property which supports a cause of action for CONVERSION.
– When D got the ball, a cloud (qualified pre-possessory interest) was on its title.
– Equitable Division
To resolve equally strong claims.
Arnold v. Producers Fruit Co. (Cal 1900)
-Where more than one party has a valid claim to a single piece of property; the court will recognize an undivided interest in the property in proportion to the strength of the claim.
Keron v. Cashman (1896)
– Need physical CONTROL
– INTENT to reduce to possession
(The two must be concurrent)
2) Intentionally Abandoned Property
– May be found.
– In the statute example it said is abandoned unless in 6 months claim. Depends on the value of things.
– Mislay to Abandon: ~20 years for something of great value.
