Property Law Flashcards
1) Why should we recognize property?
To avoid conflict, we do not want people fighting.
2) What is (and is not) property?
Important: to recognize that property is not the thing itself property is the rights attached to the thing. So I have rights. There are limits on my rights, so I can’t do whatever I want with my property my rights are limited. It’s not the thing itself
Property can be represented as metaphor of a “bundle of sticks”
help you see the BIG PICTURE_. These topics are connected by shared RIGHTS.
what are the shared RIGHTS AND DUTIES or property law?
Possession, control, enjoyment, exclusion and disposition (need to confirm this)
BLACK LETTER LAW seems to have not connection to: these 3 things?
- Theory 2. Policy 3. And history
black letter law
- is the law 2. it is clear 3. It’s the law that we accept 4. they are broad common law principles
black letter law. (2)
They are the things that you have to memorize because you have to cite them precisely on your midterm in your final.
the History and Theory of property
influential in Property. political theorists to talk about the theories behind property. Some of those theorist are incredibly powerful.
theory of property
understanding what drives somebody’s ideas that ultimately influence either case law or Legislature’s is really important.
Property: Theories 1. first in time
i see it, therefore it is mine
Property: Theories 2. Economic or labor theory
predominant in the late 20th and 21st century. How do we make property to make more money. How do we use property in order to make everything economically or judicially efficient.
Property: Theories 3. Utilitarian theory
provide the most happiness, along with economic or labor theory economic utility theory is also been predominant. And I’d say the last hundred years we measure that happiness and that efficiency through dollars. We’ve been taught that there’s no other way to measure efficiency, other than money. (which is not true)
Property: Theories 4. democratic theory or civic republican theory
futile origins. It did evolve in America. Civic republican theory is tied to institutional or systemic racism and sexism in this country. The only people who could own land were white men. Therefore, white men were preserving all the power within themselves. The theory wanted those people who are preserving the power to be invested in their own government. So it’s important That if people own property they are going to be invested in their government because they’re going to want to keep the government out of or away from infringing on their property rights, but it has deeply problematic origins.
Property: Theories 5. personhood theory.
highly relevant in personal property. So I’m a widow and I usually bring in my engagement ring. No amount of money could replace my engagement ring.
Natural Law
natural law is generally outside of culture, something that’s considered right or wrong (all cultures should know that murder is wrong). regardless of culture, history, or geography, know some things are wrong. This is…. Some things are just absolutely wrong. Murder is wrong. these laws DO NOT APPLY TO PROPERTY LAW.
LEGAL POSITIVISM,
which is the government decides through the culture decides what should be regulated by law, and that is what is enforced.
Why recognize private property?
Reduce conflict (First possession/first-in-time, Utilitarian-Social Good all look to reduce conflict), all do this
why a general overview of property
- big picture first, overview 2.these theories get much more complicated as we do the narrow dive into substantive law 3.different theories or as much of the theory and the history and the policy that we can give in a broad overview it does help you understand how they play out when we get into the narrow areas.
Pierson v. Post FACTS
-post organizes a fox on abandoned property, Pierson interferes and takes the fox. That’s it.
Why is this case relevant? IMPORTANT (pierson v. post)
It’s relevant because it tells you a lot about the evolution of law.
legal formalism (pierson v. post)
No laws existed, if you formally apply these ideas come straight coming straight down from the heavens, then you’re going to naturally come to the right decision. We have long since moved past legal formalism,.
Why do the authors resort to ancient legal theory (pierson v. post)
first impression, There is no case law, there is no precedent.
Pierson v. Post What is the issue in this case? IMPORTANT
is pursuit enough for ownership or must ownership require possession
Pierson v. Post, What legal theories are at work here (hint there are two)
first in time in conflict with - Economic labor theory
Pierson v. Post,, holding from this case?
The Holding here is that that you it’s not enough to just chase. It’s not enough to just invest in going after you need more than that
rule of capture (from pierson v. post) important)
“deprived of his natural liberty and brought him within his certain control.”
define certain control,p pierson v. post
means it’s not going to get away from you, mortal wounding would be something that deprives of natural liberty, but these things are less than full possession.
recognize property by creation
This is where the law is going. This is where property is being created non stop. Intellectual property, plus constitutional protections.
what are the categories of Property by Creation
- Copyright is protected , Copyright is protected and under Article one, Section eight of the Copyright Clause. 2. Trademark protected, trademark is protected by the Commerce Clause, 3. Patent 4. right of publicity
Patents
Patent is a limited duration property right relating to an____7 or_14 or 21_____depending on what it is, in exchange For complete control for your idea. Very high threshold for patents are highest level of protections .
Copyright:
copyright protection is recognized in the Constitution, but it’s not the idea that gets the protection. It’s the expression. It’s the physical embodiment of the idea easier to get copyright protection, basically you get copyright protection. Whenever you create something, whether you register it with the copyright office or not, but the type of protections. You get are relatively meager Copyright protects works of
- trademark
is the most tricky. Of the three. So, it identifies and distinguishes the source of goods. when a name becomes diluted. It’s generally referred to as Whatever the machine does or whatever the thing does it no longer gets trademark protection. So you get higher protection
- right of publicity
it’s the exclusive right to license and use the identity for commercial promotion. right of publicity has wildly different standards in different states.
White v. Samsung: The Kozinski Dissent
Kaczynski very broadly says that when we reduce, Too much in the public sphere to private property. We’re depriving everybody because basically at this point in society. We’re all standing on the shoulders of giants.
vanna white, common law right to publicity, WHY did the court expand the claim?
- they don’t want to constrain people from marketing their identities for money. 2. the court doesn’t want be somebody who is really smart who finds a clever way around that and does something that gains.
vanna white, common law right to publicity, HOW did the court expand the claim?
The court references Carson v. Hers’s Johnny portable toilets. Which is not a binding precedent, because that came out of Michigan and this case is coming out of California, but they borrow that persuasive authority and they borrow from a treatise (A legal treatise is a scholarly legal publication
vanna white case- the common law and the statutory law look the same?
the common law right of publicity. They are slightly different than the statutory right of publicity. But what is critical here is that they are interpreted very differently.
What is legal positivism regarding property
- In property nearly all of the law is legal positivism. The land. It’s almost entirely governed by legal positivism, the government, because property, especially real property rights are largely driven by culture and the government reflects that culture. We have a European view.
How is property by creation different from other types of Property?
-property by creation is infinite. It’s Anything that human beings. Come up with it’s generally thought of within the right within the roles of patents, copyrights right of publicity and trademark. -it’s different than real property because there’s only so much Earth
Johnson v. M’Intosh: is the foundation of what?
Legal Positivism
What are the bundle of sticks/rights covered in Johnson v. M’Intosh
-They are: 1. right to transfer, 2.the right to exclude, and the 3. right to use (occupancy)
general information about M’Intosh and why him?
Mackintosh is a Fraudulent plaintiff. He was chosen by the government to bring this case. This case needed to be brought so that the government could establish that anybody who had received Their land directly from a Native American tribe did not have proper title,
general information about M’Intosh and why him?
if johnson won the case there would be title lawsuits all over the place. titles were coming from the government and native americans. but the government is trying to establish its legitimacy at this time. remember in 1820 the government’s still very young. they’re trying to get rid of all of this conflict and say this is the United States
what is the issue in Johnson v. M’Intosh
I had does the absolute title to the land belongs to the natives, or to the United States government.
WHO has rights in “___conquered______________________” land?
Those rights and lands vest when the United States became independent of Britain, the conqueror gets the land.
how to we acquire land
how do we get land rights is it from sale or is it have to be from the government?
what is the holding in Johnson v. M’Intosh
Macintosh holds title to the land, pursuant to the right for the government to transfer (not as important compared to the broad implications of this case)
what is the broad implications of in Johnson v. M’Intosh
Rules are bigger than the holdings, the holdings are very fact based, Rules are broader rules are taken from the holdings. see RULE
what is the rules (2) of in Johnson v. M’Intosh
- Johnson v. Macintosh and the first one is absolute title cannot exist in at the same time, in different people. What that means is you cannot have competing title, there has to be one title 2. The second rule is that the government holds absolute title over conquered lands, the government holds absolute title over conquered
how does M’Intosh build off Pierson v. Post
- Johnson builds on Pierson because they both are working from the position of first in time and conquer. 2. the difference between Johnson and Pierson and you can say that this is a difference between real property and personal property. 3. they didn’t require either Johnson or Macintosh to be doing anything with the land, whereas Pierson says you must have actual occupancy. You must be you must Have certain control so it can’t get away. 4. Pierson, personal property required a higher standard of use
what is a freeholder page 179
freeholder is someone who holds title to land.
what are the 5 property theories
- first in time. 2. economic theory 3. utilitarian theory 4. democratic or civic republican theory 5. personhood
What do we know about the law regarding the sale of human body parts after Moore?
- a person who is allowed to sell body parts that like regenerate. - the law is still really unclear, because it’s not the law is lagging behind the science, not in front of the science - if a body part is removed, you do not have rights to that body part. Once it is removed, there are some exceptions.
Compensatory damages?
compensatory damages are more common and most standard. Given to be compensated when you have been injured, or for whatever the loss you’ve suffered. Think someone hit your car you need it fixed.
What are nominal damages?
are only awarded for the infraction of a legal right when you don’t have loss. - So why do we have nominal damages at all because sometimes it’s very important to establish the legal right or that you were wronged under the law. usually $1.00 think Taylor Swift case
Punitive Damages?
awarded in addition to compensatory damages. when D has acted with recklessness malice or deceit, used to punish. meant to deter wrongdoing.
do we want to enforce the right to exclude when there is no damages
if we want as a society to protect the right to exclude we want to protect people’s rights , in steenburg it was economically advantageous for them to make a bad decision.
This is an exception to the general rule of punitive damages with no compensatory damages
trespass in the right to exclude are an exception to the general rule, if you get nominal damages, you can use this exception to get punitive damages
right to exclude
We have the rule –> then we have privileges to the rule (1. Consent, 2 necessity (a. private, b. public) –> then we have exceptions in the shack case
Shack v. State important info
- Under our state law, the ownership of real property does not include the right to bar access to governmental services that is the part that is really important. The fact that they are under a government mandate. - Hence, there was no trespass under the meaning of the penal statute. - they are implying a right to access land. It is an implied right to access land. Migrant workers must be allowed to receive visitors there of his or her own choice, so long as there is no behavior hurtful to others, and members of the press may not be denied reasonable access to the workers do not object to seeing them.
Case of first impression?
- first impression is an issue that has not been seen by the courts before and therefore the courts are the first to decide on that particular issue.
Jaques v. Steenburg
stands for the absolute right to exclude
Evolution of law property
Right to use was = value of land was in its use for (farming, tenancy, protection) Custom è the created common law (codified customs) è then statute (codified common law)(see MA)
manifest destiny
17th, 18th and 19th century America farming tendencies protection. All of that was wrapped up into the value of land in the right to do with it what you wanted.
property law today
you want to look to the statutes. If you have a question about how land is protected or what rights you have in your land. Second (then) look to the common law because the statutes are very well developed in this area. Owners still have enormous broad rights to use their land.
problem with subjective intent
Whenever they have any standard that includes subjective intent, the court has to try to get into people’s heads, who’s right here who’s actually spiteful who do really rise to that level of maliciousness
private nuisance
- Action must be intentional. 2. It must be non-trespassory - it means that whatever action is taking place. It’s happening in the defendants own yard their own space. 3. it has to be unreasonable. - The unreasonableness is the most contentious elements of private nuisance. For now, just know that the third element is unreasonable. 4. substantial interference - whatever is happening in the defendants property must create a substantial interference to the plaintiff. 5. Must affect the use and enjoyment of plaintiffs land: - it cannot simply be that it exists. And it bothers you, it must affect the use and enjoyment of plaintiffs of land.
Eyerman vs. Mercantile Trust a look at the private nuisance elements
- Action must be intentional. 2. It must be non-trespassory- the destruction is non tresspassory 3. it has to be unreasonable. core of this issue is, if the substantial interference is unreasonable. 4. substantial interference- it is a substantial interference with the neighboring houses. They are afraid that it will create a new entryway into the area and reduce their property values by close to 25% if the average value of all of the houses $40,000 at the time. 5. Must affect the use and enjoyment of plaintiffs land.
Eyerman vs. Mercantile Trust dissent
Why is the dissent important to this case? What did they say, what is the descent feel about the public policy argument of the majority? - he particularly finds problems with the public policy argument - the dissenting judge brings up that it would cause questionable legal precedent. Like, you can’t prove that the like. If alive she could just have her house torn down. No problem. So what’s the difference when she’s dead. - the dissent also finds that this public policy is wispy and ill defined. - The court failed to stick with the fact that what the plaintiffs brought is not discussed
side notes to Eyerman vs. Mercantile
Note: so you can do more with your property in life than death. And that is still an issue that is being questioned in the courts. The broad policy that unites these cases- “you may not do whatever you want with your property” your rights to your property have limits and those limits are generally how much you can harm your neighbors
Trover
- recovers the value of an item, but not the item itself.
Replevin
you want the actual item back
the law uses title in 2 different ways
Law uses title in two different ways. 1. as an indication of actual ownership, 2. also referred to title as the entire bundle. (finders?)
title in reference to finders
in finders the title is relative not absolute. You can split the paper title from possession. the finder has possession (some of the bundle) only . the owner has absolute title, the whole bundle of rights
what does possession give the owner
A rebuttal presumption of ownership- means the rightful owner could still rebut the presumption. (in court)
finders and capture are linked
Abandoned property is the link between the two.
test questions for finders,
-Usually only prima facia cases but you will see precedent cases again for finders - On an exam discuss what category that the item belongs (lost mislaid or abandoned). - And realize that it’s incredibly rare that it’s going to be clear cut. Almost always, you’re going to want to talk about at least two and maybe all three categories. “I am choosing this item as falling into lost (mislaid or abandoned) because” and explain all the facts that tell you that it is more like lost (mislaid or abandoned) and list all the factors that explain lost (mislaid or abandoned), which category and why. (public or private, you need to determine YOU MUST DISCUSS THE ROLE OF THE FINDER) if you’re in a weird place realized that the law is constantly evolving. So when we get to finders the law has evolved to decide. There are places that are private but have public spaces and those are different than public or private • 01:25:07discussed how the space that you’re talking about on the exam falls into one category better than the other. Don’t get flustered by the ambiguity. This is why Staffordshire is so important to know , if you are an employee, whatever you find is in control or possession of your employer in less your employer. Says you can have it.
what affects property
-location- where found -state of property- new v. old type of property can change from where it is found, my VW engine was in my yard, they it was in the street. what happened, someone claimed it.
A buys a safe at auction and asks B to sell it a garage sale. B is showing the safe. Find a wad of cash stuff between the inner lining in the metal wall. Who should have it in why
-because a was never aware of the money. So he never knowledge of it. peel v. hannah. -in lindner aviation the money went to the bank -So because b was the possessor of the safe in why had no knowledge of its existence the cash was originally lost or abandoned, but not mislaid 01:34:13The Court distinguishes the actions of an agent from an employee.
why is death a problems with a conditional gift statutes?
Death is a problem with a conditional gift statute because the there has never been a case on this it they’ve all been settled out of court. - -If the donor dies. The donor is not there to complete the condition. - Court hasn’t dealt with that and it’s a problem with conditional gift statutes, is there so many holes in them. - The thinking is, we should move away from conditional gifts, because they are so complicated. In practice, and you’re dealing with people with a lot of emotions.
How does gift casui mortis it differ from an inter vivos gift?
1 element that is not listed about, the inter vivos gift it is not revocable at any time up to death for any reason. On the other hand, gift Causa Mortis is revokable at any point up to death for any reason.
leaseholds modify
the right to exclude. - The lease separate who holds title from who has possession and modifies that right to exclude. - Owner return is governed by statutes both federal statutes and state statutes, they will tell you when an owner may return and who they may exclude.
governance capture cases where there is illegal interference.
pre-possessory interest
gives up some rights against subsequent possessors but it does not give title.
a qualified right to possession
limits how much Popov would apply in other cases.
custom
ASSIGNMENT
more preferable to LL
deep pockets can sue both T1 and T2
Requirement: T1 gives away ALL his rights in the land to T2
T1 and LL will remain connected by privity of contract, (unless novation, novation is a separate contact between T1 and LL. To break The original lease)
T1 and T2 have privity of contract (there should be a contract between T1 and T2 setting out their relationship is. And T2 and LL have P of contract)
T2 and LL have privity of estate (even if there is not a written contracts between T2 and landlord, they still have a relationship. And it’s a relationship that can be the basis for a lawsuit)
If T2 breaks lease, LL can sue T1 (through privity of contract) or T2 (through privity of estate(
ii. SUBLEASE:
T1 plans to come BACK to the land. Can be 6 months, 1 week, or 1 minute=T1 only needs the ability to come back for transfer to be sublease, not assignment.
T1 has privaty of contract and estate with LL (none are broken)
T1 and T2 have privaty of contract and estate
T2 and LL have no relationship
