Property Notes

Property Law

Five Theories of Property

• Protect First Possession 

• Encourage Labor

• Utilitarianism (Maximize Societal Happiness)  

• Civic Republicanism (Ensure Democracy)

• Personhood (Facilitate Personal Development) 

Arbitration

serves to handle disputes outside of court with a neutral third party to hear and decide the case. 

Case of First Impression:

a case or issue that is new and without precedence 

Common Law:

not statutory but is case law.

Bundle of Sticks

• The right to transfer

• The right to exclude

• The right to use

• The right to destroy

Protect First Possession 

“First come first serve”  

Encourage Labor 

Labor was the key to unlocking something’s value and making it property. 

Utilitarianism (Maximize Societal Happiness)  

• Property is distributed in a way that promotes the welfare of all citizens. 

• To reach full economic potential, society needs universality, exclusivity, and transferability. 

Universality:

all valuable and scarce resources need to be owned by someone  

Exclusivity:

• if the owner can't exclude others from use and enjoyment of property, then they aren’t motivated to improve the property. 

Transferability:

• no gains or trading can be made, and everyone is stuck where they are without transferability 

Civic Republicanism (Ensure Democracy) 

• Property facilitates democracy  

• The right to own private property has an important effect on citizens’ relationships with the state. 

• Private property free from government influence or interference is needed for a real democracy

Personhood (Facilitate Personal Development) 

• Property is needed for personal development (personhood theory)  

• Everyone has a personal connection to certain items which basically become part of themselves. 

Right to Transfer (alienability)

• Any owner may freely transfer any property to anyone

  • Law can restrict who can transfer or obtain property 

    • Some types of property can’t be transferred  while others can be given but not sold

    • Law also regulated how property should be transferred 

• The right to transfer is vital because it helps to ensure property is devoted to its most valuable use.

Federalism:

power of the federal court to define the state right under law

Chain of title:

the succession of ownership over time.

Memo:

explanatory document, must address the other side 

Conversion

a tort that protects against interference with possessory and ownership interests in personal property.

Aspects of a Nuisance:

  A private nuisance is an (1) intentional, (2) nontrespassory, (3) unreasonable, and (4) substantial interference with (5) the use and enjoyment of the plaintiff’s land. 

Right to Use

• According to tradition a landowner can use their land as they please so long as they don‘t harm the rights of others.

Restatement (Second) of Torts § 821D defines the private nuisance as

“a nontrespassory invasion of another’s interest in the private use and enjoyment of land.”

Public nuisance: 

improper interference with a right common to the public.

During private nuisance cases the plaintiff must establish

• that the defendant’s conduct resulted in an intentional, nontrespassory, unreasonable, and substantial interference with the use and enjoyment of the plaintiff’s land.

Intentional:

The defendant’s conduct is intentional if he acts for the purpose of causing the harm or he knows that the harm is resulting or is substantially certain to result from his conduct.

Nontresspassory:

cannot involve any physical entry onto the other person’s land. 

Unreasonable:

can be determined by one of two tests or tests that use a bit of both

• Gravity of the harm test: the defendant’s conduct is unreasonable if it causes substantial harm, regardless of the social utility of the conduct.

• Restatement standard: conduct is unreasonable if the gravity of the harm outweighs the utility of the conduct. Restatement (Second) of Torts § 826(a).

Substantial interference:

must be a “real and appreciable invasion of the plaintiff’s interests,” involving “more than slight inconvenience or petty annoyance.”

Use and enjoyment of land:

The defendant’s conduct must interfere with the use and enjoyment of land

Gravity of Harm

• the extent of the harm involved;

• the character of the harm involved;

• the social value that the law attaches to the type of use or enjoyment invaded;

•  the suitability of the particular use or enjoyment invaded to the character of the locality; and

• the burden on the person harmed or avoiding the harm.

Real Property:

• rights in land and things attached to land, such as buildings, fences, and trees.

  • Fixtures: Items of personal property that are physically attached to real property and are treated as real property

Three aspects of real property law:

adverse possession, vertical limits of ownership, and water law. 

Personal Property:

Refers to rights in moveable items (such as chairs, pens, and computers) and intangible things (such as patents and shares of stock

Adverse Possession

If A occupies B’s land for a long enough period while meeting certain conditions, A acquires title to the land without B’s consent. 

The Four Justifications for Adverse Possession:

Preventing frivolous claims

Correcting title defects

Encouraging development

Protecting personhood

Preventing frivolous claims

Bars lawsuits based on stale, unreliable evidence, thereby protecting the occupant from frivolous claims and provides the occupant with security of title, encouraging the productive use of land.

Correcting title defects

Technical mistakes often occur in the process of conveying title to land. Adverse possession protects the title of the person who actually occupies the land. Under this model, lengthy possession serves as proof of title.

Encouraging development

Can be a legal tool to encourage economic development. It reallocates title from the idle owner to the industrious squatter, to promote the productive use of land

Protecting personhood

“A thing which you have enjoyed and used as your own for a long time … takes root in your being and cannot be torn away without your resenting the act….”

Elements of Adverse Possession:

Actual possession:

Exclusive possession:

Open and Notorious:

Adverse and hostile possession

Continuous possession:

Statutory period:

Statutory period

The period for adverse possession ranges from 5 to 40 years, depending on the state. The most common periods are 10, 15, and 20 years.

Continuous possession:

The claimant’s possession must be as continuous as a reasonable owner’s would be, given the character, location, and nature of the land.

Adverse and hostile possession:

Indicating that they have a claim of right. Possession without permission

Open and notorious possession:

The claimant’s possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim.

Exclusive possession:

The claimant’s possession cannot be shared with the owner or with the public in general.

Actual possession:

At a minimum, the claimant must physically use the land in the same manner that a reasonable owner would, given its character, location, and nature. The claimant can also meet this standard by using the land more intensively than a reasonable owner would.

Disabilities:

The period for adverse possession will be extended due to A’s (plaintiff’s) disability. 

• Most states provide a limited period of time after the disability ends within which suit must be brought. 

Most Common Disabilities

• imprisonment, minority, and lack of mental capacity. 

• Some jurisdictions also protect the owner who is away on military service or who resides outside of the state.

How does death affect disabilities?

Death ends all disabilities; disabilities cannot be tacked; and a disability does not shorten the standard period for adverse possession

Color of title:

refers to a deed, a judgment, or another document that is invalid for some reason.