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Nature of PropertyBasic rights in propertyRight to possess and excludeJacque: Mobile home across propertyHinman: superjacent air, only if occupiedAd coelum et ad inferos doctrineCollective action problemRight to use and enjoyHendricks: well v. septic tank, policy judgmentRight to convey and destroyEssentialist and skeptical views of propertyEssentialism, Penner and BlackstoneRights inherent in an objectRight to exclude functions to allow useSkeptical, GreyEntitlements are the essence of propertyEntitlements can be tradedEncourage unusual cases to contractCoase Theory: If eliminate transaction costs, entitlements flow to most efficientResolving scarce-resource disputesExclusion: absolute rights of property ownersGovernance: predictable government rulesProperty and liability rightsCalabresi-Melamed matrixPropertyLiabilityInvadeeRight to excludeInvader pays damagesInvaderRight to invadePay invader to stopRepeated trespassesBaker: injunction against hunting dogsPreserve gen hunting rts, exclude theseUniversality creates great liabilityInjunctions better enforce exclusionBuilding encroachments, Pile, Golden PressInvasion innocent, slight, harmless; cost to remove unconscionableEx ante incentive, owner or neighbor?Pile better ex ante, more efficient?, G.P. ex post, bargaining issuesAcquisition of PropertyCapture and occupancy: First possessionRelativity of titleTrue owner, land owner, first captor, second captor, pursuer, malicious interfererRule of capture: get w/o trespass, yoursConstructive poss./pre-possessory interest Discourage free-riding, promote investmentAnimal casesPierson: Mere pursuit insufficientGhen: Harpooning suffices, traditionKeeble: Duck decoy suffices; quasi-prop interest in ducks, no unfair competitionMineral and abandoned property casesEads: Boat above wreck does not sufficeNot enough investment for possessionHammonds: Gas underground releasedLike wild animal, could be recapturedPopov: Split baseball, “equal claim”, usual policy against continued ct involvementOpen-access exploitation problemsHistorical motivation to create race to exploitProp entitlements solve, state must regulateCreationCommon law intellectual propertyINS v. AP: INS stealing uncopyrighted newsGeneral rule of free flow of informationQuasi-property, analogous to KeebleProtection v competitor, reap-sowHolmes and Brandeis dissents: positivismNo rule to infer property rights, prop rts should be created by legisMidler: Ford uses imitator in advertisementPersonal rt to voice, personal autonomyWhite: Robot imitation of Vanna WhiteKozinski dissent: IP imposed at expense of future creators and public at largeStatutory intellectual propertySpur creative impulses, ConstitutionEldred: copyright extensionsOther theoriesTrenton Industries: high-chair legsPatent invalid bc not novel enoughUnjust enrichment as implied duty to compensate, business partnersTrade secrets: Protect, promote innovation?Non-competition clauses limit free flow of info, technology industry shows thisAccessionWetherbee: barrel hoopsGood faith conversion (must have)Lots of value added, keep, pay pre-labor valueValue or investment doing the work?Edwards, cave for tourism, might be trespassAnother trespass ordered to survey caveContract, no collective action problem although there is a bilateral monopolyDissent: Cannot use cave, No ad inferos rtsDoctrine of present and prior possessionThe rule “Present possession is good against all the world except a prior possessor or their successor or someone with better title.”The policies behind the ruleSocial order, avoid wasteful self-helpEncourage productive use of resourcesSimple adjudication, avoid errorsPrior possession a good proxy for TOReturns objects closer to true ownerThe cases that establish the ruleArmory: jeweler, finder wins v all but ownerClark: logs, 2 finders, prior poss. defeats presentAnderson: logs, 2 thieves, jus tertiiOther unusual circumstancesNonderogation from grantSeller cannot assert vs. buyerBut can assert vs. thief from buyerDid not give up vs. world, only buyerTransferees have constructive possessionThief v. subsequent finder, courts give to finder but thief wins under jus tertiiOLQ v. Finder, HannahOwner LQ has constructive possession if…Mislaid v. “lost in the ordinary sense”In the ground (Goddard)In pvt, occupied place (not Bridges)Finder is trespasser (Fisher), agent (Sharman) or lessee (Elwes)Otherwise, finder wins, as in HannahAdverse PossessionEstablishing true ownerWhose title is first in time?Nemo datIs there a flaw in that chain of title?Ouster of true ownerWas TO ousted >X years ago?Has PP been in possession for >X years?Howard: privies, reasonable connection Character of the possessionActual (occupying the land)Exclusive (TO or others not occupying)Open and notorious (sufficient to notify)Continuous (no series of discrete periods)Howard: summer home countsHostile/adverse under a claim of rightGood faith requirement?Carpenter: Think you own land, minEwing: Only need act as if own, majMaine Rule, only bad faith, disusedCts do not award to bad faith occupiersNote: real q is whether acting like ownerPolicy rationalesEncourage productive use of landOrdinary statute of limitations issuesIncentivize exploitationSimplify process of determining titleValues Subject to OwnershipPersonhoodSelf-ownership: fundamental, inalienableThree-step testStatute or c.l. property rtProp rt substantial w/ regard to rt assertedPolicy in recognizing property rtMoore: no conversion of spleen cellsCells abandoned once outside of bodyBut was there intent to abandon?Not for research purposesNo informed consent, after allPunt to legislature; action unlikelyPolicy argumentsConversion a strict liability tortIncentivize labor, like EadsMoral policy, avoid exploitationNewman: no due process in taking corneasDeprivation w/o due process for taking of corneas w/o alerting next of kinDespite statute authorizing this takingDifferent from Moore, Moore might win on due process; Newman loses on conversionHecht: sperm property for probateNo moral concerns; sperm can be soldProbate rather than conversionNo massive economic impactFact-specific inquiryNo diff. btwn preg before and after deathProperty rights at fringes vary on area of lawPublic RightsNavigational servitude (federal law)All waters navigable-in-fact are publicEven when land under them is privateCausby, Hinman: applies to air as well Causby: Taking when affect groundPublic trust doctrineState law version of nav servitudeApplies to land under/near nav waterUsually to Mean High Tide (MHT)Can include other propertyMust be kept for the public interestLake Michigan FederationSell public trust for public interestHere, publ. does not retain use/titleCannot be public interest if no accessDistrust of legislature—why?Might not speak for publicMight not consider future gens.Thornton: public access to dry beachCustomary access to sand by publicNote: apply rule to entire coastPolicy: democracy, thoroughfareRelated issue: can application of old, surprising right be a taking?Compare Matthews, public needs access to dry sand to use wet sandThe Right to ExcludeCourt action against trespassHamidi: harm required for trespass to chattelsSimilar to Moore, really all policyPolicyChattels easily movedNonviolent self-help promotedToo much liability, v. frequentWorries about owning employees’ timeShack: migrants get medical/legal servicesCould have relied on tenant law, but did notInterests of migrants trump right to excludeSic utero principle, use land w/o injuring“Property rights serve human values” and are created and bound by themSelf-helpGeneral rule: value present poss. strongly, protect w/ due process, Fuentes; adjud. avoids errors & violence, self-help when violence/error unlikelyBerg: Self-help evictions disallowedNo self-help eviction, minority, unusual to MNPolicy, promote adjudication of disputesEx ante whether there might be violenceWilliams: Late-night repo of carHigh standard for “non-peaceable”To not be peaceable, have threat of violenceV. high threshold, prob. too high as creates strong self-help incentives on both sidesEx post, whether there was violenceExceptions to the right to excludeCommon law exceptionsNecessity (Ploof)Choice, distinguish JacqueBut what if no other route in Jacque?Urgency, distinguish ShackShack would fit if medical emerg.Recovery of own propertyLicense (consent, revocable at will)Easements, incl. prescriptive easementsLandlord/tenant lawState intervention/regulationOther common law reasonsMcConico: hunting a basic rightPolicies prefer excl.: preservationRare example of expanding excl rtUston: Card-counter in casinoPublic place, need good reason, old c.l.Turns presump. to favor trespasserPlausible reading w/ Shack is broader as more public until flippingSchmid: state constitutional free speechConstitutional trumpsMarsh: 1A trump in company townBehaves like public prop although pvtNeed state action: crim. trespass arrest?Shelley: racial covenant not enforcedState action in legal recog of covenantState cannot condone 14A violationBell: ct fails to decide if enforcing discriminatory exclusion is state actionMajority goes to technical groundsDissent distinguishing prior casesMarsh: company acting like stateShelley: de facto zoning laws Look at strength of rts at stake, balanceSubsequent cases on 1A access (not 14A)Logan Valley: cannot exclude from mallsTanner: can exclude as long as reasons unrelated to mall (not unions as Logan)Hudgens: overturn Logan, can excludePruneYard: state const. like Logan in CAEstates and Future InterestsFreehold estates: Not held for a term of yearsLife estate: Terminates at deathFee simple: No time of terminationAbsolute: No qualificationsDefeasible: QualificationsSubject to executory limitationExecutory interest in third partySubject to condition subsequentRight of entry for grantorDeterminablePossibility of reverter in grantorFuture interestsExecutory interest, anything not a remainderRemainder, test (generally follow life estate)Capable of becoming possessory immediately on the end of preceding estateIncapable of divesting a preceding estate or vested future interestRelevant casesWilliams: three unmarried daughtersPresumption against partial intestacyWill creates joint tenancy life estateLanguage in will suggests only life estateReversion implied, creates partial intestacyKlamath Falls: library to city while a libraryLiterally a fee simple subj. to exec. lim.Fails under Rule Against PerpetuitiesMaintain intent through other meansFee simple determinable, poss. of reverterBut cannot in OR convey reverterCity argues this destroys reverter, failsReverter went to owner-heirs when corp. dissolved, and then to heirs: same resultBrokaw: granted mansion as life estateRelatives resist, waste despite profitCourt rules grantor intent was to convey mansion, cannot alter status as mansionWaste Rule: All parties w/ future interests may veto actions of present interests if do not comport w/ intent of grantorRestrictions on alienabilityAbsolute restrictions rejectedStrong presumption against partial restrictionsLauderbaugh: Only sell to Lake Watauga AssocRestriction is infinite, no standardsCould discriminate, ct does not upholdToscano: charitable donation to lodgeFinds restriction on use, not restriction on alienability, use as a lodge in generalContortion for charitiesRule Against Perpetuities“An interest must vest within 21 yrs of the death of all persons alive at creation of the interest”Symphony Space: opt. to repurch. after >21 yrsNo “wait & see”, NY ref. to cut ages >21 to 21Not mutual mistake, would eliminate RAPRAP exists to foil intents of draftersConcurrent interestsTwo types of concurrent interestsTenancy in commonJoint tenancyRight of survivorshipHarms: Others’ interests disappearNeeds four unitiesTime (received at same time)Title (received in same instrument)Interest (identical estate)Possession (rt to possess whole)Presumption against, need precise lang.Severance, transform into TICConveyance, break unitiesHarms: Mortgages do not severLeasing similarly likely does notOuster: One cotenant denies rights of anotherA few relevant termsContribution: Seek $ to maintain landAccounting: Seek rental value of landGillmor: One ouster accounting standardDefault, A gives share of actual incomeIf B makes “clear, unequivocal claim” to use, A denies, share of market valueHave not objected, consent to actual rentA.P.: Gillmor footnote says standard higherA actually owns, so AP is oddBut could if clear denial of B’s titlePartition: Splitting interests of cotenantsPartition in kind: physical splitDelfino: Preferred if a cotenant wantsBut not always physically possiblePro rata split in valuePartition in sale: sell, split proceedsLook for any legal impossibilitiesMarital PropertyTwo different systemsCommunity property (8 states, TX and CA)All property earned during marriage presumed community propertySplit evenly on divorce, wills easierCommon law marital propertyMaintain separate title, can create separate titles during marriageJoint prop split evenly, other prop notElective share, spouse can claim 1/3O’Brien: Medical degree marital propertyBc degree counts for property for due processSplit value with spouse on divorceBased on contrib, age, duration of marriageAlternative solutionsRehabilitation maintenance; pay costs to get equivalent degreeReimbursement maintenance; pay for costs incurred to get degreeReal estate transactionsSummary of a real estate transactionContract: Buyer has interest, seller has titleClosing, simultaneous transfersSeller gives deed to buyer, who uses deed to secure mortgage from mortgagor, who provides money to buyer to pay sellerMortgagor may get the deed itself (title theory) or a lien on the deed (lien theory)Either way, security interest in propertyRecording SystemGoalsProtect marketsProtect good-faith purchasersWhat can be recorded?Deeds, mortgages, devises, contracts for saleEasements, covenants and other encumbrancesTypes of recording statutesNotice: If sale not recorded, void when another sale made, even if not recordedExcept if there is actual or constructive notice, e.g. if B occupied landRace-notice: First sale to be recorded wins if did not have notice of prior saleRace: First sale to be recorded winsLandlord-Tenant LawCommon law rules: lease as conveyanceCaveat lesseeParadine: Prince Rupert’s invasionT gets windfalls, suffers lossesDifferent result if agent of the LLSutton: Paint chips and dead cowsTwin principles of caveat lesseeNo implied warrantiesIndependence of covenantsDifferent if LL knew, T could not knowDistinguish from Marrable, furnishingsLess inspection for short-term leasePreserve caveat lesseeCovenants of quiet enjoymentOnly c.l. exception to caveat lesseeShow either actual or constructive evictionConstructive evictionMcEnany: Wall intrudes one footRent goes to whole prop, T releasedDe minimis, maybe only good faithEvict or rewrite lease excluding wallBlackett: Noisy clubDenied quiet enjoyment by failing to force club to abate nuisanceThree factors for constr evictionSubstantial interference w/ CQEThat lasts for a substantial timeSuch that the tenant moves outDemonstr total deprivationBut big risk for tenantModern rules: lease as contractAbandonmentThree c.l. landlord remediesAccept offer of surrenderRe-enter and re-lease on behalf of TSue tenant for rent as dueUnder c.l., no duty to mitigateSommer: Wedding called off, back outCourt creates LL duty to mitigateSimilar to contract law, no waiverLost volume, T can argue uniquenessImplied warrant of habitabilityTraditionally would fail on caveat lesseeJavins: Code vios arising after occupancyWarrant of habitability implied in leasesReally LL duty to repair & maintainReverses c.l. duty, which went to TNot waivable, mandatory warrantStill owe rent unless constructively evicted, but can sue for vio of warrantyCode vios before lease void lease, BrownCould have drawn from MarrableToo high a burden to inspectLL specialized, best positionBut bc of Brown, does not apply; later extended to overrule BrownOnly urban, residential leases; comm. Ts sophisticated, rural leases simplerPolicy concernsDrives low-income out of market?Public housing, subsidiesHousing a fixed market, adjustsFreedom of contractWant to ensure no manip of Ts, but want freedom of contractShould be waivable?Negative externalities, firesSocietal minimum from codeCo-ops and CondosThe three different modelsCondos: Owners hold interior in fee simple, Condo assoc holds walls and public spacesCo-ops: Title held in coop, owners hold shares and proprietary lease; not freely alienableCommon Interest Communities: Homes in fee simple, subject to in-lease and HOA restrictionsCasesPullman: Crazy guy in co-opLevandusky applies business judgment ruleActing in good faith for purposes of co-op as a whole within the scope of authorityPolicy concernsDemocratic board, consentCo-op owners are generally wealthyFreedom to share ownershipConcerns about discriminationGood faith rule and statutesBut practically a real problemHypo: Rejecting a buyerGood faith concernsRestraints on alienation, LauderbaughNahrstedt: Cats in a condoCt adopts standard from Hidden HarbourIf contained in declaration/master deed, strong presumption of validityArbitrary or violate policy/Const.Under Nahrstedt but not HH, if burden “substantially outweighs” benefitsIf a rule promulgated later, reasonableFinds restrictions on pets not arbitraryHypo on sign restrictionsIf the sign restriction were in declarationShow arbitrary, against public policyOr show unconstitutionalState action concernsUnder Shelley, enforcementBell dissent argued againstGenerally disfavoredUnder Marsh, nature of ownersDemocracy, not dictatorial corpIf the sign restriction were adopted laterShow unreasonable ruleRelatively minimal restrictionsBut maybe concerned about restrictions on democratic nature of the board itselfFairness of the proceduresNuisanceNature of nuisanceSubstantial, non-trespassory invasion of another’s interest in use and enjoyment of landThree themes to nuisanceWhat are the baseline rts of owners?How can rts be reallocated among neighbors?How can rts be limited/redistrib’d by state?More sensitive than trespass, balances interestsOwners and occupants, including tenants, have standing; workers and guests do notAdams: Oily dust from mineNot considered a trespassPolicy reasons, injunction would be automatic, destroy economic activitiesEx ante bargaining easier w/ trespassForms of nuisancePublic nuisance v. private nuisancePublic nuisance: affects general rightsPrivate nuisance: affects certain landOrdinary nuisance v. nuisance per seNuisance per se: derived from statuteLuensmann: Not illegal to race horses, cannot be nuisance per seOrdinary nuisance: c.l. actionElements of ordinary nuisanceIntentional (know it’s happening)“Unreasonable”Common law, loosely definedThreshold test, St. Helen’sBalancing test2nd Restatement of TortsBalancing testIn favor of PExtent of harmSocial value of P’s useSuit of P’s use to localeBurden on P to avoidIn favor of DSocial value of D’s useSuit of D’s use ot localeBurden on D/impractical to avoidSerious harm and burden of comp will not destroy activitySevere harm P should not bearEscape clause for nonprofitsSt. Helen’s: Coming to nuisance not a defenseRemedies for nuisanceTraditionally, injunctions awardedSt. Helen’s: Damages can be awardedBoomer: Cement plant and housesThreshold test, finds a nuisanceAllows D to dissolve inj by paying; forced sale of servitude, market value damagesUses Restatement logic for damagesDel Webb: Feedlot and old peopleProblem of coming to nuisanceP bears costs; P must pay for injunctionRare example of type 4 in C-M chartPolicy on over- and underenjoiningOverenjoining, threshold testPrecautionary PrincipleBut costly for economyUnderenjoining, RestatementLet statute and regulation do the heavy liftingLegis cannot dissolve mistaken injunctionsEasements, Servitudes and CovenantsRightsRemediesConveyancePossessionEjectmentLeaseExcludeTrespassAffirmative easementUse and enjoy: Active Passive? NuisanceNegative easementAffirmative easementEasementsCharacteristics of easementsNot revocable at willProtected against interferenceCapable of creation by conveyanceNot a possessory or exclusory rightDominant tenant & servient tenantTypes of easementsAffirmative or negativePublic or privateAppurtenant or in grossIn gross disfavored by law, be explicitCreating an easementExpress: Written down, strong deferenceImplied: Implied to be included in prior written deed w/o express provisionImplied in grant or reservation, but avoid reservations due to derogation of grantPrior unity of title, implied at severanceBy necessityStrict necessity, i.e. landlockedNecessity at severance and also nowBy prior usePrior use, suggests intent to conveyReasonable necessity, i.e. difficultMore than mere convenienceWhen necessity ends, so does easementSchwab: lakefront w/ bluffsNo necessity bc none at severanceNo prior use bc none at severanceNo necessity up bluffs bc reluctant to imply derogation of grant, no usePrescription: Like AP, same SOLOpen, notorious and adverse under claim of right for uninterrupted periodReasonably definite pathDo not need to be exclusiveForces owners to “use it or lose it”Warsaw: Structure built on pathwayPrescriptive easement, no just compNo payment to remove structurePolicy, encourage owner to assert rtsHolbrook: permission, no prescriptionMight consider acquiescenceBy estoppel, HolbrookGet license, reasonably rely on licenseReliance includes improving easement itself or building structure on own landOther easement-related miscellanyMisuse, Penn Bowling: Cannot use easement appurtenant for non-dominant tenementIf you do, enjoined until separate the usesCompensation for easements? NoPrescriptive: Owner shows low valueEstoppel: Owner to blameImplied: In contract, price in orig saleEasements binding successors, two factors Intent to bind (includes use/reliance)Notice: actual, constructive or recordNegative easements (strong c.l. resistance)Non-express negative easements No prescription; maybe implied, estoppelProblem of notice, records solveConservation easements, statute, not c.l., infinite control of land useCovenants: Promises about use of landTulk: Enforceable at equity when not at lawRequirements for burdens to follow landHorizontal privity btwn parcels at lawIntent to bind successorsNotice of the burden, Sanborn inquiry notice“Touch and concern” the landImplied reciprocal restrictive covenants: Reasonable expectations of first purchasers, inquiry notice to later purchasersTakingsConstitutional backdrop: 5th Am: “Nor shall pvt prop be taken for public use w/o just comp.”Just compensationFair market value (FMV), appraisalSame as Boomer, higher than FMV if not sellingHard to calc idiosyncrasies, many add percentagePublic use: eminent domainUse by public is public use; transferring to pvt to benefit pvt actor is not public useCases in betweenBerman: DC urban renewal, some pvt useMidkiff: land redistrib in HawaiiKelo: New London redevelopmentTransfer to developer for econ developmentBenefit to community, taxes and jobsDissent: standard of means rather than ends? Uniquely suited for purpose? Often will bar any redevelopmentEminent domain is self-regulatingHighly costly, used only against holdoutsRole of cts to ensure compensationTaken: regulatory takingsMahon: anti-subsidence PA legislationIf state acts w/ police power to abate public nuisance, not taking; no rt to commitHolmes: pvt nuisances onlyBrandeis: defer to govt determinationThen look to see if regulation went too farHolmes: Separate estates, total depriv.Brandeis: Whole property consideredRegulations of usePenn Central: landmarking of Grand CentralLook to whole property, air not muchStill can use for all prior purposesTransferable dev rts mitigate lossReasonable return on investmentsAverage reciprocity of advantageKeystone Bituminous: Mahon v.2.0Nuisance abatement, not going to consider support estate separatelyLucas: S.C. beach, waterfront dev restrictionsEliminate all economic use, taking per seBack to Mahon, separate prop interests, different from Penn Centr and KeystonePhysical invasions of propertyTemporary physical invasionsKaiser-Aetna: marina created from lakeReward investing; permit, expectationPruneYard: free speech in mallOwner opened up property to publicNo loss of value/interference w/ useState, not fed gov, defines propertyPermanent physical occupationsLoretto: cable wires on apartmentPerm phys occupation = taking per seStrong right to exclusion, entire rt lostNollan: Public easement, dry sand beachPublic path is PPO, taking per seScalia wants strong bright line ruleDistinct from PruneYard, not publicBut no clear distinction from KALand v water? Defined path v wandering? Easement v navserv? More commonly bought & sold?Limitations in titleLucas dicta, if “limitation inheres in title”Palazzolo: Wetlands takings claimStatutes do not always inhere in title; must comport w/ state legal tradition O’Connor’s test, meet reasonable investment-backed expectations?Scalia’s test, taking at time of reg?Purchase property and takings claimDecline of positivismConservative: use of propertyLiberal: personal autonomyDenominator, Tahoe-Sierra: MoratoriumRejection of conceptual severanceDefined by “metes & bounds” & timeContrast First English, permanent taking liftedWhat if only own part of m&b or time?What if acquire later? M&b at severance? ................
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