Professional Documents
Culture Documents
02/01/2014
1. What is property?
a. Two Conceptions of Property
i. Trespass
1. Any intentional intrusion that deprives another of
possession of land, even if only temporarily
2. The sovereign owner gets to decide how the land is
used and can choose to exclude people (not absolute)
3. Jacque v. Steenberg Homes, Inc.
a. Trespassed mobile home across land. $100,000
in punitive damages
b. Necessity is not enough
i. Right to exclude enforced because it is an
important right
ii. Two reasons for enforcing
1. To avoid potential violence (self-help)
2. To protect privacy rights
c. Owner is in best position to know about fragile
goods or dangers on property
d. Owner figures out how property is best used, they
get to receive returns from it
e. Barnard Rule: The rationale for the compensatory
damage requirement is that if the individual
cannot show actual harm, he or she has but a
nominal interest, hence, society has little interest
in having the unlawful, but otherwise harmless,
conduct deterred, therefore, punitive damages.
i. Overturned punitive damages
ii. Nuisance
1. Hinman v. Pacific Air Transport
a. Two airlines fly within 100 feet of plaintiffs
ground. Is not trespass, but nuisance
b. Ad coleum doctrine (doesnt apply here)
Go
Do
kee
Kee
Kee
b.
c.
d.
2. Color
a.
a. Reasons
i. Under enforcement of property rights if
merely left to private enforcement
ii. Reduce self-help and violence
iii. Insolvent defendants
iv. Not just harm to property owner but a harm
to society
v. Criminal law often expresses society values
ii. Civil Actions
1. Civil Actions Protecting Real Property
a. People dont have access to resources to hire a
laywer
2. Civil Actions Protecting Personal Property
a. Intel Corporation v. Hamidi
i. Using Intels email system to send e-mails to
employees criticizing company. No property
tort
iii. Self-Help
b. Exceptions to the Right to Exclude
i. Necessity
1. Usually fails
a. Everyone says it was necessary
b. Can use if you really dont care whether you get
sued for trespass, because consequences will be
worse if you dont trespass
ii. Custom
1. McConico v. Singleton
a. Hunting on unenclosed land in pursuit with no
permission okay. Wrong in modern times
b. In will To A
2. Life Estate
a. Gives someone ownership for that persons life
b. To A for life
c. When you buy a life estate, doesnt become
measured by your life but still that persons
3. Remainder
a. To A for life, and then to B
b. B has a remainder interest, comes after life estate
and goes to someone other than the grantor
4. Reversion
a. To A for life and then back to me/To A for life
b. Back to the grantor
5. Rule Against Perpetuities
a. Are we going to know who is going to get the land
21 years after everyone is dead; if dont know,
defaults back
iii. Present Possessory Interests
iv. Future Interests
1. Interests Retained by the Grantor
2. Interests Created in a Grantee
v. Using the Estate System for Estate Planning
vi. Personal Property
b. Waste and Restraints on Alienation
i. Waste
1. Brokaw v. Fairchild
a. Wanted to tear down bequeathed life estate and
increase value. Could not as would be waste and
against testators wishes
ii. Restraints on Alienation
1. Morse v. Blood
a. If heir gave once cent to family would lose estate.
Would be restraint on alienation
b. Alienation: Restriction on ability to sell, give away
or devise property
c. Cant limit selling ability, but if doesnt its ok
i. As inefficient, goes against public policy, may
not be enough buyers, best person doesnt
get it
c. Conflicts Between Co-Owners
i. Partition
1. Delfino v. Vealencis
a. Co-owners one wanted to sell, other lived on
b. Partition by kind:
i. Carving up the thing itself (the land)
c. Partition by sale: (more common now)
i. Splitting proceeds from money based on
percentage
ii. Contribution and Accounting
1. Gillmor v. Gillmor
a. Cow grazing issue
b. Cant damage land or refuse to accommodate
fellow co-owner
iii. Severance
1. Harms v. Sprague
a. Brother mortgaged to defendants without other
brother knowing. Mortgage does not survive
brothers death. Did not sever joint tenancy
b. Need to make sure both co-owenrs sign
iv. Special Problems of Joint Bank Accounts
1. In re Estate of Filfiley
a. Daughter withdrew funds from joint bank account
with mom right before she died so dad may not
get some as inheritance
b. She was entitled to whole fund because she was
the surviving joint tenant
c. Joint tenancy if about land, not money
i. Cant sell the entire thing, but sell your part,
becomes tenancy in common
ii. Cant use all the property you want, as long
as others wishes arent incompatible
d. Two actions possible when one party withdraws
more than her moiety
i. Severs joint tenancy
ii. Claim by one joint tenant against another
d. Marital Interests in Property
i. OBrien v. OBrien
1. Wife contributed to husbands medical school, license to
practice only asset at time of divorce. Came into
marriage while they were married. Court sees marriage
as economic partnership, consider potential earnings
2. Assets would be split unfairly with whoever making
money getting more
ii. Marvin v. Marvin
1. Plaintiff gave up career and was companion,
homemaker, cook, in exchange for Ds financial promise
to support for life. Should be able to have this contract
between them even if not married. Enforceable, not
void
2. People with most money wouldnt want to get married,
incentivizes people to get married by enforcing contract
e. Property-like Systems (Property as an Instrument of Social Policy)
iii.
iv.
v.
b. The
i.
c. The
i.
a. CAT LADY
b. Ones you knew getting into before you bought
upheld: if measures were arbitrary, impose
burden on use of land that outweighs benefits or
violates public policy
c. Ones you didnt know you were getting into, must
be reasonable
2. 40 West 67th Street v. Pullman
a. Want to get rid of crazy neighbor
b. Business-Judgment Rule (chose this one)
i. Deferential standard that lets boards make
any decision it wants on substance as long as
it follows procedural rules
c. Real Property Statute
i. Coop would prove Pullman was a bad tenant
e. Trusts
i. Trust Fiduciary Duties
1. Separating someone out to manage and not allowing
those it benefits to manage it
2. People involved in trusts
a. Settlor has the wealth
b. Trustee manage the trust (has legal title)
i. Must act in best interest of beneficiary
c. Beneficiary receive the wealth (has equitable
title)
3. Reasons
a. Good way to transfer property not in fee simple
b. Settlor can control how money is managed
c. Fewer gifts in the first place if didnt have this
type of device
4. Problems
a. Principal Agent Problem
b. Trustee must use a lot of discretion Rothko
c. Changed circumstances - Wilbur
5. Rothko v. Reis
a. Artist; three trustees, two benefit from selling
paintings
ii. Changed Circumstances
1. Wilber v. Owens
a. Exton-Bamford Research Fund
b. Cy Pres: changing specific intent of will to fulfill
general intent
c. Getting away with it when means of getting there
are crazy
d. Traditionally strong skepticism of cy pres have
to find general charitable intent
7. How do I know who owns what?
a. Transfer and the Delivery Requirement
i. Disclaimer
1. I dont want it
ii. Transfer and Alienability
1. Rules Designed to Enhance Transferability
a. The Statute of Frauds
i. Requires any contract for sale of land to be in
writing
ii. Signed by whoever the contract is being
enforced against
a. Prevent fraud
iv. Two exceptions to wills act can preempt will
in regards to those assets
1. Holographic wills
a. Written out by hand
2. Gifts causa mortis
a. Gift made in contemplation of
death
b. Requirements
i. Sick and about to die
ii. Actually have to die
iii. There must be delivery
b. Defining and Proving Ownership
i. Three strategies
1. Possession
a. Low value. Fungible, small, easy to move
2. Marking
3. Recordation
a. Too big to move
b. Registration is required for tax purposes
c. A need to relinquish the possession
d. Two conditions for registry to work
i. Has to be sufficiently valuable to be worth the
cost of registry
3. Trespass
a. Tangible, appreciable invasion
b. Strict liability/presumed harm
c. Reasonable or unreasonable
4. Nuisance
a. No invasion
b. Significant harm
c. Unreasonable activities
5. Nuisance style trespass
a. No tangible appreciable invasion
b. Harm or no harm
c. Reasonable or unreasonable
6. Nuisance style trespass 2.0 foreseeably significant
harm
ii. Balance of Hardships
1. Assuming no bad faith, is the hardship on the defendant
of giving the injunction extreme compared to the value
for the plaintiff opportunity cost high for owner, hard
to find another home like this one
iii. Prescription
1. Do it long enough have a right to keep doing it
iv. Spur Industries v. Del Webb Development
1. Sun City Cattle Lot
a. Residential community has public nuisance claim,
not developer though
b. Easements
i. Violates rights
c. Imminent domain
i. Govt. takes it but pays you market
value/expensive
d. Amortization
i. Give fair warning and phasing out a certain
land use after a period of time; grace period
before use is wiped out
ii. Courts will look at loss to owner and
reasonableness of amortization period
iv. Cumulative (more flexible) and non-cumulative zones
1. Danger: mansion living in middle of industrial area
v. Pros & Cons:
1. Pros: 1. Allow more and better development aligning
uses to eliminate costs, help welfare 2. Reduces
uncertainty
2. Cons: 1. Excluding outsiders 2. Unfairness to existing
users
9. How can (and should) the government give, change, or take away
property?
a. The Limitation of the Takings Clause
i. No person shall be deprived of life, liberty, or property without
due process of law nor shall private property be taken for
public use without just compensation
ii. Benefits of Eminent Domain
1. Assembly and Holdouts
iii. Dangers
1. Potential for discrimination against whoever doesnt
have political power
2. Uproot
3. Use ED more than it should
4. Potential for corruption and patronage
b. Kelo v. City of New London, Connecticut
i. Whether Citys economic development plan serves a public
purpose
ii. Public use = some benefit to the public (majority public use
= available to the public (dissent)
1. Follow majority
2. Deference to the local govt. on whether there is a
benefit to the public
10. Theories
a. Coase The Problem of Social Cost
Entitleme
nt
Farme
r
Ranch
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More
valuab
le
Farmi
ng
No
deal
->
farmin
g
Deal
->
farmin
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Ranchi
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Deal
->
ranchin
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No
deal ->
ranchin
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iv. Privatization
1. Creation of private property rights
2. Provides own profit incentive
3. Can do with as they see fit, have to figure out own land
4. Plots of land may not be equal (rainfall); also problem
with deciding whos distributed what
5. Dont know optimal scale of property
v. Ostrum says should use low level institutions
1. Conditions
a. Clarity of the Law
b. Mechanisms of conflict resolution must be local
and public, so as to be accessible to all individuals
of a community
c. The rules, in addition to being clear, shared and
made effective by all users, must not conflict with
higher levels of government
2. Difficulties
a. Need a level of trust to get started; need low
transaction costs; need monitoring & compliance
to handle ongoing issues
d. Demsetz Toward a Theory of Property Rights
i. When something is your property you internalize the costs and
benefits
ii. Things will be treated as property when the benefits from
treating them as property outweigh the costs of treating them
as property
1. Benefits
a. Incentives
i. Reap what you sew
b. Collective action
i. Avoid wasteful races and depletion of
resources