Chapter 1 - The Concept of Property

Question 1

What are the elements of trespass?

Answer 1

(1) intentional and (2) unprivileged (3) entry onto land (4) in possession of another.

Question 2

What are the five theories of property?

Answer 2

(1) Protect first possession (2) encourage labor (3) maximize societal happiness (4) ensure democracy (5) facilitate personal development

Question 3

Rule of capture

Answer 3

Property in wild animals is acquired by 1) acts sufficient to manifest an unequivocal intention of appropriating the animal to his individual use 2) has deprived him of his natural liberty and 3) brought him within his certain control.

Question 4

What are the elements for the rule of publicity?

Answer 4

1) D’s use of P’s identity 2) appropriation of P’s name or likeness to d’s advantage 3) lack of consent 4) resulting injury

Question 5

What are the most important property rights?

Answer 5

Right to transfer, right to exclude, right to use, right to destroy

Question 6

Alienability?

Answer 6

Refers to the right to transfer, in general an owner may freely alienate (transfer) any of her property to someone else.

Question 7

What is the doctrine of discovery?

Answer 7

Land title transfers are only valid when made under the rule of the currently prevailing government. Discovery can be made through conquest or purchase.
There is in inchoate title that derives from discovery, but one still needs conquest or purchase to perfect title.

Question 8

What is El Requerimiento?

Answer 8

Declaration of Spanish monarchy that there was a divinely ordained right to take possession of the territories of the new world through subjugation, exploitation, and battle.

Question 9

Indian title of occupancy?

Answer 9

Indians admitted to be rightful occupants, with a legal claim to the land - but their right to complete sovereignty as independent nations were diminished (through principle of discovery)

Question 10

Conversion

Answer 10

When a person without authority or permission intentionally takes the personal property of another.

Question 11

Doctrine of Accession

Answer 11

When a person 1) uses his own labor or materials 2) in good faith to 3) fundamentally transform another’s property, he acquired title to the final product.

Question 12

Doctrine of abandonment

Answer 12

Requires a manifestation (objective intent) of specific intent to relinquish permanently and not be trying to transfer to another.

Question 13

Historical view of right to exclude?

Answer 13

Traditionally England had communal farms. However in the 1500’s changing economic and social conditions led to a process by which open fields were enclosed.

Question 14

Common law trespass

Answer 14

A 1) intentional and 2) unprivileged 3) entry onto land 4) in the possession of another.

Question 15

Modern law trespass

Answer 15

One is subject to liability for trespass irrespective of whether he thereby causes harm to any legally protected interest of the other if he intentionally enters land in the possession of the other or causes a thing or third person to do so.

Question 16

Types of privilege in context of trespass

Answer 16

1) express - an invitation
2) implied
Public necessity (ex police officer chasing thief on property)
Private necessity (wild animal chasing me across your property)

Question 17

How is trespass to land protected?

Answer 17

Nominal damages may support punitive damages. Seeing as trespass does not actually cause any damage often. However, the true damage is in the violation of another’s right to exclude.

Question 18

State v shack

Answer 18

Employer may not deny a worker his privacy or interfere with his opportunity to life with dignity and enjoy associations customary amongst citizens. (History - war in poverty)

Question 19

Right to use

Answer 19

Traditionally landowner had absolute right to use property in any way he wanted so long as it didn’t interfere with the rights of others.

Question 20

doctrine of nuisance

Answer 20

Principle limitation to the right to use.

Question 21

Private nuisance

Answer 21

1) intentional 2) nontrespassory 3) unreasonable 4) substantial interference with 5) the use and enjoyment of plaintiff’s land
Unreasonable = gravity of harm outweighs utility of actors conduct.

Private - when one party’s use of their property unreasonably interferes with another party’s use and enjoyment. (Ex noise, odors, smoke) p must show that interference with property rights is substantial and unreasonable.

Question 22

Public nuisance

Answer 22

Activities or conditions that effect the public as a whole (ex pollution, hazardous waste)
P just show that activity in question is harmful or offensive to the public and that it substantially interferes with public health, safety, or welfare

Question 23

Spite fence doctrine

Answer 23

A landowner may not erred tan unusually high fence along his property line for the purpose of annoying his neighbor (injunctive relief and damages).
Must show that d acted out of malice.
Some states: malice as sole motive
Other states: malice as dominant motive.

Question 24

Diminished sunlight / nuisance

Answer 24

CL: 1) right of landowners to use property as they wished 2) sunlight only aesthetic 3) society had significant need for not restricting land development

Modern: 1) landowner use regulated for general welfare 2) solar power 3) need for easy and rapid development not as great

A landowner who has appropriated sunlight for their use by constructing a solar panel prior to neighbor’s construction of home and where defendant has actual knowledge of potential substantial interference

Question 25

Coase Theorem

Answer 25

Initial allocation of a resource is irrelevant to its economic efficiency

Question 26

Right to destroy

Answer 26

Personal property - highly likely you have right
Real property -
Intervivos (while living) likely have the right
Testamentsry (after death) less likely

Question 27

Eyermann

Answer 27

When a landowner attempts to compel his successor to do to the land something against public policy, a court may deem that so condition void.

Question 28

Waste

Answer 28

Affirmative waste - clearly intentional, active (sledgehammers on a wall)
Permissive - negligent (ex raining first drip renter allows roof to leak)
Ameliorative - transformed something that owner did not want transformed

Question 29

Qualified right to destroy

Answer 29

Eminent domain - gov has inherent right to take private property for public use upon payment of just compensation.

Rights of artists - artists have right to prevent anyone from destroying their work

Presidential papers (act of 1978)