Property Outline PDF

Property Outline Exclusion and Access General -​ Jural Correlatives a.​ Right – Duty i.​ Right to enter, the other person has a duty to let you in b.​ Privilege – No Right i.​ If you have a privilege to exclude, the other person has no righ...

Property Outline Exclusion and Access General -​ Jural Correlatives a.​ Right – Duty i.​ Right to enter, the other person has a duty to let you in b.​ Privilege – No Right i.​ If you have a privilege to exclude, the other person has no right to enter c.​ Power - Liability d.​ Immunity - Disability -​ Types of arguments a.​ Fairness based argument: i.​ Thinking about justice, equality, and treating parties equally; morally just b.​ Utility based argument i.​ What is the black letter law going to incentivize or disincentivize c.​ Institutional arguments i.​ In what situations is it appropriate for the competing claims to be resolved by an executive agency or institution or legislature ii.​ In what situations are these competing claims resolved by governments, judges, and juries d.​ Administrability arguments i.​ A rule is more predictable for the world to understand but less flexible  1.​ Rules can be over and under conclusive, and restrict responses to specific situations 2.​ Rules do not determine the scope of their own application ii.​ A standard is less predictable, but more flexible 1.​ Standard: ex. “No trespassing ever unless reasonable” (what reasonable is is a standard) 2.​ Saying that a standard is unpredictable is overstating because there are precedential applications of the standard. Overtime, this starts to develop some concreteness (you might not be able to say definitively, but you can be pretty sure) iii.​ When there is a standard not a rule, think: 1.​ What are the reasons that this rule was adopted in the first place 2.​ In which situations was the rule intended to operate? iv.​ A rule crumbles when a judge cannot give strict adherence to it Trespass -​ Trespass: unprivileged, intentional intrusion on property possessed by another a.​ Intent: met if D engaged in a voluntary act b.​ Intrusion: occurs the moment the non-owner enters the property -​ Majority Rule: People have the right to exclude someone for any reason (or for no reason at all) -​ Minority Rule: when the property owner has no reason and the cost to them is low and the cost to the neighbor is extremely high, the property owner does have an obligation to let the neighbor on the land (a principle or neighborliness) -​ Common Law Defenses to Trespass 1.​ The entry is done with the consent of the owner; 2.​ The entry is justified by the necessity to prevent a more serious harm to persons or property; or 3.​ The entry is otherwise encouraged by public policy -​ Trespass Remedies a.​ Glavin v. Eckman i.​ Neighbor cuts down trees to get a better view ii.​ Judge awards “restoration” damages instead of market value for timber or diminishing property value b.​ The offer-ask issue: i.​ Theory: absent transaction costs, entitlements will end up in the hands of the people who value them most ii.​ Complication: what people would ask for something they already have is often higher than they’d offer for that thing if they did not have it c.​ Injunctions: remedy a trespass where a trespass is continuous in nature i.​ A trespass is continuous in nature where someone is personally present on the land of another or where they leave some object on the land -​ Tenants have a privilege to welcome visitors a.​ Once you’ve invited a person in for the purpose of them using it as their residence, you have conceited some of the right to exclude -​ Jacques v. Steenberg Homes a.​ Facts: D intentionally plowed through P’s property to deliver a mobile home, ignoring adamant protests by P b.​ Issue: Whether punitive damages can be awarded when there are no compensatory damages for trespass  c.​ Holding: Punitive damages can be awarded d.​ Takeaways: i.​ Private landowner’s right to exclude others from their land is one of the most essential parts of property ownership, and this right is hollow if the legal system doesn’t protect it ii.​ Private landowners should feel confident that wrongdoers who trespass on their land will be appropriately punished (so they do not resort to self help) iii.​ We are not just going to give compensatory damages, we are also going to compensate them for their sense of violation/demoralization e.​ Competing interests i.​ Titleholder: prevent people from entering their property ii.​ Trespasser: transport mobile home in an economically efficient manner -​ State v. Shack a.​ Facts: i.​ D’s (workers for the government) entered private property to aid migrant farmworkers employed and housed there ii.​ Titleholder said they could only aid the migrant farmworkers if they stayed in his office and under his supervision iii.​ D declined and decided to see them privately b.​ Issue: Are first amendment rights of D’s and migrant workers offended? Is application barred by the supremacy clause of constitution and would application defeat the federal statutes purposes of SCOPE and CLRS to reach and aid the migrant farm workers? c.​ Holding: there was no trespass – D had the privilege to enter the property  d.​ Rules: i.​ A farmer-employer cannot deny the worker their privacy or interfere with their opportunity to live with dignity and to enjoy associations customary among citizens ii.​ Ownership of property does not include the right to bar access to gov. services available to people living there iii.​ When a property owner allows people to live on his land and gains some benefit from this, he gives up some of his rights iv.​ Even if we assume that an owner has a legitimate right to farm without interference, the owner has already invited other workers on the land so that he can make money (the argument is that he had the freedom not to do that, and that when he did do that and had the benefits from their presence on the property, he also gives up some of his rights – he does not have absolute dominion over these people) Discrimination and Public Accommodation -​ Uston v. Resorts International Hotel a.​ Casino tries to exclude patron for counting cards b.​ Competing interests: casino wants to exclude, card counter wants a privilege of access c.​ The privacy interests of the patrons of the casino are a lot lesser than someone who is living there d.​ The right to exclude is limited when a property owner opens up their property to run a business e.​ “The more pubic property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property”  f.​ Implicitly when property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude people unreasonably i.​ Reasonable reasons to exclude: people who disrupt the regular operations of the premise, threaten the security of the premises and its occupants, disorderly people, or dangerous people g.​ *But Uston is an outlier -​ Justifications offered for the special obligations on innkeepers and common carriers: 1.​ More likely to be monopolies than other businesses, so denial of service was tantamount to denying the ability to travel or to find a place to sleep away from home 2.​ These businesses provides necessities whose denial would place individuals in risk from the elements or bandits on the highway 3.​ Innkeepers and common carriers hold themselves out as ready to serve the public and the public relies on this representations -​ Elements of a claim that someone has violated the Federal Public Accommodations Statute (Section 2000a of the Civil Rights Act of 1964): the plaintiff must prove that the defendant: 1.​ Committed discrimination; 2.​ On the ground of one of the protected categories (race, religion, or national origin); 3.​ In access to a “place of public accommodation” a.​ To constitute a “place of public accommodation,” a business must i.​ Fit into the list of facilities named (or implied?); ii.​ “Serve the public” and not constitute a “private establishment…not in fact open to the public;” and  iii.​ Either “affect commerce” or be “supported by state action.” -​ Argument for businesses to have the right to exclude: a.​ Businesses are not going to exercise the right to exclude unreasonably (their point is to make money) i.​ Counter: if their only decision is their bottom line and the customers are saying they want a certain class of people excluded, maybe the business would abide by what the customers want (so maybe they would exercise the right to exclude) Beach Access -​ Common law navigable servitude: the government owns all the navigable waters -​ Public trust: All title waters are held for the public interest a.​ Majority: public trust waters include everything below the average of the high tide (average title swings over the last 18.5 years) i.​ A calculation that beach goers are not likely to make b.​ Minority: mean low tide line -​ The disputed land is the dry sand beach (between the vegetation and the mean high tide line) -​ Three common law doctrines (besides public trust) to grant rights of access to beached by the general public: 1.​ Dedication: involves a gift of real property from a private owner to the public at large 2.​ Prescription: if the public has used property possessed by another for a particular purpose for a long time, the public can acquire such rights permanently (easement)  3.​ Custom: longstanding, uninterrupted, peaceful, reasonable, uniform use of the beachfront by the public for recreational purposes conferred continuing rights of access -​ Texas beach access: robust right to exclude a.​ 1958 – the state’s dry sand beaches (including the private title beaches) are not held in trust for the public the same way the gulf and the waters are (aka. High tide line) b.​ Then Texas enacts the open beaches act: setting out procedures for situations in which the state acquires access to a beach via some other common law doctrine (like implied dedication, prescription, custom). TX set out procedures to formalize the public interest. c.​ TX appellate court interpreted the act really broadly, so many dry sand beaches were considered impressed with public rights d.​ In 2011 TX supreme court: Severance v. Patterson – robust exclusionary rule i.​ Every dry sand beach that is titled in private hands is closed to the public unless the state can definitely prove that one of the common law doctrines is implicated ii.​ The common law doctrine has to be implicated within the respect to a particular segment of beach as defined by metes and bounds (with respect to the length and width to a specific parcel) 1.​ This is hard because the tide line is always moving and so is the vegetation line iii.​ When the state has not met its burden, the private owners can actually create physical barriers to impose their property rights 1.​ The public cannot recreate a customary common law right to have access to the beach if the private owner could construct a barrier -​ New Jersey beach access: reasonable access standard a.​ Public trust rights become meaningless if the public is excluded from exercising that right (there is no access point to the beach) b.​ Matthews v. Bay Head (using a standard not a rule) i.​ Issue: whether the dry sand area that the association owns or leases should be open to the public to satisfy the public’s rights under the public trust doctrine ii.​ Rule: 1.​ In order to exercise the right to use the land below the mean average high water mark, the public must have access to the municipally owned dry sand areas as well as the foreshore 2.​ Quasi-public entities have to afford reasonable access to the beach (Bay Head was kind of acting like a town that was quasi-public) iii.​ Reasoning: 1.​ Public interest is satisfied as long as there is reasonable access to the beach 2.​ By limiting membership to residents and foreclosing the public, the association is acting in conflict with the public good and public policy c.​ Raleigh Avenue i.​ Was trying to charge an unreasonable amount of money for access to the beach ii.​ New Jersey Supreme court held that the Matthews rule is extended to apply to privately owned properties iii.​ Now the reasonable access standard applies to privately owned lands as well Relations Among Neighbors Adverse Possession -​ Adverse possession doctrine allows a non-owner to acquire full ownership rights in real property if the non-owner “actually possesses” property without permission by the “true” owner (meaning the formal title holder) in a visible manner for the period of time established by statute -​ When the statute of limitation lapses in trespass, adverse possession applies a.​ You don’t just have a defense against liability, you are deemed the owner -​ Adverse possession usually arises in instances of mutual mistake regarding a boundary a.​ Ex. a long time ago, the fence was just put in the wrong place -​ Why we have the doctrine of adverse possession: a.​ Moral, fairness, administrative b.​ It’s morally wrong to let someone get so attached to a piece of property, and it gets ripped away from them c.​ Sleeping theory: owner you slept on your rights d.​ Earner theory: the trespasser earned the rights of the property by putting it to use e.​ Administrative reasons i.​ Clarity gets property moving in the open market ii.​ If the adverse owner gives notice to the actual owner that they are making a claim, the owner has a choice to do something (so they don’t lose the property) or they could do nothing iii.​ This gives predictability  iv.​ It is different to make an evidentiary claim over an extended period of time (and we might not know when we buy a piece of property if someone who secretly has the title from 150 years ago might come back and claim the land is theirs) -​ Elements of adverse possession 1.​ Actual a.​ Adverse possessor must physically occupy the property in some manner 2.​ Exclusive a.​ Adverse possessor is excluding in the way that a reasonable true owner would exclude 3.​ Open and notorious a.​ Using the property in the way that is sending a message to the real owner that they are using the property as a true owner would b.​ Adverse possessor is putting the true owner on notice c.​ The court does not require that the actual owner know adverse possessor has been occupying the land (it is enough to prove that the actual owner should have known) d.​ Constructive knowledge is sufficient: it is enough to prove that the actual owner should have known 4.​ Adverse under a claim of right, and a.​ If a land owner gives permission to the occupier, then it is not adverse b.​ Permission has to do with the owner’s state of mind (and it’s usually not clear what the state of mind was) i.​ In most cases there is not explicit permission or exclusion  ii.​ The majority presumption is that the adverse occupiers occupation and use is not permissive 1.​ There is a shifting of the owner to show that they did permit the occupation c.​ State of mind of the adverse occupier: i.​ Objective (majority view) 1.​ Courts do not care what the occupier was thinking when they entered onto the property of another ii.​ Good faith 1.​ Element can only be met with the good faith belief (though mistaken) that they actually owned the property 2.​ If it was in bad faith, the element cannot be met 3.​ This presents an additional burden of proof to show you were acting in good faith iii.​ Intentional 1.​ “Bad faith jurisdiction” 2.​ Only recognizes if the adverse occupier knew that they were not the owner of the property 3.​ Arguments for this position a.​ Minimizes mistake disputes among neighbors b.​ Wants to encourage squatting to punish absentee owners and encourage productive use of property 5.​ Continuous,  a.​ The adverse possessor must exercise control over the property in the ways customarily pursued by owners of that type of property b.​ It gives the true owner time to see that adverse possessor is occupying the property c.​ The adverse occupier has to stick to their claim continuously 6.​ For the statutory period a.​ Need to be met for the amount of time that is spelled out in the statute of limitations b.​ Usually 5-20 years c.​ An owner can file a trespass claim within the statute of limitations and defeat the adverse possession claim -​ Ways to prevent adverse possession: a.​ Give the trespasser permission -​ Brown v. Gobble -​ Arguments for an objective view to adverse occupier a.​ Fairness i.​ You get to take the advantages of good faith and bad faith ii.​ There was a wrongful occupancy at first, but it is fair now because its been over time iii.​ It is fair to the true owner (even in a bad faith situation) because the true owner waited over time and relinquished their claim iv.​ Predictability b.​ Utility i.​ It incentives people to make use of abandoned property ii.​ It incentives true property owners to take care of their land and use it iii.​ It is really hard to prove good faith / bad faith  c.​ Administrability i.​ Predictability ii.​ Reduces litigation iii.​ Takes out of the equation the difficult matters of proof d.​ Institutional arguments i.​ The only reason the objective standard is a thing is because the legislature made a statute of limitations and made adverse possession ii.​ We don’t want a judge to require good faith because that would change the law which the legislature hasn’t showed intention for -​ Arguments for a good faith: a.​ Fairness arguments i.​ Can increase the protections for property rights for owners ii.​ It would not be fair the the true property owners to reward people who trespass on their land iii.​ A willful trespass should never prevail in bad faith circumstances b.​ Utility i.​ Social utility ii.​ Cannot trust when you leave your property behind iii.​ Can artificially decrease the value of the land iv.​ Without it, it incentives people to just steal land v.​ Without it, it will incentivize the owner to set up a security systems and barbed wire fences and be less neighborly c.​ Administrability i.​ More flexible standard, more personal approach, room for nuance ii.​ Sometimes we have to sacrifice predictability for justice  iii.​ If all we cared about was predictability, we would just default to the title holder d.​ Institutional arguments i.​ The judges make decisions in equity and decide whether it is unjust to interpret trespass law in a certain way ii.​ They can make the law more just by requiring good faith -​ Tacking: the succeeding periods of possession by different persons may be added together to achieve the continuous requirement of adverse possession a.​ You can tack if you are in privity b.​ Privity: a connection that is uninterrupted because the transfer between owners was voluntary (voluntary transfer of possession) c.​ All of the elements of adverse possession need to be met for all parties that are tacked Prescription -​ If what a nonowner’s acts on a person's land is for a specific use (not as an owner) then the person may gain a prescription for the use a.​ Ex. using someone else's land to access your own land -​ Elements of prescription 1.​ Actual 2.​ Open and notorious, 3.​ Adverse under a claim of right, and 4.​ Continuous, 5.​ For the statutory period A.​ Adverse Possession & Prescription -​ The elements for establishing a prescriptive easement are the same as those for adverse possession except that the claimant must show adverse “use” rather than adverse “possession”  -​ Affirmative easements: something you get to do on your neighbor's land -​ Negative easements: something you get to prevent your neighbor from doing on their land -​ *Prescriptive easements can only be affirmative easements -​ Tacking applies to prescription -​ Community Feed Store v. Northeastern Culvert Corp a.​ When a prescriptive easement is claimed, the extend of the user must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period Nuisance -​ Nuisance is a substantial and unreasonable interference with the use or enjoyment of land -​ We do not live alone, so nuisance law protects the rights of those around us -​ Nuisance law helps the tension between an owners privilege to use land how they use and a freedom of others to feel secure in their own rights -​ Deciding not to protect property interests by failing to prohibit harmful use of land is as much a regulatory choice as choosing to prohibit or limit such uses -​ Free use rights must be limited when the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation (distribution of costs and benefits) -​ Considerations when determining whether a land use is producing an unreasonable impact (balancing test): 1.​ Utility of the defendant’s conduct; a.​ Is their conduct useful? 2.​ Gravity of harm to the plaintiff; a.​ The standard is against that of a “typical person”  b.​ Unreasonable sensitivity will barra nuisance claim 3.​ Suitability to the area 4.​ Priority of use; a.​ Whoever came there first has the priority b.​ Whoever comes second “came” to the nuisance i.​ But this is not an absolute defense because there are some things people shouldn’t be exposed to even if they were not first ii.​ If a person’s land use has an absolute defense then the effectively are able to determine the use of all other surrounding property 5.​ Cost to the plaintiffs and defendant of avoiding the harm; and 6.​ Practicability of abating the nuisance -​ Dobbs v. Wiggins a.​ Competing interests: in this nuisance case, freedom of use versus freedom to be secure from harm b.​ if the court had chosen to protect freedom of use (of dog owner) they would have chosen to give up freedom of security from harm (of the neighbor) c.​ Injunction to prevent nuisance: the restraint imposed by an injunction should not be more extensive than is reasonably required to protect the interests of the party in whose favor it is ranted and should not be so broad as to prevent the defendant from exercising his rights -​ Anticipatory nuisance: you cannot bring a nuisance claim before the challenged us is actually in place a.​ It needs to be so abundantly clear that the nuisance will occur before it occurs  b.​ It is really hard to bring a nuisance claim in advance of the harm and if you do there is some unpredictability -​ Nuisance law is limited in its usefulness as prospective planning a.​ We see private parties making contracts to avoid conflicts before they occur (servitudes) b.​ We see that there are many jurisdictions that have turned to public law rules like zoning to avoid nuisances before they happen -​ Most courts impose strict liability on landowners if they engage in ultrahazardous activities that cause harm to neighboring land -​ Statute of limitations for nuisance claims: a.​ Temporary nuisance: the claim accused anew upon each injury b.​ Permanent nuisance: statute of limitations for bringing a claim begins at the time the nuisance begins -​ Nuisance defenses: 1.​ The defendant got there first 2.​ The plaintiff is too sensitive -​ One alternative to nuisance law is zoning laws a.​ Use zoning: divides municipalities into districts and regulates the kids of uses allowed within each district b.​ Area zoning: regulates the size of lots, the height of buildings, requirements to set back structures a certain distance from property borders, and other aspects of the physical configuration of the property  IV. Land Use Regulation IV. Servitudes: Rules Governing Contractual Restrictions on Land Use A.​ Easements B.​ Covenants C.​ Covenants in Multiple-Owner Developments Part Four: Ownership in Common V. Concurrent & Family Property A.​ Concurrent Tenancies B.​ Concurrent Tenancies and Family Property VI. Present Estates & Future Interests A.​ Historical and Contemporary Estates Systems B.​ Restrictions on Estates & Future Interests VII. Mid-Semester VIII. Leases A.​ Leasehold Estates B.​ Conflicts About Occupancy C.​ Conflicts About Rent D.​ Tenant’s Rights to Quiet Enjoyment & Habitable Premises Part Six: Constitutional Protection for Property XI. Takings Law A.​ Regulatory Takings B.​ Beyond Regulatory Takings Part Five: The Legal Framework of the Market for Real Estate