Property Definition, and Essential Sticks Flashcards
Property
rights in some thing enforced by someone other than the holder of the rights
Who is the enforcer?
The legal system (Court, Executive, Administrative agency)
What are the “things”?
Tangible things (physical)-
Land and things attached to land: realty; Movable things: personalty
Intangible things-
Images, persona; sometimes broadcast spectrum rights; Intellectual property (patents, copyright, trademark)
What is a “bundle of sticks” and what specifically are the sticks?
A “bundle of sticks” are bundles of rights:
- rights to lease or sell these rights at your price
- right to make some economically viable use of the thing
- right to do anything not prohibited
- the right to ignore your rights and do nothing at all
- the right to exclude
- the right to not be excluded
State v. Shack
What happened?
What was the holding?
Courts reasoning?
In State v. Shack NJ 1971, Shack and Tejeras worked for federally funded not-for-profit corps attempting to aid migrant farm workers. Tedesco refused entry. Both were convicted of trespass, and appeal.
Their convictions were overturned. Tedesco had no right to exclude Shack and Tejeras
“defendants invaded no possessory right of the farmer-employer”
What are the 3 exceptions to the “stick” of the right to exclude others?
- Police and fire fighters in emergencies.
- In some states strangers could enter unimproved and unfenced land.
- Property owners do not have the right to refuse access to individuals providing government services to workers who are housed on the property. (from State v. Shack)
- In State v. Shack, what would be the implications if Tedesco could exclude?
- What are the implications if Tedesco cannot exclude?
- Workers are less likely to get help
2. Tedesco loses privacy, and the workers may also lose some privacy
What is the paradox between property rights and the state?
Property rights are helpful in keeping the state from being too strong. However, a strong state is necessary (but not sufficient) for property rights.
According to Loretto v. Teleprompter Manhattan CATV Corp. (1982), when does a taking occur and what is the relevant constitutional provision?
Laretto v. Telepromptor (1982)
- A “permanent physical occupation” is a taking per se.
- 5th Amendment: “nor shall private property be taken … without just compensation.”
What are the 3 things that are not relevant to whether a taking per se occurred?
- The importance of the government interests is irrelevant to whether there is a per se taking.
- The value of the harm is irrelevant.
- Whether the action was within the police power is irrelevant.
What is a “taking per se”?
When the government permanently deprives the owner of an essential stick or fundamental attribute of property
What does “De minimis non curat lex” mean?
This means “the law does not cure minimal losses.”
Is property taken within the meaning of the Fifth Amendment by a direct and immediate interference with the enjoyment and use of private land that renders it uninhabitable?
Yes. In U.S. v. Causby (1946), the court found that the low and frequent flights were the direct and immediate cause of a diminution in the value of the land.
May a permit condition constitute a taking if there is not an essential nexus connecting the imposition of the condition to a legitimate state interest in solving a problem related to the development?
Yes. In Nolan v. California Coastal Commission (1987), it was found that the government can’t create a condition for issuing a building permit, such as requiring the builders to create an easement for the public to pass over their property to get to a public beach.The government can place such a condition ONLY IF there is a “proportional connection” between the conditions and the impact of the proposed development (Dolan v. City of Tigard (1994)).
Do rent controls constitute a physical taking?
No. Yee v. City of Escondido (1992)
