Part One: Exclusion & Access Flashcards
What are the rights that go along with ownership/possession of property?
possess
exclude
alienate
use
enjoy the fruits/profits
to destroy
What does the Law of Trespass define?
It defines and protects the owner’s right to exclude
Define Trespass and a requirement of it
unprivileged intentional intrusion on property possessed by another
Intent requirement meaning the defendant engaged in a voluntary act
not necessary that the trespasser intended to violate the owner’s legal rights
Mistaken entry on the land of another does not relieve the trespasser of liability
What is an intrusion
an intrustion is when a non-owner enters the property and occurs the moment the non-owner enters the property
When is a trespass privileged?
the entry is done with consent of the owner
the entry is justified by the necessity to prevent a more serious harm to persons or property
the entry is otherwise encouraged by public policy
What case shows us a privilege of access based on public policy?
State v. Shack
RoL: The ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property.
Holding: Tedesco’s rights in his land did not justify refusing access to Tejeras and Shack when their aim was to provide aid in private to the migrant workers who were housed on the land.
Once you invite people onto your property you give up some of your rights
the tenant has a privilege to welcome visitors into their living quarters and the landlord has no right to deny those visitors/to exclude
What is an injunction?
Injunctions are available to remedy trespass where the trespass is continuous in nature.
It is considered continuing when someone is personally present on the land of another or where they leave some object on the land.
Sometimes if it’s so repetitive as to cause an unfair burden on the landowner the courts will grant an injunction.
Which case answered the question of whether restoration damages permitted in a trespass case involving cutting down trees on another’s property without permission?
Glavin v. Eckman
RoL: A judge has broad discretion in trespass cases to determine the appropriate measure of damages, including reasonable restoration damages, particularly where the property in question is unusual.
Holding: Restoration damages are permitted where damages measured by the value of the trees cut, or by the diminution in market value of the property affected do not preserve justice.
Takeaway: Courts can expand remedies as they see fit, and may expand to deter (a utility argument)
Which case did we analyze to focus on the “right to exclude”?
Jacques v. Steenberg
Jacques have a right to exlude and Steenberg has a duty to respect that right
Jacques have power in respect to their property and power to create with their property
Liability is on the rest of the world, we are liable to exercise of that power
What are eight basic kinds of legal rights?
Entitlements: RIPP
Rights
Immunities
Privileges
Powers
Negations: NDDL
no-rights
duties
disabilities
liabilities
what are rights claims?
enforceable by state power, that others act in certain manner in relation to the right holder
what are privilege claims?
permissions to act in a certain manner without being liable for damages to others and without others being able to summon state power to prevent those acts
What are Power entitlements?
state enforced abilities to change legal entitlements held by oneself or others
What are immunity entitlements?
security from having one’s own entitlement changed by others
What is a no-right negation?
one does not have the power to summon the aid of the state to alter or control behaviors of others
What is a duty negation?
the absence of permission to act in a certain manner
what is a disability negation?
the absence of power to alter legal entitlements
what is a liability negation?
refers to the absence of immunity from having one’s own entitlements changed by others
What are the jural correlatives?
Rights-duty
Privilege-no-right
Power-liability
Immunity-disability
anytime the state confers advantages to some citizens it changes the situation of others
How are jural correlatives useful in analyzing property rights?
- They serve as a reminder that legal rights entail relations among persons
- These concepts help disentangle bundles of rights into their constituent parts
Civil Rights Act of 1964, Title II §2000a
Prohibition Against Discrimination or Segregation in Places of Public Accommodation
race, color, religion or national origin
However such accommodations shall NOT apply to a private club or other establishment that is not open to the public
Civil Rights Act of 1964, Title II §2000a-6
Assertion of rights based on other federal or state laws and pursuit of remedies for enforcement of such rights
List the case where the privilege of access prevailed over the right to exclude?
**Uston v. Resorts International Hotel
RoL: An individual has a right of reasonable access to property open to the public.
Holding: Resorts may not unreasonably exclude Uston from its casino and the reasonableness of a decision to exclude an individual must be determined on a case-by-case basis
the right to exclude for a quasi-public property (hotel) becomes limited because you are expressly inviting the public in
the court decided to interpret its common law as limiting a landowners right to exclude when they are running a business for commercial purposes that was open to the public
Check-in: What is property law all about?
property is about allocating interests in the face of competing claims
What type of arguments can we make?
Fairness: rooted in interests, justice, equality and what obligations we have to one another
Utility: how does the outcome affect social welfare, how does this outcome incentivize future behavior
Institutional arguments:
who is better situated to handle these claims, judges, juries, legislation?
Administrative ability arguments:
a black-letter rule is more predictable but more rigid
a standard is less predictable but more flexible/reasonable
Rules v. Standards
A rule crumbles when a judge can’t live with the consequences with strict adherence to it
Rules do not determine the scope of their own application, judges need to exercise judgment in deciding whether a rule applies in a given context
Standards can turn into rules when further defining the standard into a rule
Which case did we discuss represents the difference between a rule and a standard?
Matthews v. Bay Head Improvement Association
RoL: The public must be afforded reasonable access to the foreshore under the public trust doctrine.
Holding: The public must be given access to and use privately owned dried sand areas as reasonably necessary.
This is a standard of reasonable access
What is the doctrine of Dedication?
Dedication involves a gift of real property from a private owner to the public at large
must show clear evidence of an intent to dedicate the land to public use by the property owner
What is the doctrine of prescription?
similar to adverse possession but an prescriptive easement does not grant full ownership of the land, only a limited right to use it.
Why weren’t prescriptive easements allowed to the public back in the day?
a. it was difficult to show continuous use by the public at large
b. prescription might apply only to the particular tract of land at issue in the case, necessitating cumbersome and expensive litigation about every disputed parcel along the oceanfront
c. when private land is used by the public, courts may infer that the use was permissive, thereby defeating an element needed for prescriptive rights to vest
What is the doctrine of custom?
acquiring legal rights over property based on long-standing practice, custom focuses on community norms that can become legally binding
Rule Reminder
Rules do not determine the scope of their own application
Judges need to exercise judgment in deciding whether a rule applies in a given context
