prop - my version

• What is property?

  Defines social relations wrt to a thing. Property rights are relational (and variable).
• Real property?


  Land
• Personal property


  Items/objects. Can be tangible or intangible
• What is in the Bundle of Rights?


  The right to:

  Exclude, Possess,

  Transfer (power of alienation),

  Gift,

  Sell,

  Devise,

  Use, Modify, and Destroy
• Not all of the bundle of rights is always available.

  Kidneys: can gift but can't sell

  Assets: can sell but can't gift
• Not having one of the rights does NOT eliminate “property”


  Because rights are relative!
• Jacque v. Steenburg Homes


  Punish people for violating right to exclude (trespass) to prevent self-help by owners (utilitarian)
• Right to exclude


  Ownership gives the absolute power to say NO to someone coming into the land or giving over an object.
• Marsh v. Alabama (limitation on right to exclude)

  The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.
• State of NJ v. Shack (right to exclude limit)


  Ownership of real property does NOT include the right to bar access to governmental services.
• Policy: Restriction on an owner’s rights


  Property rights cannot be used to harm
• Policy: Balancing interests


  Property rights serve human values

  Title to land is not dominion over the destiny of those on premises
• Hinman v. Pacific Air Transport (limit rights)


  The owner of land owns as much of the space above him as he uses, but only so long as he uses it
• Reciprocity of Harms


  courts act as a safety valve, can determine who can stop whom via public policy means (if harm > benefit, against public policy)
• Johnson v. M’Intosh


  Property as a legal construct – conception of law as independent of abstract norms/ morality/ justice
• First in time, first in right


  person whose interest in a property is first established prevails over a party who subsequently acquires an interest in the property.
• Most common justification for protecting someone’s rights of ownership


  Possession (Unowned thing goes to the person who is first to possess it)
• Ghen v. Rich

  Usage of customs to determine the rightful possessor
• Equitable division


  When more than 1 party has an interest, a court will find undivided interest in proportion to the strength of the claim
• Pre-possessory interest

  When a person completes a significant portion of the steps to achieve possession of an item, but is thwarted due to the unlawful conduct of another, that person has pre-possession.
• Rationae soli


  Title to any animals captured or killed on land belongs to owner of land.
• Virtue of rationae soli


  it may marginally discourage trespasses on land by those who

  would trespass for the purpose of capturing wild animals
• Trajedy of the Commons


  Race to consume grass; no incentive to conserve; destruction of the field as a viable resource for cattle
• Benefits of Property #1

  Protect first possession rights
• Benefits of Property #2: Utilitarian Theory to Maximize Societal :)

  Conservation benefits: Incentive to conserve land and prevent congestion; alienability allows land to be sold or leased to party who can get the highest benefit from the land (lower transaction costs); social peace

  Productive benefits: incentive to invest in improvements; more food, more revenue -> society benefits
• Costs of Property #1

  Establishment/allocation: title records, making a claim

  Protection by courts or police

  Inefficient pricing (ex: after-hours parking)
• Costs of Property #2: Transaction Costs

  Bargaining

  Failure to agree

  Holdouts to unify property pieces

  Effort to find owner

  Delienating boundaries
• Costs of Property: rent-seeking and monopolies


  Attempt to capture a supercompetitive return – uncompensated benefit

  Original competitive market – prices driven down to minimize any seller’s profits

  Sellers want more – seek high return

  Attempted lobbying of government
• Non-utilitarian objections to property rights

  Morality: Wrong to reduce some valuable things to

  property

  Commodification objection: deletrious change of the participants

  Distribution: who gets the property (unfairness but efficient)
• Reducing transaction costs


  argument FOR property rights
• Quiet title


  brought by a plaintiff objecting that another’s claims amount to a “cloud” on her title.
• Law of finders


  Finder has rights superior to all BUT true owner.

  Only protects prior possessors who took the property in good faith

  Defendant cannot assert third party rights
• Why protect wrongdoer possessors?

  Avoid self-help

  Hiding may make finding true owner more difficult

  Encourage finders to come forward

  Sometimes hard to distinguish finders and owners

  Entrusting goods to a bailee may be efficient (reduce transaction costs)

  Possession may be evidence of ownership
• Mislaid property

  property is intended to be "laid" somewhere else but gets accidentally left; owner did intend to put the property where it is found

  does NOT go to finder: goes to owner of place where found until true owner reclaims

  Still within original owner's possession

  Constructively possessed by owner of place
• Lost property

  property is not intended to be placed somewhere else and gets accidentally left behind; owner did not intend to set property where it is found

  the finder is entitled to possession against everyone with the exception of the true owner
• Abandoned property

  property is intended to be left behind

  not still within original owner's possession

  to finder or owner of land not open to public
• Accession


  When one takes wrongful possession of personal property in good faith and adds value to that property, title vests in the wrongful possessor.
• Accession Limits


  Good-faith is generally required

  Restitution of value of raw material

  Recovery only when unchanged personal property may be separated from its new creation.

  Only protects parties who do not know or have reason to know they are buying property with clouded title.
• Nemo dat


  You cannot give what you don't have
• UCC: Good faith purchasers 


  Holder of “voidable” title can transfer good title to good faith purchaser for value (cannot be as a gift)