Transcript
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    Property Synthesis

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    PROPERTY: WHAT IS PROPERTY?

    WHAT IS PROPERTY?General Rule:Property rights serve human values. They are recognized to that end, and are limited by it(i.e. the law has to work for us in a practical sense

    to reflect the things that we care about)

    y Because property rights are relational, among people not people and things,they are not absolute.y Property rights, as abundle of divisible entitlements, include the right to: (1) exclude, (2) transfer, (3) occupy, (4) destroyy Property rights can beheld in a variety of forms granting the right to possess, use and enjoy different aspects of a determinate thingy Legal obligations to others are incurred with the assertion of property rights.y Property rights are limited to ensure that property use and ownership do not unreasonably harm the legitimate, legally protected personal or

    property interests of others.

    WHAT IS PROPERTY?:Tensions in Property Law

    Rule: property entitlements are limited in a manner which ensures that the exercise of a property right is compatible with the property and personal

    rights of others

    1. Exclude v. Access: y Property owner has a right to exclude however non-owners retain a right to access property under exceptional circumstances2. Privilege to Use v.

    Security of Harm:

    y Property use may make others vulnerable to the effects of that use however people within proximity to the property have aright to be free from certain harms

    y Economic theories of property law seek the most efficient solution to these competing interests3. Power to Transfer v.

    Power of Ownership:

    y Right to devise or convey property to person of your choosing may be limited by contractual agreements4. Immunity from Loss v.

    Power to Acquire:

    y Right to not have property taken is balanced against the governments power to take your property for federal usage. Noproperty owner is guaranteed to be immunized from the depreciation in value on their property, in general.

    WHAT IS PROPERTY?: Recurring Themes

    Social Context Matters in defining property rights

    Alienability Dilemma The ability to transfer; tension between promoting alienability through:

    (a) the consolidation of rights in owners and

    (b) promoting alienability by allowing owners to disaggregate their rights into unique bundles constructed by them

    Contractual Freedom Minimum Standards which may be placed on the freedom to contract

    Social Welfare granting owners power over property which ensures they can obtain resources to satisfy human needs

    encourages productive activity by granting security to those who invest in economic projects

    Justified Expectations To insure that peoples expectations are metalways look at expectations with property

    expectation of deriving certain advantages from propertyand the relation in which one stand in light of that property

    Distributive Justice Idea that property is power and that a redistribution of property is a redistribution of power and wealth

    Property is one of many forms which wealth takes, and involves the right to control tangible assets. Who is helped and who is harmed?

    WHAT IS PROPERTY?: Normative Approaches to Property Law

    1. Indian Conceptions of Property: y Based on communal understanding of law in which the land is considered sacred2. Positivism and Legal Realism:

    (Comes up a lot in the semester)

    y Law is separate from morals; Law is not from the divine but rather the commands of the sovereign promulgated forpublic policy reasons

    y This paradigm conflicts with Natural Law theory3. Rights Theorists/Justice and

    Fairness:y An individual interests that is so important from a moral point of view that it deserves legal protection which

    trumps overriding general considerations of public policy

    y Rights so rooted in the nature of human beings or so rational from a moral point of view that a particular individualinterest is fundamental

    4. Utilitarianism/Social WelfareAdvocates:

    y Looks at consequences of law and chooses that which has the best consequences overall for societyy Seeks that most efficient approach in order to maximize the its positive effects and minimize any negative effectsy Compare the costs and benefits of alternative property rules or institutions with the goal to adopt rules which will

    maximize social utility or welfare

    5. Social Relations: y Property rights are relations between people not possessionsy Maintains that property rights can only be understand in relation to people and how they act interact with one

    another

    y Legal realists: interpret property rights as delegations of power to individuals by the state which therefore should bedefined so as to accommodate conflicting interests

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    PROPERTY: METHODS OF ACQUISITION

    General Rule:y Generally the right to property is acquired by (1) contract, (2) familial relations, (3) social custom, (4) claim based on possession or labor and investment,

    (5) receipt from the government, or (6) conquest

    y These paradigms usually function as mutually exclusive and competing grounds for claims to the Original Acquisition of Property

    Methods of Acquisition: Conquest and Distribution by the Sovereign

    Doctrine of Discovery:

    I. Rule: Absolute title rest with the discoverer of the land and not the indigenous inhabitants that resided there at the time of the discovery. The rightto transfer is separate from the right of occupancy that is held by the indigenous inhabitants. Therefore, the United States, as the successor to

    English control, is the exclusive sovereign. Titles which descended from transactions with Indian nations do not supersede US title.

    II. Case Application:Johnson v. M'Intosh(pgs. 4-13): Dispute over landpurchased by Johnson from Indians and which MIntosh bought from the United States

    Analysis:

    y BecauseIndians were savages wandering the land and notusing it according to European custom they gained no property interest in theland beyond the right to occupy. Native Am. did not mix their labor with their land and parceled out, so they did not possess their land

    according to European standards.

    y Justice Marshall determines title to the land by looking at the law of the state that governs the dispute (positive law, law that actuallyexists) and NOT abstract justice (natural law, questions of morality, objective fairness).

    y This case is significant because it establishes the theoretical framework for American property law which is a shift from natural law theoryto positive law.

    Holding:

    y Native American retained their right to occupy but NOT transfer land.

    Doctrine of Discovery y Title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily usedto support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.

    Abstract Justice or

    Natural Law

    y There is a law above that which man has created which cannot be changed by manRight to Occupancy y Right to use the land; tribes retained the right of occupancy however the power of transfer and alienability was assumed by the

    Discoverer or Conquestor

    Right to Exclude y Allowed to subject others to the right of the landAboriginal Title y i.e. effectively right of occupancy;Retained right to occupy and exclude after discovery however no right of alienation

    Indian Land / Title y Today, Land is held in trust by the government while tribes retain right to occupy and exclude; tribes may only sell their right ofoccupancy to the discovering sovereign but they cannot transfer and have alienable rights to it.

    Methods of Acquisition: Capture

    Acquisition of Property:

    How do we get property?

    1. Conquest:(Johnson v. Mcintosh-conquering

    another countr )

    5. Government grant:(Johnson v. Mcintosh- indian

    land)

    4. Social Custom:(Pierson v. Post-hunting fox)

    3. Familiar Relation

    6. Transaction/Contract

    2. Labor/Investment:Very strong in American property

    philosophy

    (Johnson v. Mcintosh)

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    Possession:

    I. General Rule:Possession creates a presumption of ownership which puts others at a disadvantage if they intend to acquire it from the possessory Sub-Rule:Possession requires that the possessor have both (1) physical control overthe item and (2) an intent to control/exclude it from

    others.

    y 3 ways in which Possession Rights can be formed:a. Social Custom: by culturally contingent factors such as social custom, hard law, precedent, formal codified law (many factors may be

    used when there is no rule that governs the circumstances)

    b. Corporal (occupancy) Possession: the clearest form of possession; the actual possession of an itemc. Law of Capture: demonstrate an (1) unequivocal intent to appropriate for ones individual use; (2) through legitimate means (3) to

    bring under certain control the common resource available to the parties.

    Depriving animal of actual liberty; mortal wounding is sufficient to establish certain capture a reality of hunting, immediateremoval may not be possible

    Labor and pursuit is INSUFFICIENT to establish right over property Unreasonable waste of resource from negligence doesnt qualify as capture (Elliff v. Texon)

    EXCEPT: When Trespassing and Capturing.A hunter on anothers land as cannot retain possession of an animal killed on anothers land without

    the consent of the owner if they are a trespasser and the land owner has asserted his right to the property

    POLICY: this is the best rule for sake of certainty and preserving the peace and order of society

    II. Case Application:Pierson v. Post (pgs. 76-79):Occupancy Hunter Chasing Fox Case Pursuit is not sufficient to establish possession. Only if hunter mortally

    wounds an animal with the intent to possess it does possession apply.

    RULE: Property is acquired by occupancy only

    ANALYSIS:There must be a deprivation of the animals natural liberty to establish occupancy which can only come about by awounding (to the point where animal cannot survive on its own or capture is virtually certain) or capturing an animal

    If animal is in the process of being entrapped, and the door has not snapped shut, it has not been capturedMAJORITYS POLICY RATIONALE (Pierson Rule):Possession is given to the person who actually obtains occupancy of animal. This

    rule would create more certainty and preserve peace and order in society with less litigation costs. This is intended to reward the

    effective and successful individual and not just the individual that attempts. (First in Time)

    y Intended to reward results, success, not necessarily the individual that triedDISSENT: (Post Rule) anyone who has a reasonable prospect of taking (capture) should be the possessor.

    y Dissent feels it should have been decided by the social customs of hunters and NOT case law.y Rationale:greater emphasis on fairness Post may have been successful because fox was tired. The benefit should go to the

    individual who acts without a guarantee that their effort will lead to results rather than the free-loader. Because he mixed

    his labor with the activity and this would incentivize fox hunting. (Duty of Sportsmanship)

    POLICY: when arguing for either side concepts to be aware of are the level of certainty and incentive that would be created based on use of

    the rule of capture (versus another-like pre-possessory interest), questions of fairness (first to invest labor, etc.) or moral duty,

    significance of labor investment, etc.

    Equitable Division/Pre-possessory Interest:

    What Does Possession Require??

    i. General Rule: If more than one party has a valid claim to a single piece of property (both innocent parties, neither unlawful) the courtmay recognize that there is an undivided interest in the property in proportion to the strength of the claim. If neither party has a stronger

    claim then equitable division is used.

    y Possession Interrupted by Unlawful Acts: Where an actor undertakes significant but incomplete steps to achieve possession of apiece of abandoned property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-

    possessory interestin the property. (Court has created a property interest for Popov)

    ii. Case Application:Popov v. Hayashi (pgs. 79-82): Baseball hit by Barry Bonds was caught by Popov who was then tackled to the ground where the ball

    was dropped and picked up by Hayashi; Neither men were wrong-doers in the case ANALYSIS: The rule of capture established in Pierson v. Postonly applies to animal cases because it is physically possible for a

    baseball to be controlled vs. a fleeing animal, custom creates an expectation that a person must have complete control before

    claiming full possession. Court rules that P had a legally pre-possessory interest in the property while the D had the

    HOLDING: Both men have a undivided interest (each has a right to the entire ball and it cannot be physically divided) therefore when

    the ball is sold proceeds will be divided equally

    iii. Compare: Pierson v. Post and Popov v. Hayashi; in Post, the was not interrupted by outside unlawful intervening event and thereforehis right of possession based on labor was insufficient to trump the right of actual possession, however in Popov v. Hayashi was

    disturbed inappropriately and therefore his labor granted him a pre-possessory right equivalent to that of actual possession

    Correlative Rights Doctrine-Under the Law of Capture:rights of land owners are correlative to eachother and no liability will exists to the other if the property is

    gained through reasonable and legitimate means.

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    i. General Rule:If each party has an equal right to acquire or access a resource from in a common source that is able to migrate legalaccessible to all parties, the party that has captured the resource in a reasonable and legitimate manner is the owner. This theory

    rewards actual possession but limits by (1) a prohibition of waste of the resource (reasonable use) and a (2) duty to not harm others.

    a. JUSTIFICATION of Rule: Courts create liability for the wasteful capture of property to an agent with pre-possessory property right in n thatsame property if the property is a limited resource and the interest exists to benefit the greater society.

    Background Rules:o Mineral Rights (Right to Exclude v. Right of Access): Each owner of land has a separate, distinct and exclusive right to all

    the oil and gas under his land because they are considered a part of the realty. Owner has usual remedies against

    trespassers that appropriate minerals or destroy market value

    ii. Case Application:Elliff v. Texon Drilling Co., (pgs. 83-87):Parties had adjoining property on which each operated oil & gas wells; Because oil and gas is

    migratory, move back and forth underneath the earth, it makes it impossible to establish a rule of absolute ownership. Ds well blew

    up destroying resources underneaths Ps land. Ellief is a compromise position between (1) doing whatever you want and (2)

    absolute control of ownership

    ANALYSIS: Court rejects Louisianas precedent bc its an archaic rule that doesnt account for new technology that allows

    land owners to measure resources beneath the earth. Louisiana also uses the law of capture for minerals bc of the

    uncertainty of knowing under whose land the resources was located. Court applies a caveat to the rule of capture to

    promote efficiency and fair dealings, which states

    HOLDING:Texon can legally withdraw as much gas/distillate by use of its own well as is possible, even if this means taking

    from underneath Ellifs property. Drainage from a common pool is okay as long as the drainage complies with the spirit

    and purpose of conservation statues and the removal is reasonable and legitimate

    LIMITATION:No right to negligently waste of gas must use due care. Obligated to withdraw minerals pursuant a standard

    of due care that is both reasonable and legitimate i.e. (1) legitimate: Must drill from your land (2) reasonable: [(a)

    cannot cause harm, (b) cannot cause waste, (c) must be reasonable] (negligence standard)

    POLICY RATIONALE: (1) Incentivizes parties to develop and produce oil and gas; (2) Balances tension between rewarding labor v. protectinglawful possession and promoting fairness v. encouraging development of resources (3) rewarding late-comers for

    their capture will disincentives early investment for others (4) exploitation would occur too quickly and result in waste and

    be inefficient

    HYPO ARGUMENTS: To protect the party who invested the labor in rendering the property capturable, but the property is gained by another

    through the law of capture who benefits from the prior agents investment and work. Could argue that the original

    investor has a pre-possessory interest in the allocation of the resource but it is not absolute. On the other hand, this could

    create a monopoly on a resource that is not yet absolutely possessed by the other party & would create inefficiencies.

    COMPROMISE: TO prevent unfair competition and advantage to late-comers, then those who gave original investment could have a period of

    exclusivity to take advantage of their initial investment??maybe..

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    Methods of Acquisition: Labor and Investment

    Quasi- Property: is a compromise between two extremes absolute title vs. free market of resource

    Relativity of Title:When examining quasi-property rights title to property may not be absolute but rather relative to the parties involved and therefore

    the 1st

    party may have an ownership or interest in a property that is superior to that of a 2nd

    party competing for it but this does not mean that a 3rd

    party

    may not have a superior claim to that property than the 1 st party. The relationship between the parties is significant, while a party may be protected against a competitor they may not be protected against a non-

    competitor.

    Title can be relative depending on the circumstances and the parties AND the level of laborDoctrine of Unfair Competition:

    a. General Rule:(Labor and Investment)A claim of unfair competition may be actionable when it is based on the appropriation of anotherpartys literary work (News Reports) if the words are repeated by a the appropriating competitor in the same business in such a way as

    to convey a misrepresentation that materially injures the 1st

    party to use them

    b. Exceptions: lawful capture first possession without waste or negligence property,

    c. Case Application: (Quasi-property, Relativity of Title, and Unfair Trade)INS v. AP, (pgs. 32-41): INS used the news stories gathered from AP, claiming that news is not property. AP has a "quasi-property"

    interest as it relates to their competitors and therefore AP's work is protected under a theory of unfair competition & relativity of

    title, however it would not have one against readers. By creating a quasi-property interest in reported news awards the right of

    first possession and labor and investment against competitors.

    Rationale: News as a factual account of the history of the day is considered common property for the public-at-large and

    cannot be copy-written however as it relates to the misappropriation of a competitor of the words or specific style of writing

    may be copy-written. This is because news gatherers labor and investment should be rewarded because it will incentivize the

    gathering and reporting of news which is a public good. Because the very nature of the news is dissemination (making it

    public) if this was considered abandonment there would be no viable business. Profit should come from gaining reliable

    information and getting it to the public quickly and not misappropriating a competitors work. INS used unfair competition

    by misappropriating

    Holding: News becomes quasi-property when gained legitimately and may be protected from a competitor that would seek to

    misappropriate it for their own profit

    Tensions: AP principle of rewarding labor and promoting fairness v. INS principle of protecting (lawful) possession (claimed it

    was abandoned in public domain)

    DISSENT:

    Brandeis- INS did not do anything wrong bc the news is not property and not copyrightable. Therefore, AP is

    not owed attribution/credit for its story if it is not copyrightable or even property. It owes AP

    nothing once info is communicated to others.Holmes-There is no property right to words or thoughts and facts expressed by those words. But INS owed AP

    credit for its labor and investment. Therefore, INS should be prevented from usingAPs story based

    on fraud for at least a number of hours unless it gives proper attribution to the true source of the

    reporting

    POLICY: Deciding factor was creating incentives to encourage parties to develop resources in a productive way i.e. encouraging the gathering of news by

    protecting the one that invests its labor

    Case Application:

    Moore v. Regents of University ofCalifornia, (pgs. 45-52) Labor and investment rewarded if socially beneficial. Plaintiff with leukemia went to

    hospital to receive tests, blood drawn was valuable in scientific analysis; he was told he needed to have his spleen removed, consented,

    doctors intended to take portions of the spleen to send out for scientific testing; doctors were exploiting plaintiffs illness to benefit financially

    Issue: Because one does not have a property right in an item they abandon can a establish that he retained a property interest in

    his tissue.

    Rationale: If the patients cells are not unique, the patient doesnt have any property interest in cells. Cell line is not Moores

    property because it is legally distinct from Moores body, product of invention; raw material was different from the cell line for

    which patent was sought therefore cannot establish a property rightHolding:Patient may bring a claim for breach of fiduciary duty but not conversion because he has not established a property interest

    in his human tissue.

    Tension:Patient's Right of Informed Medical Decision v. Scientific innovation. Patients right to an informed medical decision should

    not hamper scientific innovation. States decide differently, this is just a principle. Look at general principals and issues.

    POLICY: Extending conversion to medical research based on harvested cells would have a broad impact and increased liability and could hamper medical

    research making it more difficult. Maintains that the patients likeness can be protected better by enforcing informed consent and fiduciary

    duty and not by allowing conversion claim. Should the human body be for sale? Or parts? Bio-ethics community grapples with this fact. Anything

    that would be harmful to survival cant be sold but always donated. Think about affects of allowing foreign countries to sell surrogate mothers o

    babies or breast milk? Affects on hospital and healthcare system if ppl sell their parts and get sick more and cost system more overall.

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    Methods of Acquisition: Gifts and Finders Law

    Gifts Law:

    General Rule: Voluntary, immediate transfer of property, without consideration, from one person to another. Once taken a gift is irrevocable unless it is

    transferred with a condition. The donor must (1) Intend to make a gift, (2) Deliver the chattel to the donee, and (3) donee must Accept the chattel

    1. INTENT to transfer titlea. present intent: in the moment transfer was made there was intent transfer title without consideration; doner must intend to transfer title and not

    simply possession

    o evidence of intent: actions, letters, words, etco Exception: A promise to give property in the future is not a gift.

    2. DELIVERY of the propertya. actual: donor physically transfers possession of item such that donee has dominion and control over it

    o the easiest and clearest cutb. Constructive: (delivery must be impractical) physically transfer the means of access to the property. Hand over the means of obtaining possession and

    control of the property (e.g. car keys)

    o Even if there is evidence of constructive delivery-may not be sufficient b/c the item can manually be delivered.c. Symbolic delivery: object given that symbolizes the property to be transferred

    o eg. Writing (i.e. like a will is symbolic but a deed could be seen as actual delivery), not promise for futured. delivery through a third person: donor instructs his agent to deliver a gift to donee or donor delivers gift to agent of donee

    o when the donor cant personally deliver the object and so it gives it to another person to give it to the doneeo the issue here becomes when the object is not delivered but rather is kept by the agent, in a dispute when would the delivery be considered made?o depends on whose agent it is

    i. if the agent is from the receiver of the gift then can show that you were going to accept the giftii. if the agent is from the gift giver then courts will say that the property is still in gift givers possession

    3. ACCEPTANCEby the doneeo the donee must accept the chattel, and therefore may reject the gifto when the gift is beneficial or has a lot of value to the donee, acceptance is presumed

    3 types of gifts:o Inter vivos(during life time) property transfers made during the donors life; once made it is irrevocable.o Causa Mortis: a gift made in contemplation of immediately approaching death; revocable if donor recovers from illness that prompted the gift.o Testamentary transfers (after death) property transfers effectuated at death through a valid will or inheritance

    Engagement Ring Scenario (exception to irrevocable gift): the ring is a gift received with a condition

    a. Traditional view - man gets it back if they neutrally agree to not get married or she is at fault in breaking off the marriageb. Modern view - is that the donor should always recover the ring and fault is not a factor, courts do not want a ring to entice marriage and courts dont

    enforce fault in divorce so it shouldnt be a factor in engagement

    Finders Law:

    General Rule: (Intent of True Owner) An owner of property does not lose title due to lose of property. The owners rights in some circumstances persist though

    the article has been lost or mislaid. A finder has rights superior to everyone but the true owner.

    Background Rules:

    Possession: a person is in possession of an object if he physically controls an object

    Ownership: usually proven by documentation showing transfer of title to present titleholder. Possession is not necessarily ownership (i.e. a lessee of apt.)

    y Ownership by Occupancy: property belonging to no one becomes property of a person taking possession of it if w/ intent to acquire the right ofownership (Res Nullius)

    Case Application:

    Charrier v. Bell, (pgs. 92-95): Plaintiff located and excavated Indian burial ground and attempted to sell property. Intent of previous

    owner/purpose determines whether discovered/found items can be possessed or not.ISSUE: Did the Indians abandon the artifacts?

    RULE: Occupancy of land above burial ground- usually one can acquire property over something that belongs to nobody becomes

    the property of the person who took possession of it with the intention of acquiring a right of ownership. Except with unmarked

    Native American burial groundsthese are not abandoned and still belong to them (mislaid property)

    Rationale: Because burial is not abandonment but rather the intent that the goods will remain with the buried indefinitely and

    therefore burial goods are not treasure if they were it would promote despoilment of burial grounds. The ultimate owners (Native

    Americans) of the artifacts presented substantial evidence that they were not unjustly enriched by the excavation because of the

    substantial upset over the ruin of "ancestral burial grounds". And Ps impoverishment was due to his own negligence.

    Holding: The court held that objects buried with the dead could not be considered abandoned and therefore could not be acquired

    by obtaining possession over the objections of the descendants.

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    HandoutNAGPRA, Indian Remains&UC Berkley: Landowner who discovers Indian burial grounds must notify public officials to negotiate with

    the affected tribe for reburial of remains and associated objects, items belong to the lineal descendants or to the tribe on whose land they were

    found or to the tribe having the closest cultural affiliation with them

    y Unjust Enrichment:unlawful acquisition of money or property of another; criteria (Charrier v. Bell)1. There must be an enrichment to D (Charrier v. Bell: no enrichment of Indian tribe)2. There must be an impoverishment to P (Charrier v. Bell: no impoverishment b/c he was aware he had no right to excavate)3. There must be a connection between the enrichment and resulting impoverishment4. There must be an absence of justification or cause for the enrichment and impoverishment; and5. There must be no other remedy at law available to plaintiff

    y Relativity of Title: The finder of lost or mislaid property does not acquire title against the true owner but will prevail over everyone else.o TRUE OWNER Prevails overPOSSESSOR (finder/thief) Prevails overSUBSEQUENT POSSESSORo whether the finder then retains the property depends on the owners intent; abandoned (Finder) v. lost or mislaid (True.Owner.)

    y Res Nullius: Property of none and never had an owner; may be owned by the first person that finds it (wild animals)y Res Derelictae: Things that have been abandoned and are no longer ownedy Policy Rationale for Superior Right of L.O.: claim than a finder because person who left it there may come back and claim it

    Lost owner accidentally misplaces property

    Who Prevails True Owner (Right ofRecovery-TO)

    On somebody elses property a) If a finder trespassing, no rightsOn somebody elses property b)If with permission and in the house, the property owner has better title than the finderOn somebody elses property c) If with permission and in the open, the finder has better title than the property ownerOn somebody elses property d)Treasure trove: the finder has better title than the property ownerExceptions e) if finder is a trespasser, employee, guest, or licensee, OR if property is found in a highly private

    locus or buried-owner of locus gets possessory rights.

    Mislaid owner intentionally placed property however forgot where it was placed and failed to recover because of inability to relocate

    Who Prevails True Owner (Right ofRecovery)

    On somebody elses property a) If a finder trespassing, no rightsOn somebody elses property b)If with permission and in the house, the property owner has better title than the finderOn somebody elses property c) If with permission and in the open, the finder has better title than the property ownerOn somebody elses property d)Treasure trove: the finder has better title than the property owner

    Abandoned owner formed intent to voluntarily relinquish title and possession and has in fact acted in a way to relinquish both title and possession

    y Graves are not abandoned because the intent exists to leave the object in a location indefinitely and not for anyone else to possessWho Prevails Finder (Owner Forfeits Right)

    On somebody elses property a) If a finder trespassing, no rightsOn somebody elses property b) If with permission and in the house, the property owner has better title than the finderOn somebody elses property c) If with permission and in the open, the finder has better title than the property ownerOn somebody elses property d) Treasure trove: the finder has better title than the property owner

    Treasure Trove: Treasure trove is found gold, silver or money intentionally buried or concealed in the soil with the intent of returning to claim it. When

    the true owner of property is unknown the property goes to non trespassing finder even though its embedded. Treasure trove does not include objects

    buried with the dead, which do not belong to the finder.

    Bona fide Purchasers: A thief can never acquire good title. And one can ever acquire good title from a thief, unless it is a merchant in which case if the

    merchant is entrusted with the goods and deals in that kind of goods, the merchant may sell them without permission to a bonafide purchaser.

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    Methods of Acquisition: Trespass and Right of Reasonable Access

    MAJORITY RULE: Absolute right to exclusion as limited by state and federal anti-discrimination laws. However, Innkeepers and Common Carrier is cannot exclude

    arbitrarily with out reasonable cause (disruptive to safety, drunk, criminal)

    y Reasonable to exclude if people are (1) disruptive or (2) threaten safety (drunks, petty offenders, disorderly) because owner has a duty to protectother patrons. It is Unreasonable to exclude if person is (1) a protected class of persons (race, creed, gender, etc)

    Right to Exclude: exclusion is not absolute, may not be used to injure the rights of others, and is limited by (1) Fed anti-discrimination laws and (2) common law

    A. Majority View: proprietors have absolute right to exclude, arbitrarily (as long as not against federal or state anti-discrimination laws) anyone frompremises. Common carriers and hotelscannot exclude protected classes per 14

    thAmendment

    B. Minority View: When property owners open up to public for their advantage, they cannot exclude for arbitrary or unreasonable reasons. (Shack; Uston)but CAN exclude anyone who is not a protected class of people.

    Trespass: is the (1) unprivileged (2) intentional (3) intrusion on property possessed by another; infringement on the right of possession

    3 Elements: 1. Unprivileged: without consent of owner2. Intentional: a voluntary act (strict liability for voluntary physical invasion; not necessary to intend to trespass rather intend to enter)3. Intrusion: occurs the moment the non-owner enters the property (may be an inanimate object, i.e. building, tree limb, overhang)

    Defenses: privileges which grant a right to access private property because of:

    (1) necessity to prevent a more serious harm to persons or property,

    (2) encouraged by public policy (e.g. fireman)

    (3) consent from owner (invitee or licensee)

    y Mistaken entry,is NOan acceptable defensey Forced to enter ISan acceptable defense

    (involuntary)

    2 Types of

    Trespass:

    y Civil Trespass:Owner sues the trespasser, i.e. border dispute, one builds a house that hangs onto anothers propertyy Criminal Trespass: prosecuted by the government, go to court and may have to go to jail or pay a fine

    Remedies atEquity:

    y Ejectment: lawsuit to remove the trespasser from land If trespasser has occupied propertyy Declaratory judgment: court confirms partys legal rights against another partyRemedies at

    Law:

    y Injunction: order the wrongdoer to cease wrongful conduct and require wrongdoer to remedy harmy Nominal damages: (no harm) establishes right to property and right to exclude y Compensatory damages: (harm) restoring to previous condition due to diminution in valuey Punitive damages: intended to deter outrageous or malicious behavior

    Minority Rule:

    State v. Shack, (pgs. 104-108)(MINORITY RULE?) Defendants entered on property to aid migrant workers employed and housed there; one defendant entered to

    provide medical attention the other legal aid; owner of land allowed them on the property but would not allow them to talk to the workers alone, defendants refused

    and owner called police for trespass by Ds.

    Reasoning: Title to property cannot include dominion over the destiny of persons the owner permits to come upon the premises (visitors, workers, etc.).

    Right in real property is not absolute and it is curtailed by society and the best interest of others. Property Owner cant use his property in a manner that

    harms others, in particular those in vulnerable situations.

    RULE: if purpose of land entry is to serve needs of community one may enter land if it doesnt interfere with owners business and property interest

    Decision: Trespass conviction overturned because under NJ state law, ownership of real property does not include right to bar access to governmentservices available to migrant workers which are fundamental rights and should be protected (Supremacy Clause trumps state law).

    Tension: Owners Right to Exclude v. Govts Right to Access (Supremacy Clause trumps state rule)

    POLICY: The landowner's right to exclude must be limited to protect the migrant workers' fundamental human rights.

    Right to Exclude (trespass)? Right of Reasonable Access (Owner cannot exclude)?

    ANALYSIS:

    1) What interests are being protected by excluding others from property?

    2) What interests are exerted by the non owner to enter the property?

    3) What law is claimed for the right of access?

    a) Where does it come from?

    b) What is being invoked?

    4) How is the judge going to analyze the competing interests and balance

    the interests of the P.O. and the Accessor?

    ANALYSIS:

    1) Interest of property owner v. interest of person entering premises?

    2) What is the character of the property?

    a) Open to public?

    3) Status / class of person entering premises?

    4) Type of property?

    a) Innkeeper / Common Carrier?

    b) Other business?

    (Unston) If property owners open their premises to public in the pursuit of their own property interests, Proprietors can

    NORightto

    Exclude:

    y Cannot exclude Individuals based on an unreasonably reasons(duty not to act arbitrary or in discriminatory manner)

    y Cannot exclude visitors of temporary occupants of a property(leassor)

    y Innkeepers/Common Carriers have duty to allow access topublic

    YESRightto

    Exclude:

    y Those who disrupt regular and essential operations ofpremises or threaten security of premises and its occupants

    y Owner cannot use their property to injury other people

    Uston v. Resorts International, MINORITY RULE(pgs. 116-118) D is a card counter and the (P) casino didnt like it so P excluded him from entering the casino

    Rule: Proprietor whose land is open to the public do NOT have the right to unreasonably exclude particular member of the public. Same as innkeeper or

    common carrier, and does not violate state/federal law.

    Reasoning: Reasonable if disruptive or threaten safety (drunks, petty offenders, disorderly). Cannot exclude because does not threaten security or

    disrupt function of casino operations

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    Holding: The Casinos exclusion of him is unreasonable, and therefore, impermissible. The more the owner opens the doors to the public, the more they

    are prevented from arbitrary exclusion. The Casino was not threatened by the Ds presence and bc its open to the public it cannot exclude without good

    causeunprofitable patron is not enough.

    Property: Relations among Neighbors

    Adverse Possession: Law and Policy

    Color of Title (CoT)-Mistake of fact regarding deed (deed says you own certain amount of land, but deed is wrong) This type ofA/P requires that

    possession of land be in good faith.Claim of Right (CoR)-No deed, only occupancy and no state of mind of good faith is required.

    CoTConstructive Possession-ifA/P is established by CoT then A/Por is entitled to all of the land stated in deed, not just the land that was used.

    CoTConstructive Possession-ifA/P is established by CoR then A/Por is ONLY entitled to the land that was used and proven to be A/Ped.

    Statute of Limitations (SoL)

    POLICY Justifications for Adverse Possession

    1. Fairness:

    Justified

    Expectations

    a. protects A/Por who hasbecome attached to

    land & relies on it

    b. BUT Denies TO right toland and for whom

    recovery of land may be

    an unexpected windfall

    2. Efficiency y By rewarding A/Por who is productive, and penalizing TO who is unproductive,doctrine encourages productivity

    y Encourages maximum use of land by:o decreasing likelihood property is idleo increase development & progress

    y SoL varies by state, most 15yrs3. Counter-point to

    Efficiency argument

    y maybe the best use is for it to be idley adverse possession laws are archaic

    Law & Economics:

    Provides degree of certainty of

    ownership by eliminating stale

    claims which

    y decreases administration costs by establishing rightful ownership byo quieting title ando foreclosing stale claims

    y decreases uncertainty in transactionsy courthouse recording system has deed of every property and parameters

    Claim of Right:

    Brown v. Gobble, (pgs. 179-184): (TO) sought injunction to prevent neighbors from interfering with 's use of 2-ft wide tract of land running

    between adjacent yards. s counterclaim, alleging ownership of land by A/P.

    Holding: owns propertybc prior A/Por held land for many years which would satisfy statute of limitations (tacking)

    y A/P Burden of Proof (BoP): clear and convincing evidence (higher standard than preponderance of the evidence) due to the issue of fairnessand equity

    o Fairness and equity are significantly increased because interest at stake is the loss of a homesteady BoP on the party that claims title by adverse possession

    o uses doctrine of tacking to establish adverse possession periods because connected by privity of title of claimEvidence used to prove elements:

    o Actual: repaired fence, garden, removal of weeds etco Exclusive: owners of property did notobjecto Open & Notorious: reputation in community of 2 ft tract-owned by previous owners (privity)o Claim of tile: claimed A/P pursuant to occupancyo Continuous: Blevins maintained cultivated land claimed (Privity)

    Color of Title:

    Romero v. Garcia,(pgs. 185): Filed suit to quiet title based onA/P under color of title (paid taxes) but deed was non specifics and lacked signiture

    y Deed is sufficient for color of title even though it lack signature.y Deed not void for lack of proper description, if deed + extrinsic evidence is sufficient for a surveyor to ascertain boundariesy Evidence used to prove elements:

    o Good Faith: P made continuous payments of taxes-property as hers under color of title.o Good Faith: Can ascertain boundaries by conduct of parties by erecting house

    Under the surveyors notes it ends up being 12.75 acres and this was sufficient for the courtNome 2000 v. Fagerstrom, (pgs. 187-191)dispute over a tract of land on which s erected a cabin on the northern part of the parcel after many

    years; uses adverse possession as a defense to ejectment

    Reasoning: A/Por were entitled to only a portion of the entire disputed parcel because use of southern portion of disputed parcel did not provide a reasonably

    diligent owner with visible evidence of their exercise of dominion and control but the area that was used could be included in A/P

    y Evidence which proved elements:o Actual & Exclusive: look at character of property, seasonal use

    Evidence: building a cabin, improvements on land shows time they used land like a TO wouldo Hostile: objective test, no intent, looks at how the possessor is acting towards the land

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    Adverse Possession (A/P)General

    Rule:

    y To establish title by A/P, the party claiming adverse possession must show by clear and convincing evidence (1) actual entry upon land (2) givingexclusive possession, that is (3) open and notorious, (4) adverse and hostile under a CoR or CoT, and (5) continuous for the (6) statutory

    period.

    Background: y Property is state law, varies by states; consult state statute on A/P (if none on exam then use common format listed below)y A/P typically occurs between neighbors for property line disputes (Cannot adversely possess govt. property)y Transforms Trespasser into true owner (TO) therefore possessor can only take the property rights that the TO has

    o affirmative lawsuit may be brought against another party to quiet title in which court will determine ownershipo affirmative defense to ejectment or trespass claim (analyze character and use of property)

    Elements of A/P Process Analysis

    1. ACTUAL Is there a statutorydefinition provided?

    if not use format

    definition.

    Rule:Engaging in significant activities on the land such as the owner would make of it in ordinary use for which

    land is capable (triggers SoL)

    y Most jurisdictions define the term actual occupancy by statute (however if not then use def. above)o Physical occupationo Affirmative acts of ordinary use: (1) living on the land, (2) developing the land, (3) etc.

    y User Right v. Possessor Righto The actual use may be one of a user and not necessarily a possessor and therefore court may only

    grant prescriptive easement (shared use with permission ex. Shared garden between neighbors)

    2. OPEN ANDNOTORIOUS

    Rule: Possessory act must be sufficiently visible and obviousthat a reasonable TO would be on notice that the property is occupied by

    the A/Por

    y Standard of Proof: What a reasonable owner should know?o Actual OR Constructive Knowledge:Actual knowledge is unnecessary only reasonable TO should know

    TO is charged with seeing what reasonable inspection would disclose.y Test: are actions ofA/Por so O&N as to put TO on notice that property is being possessed

    o Cannot be infrequent, sporadic, or hiddeno Actions that are Open and Notorious enough to give notice:

    Sufficient: (1) Building a structure, fence, wall, put up signs (2) Mowing land, (3) Using land for storage, etc, (4)Harvesting, planting, using it for outdoor activity, (5)But they cant be sporadic

    Insufficient: (1) clearing a few trees, (2) grazing cattle or goats without enclosing landPolicy

    Rationale

    A/P exist bc it encourages TO to use their land sufficiently and not be dormant land Create security for occupiers Allows TO sufficient time to sue Limits TOs ability to evict after a period for timey Place TO on notice so TO may raise a claim of ejectment within statutory period

    Criteria of

    Possession

    for

    Farmland: y fencing, cultivating, erecting buildingWild undeveloped

    land:

    y wild, undeveloped land not suitable for farming, but suitable for fishing and hunting can beA/Pd by acts of indicating a claim of dominion

    City land:y

    totality of the acts must give a picture of a person claiming dominion Minerals: y A/Por must remove minerals. Possession of the surface doesnt give cause of action to the

    separate owner of the minerals until the minerals are disturbed

    3. EXCLUSIVE Rule: disputed property has to be used by theA/Por in a manner consistent with the character of the land and NOT with the TrueOwners use or knowledge or consent

    y cannot be shared possession with the TO or general publico co-use with TO will defeat claim of adverse possessiono co-use ofA/Por with someone other than TO may or may not defeat claim ofA/P

    y Co-owners may adversely possess someone elses property as tenants in common

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    4. ADVERSE ORHOSTILE

    (VISIBILITY) under

    Claim of Right or

    Color of Title

    Consent Given by

    TO?

    Rule: the non-permissive possession of property is required, however if TO is silent then the law generally

    assumes that the possession is non-permissive

    y state of mind of TO and actions to show approval of useo If TO can show that A/Por was given permission then A/P claim failso Tension: What if TO sees A/P and gives some signal, was this permission or acquiescence?

    IS THERE A

    DEED?:

    Claim ofRight (CoR) vs. Color of Title (CoT): Majority perspective, state of mind ofA/Por is unimportant

    y SoL periods may be different between CoR and CoTy CoRA/Por believes property is theirs based on an informal occupation of land

    o In some case unnecessary to believe it is actually A/Pors, may just want it (Intentional Trespasser)o A/Por can only possess area actually occupied or controlled in manner consistent w/ ownership

    y CoTthe claim is based on an erroneous or flawed deed that was believed to be correct:o A/P may obtain entire property indicated by the deed even though only used a portiono Deed may be faulty due to: (will serve as basis for CoT claim)

    (1) lack signature, (2) faulty procurement procedure, (3) mistaken/ambiguous parameters doc.(parole evidence rule governs)

    sufficient under objective and good faith; insufficient if intentional trespass is requiredo Constructive Possession Doctrine: Demonstrate A/P to any part of the land under the deed will

    allow a claim for the entire land under the deed (considered good faith claim)

    if an actual entry on part of the land is described in the deed, the possessor may be deemed inconstructive possession of the rest, BUT an actual entry on some part of the land is required.

    IS THERE A

    MINDSET

    REQUIREMENT:

    Review state statute 1st

    , if none then assume majority view that state of mind is irrelevant

    y 3 different mind sets for the adverse possessoro Objective (majority view): state of mind ofA/Por is irrelevant rather actions ofA/Por are analyzed

    is A/Por occupying land under community norms and without permission of the owner occupation of the land is prima facie evidence under a claim of title which triggers SoL

    o Quasi-objective: The adverse possessor must act toward the land the way an average owner would.Intention to appropriate land need not be expressed, but can be inferred from conduct.

    o Good faith: (CoT) bona fide or good faith beliefA/P has title to land (Did he pay taxes on property?) If possessor knows he has no title, and that someone else has title, possession is not adverse

    o Intentional trespasser: Bad faith A/Por must know property it is not his and intend to take title5. CONTINUOUS Rule: control must be continuous (1) use in the manner of a TOs use for the duration of the (2) So L

    y look at: (1) nature of the property, (2) location of the property, (3) character of propertyy Must be continuously used in the manner that a TO would use land

    o A/Por use must be consistent with a TO of that property e.g. If seasonal property then seasonal use is permitted

    o IfA/Por abandons property, without intent to return, continuity ofA/P lost, A/P resumes on return Abandonment: intentional relinquishment if possession

    Tacking (Brown v.

    Gobble)

    Rule: Successive periods of possession, by previous owner with whom the A/Pors is in privity, that are

    aggregated and through which A/Por may fulfill the statutory period and satisfy requirements ofA/P

    yPrivity of estate: possessor voluntarily transferred to a subsequent possessor either an estate in land orphysical possession; prior owners must have purported to have passed title to the property in dispute

    y Tacking is allowed to provide sufficient time and use to establish A/P time requirement was meet6. STATUTORY PERIOD Rule: (1) Set by statute (exam: statutory period is 10 or 15yrs) and (2) toll SoL when TO brings suit

    y SoL may change depending on color of title claim, claim of right, etc.y Doctrine of Tolling: some jurisdictions may toll SoL of TO due to a disability of TO: (a) Infancy, (b) insanity, (c) incompetence, (d

    imprisonment, (e) absence from the state, (f) war

    o Some jurisdictions will: (1) toll the statute only after the disability ends (2) modify the SoL after disability ends (3) provide amax period greater than state SoL even if disability is not terminated

    o A/Por must still satisfy ALL elements ofA/P during this Toll period to prove possession But if the A/Por begins A/Pingbefore the true owner experiences any of the exceptions then statute of limitations runs normally.

    Dilemma: What happens if you adversely possessed the property that has limitation on it? Rule: A/Por can only get the property to the extent that the TO has ownership of it. Policy: A/Por should only be allowed to receive the rights that a TO would have

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    Other Informal Title Transfers

    ENCROACHMENT

    Definition: An infringement (encroachment) of anothers rights in which a party interferes with or intrudes onto anothers property (ex. Neighbors new roof

    extends past boundaries of other neighbors property. Remedy would be compensation to TO)

    Majority Rule: y Relative Hardship Doctrine: The court, in circumstances in which an improver that has mistakenly improved the land ofanother, may refuse to issue an injunction to require an Improving Trespasser to remove property and entitle the

    Trespasser to the value of the improvemento Elements: (1) encroachment is innocent (an intentional encroachment cant use relative hardship doctrine), (2)

    improvements harm is minimal or beneficial, (3) interference in TO property interest is small, (4) cost of removal is

    substantial

    o If both parties are innocent the remedy will depend on the circumstances and relative equitiesy Examine good faith i.e. were the necessary measures takeny BUT acting in bad faith will require that the structure be removed.

    Analytical

    Approach:

    y Did encroacher act in good faith or intentionally build on land?y Is hardship incurred removing structure disproportionate to harm caused?y Cost of removal?

    Minority Rule

    (Traditionalist):

    y Absolute Right Doctrine:Property owner has an absolute right to an injunction ordering an encroachment cease no matterwhat the cost

    Remedy: y Order the TO to pay the encroacher for the value of the improvements to the landy Order removal of the encroaching structurey If trespasser is allowed to continue encroachment:

    o award damages to compensate the landowner for permanent encroachmento grant encroacher an easement over the land oro force sale of land to encroacher for fair market $ and any damages for loss of land

    ENTIRE STRUCTURE ENCROACHMENT

    Definition When a trespasser builds an entire structure on anothers property and it becomes a fixture

    Majority: When a builder mistakenly constructs an entire structure on land belonging to another, the courts rule that the landowner

    becomes the owner of the structure built on the land by another. And may keep or remove a structure regardless of the affects

    on TOs property value.

    Majority Remedy: TO becomes the new owner of the structureANNEXATION

    If court looks at overall societal benefit = weigh value of structure on land and price of removal and waste of removal

    If court looks at rights of parties = weigh the interests of each party and their interest in the structure and burden of keeping or

    removing structure

    (judges personal experiences and thought process matters on which remedy is chosen)

    Minority: (Somerville v. Jacobs) Courts will grant relief to one who through reasonable mistake of fact and in good faith places permanent

    improvements upon land of another, with reason to believe that the land so improved is that of the one who makes the

    improvements and that the Ps are entitled to relief.

    Minority Remedy: y Order the TO to pay the encroacher for the value of the improvements to the landy award damages to compensate the landowner for permanent encroachmenty grant encroacher an easement over the land ory force sale of land to encroacher for fair market $ and any damages for loss of land

    Unjust

    Enrichment:

    y Unlawful acquisition of money or property of anothero intentional improvements by one who knows he is trespassing belong to the owner of the real estate; the bad faith

    of the improver negates the injustice of the enrichment

    de

    minimuscuratlex:

    y that the law will not concern itself with triflesy Crt will not grant equitable relief for if it will do no good but work a hardship

    Boundary

    Disputes

    Boundary by Agreement: uncertainty or dispute by parties; has to be with intent for agreement to draw the boundary line

    Boundary by Acquiescence: knowledge but silence; no agreementBoundary by Estoppel: A/P reasonable reliance and act to his detriment

    Somerville v. Jacobs, (pgs. 218-221): In good faith (in reliance on a surveyors report) and by mistake, P built warehouse on a lot; D learned of the building

    after construction and claims annexation, improvements passed to them as part of the land; Ps claim equitable relief

    y Rationale: In order to prevent unjust enrichment benefitting property ownersy Decision: P entitled to equitable relief because TO would be unjustly enriched

    o Relief sought by P: (a) damages of $20.5K for value of improvements to lot, or (b) s be forced to convey their lot to them for fair consideration.y Dissent: D did nothing wrong and P should be the one to take windfall bc it was the Ps fault. Options should be that D can sell building to P or have P

    remove building.

    y Evidence which proved elements:o Good Faith: court found that both parties acted in good faith

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    o Cost of Removal is Substantial:removal not possible of the structureo Unjust Enrichment:TO will be unjustly enriched if not reqd to pay or sell and P will suffer a substantial loss

    Adverse Possession SoL for Personal Chattel Property

    Replevin action for repossession of personal property wrongfully detained by another

    y 3 DiffRules for SoL: Conversion, Discovery (New Rule: Majority), or Demand (New Rule: Minority)y thief cannot acquire good title, nor anyone that receives property from a thiefBona Fide

    Purchaser:

    unaware property was stolen not able to retain ownership unless SoL tolls

    y Exception: (UCC) entrusting possession to a merchant dealing in kind of goods given will empower to transfer all rights ofentruster to buyer vesting good title in buyer

    Conversion Rule: (Old Rule)SoL begins when property is wrongfully taken and TO is dispossessed of property (Tolls even if theft is concealed)

    Discovery Rule: SoL begins on stolen property once TO discovers where stolen property is

    o Not accrue while TO uses due diligence to locate propertyo Does accrue once TO (1) knows or reasonably should know whereabouts of property and (2) identity of

    Possessor

    BoP: TO must use due diligence in locating missing item

    o Due Diligence: what tools were available for recovery?o Conduct of the owner is analyzed and not that of possessoro Rationale: greater protection of innocent TO of stolen property

    Demand Rule:

    New York Rule

    SoL begins when TO demands return of chattel and GFP refuses return

    y Until demand and refusal property is not considered wrongfulNuisance

    NuisanceGeneral

    Rule:

    Nuisance:is both the substantialharm AND unreasonable interferewith a partys use and enjoyment of their land. But NOT an Absolute Right.

    y Distinguishable from a trespass b/c trespass requires intentional physical invasion of property, but nuisance does not require a physicalcomponent (noise, smoke). Trespass attempts to protects the physical ownership of land & Nuisance protects the use/enjoyment of land

    y Physical components that invade a land (pollutants, carcinogens, microscopic invasion) could be under nuisance or trespass bc ofadvancements in science they are now quantifiable enough for trespass.

    y Trespass is an intentional physical invasion; however nuisance is intangible/not physical interference in landowners use and enjoyment ofland

    y Distinguishable from Negligence bcnegl is about the reasonableness of conduct and how it is carried out BUT Nuisance concentrates on theresult of the conduct whether reasonable or not

    Rational Nuisance Maxim: (when analyzing nuisance claim) no one has the right to use their property to the injury of another, however there is no right to

    absolute security in property because everyone will incur some cost by the virtue of living in the world (point to remember)

    INEVALUATINGEx

    tentofNuisanceCourtswill

    Measure

    Unreasonable

    Use:

    y Reasonableness Standard:when gravity of harm outweighs the utility of the actors conduct it is unreasonable R826o Lawful operation of trade or industry test: the reasonableness of conducting a trade or industry in a manner at the

    place and under the circumstances (flexible doctrine, facts of each circumstance is important)

    o Ultra-hazardous activity: Strict Liability will be imposed when a party engages in ultra-hazardous activity (no showing ofsubstantial or unreasonable is necessary under strict liability formula)

    o Unreasonableness and offensiveness of conduct is measured by a normal persons sensitivitiesy Factors for reasonableness analysis (causes a substantial harm or is unreasonable) :

    1. Character of the neighborhood: Is use typical to manner and function of land2. Hypersensitive: Plaintiff cannot devote his land to an unusually sensitive use and claim nuisance for his disturbance.3. First in Time: Preference by priority; (Who was at the location first? Did the complainant come to the nuisance?)4. Nature of the alleged wrong: what is the harm being caused? And is it common? Should it be tolerated?

    y Way of Conceptualizing Unreasonable:1. FairnessAnalysis: focuses on parties themselves, Does the Ps right to security prevails over the Ds right to act2. Social WelfareAnalysis: focuses on society as a whole, is society better off if the conduct continues with the harm

    Measure

    Gravity of

    Harm

    y Extent of harm causedy Character of harm involved aesthetic harm less serious than health/safety concernsy Social value of activity should owner shoulder costs (pass on to customers or make Plaintiff shoulder burden?y Suitability of the use to its locationdid P come to the nuisance?y Burden of Plaintiff to avoid the harm

    Measure

    Utility of

    Conduct

    y Social valueoverall benefit of primary purpose of conducty Suitabilityconducts appropriate to the character of the localityy Impracticability unable to prevent or avoid the invasiony

    Measure

    Fairness

    y Character of harm involvedaesthetic harm less serious than health/safety concernsy Distributive Considerations should individual owner bear the costs of Ds socially beneficial activity or should the cost be

    spread around to D and his employees & customers?

    y Fault is the activity disfavored? Is conduct appropriate for area Did P come to the nuisance?Measure

    Welfare

    y Cost and benefits cost/benefit of allowing conduct & const/benefit of prohibiting conducty Incentiveswhat incentive will liability and immunity have? How will balancing of burdens incentivize safety or desirable

    economic activity?

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    Page v. Honeywell, (pgs. 273-76): D and P have business located next door. Ds computer (leak of radiation) caused Ps televisions to malfunction (tv store)

    interfering with business fro two years.

    Holding: Ds use of land was unreasonable and substantial despite it being a lawful activity.

    Measure of Unreasonable: If gravity of harm outweighs the utility of the actors conduct then the use is unreasonable. Factors:manner activity is conducted, place conducted, type of business carried, circumstances of operation, appropriateness of location, character of

    neighborhood, nature of wrong. HERE it took D two years to fix radiation leak. Disruption of the Ps business. Ps use of land was not ultra-sensitive bctvs

    are common.

    INEVALUATING

    Gravity of Harm 1. Extent of harm (must be substantial)2. Character of harm3. Social value that the law attaches to the type of use or enjoyment invaded4.

    Suitability of the particular use or enjoyment invaded to the character of the locality

    5. Burden on the person harmed of avoiding the harmUtility of Conduct 1. Costs/benefits

    2. social value the law attaches to primary purpose of conduct3. the suitability of the conduct to the character of the locality4. impracticability of preventing or avoiding the invasion

    Fairness 1. character of harm (aesthetic harms will be viewed as less serious than health or safety concerns)2. distributive considerations3. Who is at fault?4. Is Harm a nuisance because it is not fair to make bear harm w/out compensation?5. 4 absolute right to be free from harm v. ( right to freedom to act?

    y Who gets entitlement?Welfare 1. costs and benefits of allowing the harmful conduct must be compared with the costs and benefits prohibiting it

    2. Incentives: what effects will liability or immunity have on incentives to engage in the activities?3. Lowest cost avoider: which party can more cheaply avoid the cost?

    Processof

    Analysis

    Extent of harm to 4? v. Social utility of(s activity?Social benefits of(s activity? v. What would society lose?

    Overall relative social costs of conflicting land uses? v. Overall relative social benefits of conflicting land uses?

    Alternative means at lowest cost? v. Which use was established first?

    (s motive (Profit=legitimate) v. (s motive ( Spite/Malice: illegitimate)

    y Impracticability of preventing or avoiding the invasionwhich party can more cheaply avoid the cost?Private

    Nuisance

    Doctrine:

    Rule: rules which provide remedies for a partys uses of real property in a manner that (1) cause substantial harm and (2)

    unreasonably interferes in an individuals right to use and enjoy their property. Typically applied when there is no special rule

    that has been created by court or legislature

    Examples: y toxic waste, air pollution, drug dealers, flies, noise, dust, odors, from manure plant damaged propertyinterests, decorations that draw a crowd

    Light &

    Air

    Majority

    Rule:(Fount.)

    in absence of a statute or agreement to the contrary, owners have absolute right to develop their

    property without liability for any interference in their neighbor's interests in light and air however

    it cannot be for the sole purpose of maliciously harming neighbor without being useful or

    beneficial (Spite Fences).

    Minority

    (Prah)

    y There is no absolute or unlimited right to use land, rights of neighboring land owners are relativeand therefore use by one must not unreasonably impair use or enjoyment of other ( usefulness)

    Public

    Nuisance

    Doctrine:

    Rule: a member of public may sue for a public nuisance when there is an (1) unreasonable interference with a (2) right common

    to the general public (historically brought by a civil servant, however slowly opening to public in general)

    Examples: y public health; keeping diseased animals, maintenance of pond with mosquitoes; public morals brothels,indecent exhibitions, public peace loud and disturbing noises, public comfort bad odors, dust, smoke, public

    convenience obstruction of public highway

    Fairness or

    Utility

    Reasonableness Test Policy Decisions: Rights and Fairness analysis vs. Social Utility and Welfare analysis ()

    y Rights and Fairness Policy: analysis focuses specifically on the parties involved (narrow set of concerns, only parties involved)o Rights analysis: Who has the right? Where is the property entitlement placed at the outset?o Fairness analysis: What is ultimately fair between these two individuals?

    y Social Utility & Welfare Policy:promoting welfare & good social outcomes analysis focuses on society as a whole(this can be in oppositionFairness analysis)

    o Social Utility analysis: Cost and Benefits?o Welfare analysis: What advantages will be accrued to society by allowing or prohibiting an activity?

    y Judicial Role Analysis: how far reaching should the judicial go to promote change and the roles of judgeso Do we want Crystals or Mud? Clear rules vs. sliding scale for fairness

    Remedies:

    Ex. Remedies Dismissal ofComplaint, Damages, Cost of restoration, Repairing the damage, Bringing back property back to its prior condition,

    Diminution in market value, Injunction (Court order for to do or NOT do acts), Purchased injunction, Conditional injunction,

    Order to stop activity on condition that s reimburse

    INJUNCTION

    P may obtain an injunction against Ds conduct

    when:

    y Ds conduct is UNREASONABLE (causes more social harm than good)and causes SUBSTANTIAL harm to the P

    DAMAGES P may obtain damages but NO Injunction if: y Ds conduct is reasonable (it causes more social good than harm and

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    NUISANCE (Light and Air)

    Fontainebleau&Prah present contrasting visions of economic activity& Right to Air/Lighty Fountainebleaurules that erecting structures that serve no use or benefit for the purpose of spiting a neighbor should not be allowed, but if a useful and

    beneficial purpose exists (regardless of spite) then it will not grant an injunctiono Paradigm: all development of land without regard to external consequences is a logical and defensible pursuit

    y Prah external harms caused by development of land is not allowed if it prevents use of an exploited resource (included sunlight with solar panels)o Paradigm: views land & resources as limited in supply and therefore external harms caused by development should nto be allowed

    Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., (pgs. 284-85): (MajorityRule for Nuisance L&A) Little hotel (P) v. big hotel (D) in sunny Florida

    y Issue: Can a party enjoin their neighbor from constructing an addition that interferes with light and air on the partys property?y Rule: Nuisance doctrine applies only to legally protected rights and there is a no right to light and air unless created by statute or contract.y Reasoning: No legal right to the free flow of light and air from the adjoining land, and since the structure serves a useful and beneficial purpose, it

    does not give rise to a claim though it causes injury by cutting off the light and air, regardless of the fact that the structure may have been erected partly

    for spite

    Prah v. Maretti, (pgs. 302-07): (MinorityRule for Nuisance L&A) pre-existing home with solar energy system; is a new neighbor who wants to build

    y Issue: Does s development of land interfere with unobstructed access to light for his solar energy system?y Element Analysis:

    o Is the harm substantial? Yes, activity precludes 's use of solar panels which is a highly desirable activity and built home first, so harm cannot be avoided

    o Is the interference unreasonable? Yes, harm to and to society if people have no protection from interference with use of sunlight as alternative energy source

    y Reasoning:Court believes that the doctrine of the Ancient Lights used in England should be used as a principle (Ancient Lights = if landowner receivedlight across adjoining party for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight). Since there

    is no absolute or unlimited right to use land the rights of neighboring landowners are relative and therefore the use by one must not unreasonably impair

    use or enjoyment of other. The use of Ps land includes the exploitation of the resource available on his property which was sunlight. A landowner

    compliance with zoning laws (D) does not mean he cannot be sued for nuisance.

    y Dissent: D had a lack of notice of the restriction that his land would be subjected to, whereas the P knew of the possibility of such a restriction and failedto mitigate damages by either compensating the D or purchasing the lot himself. Ps use is hypersensitive and not entitled to an injunction. The D was

    building his house within his legal right and the P is not exercising a free right (no right to light and air) BUT legislature can act regarding these issues, not

    court.

    should be allowed), BUT the harm to P is substantial so that it is unfair

    to burden P with Ds socially useful conduct

    NO REMEDY P is entitled to NO remedy if: y The harm to P is NOT SUBSTANTIAL; ORy Ds conduct causes more social good than harm, and it is not unfair to

    impose the costs of Ds activity on P; or

    y The imposition of damages would put D out of business and need toavoid this result (bc of the social value of Ds conduct is more

    important than preventing the harm to P)

    PURCHASED

    INJUNCTION

    P is entitled to a purchased injunction if: y Ds conduct causes more harm than good BUT it is not fair to imposethe cost of shutting down Ds activity solely on the D. (g. when P comes

    to the nuisance)

    bsolute right to engage

    ivity or be secure from

    (Bargaining allowed)

    ased

    ction by P to

    Ds activity

    emedys damages but

    junction

    s injunction on

    onductalienable right to be secured in land and right

    free from harm is inalienable (No bargaining)

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    Property: Private Land Use Controls

    Servitudes

    Easements

    ServitudesDefinitions Dominant Estate: Land receiving benefit of use of land

    Servient Estate:Land allowing use of that parcel

    Negative Easements: agreement NOT to do something, Courts stopped using Neg easements overtime (only some exists today)

    Appurtenant: attaches to the land and runs with the land

    Easement in Gross: attaches to the person and runs with the person (till death) and NOT with land General Rule: a private contract (actual or implied) between parties that creates a right or obligation that runs with the land or with an interest in the land is an

    easement.

    y Common issues in servitudes: (1) formal requirements (When do informal revocable expectations become irrevocable?) (2) interpretingambiguities substantive requirement, (3) modifying and terminating servitudes

    Interest in the Land y Burden on a S/E passes to subsequent owners of the S/E giving the easement owner contract rights against theoriginal grantor and all his successors

    Runs with the land: y passes automatically to successive owner and occupiersy Rules governing when an easement runs with the land depends on whether it is an express or implied easementFor a Burden to

    Run w/ Land

    (S/E)

    easement is in writing in thedeed granting the property and must describe in detail or refer to an

    earlier recorded writing; easements do not needed to be included in subsequent deeds

    y not necessarily in the deed conveying the property but must be in writing and must be reportedthe original grantor who created the easement must have intendedthe easement to run with land

    Benefit v. Burden

    Dominant v. Servient

    Run with the land

    Appurtenant in gross

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    y grantor has to intend to bind future owners which is either clearly stated or impliedy when examining intent ask if it is really an easement or a licensesubsequent owners of servient estate had notice of easement at time of purchase (3 types of notice)

    a. Actual: subsequent owners in fact know about the existenceb. Inquiry: visible signs non-owner use require a reasonable buyer to investigate for

    easements

    c. Constructive: if deed conveying is recorded properly and in the chain of titlefor a Benefit to

    Run w/ land

    (D/E)

    Test: What is the intent of the grantor?

    y Appurtenant: benefit is treated as if attached to a particular parcel and meant to benefit parcely In Gross: benefit is NOT attached to particular parcel but meant to benefit the person not land

    Easement

    y non-possessory right of use granted in the land of another that is permanent and irrevocable; as a formal right, rather than a privilege, it grantssubstantial interest in anothers land, may be subject to statute of frauds and may be transferable

    y Easements grant a right of use as opposed to a right of possession and may be limited in scope by (1) time and (2) useLicense: permission given by a landowner granting a non-owner an informal and revocable privilege to do things that would otherwise be

    classified as trespass

    Easementv.

    License

    License: Easement:

    y No interest in the land is granted however the privilege of usemay become irrevocable under certain circumstances

    y interests in land however within certain limitedcircumstances may be removed

    --Permission --informal --Revocable byLandowner --Right --Formal --Permanent --Irrevocable

    --Not Transferable --Not

    Inheritable

    --Not

    Devisable

    --NotSubjectSta.

    ofFrauds

    --Transferable --Inheritable --Devisable --Subject to Sta.

    ofFrauds

    Major Issues

    in Easements:

    Requirements: y Identifying the Formal Requirements (When are informal expectations recognized as a right or obligation)Ambiguities: y What evidence is acceptable when reviewing ambiguous language

    Validity: y Substantive Requirement to Establish ValidityModification: y How can a servitude be modified and under what circumstances?Termination: y Can the servitude be terminated and under what circumstances?

    Substantive

    Limitations

    of

    Easement

    Statue of

    Frauds

    Easements are considered a substantial interest in land and are subject to the Statute of

    y Exceptions: Estoppel, Prescrription, Prior Use, NecessityNo Affirmative

    Easements to

    act on Own

    land

    y traditionally not allow creation ofan affirmative obligation to do something on someones own land for thebenefit of other owners

    y Aff. easements are rights to do something on someone elses landy Neg. easements are obligations not to do something on ones own land

    Location

    Change

    y Traditional rule:S/E owner cannot relocate easement without grantee consent; granteecant extend Easement

    y RST: allows at the expense of S/E owner if:y changes do not significantly lessen the utility of the servitudey increase burdens on easement grantee in use and enjoymenty or frustrates the purpose for which the easement was created

    Additional

    Investmenty Easement holder may prepare, maintain, improve or repair the way in a manner and to an extent reasonably

    calculated to promote the purposes however it must be:

    (1) confined to the area within the exterior border of the easement

    (2) not cause an undue burden upon the S/E

    (3) not cause an unwarranted interference with S/E owners independent rights

    SCOPE:

    Determining

    the scope of

    easement:

    This question

    comes up when

    a use of the

    easement and

    the type ofharm caused is

    challenged (too

    broad of use,

    undue burden,

    improper

    subdivision)

    y 3 Issues in determining if an owner is misusing an easement is based on the intent of the grantoro Note: It is Possible to engage in activity clearly contemplated by easement and still exceed the scope

    1) Kind of UseContemplated?

    (Henley)

    y Approach: What kind of activities were intended to be encompassed?o Broad View:(Majority) generallyany reasonable use is permissible, it is

    not necessary that it be a purpose contemplated by grantor

    o Narrow View:(Minority) rights of ways are limited to specific useit wascontemplated for at the time it was created

    y Analysis:o What rights did grantor grant at time easement was originally granted?o Should easements be interpreted narrowly or broadly?o Should easement grantee be permitted to use easement in other way? o What result most parallelso original intent of the grantor and grantee?o Should alienability be a goal and what result most favors alienability? o If not alienability, then what should be the goal?

    2) Heavy use constitutingan undue or

    unreasonable burden

    on S/E not

    contemplated by

    grantor?

    Is use so heavy constitutes unreasonable burden not contemplated by grantor?

    y Approach: Unreasonableness analysis focuses on what a grantor intendedat the time and if thedisputed use has gone beyond that intent; protect the

    property rights of the S/E holder

    y Analysis: What was the grantors intent?o Look at (1) language of the easement then (2) outside evidenceo Grantee may not (1) cause undue burden on S/E or (2) interfere with

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    independent rights of others with similar right of use

    Even legitimate use may need to be limited if causes undue burdeny If ambiguous the court will balance interest of easement owners freedom to

    develop property vs. S/E owners security from overly burden property

    3) Can the easement besubdivided?

    y Appurtenant: (divisibility) appurtenant easement benefits entire D/E and isdivisible among subsequent owners if D/E is divided

    y In Gross: (apportionability) if exclusive can be dividedo RST: In gross can be divided unless (1) contrary to intent of easement

    grantor/grantee or (2) unless unreasonably burdens the S/E

    Typesof

    Easements

    Negative: y an easement that allows a non-owner the right to restrict the use of a Servient EstateAffirmative y an easement that grants an affirmative right intended to be permanent or irrevocable which gives a right to do something on

    someone elses land

    Types of A/E: y (a) Express or (b) Implied ((1) Prescription, (2) Estoppel, (3) Prior Use, (4) Necessity)Types of

    Estates:

    (1) Servient Estate: (S/E) land that is burdened by the easement(2) Dominant Estate: (D/E) land that is benefited by the easement

    Decide: Appurtenant v. In Gross Apportionability Transferability

    Appurtenant v.

    In Gross

    y Appurtenant: easement which benefits the owner of a parcel in the use and enjoyment of that parcel (D/ E)and is inseparable from the D/E

    y In Gross: easement that is a personal right serving the holder which does not benefit its owner in the useand enjoyment of his land but rather grants a personal right to use the S/ E.

    Express Easements

    AffirmativeEasement:Ex

    pressEasement

    Must be created by written agreement (usually a deed or separate document referred to by conveying deed) between parties to secure enforceability

    under statute of frauds because transfer of an easement is analogous to sale of a piece of property (by grant or by reservation)

    Note: y Easement by Implication do not require written agreements to be enforceableo (1) prescriptive, (2) easements by estoppel, (3) prior use, (4) necessity, (5) constructive trusts

    y No reservation of easement in a third partyBurden Benefit

    Express v.

    Implied

    Express: What the grantor intended to grant

    y To person or parcel? runs with the land if intended to do soy reasonably necessary for benefitImplied: What the grantor intended to grant

    y Rarely attaches to a person (1) Writing, (2) Intent, (3) Noticey Notice is most relevant for Burden-side analysisAnalysis:

    for burden

    to run withthe land

    Must be

    in Writing

    y Sets forth the creation of the easement, parameters, location, purpose, use and must have been recorded in an originaldeed; does not need to be recorded in all future deeds or deeds that convey the property

    1. Scope: States (1) scope and (2) physical dimensions of easement (1)y Analysis:

    a. Use is of the kind contemplated?: Defense unanticipated development or tech changeb. Unreasonable Burden?: Defense

    2. Identification: States name of Parties and parcel to which it is attached3. Recorded: Correctly recorded to provide notice and locatable in chain of title of the property

    Intents of

    Parties

    Intent that the obligation run with the land found in language of document conveying the estate

    y Phrase: and to their heirs and assignees forevery No Phrase or Ambiguous: look to purpose and circumstances and assume, if an easement (1) benefits a

    neighboring land and (2) touches and concerns land, is intended to run

    Parol

    Evidence

    Rule:

    y Unambiguous language: parol evidence may NOT be introduced to determine the intent of the partiesif the language of the instrument is unambiguous

    y Ambiguous language: parol evidence may be introduced to ascertain the intent of the parties if thelanguage of the instrument is ambiguous

    Notice a. Actual: buyer was actually told about it or was otherwise made aware of it (Notice is most relevant for S/Eburdened)b. Inquiry: When reasonable inspection merits investigation; Condition of premises indicates land burdened by easementc. Constructive: Knew of should have known because the easement is recorded and locatable in a chain of title search

    Transferability of Express Easement and Construing Ambiguous Language:

    Green v. Lupo, (pgs. 350-352): Plaintiffs owned all the property, but now retain several acres and an easement across Defendants' land.

    Plaintiffs developed their remaining property for a mobile home and some occupants use the easement as motorcycle practice run. Defendant

    block access with logs, etc. The Easement: Promised to "Don Green and Florence B. Green" [described the easement] "for ingress and egress

    for road and utilities purposes." Ambiguity centered around whether the right was in gross or appurtenant (individual or runs with land)

    Holding: Easement is interpreted to be an appurtenant based on parol evidence and P granted continued access to easement land.

    Analysis: How to interpret easement

    y Are the parties named and no other language to suggest that future landowers are use easementy Look for dominant estate and the benefit bestowed on it

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    y PRESUMPTION: Easements are appurtenant to some particular tract of land (personal easements are not favoredbc the benefit goes intoa person and not to the land, thus no dominant estate exists)? Why is there this presumption again??

    y court must balance easement owners interests (freedom to develop) with servient estates interest (greater burden than originallycontemplated)

    o security from being over


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