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  • 8/7/2019 Really Good Prop Outline


    Property Synthesis

    1 | P a g e


    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


    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

  • 8/7/2019 Really Good Prop Outline


    Property Synthesis

    2 | P a g e


    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


    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.


    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


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

    3. Familiar Relation

    6. Transaction/Contract

    2. Labor/Investment:Very strong in American property


    (Johnson v. Mcintosh)

  • 8/7/2019 Really Good Prop Outline


    Property Synthesis

    3 | P a g e


    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


    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 another