Property
Shoked
Fall 2011
Right to Exclude
WHY? Tradition, property rights for personal autonomy & control, protect privacy. Incentivize land development and promote security
TRESPASS
Intentional (voluntary)
Doesn't matter if by mistake
But not forcibly
Entry
Can be by person, agent or object
Property
Above & below surface
May exclude hunting in absence of no trespassing sign
Owned/Possessed by another
Unprivileged (No:
Consent
License, like if owner allows workers on land
Desnick v. ABC: Undercover reporters pose as patients and secretly videotape convos
Not trespass, fraud cannot be basis, must be interference w/ ownership or possession
Activities were not disrupted
To get damages for fraud, the damage must be caused by fraud
Implied consent for customers, not reporters
No privilege to journalists, but no fewer rights
Some public policy justification to allow for testing but fraud is not the only method
Only for businesses
BUT: Food Lion
Use fake resumes to gain employment, then videotape
Trespass as it exceeds scope of initial invitation. W/o video, no trespass. Induced reliance
CANNOT EXCEED SCOPE OF INVITATION
CONSENT BY FRAUD IS ARGUALBLY NOT CONSENT BUT SOME MITIGATING FACTORS LIKE PUBLIC POLICY
Journalists not privileged but consumer protection is favored
DAMAGES: Look at what the harm was, but if harm comes from fraud and does not affect property, then no damages for trespass
Public policy justification
State v. Shack: govt workers attempting to aid migrant workers on D's land
Protection of basic human rights is a limit on the right to exclude
Owner cannot control destiny of individuals he permitted to come on property as long as land not damaged
Right to receive visitors
There is sometimes a right to enter: public policy can override right to exclude. Look to common laws and federal statutes to determine
Does it serve an interest and possibly save $
Necessity to prevent harm to person/property
REGARDING CHATTEL
Intentional
Interference
W/ Possession of Personal Property
Causes injury
REMEDIES
DAMAGES
Nominal (automatic)
Compensatory (if damage)
Punitive (unlikely, but yes to discourage)
INJUNCTION
Ejectment/declaratory judgment
By Agent
Glavin v. Eckman: D's hire person to clear trees for better view, even though P had refused
Reasonable inference that D's implicitly directed clearing trees, so liable for trespassing
PERSONAL VALUE AWARDED TO P
PUNITIVE DAMAGES AVAILABLE TO PUNISH & PREVENT BEHAVIOR
Necessary entry isn't enough to get trespass, will still be liable for damage
IF NO COMPENSATORY DAMAGES
Jacque v. Steenberg: D moves mobile home across P's land against express refusal of P
Punitive damages awarded to incentivize non-trespass
Right to exclude included in bundle of property rights
RIGHT OF REASONABLE ACCESS TO PROPERTY OPEN TO PUBLIC
There is a traditional absolute right of exclusion to owners unless there is a statute (discrimination)
EXCEPTION IS RIGHT OF REASONABLE ACCESS:
Innkeepers and common carriers may not discriminate unless it disrupts business of threatens security
More likely to be monopolies
Provide necessities
Market themselves to the public
Retail rules are unclear
Public accommodations does not cover homeless
SHOULD ARBITRARY EXCLUSION BE ALLOWED?
P: appeal to justice and duty to serve
D: Recognize interest, but that more important ones carry, like right to exlcude's importance to law and the change
THINK ABOUT: Rights, fairness, consequences, social welfare, precedent, statutes, role of court
Keep common law in line with legislature, if legislature has acted, leave it alone as role of courts is not to change laws
Uston v. Resorts
If property open to public, common holds that it cannot deny entry unless individual disrupts regular and essential business or threatens security
NOT OFTEN FOLLOWED: Most states follow Shubert which grants absolute right to exclude as long as not based on race, etc. and not an inn/common carrier
PUBLIC ACCOMMODATIONS
Civil Rights Act 1964
Elements of violation
Discrimination
Based on race, color, religion, national origin
At a place of public accommodation
Lodging for transient guests
Food services
Entertainment
Anything within the above
Not private club
Enumerated list is exhaustive
No retail stores (BUT argument against is that statute says serves the public, no indication that it is exhaustive)
NO: Statute Cannot go beyond text, whatever not enumerated retained, expression of one excludes another
YES: leg. Only dealt w/ problems it thought needed addressing, legislation is compromise
Varying interpretations of the common law
Doesn't apply to women
Only injunctive relief
CRA 1866
Elements of violation
Discrimination
Based on race
At an establishment
Sec. 1981 (contracts): regulates ability to make and enforce contracts as well as terms & conditions
Only applies to if P refused service
CANNOT FORCE ANYONE TO MAKE A CONTRACT, BUT NOW CANNOT REFUSE BASED ON RSCE
1964 Civil Rights act outlaws discrim. In general, but not in retail stores
So may be able to discriminate as long as you don't interfere with contract
But then this is amended to include private conduct
Congress is bad at writing laws, and it is hard to tell their intent
Sometimes intentionally ambiguous
Few h
ubstantial
Page v. Honeywell: standard decided on a case by case basis
Fancher v. Fagella: tree not nuisance unless substantial damage
Unreasonable
Rights argument: focuses on rights and fairness
P's right to security should prevail over D's right to freedom of action
If D's conduct is disfavored, then nuisance
Spite fences will often get injunctions to remove
If the harm involved is one that owners should not have to bear without compensation
NUISANCE PER SE: so disfavored that always nuisance
Criminal activity, drugs
If not customary to area, likely to be unreasonable
SOME MAY BE DEEMED NOT NUISANCE
Regulating them would go to far in limiting freedom of action of property owners or would cause unfair surprise
HARMFUL ACTIVITY ESTABLISHED FIRST (courts divided
Welfare argument: social utility, compare costs & benefits of remedy.
Focus on society as a whole
Costs and benefits of allowing v. prohibiting activity
Unreasonable when gravity of harm outweighs utility
GRAVITY OF HARM:
Extent, character, social value that law attaches to that particular use & burden on person harmed of avoiding it
UTILITY: social value that the law attached to the primary purpose of the conduct, sustainability of the conduct, and impracticability if preventing/avoiding the invasion
Fairness & Welfare
Fairness: character of harm, cost, fault (disfavored, appropriate for area, nuisance)
Welfare: costs/benefit of allowing/prohibiting. Choose lowest cost
Doesn't concern exceptions
BASIC RULES
Entitlements & remedies
Property rights
Privilege: absolute right to act
Only remedy is bargaining
Reasonableness: cost/benefit of disputed activity v. goal of promoting social utility/economic efficiency
Fairness & utility
Extent of harm
Social benefits of use
Alternative cost avoiders
Motive (profit ok, malice not ok)
Who was first
Strict liability: Absolute right to not suffer a harm
Only remedy is bargaining
Prior use: right to commit harm if acted first
Adverse possession: right granted after use for substantial continued period
Right to farm: right to farm if established before surrounding homes
