Outline _ Brennan_Property_Michaelmas (Fall) _2009
Week 1-Assignments 1&2 The Right to Exclude
Introduction
Property
1. Bundle of Rights
2. The Right to Exclude Others
3. Right comes from legal system
4. Reflects human nature
Valued Resources
1. Real property
2. Tangible property
3. Intangible personal property (corporate stock)
4. Intellectual property ( patents, trademarks
Assignment 1- The Right to Exclude Others from Property
Trespass to Land- (Jaques v. Steenberg Homes)
Court said that when there is an Intentional trespass to land “the actual harm is not in the damage done to the land, which may be minimal, but in the loss of “one’s exclusive right to exclude others from his or her property.” The court will award a large damage amount for this, even though there may not be actual measurable harm. Jacques was awarded $100,000 in punitive damages.
Nominal damages: gives small amount of money ($10) just to show that the act in itself was wrong
Punitive damages: where the D acted with malice recklessness, and deceit (shows intent)
Compensatory damages: compensates for actual harm
Trespass to Chattel-(Intel Corp v. Hamidi)
In order for a person to be held liable for interfering with another’s chattel his conduct must affect some other and more important interest of the possessor
Example: One who intermeddles with another’s chattel is held liable if
1. Intermeddling is harmful
2. To possessors material valuable interest in the
a. Physical condition or
b. Quality, or
c. Value (of the chattel)
3. Possessor is deprived the use of the chattel for a substantial time
4. Some legally protected interest of the possessor is affected
Injunctive Relief: in order to obtain an injunctive relief the P must show that
1. There is no plain, adequate, and complete remedy at law
2. An irreparable injury will result if relief is not granted
Assignment 2- The Right to Exclude Others from Semi-private Property
Property Exclusion (State of New Jersey v. Shack)
Migrant Farm workers Case
1. Property ownership does not supersede other rights
2. Cannot exercise your right to exclude in a way that will isolate the people that you house on your property from meaningful communication (migrant workers cannot be excluded from receiving valuable services)
a. They can have visitors, access to governmental services, and all the rights available to anyone else living there that is not considered a migrant
Note: if private property is being used as public property you have to allow the public use of it (i.e. shopping malls- people don’t have to buy, they can come and go as they please
Week 2-Assignment 9 Present and Future interest
Estates: 2 types
1. Freehold Possessory (Defeasible Estates): Estates that can be terminated by not following conditions
a. Fee Simple (you possess it forever)
b. Life Estate (when you die its gone)
2. Non freehold
a. Leaseholds (term of yrs.) Tenancy (no ultimate possession)
BACK TO DEFEASIBLE FEES
1. Determinable
a. So long as
b. While used
c. Until
Example: O convey Blackacre to school district so long as the premises are used for school purposes
d. There is a Possibility of Reverter
Executory Interest
I convey Blackacre to Bob so long as the premises are never used to sell alcohol, then to Sheila
Sheila has an executory interest
Fee Simple Absolute
O conveys to “A and her Heirs”
Reversion: the est ate that’s left over
Remainders: have to wait for natural end
a. Vested: 1- identifiable person, 2- no pre-conditions, no reversion
b. Contingent: 1-no identifiable person 2-pre condition, reversion
2. Subject to Condition Subsequent
a. But if
b. Provided
c. However
d. On the condition that
Example: I convey Whiteacre to school board but if premises are not used for school purposes grantor may take it away
e. Right of entry or power of termination (if owner wants to exercise right he has to do something
3. Rule of Convenience: artificially closes class once a child has met the necessary condition that would allow them to vest. It closes out all the other unborn children
Week 3-Assignments10&11 Rule Against Perpetuities (RAP)
Look for RAP when you have
1. Contingent Remainder
2. Open Classes (including vested remainders subject to partial divestment)
3. Executory Interest
Week 4-Assignments 12&13 Life Estates & Waste; Restraints on Alienation
Assignment 12-Life Estates and Associated Future Interests
The Doctrine of Waste
What is waste?
Waste is the term used to describe actions of the life tenant that permanently impair the property’s value or the interest of the future interest holders.
Law of Waste: The rules to restrict holder of limited interest in land
Purpose: to protect the holders of other interests in same land
a. Future interest holders
b. Co-tenants
c. Other ( i.e. persons with a contract to buy)
2 Types of Waste
1. Permissive (Involuntary): when life tenant fails to preserve and protect property by exercising ordinary care
a. They have a duty to:
1. Make reasonable repairs
2.
probably appropriate
2. Typically not available to a one time act of waste
3. May be sought by contingent interest holders
4. Must show
a. Continuing waste
b. Threat to commit (imminent)
5. The result (Order Injunction) to:
a. Prevent waste
b. Repair
c. Account for past occurrences (of waste)
Forfeiture (what allows your interest to be taken away)
1. Abolished in England, but alive in some U.S. states
2. Usually requires a special showing
a. Voluntary act
b. Wanton or malicious act
c. Permanent value put in significant risk
a. Typically shown when damages are equal balance of wrongdoers interest
b. Wrongdoer fails to pay damage award for the waste that has been done
Assignment 13-Restraints on Alienation
Alienable Property- property that you can get rid off
*property should be fully alienable so that a person can get rid of it*
2 Ways to Place Restrictions on Property
1. Direct Restraint on Alienation: you’re restrained from giving away property as you please (puts barrier on who you can convey your property to )
a. Option period: compels owner to sell w/in option period to, when option person decides they want to buy the owner has to sell, the longer the option the more expensive it is
Hypo: Grantee wants to expand land from the grantor grantee goes to the owner of the expanded land and says he/she wants to buy an option to purchase more land in two years, he’ll pay a premium for the right to buy it
b. Right of 1st Refusal (Preemptive Right): a potential buyer’s contractual right to have 1st opportunity to buy at a specified price if the seller chooses to sell w/in contractual period
a. If owner decides to sell, owner has to disclose that he will sell so other party can match the third party’s offer because they are suppose to come first
2. Indirect Restraint-adds some type of collateral burden but does not affect your direct right to do something with title
Example You have a condo with a golf membership so when you sell it the buyer automatically has to pay for the golf membership which
