Midterm Flashcards
What is Hohfeld’s framework?
Property is about relationships between people and property, competing claims towards a resource
If someone has a right, another person has a _______
correlative duty
If someone has a privilege, another person has _____
No right
If someone has power, another person has
a liability
If someone has an immunity, someone else has
a disbility
What are the four types of policy arguments?
- A fairness-based argument
Utility based argument - Institutional argument
- Administrability argument
What is a fariness based argument?
thinks about justice, equality, what obligations we have to each other, how does this resolution treat these parties equally or not, how is this resolution just or not?
What is a Utility based argument?
what are the overall consequences to society here, what is the black letter law going to incentivize if this was the law vs if something else was the law
What is an institutional argument?
has it been resolved by a legislature or executive agency, local governments, etc?
What is an administrability argument?
rules are more predicable but less flexible (ex- no trespassing ever), while a standard is less predictable but more flexible (ex- no trespassing ever unless reasonable)
What is trespass?
an unprivileged intentional intrusion on property possessed by another
What is the intention for trespass?
It just means that the defendant meant to be where they are, they do not need to intend to intrude
What does unprivileged mean in trespass?
Without permission
When does trespass start?
occurs the moment a defendant enters the property and can occur underground and overhead as well
What is the general trespass rule for private property?
there is generally a right to exclude for any reason or no reason at all, but some courts have argued that if the reasons are non-existent or trivial, and the cost to the neighbor is very high, maybe there should be an obligation OR for strong public policy reasons
What are three common law defenses to trespass?
- Necessity (almost always temporary)
- implied or express consent
- Public policy
What are two types of trespass remedies?
Fair market value- damages measured by the diminution in market value, the reduction in the value of the property due to the trespass or damage.
restoring the property to its undamaged state (must be reasonable)
What is the general rule for trespassing on public property?
The general rule is that public places have the right to exclude, but inns and common carriers must allow reasonable access to the public
Why does the right of the public to enjoy reasonable access to all businesses that hold themselves out as open to the public only apply to inns and common carriers?
1) Inns and common carriers are more likely to be monopolies than other businesses so denial of service is denying the ability to travel or to find a place to sleep
2) Necessities
3) Hold themselves out as ready to serve the public
What is Section 1981 of the Civil Rights Act of 1866?
prohibits racial discrimination in the making and enforcement of contracts, and it applies to both private and public contracts
What is Section 1982 of the Civil Rights Act of 1866?
prohibits discrimination in the ownership, use, and transfer of property.
What is Title 2 of the Civil Rights Act of 1964?
It prohibits discrimination based on race, color, religion, or national origin in public spaces that affect interstate commerce
What is Texas’ policy on public beaches?
Texas supports open beach access to public beaches through the Texas Open Beaches Act
What is Texas’ policy on private beaches?
Private owners have the right to exclude unless certain common law doctrines apply
What is dedication?
a gift of real property from a private owner to the public at large that requires an offer by the owner and acceptance by the public (overturned)
What is prescription in terms of beach access?
if the public has used property possessed by another for a particular purpose for a long time, the public can acquire such rights permanently even if they never had those rights to begin with or were reduced to private ownership
What is custom?
The public can acquire rights to the beach if it is used in a widely accepted manner by the community for a long time
