Parades 2004 Property Outline

I.  Intro to property

  1. Acquisition by discovery and capture
  2. Alternative theories to property
  3. Property in one’s person
  4. Bundle of rights
  5. Acquistion by find
  6. Adverse Possession

II.  Estates

  1. Possessory Estates
  2. Future Interests
  3. Concurrent Estates

III.  Leaseholds: Landlord/Tenant law

  1. Leasehold estates
  2. Subleases and Assignments
  3. Tenant who defaults
  4. Landlord’s duties
  5. Tenants duties
  6. Rent control

IV.  Nuisance

  1. Intro
  2. Remedies

V.  Servitudes

  1. Intro
  2. Easements
  3. Covenants

VI.  Zoning

  1. Intro

VII.  Eminent Domain and Takings

  1. Eminent Domain
  2. Physical Occupations
  3. Regulatory Takings

I.  Intro

  1. Acquistion by discovery and capture
  2. Benefits of a first come basis
  3. Generally very clear concept of who owns what
  4. Less incentive to challenge
  5. Only one person who could first possess
  6. Creates incentive to be productive and first
  7. Locke: acquire property by putting labor into it
  8. More emphasis on laboring land than preservation
  9. Putting labor into the land puts yourself into the land
  10. Locke still believe in keeping some land in common with others
  11. Cases
  12. Johnson v. McIntosh
  13. Being first not necessarily the most important. Must be first in the correct way
  14. Indians have limited right to occupy, and can only transfer to nations
  15. Pierson v. Post: case for incentives
  16. Argument for initial hunter
  17. Investment of labor into hunt.
  18. If interloper were allowed to intercede at last moment, would provide disincentive towards future hunters
  19. Violence of disputes
  20. Arguments for interloper
  21. Difficult to establish if he would have caught
  22. Initial hunter may have been poor, excluding other hunters
  23. Allows maximum societal benefits (ie fewer foxes)
  24. Rule of capture: imminent capture will ensure simply spotting not enough, but will reward hunters who invest time
  25. Ghen v. Rich
  26. Externality: is it easier for whalers to find finders or finders to find whalers?
  27. Pro whalers: no possible way to initially capture whale, and giving it to finder would disincentivize any whalers
  28. Pro finders: whalers abandon property. Additionally, should develop technology to capture whale
  29. Custom
  30. Advantages of custom
  31. May be more efficient
  32. More narrowly tailored
  33. More flexible
  34. Disadvantages of custom
  35. Unfairness
  36. Which custom rules? Uncertainty
  37. May only take own interest into account, not others
  38. Create externalities
  39. Trespass (theft)
  40. Why make trespass illegal?
  41. No incentive to buy property if others can steal
  42. No incentive to work if fruits of labor simply taken away
  43. Waste of resources defending property
  44. Externalities
  45. Definition: effect of action that falls one a 3rd party that the actor doesn’t take into account
  46. Negative externalities: associated with too much of certain activity, because individual does not bear full cost that society does
  47. Positive externalities are generally associated with not enough activity, since actor does not internalize benefits
  48. Example
  49. Factory produces pollution in neighborhood
  50. Solutions: Neighbors pay factory to not pollute. Will pay up to what clean air is worth collectively.
  51. Factory owner has to incur opportunity cost of not accepting money if it did not take money.
  52. Neighbors have right to clean air
  53. Factory will buy the neighbors right to clean air
  54. Coase Theorem-no transaction costs, so optimum societal level always achieved
  55. Transaction costs
  56. Bilateral monopoly
  57. Each has own interest to drive hard bargain
  58. No competition
  59. Hold outs
  60. Free-riders
  61. Information gathering
  62. Commons
  63. Externalities: individuals get full benefit, but only portion of cost (eg logging in commons-cutter gets all benefit of gaining tree)
  64. Externality: Incentive to rush to acquire property
  65. Advantage of private property: benefit/costs fully realized by owner, so all externalities internalized
  66. Alternative theories of Property
  67. Radin
  68. Distinction between fungible and non-fungible
  69. Non-fungible: people value personal property stronger depending on circumstances
  70. Should we allow fungible and non-fungible to be valued at the market price?
  71. Friedman/Sunstein
  72. personal property rights allow autonomy and protection from gov’t
  73. Property in one’s person: Moore
  74. Scope of rights: should we be able to give, sell, prohibit use of own body?
  75. Current law: own’s person is not alienable
  76. Contract
  77. could simply contract that cells may not be used, or go to different doctor
  78. Bundle of rights
  79. State v. Shack
  80. Right to exclude not strong enough to infringe on other’s rights
  81. Mobile home case
  82. Do have right to exclude other’s for preference, economic reasons, etc.
  83. Just because it would be inconvenience to others, does not allow trespass
  84. Acquisition by find
  85. Lost property: owner unintentionally parted with property (dropped wallet)
  86. Owner has title over finder, but finder has title over others
  87. Reason: if loser of property lost title of property, owners would spend more time watching over property and less time being productive
  88. Finder of property usually wins, not owner or occupier of premises
  89. Claims: Finder may claim owner would not have found it
  90. Premises owner: owner of premises has control of premises, and therefore should have control over found property
  91. When premises is public, generally goes to finder
  92. Private: sometimes goes to owner
  93. Mislaid property: Intentionally left, but mistakenly left (wallet on counter)
  94. Owner of premises always wins over finder
  95. Greater chance of finding true owner
  96. Abandon property: intentionally abandon property
  97. Intent: intent to abandon property shows abandonment
  98. Finder
  99. Must gain possession, and show intent of possession.
  100. Adverse possession
  101. Acquiring title to property by using it
  102. Statute of limitations: amount of time in which owner can sue for trespass and ejectment
  103. Elements of adverse possession
  104. Actual entry onto property giving exclusive possession to adverse possessor
  105. Provides notice to original owner
  106. Informs extent of adverse possessor’s claim
  107. Open and notorious
  108. Cannot secretly take over property. Must be obvious to property owner
  109. Any reasonably diligent owner could notice
  110. Adverse and hostile to original owner
  111. Cannot be there by permission of owner
  112. Possession must be continuous
  113. Must be used a manner consistent with nature of property
  114. Use with nature will allow true owner to know of the trespass
  115. Statute of limitations must have run
  116. Constructive adverse possession
  117. Wrong title. Thinks he owns, but doesn’t.
  118. Once statute of limitations runs, then does get it
  119. Leasing does not qualify for adverse possession
  120. Co-tenant cannot gain adverse possession, unless excluded by other owner (Ouster)
  121. Tacking.
  122. Can tack periods of adverse possession from prior adverse possessor, as long as title passes directly.
  123. Reasoning for adverse possession
  124. create incentives to use land productively. Either the adverse possessor will use land productively or original owner will find trespasser by using it productively
  125. Can clarify title of land. This can encourage future exchanges
  126. Expectation. Adverse possessor expects to keep land
  127. Allocates risk. There need not be complete and exhaustive title examinations of every exchange of property
  128. Adverse Possessor may be using the property and has personhood attached to it, whereas actual owner obviously doesn’t use
  129. To avoid: all owner must do is check from time to time.
  130. Also, whoever values the land more will simply buy it from the other, regardless of who the court gives it to. But then problem runs with efficiency of transactions.

II.  Estates

  1. Intro
  2. Can divide up ownership rights over time
  3. Alienability is a good right
  4. However, from an initial transfer right, there is an advantage to allowing transferor to use own terms to encourage the transfer of land
  5. There are no new estates in land. However, through contracts and such, one can acquire land to make part of an estate
  6. Fee Simple
  7. Fee Simple absolute (O to A)
  8. Runs forever
  9. Fully alienable
  10. Any attempt to put a restraint on alienation is void
  11. Defeasible Fees
  12. ***Fee Simple Determinable
  13. Possibility of reverter. Future interest is held by grantor
  14. Transfers automatically back to grantor upon condition
  15. Fee Simple Subject to condition subsequent
  16. Future interest in form of right of entry by grantor
  17. Grantor must exercise right of reentry upon condition
  18. Fee Simple Subject to executory limitation
  19. Future interest held by a 3rd party
  20. Automatically give to 3rd upon condition
  21. No estate that gives right of entry to 3rd party
  22. Can combine interests by acquiring both future interest and present interest, creating a fee simple.
  23. Life Estates
  24. Estate in land someone has as long as they are alive
  25. Followed by a reversion (to the grantor) or Remainder (to 3rd party)
  26. Can impose restrictions on alienability of life estate.
  27. Remainders
  28. Vested remainder: belongs to an ascertainable person with no conditions (O to A for life, then to B)
  29. Vested remainder subject to open: Exists when the remainder is a class that can increase (O to A for life, then to B’s children)
  30. Vested remainder subject to divestment: remainderman could be divested upon the happening of an event (O to A for life, then to B, but if B drops out of law school, to C)
  31. Contigent Remaninder-unascertained person takes person takes possession (O to A for life, then to B if she graduated from law school)
  32. Waste-life tenant cannot waste
  33. Voluntary waste: affirmative action that causes harm
  34. Permissive waste-inaction
  35. Tenant has duty to repair
  36. Tenant has duty to pay taxes on property
  37. If tenant does not pay taxes, then remainderman may lose property
  38. Ameliorative waste: makes the property more valuable
  39. Courts have found a relatively worthless property can be changed by life tenant
  40. Co-tenancy
  41. Intro
  42. Time: all interests must be vested at same time
  43. Title: must be on same deed
  44. Interest: must all take the same kind
  45. Possession: all must have identical rights of possession
  46. Tenancy in common
  47. Each tenant has a separate but undivided interest in the property
  48. Each has a right to possess entire property
  49. Ownership can have different fractions of ownership
  50. Co-tenants may contract a different use of land (A for summer, B for winter)
  51. Can sell, and is transferable by will
  52. Joint tenancy
  53. Right of survivorship-not transferable by will
  54. Each has right to possess property in its entirety
  55. Not inheritable between joint tenants
  56. Can contract around interests
  57. Transfer to another extinguishes his right of survivorship (creates a tenant in common)
  58. O to A,B,C. A to D. B dies. A=1/3, C=2/3
  59. Pros of joint tenancy
  60. Avoids probate
  61. Ouster
  62. If A takes steps to keep B off of premises, then A is liable to pay B for rent
  63. Destruction of joint tenancy
  64. Partition
  65. Partition in kind: physical partition of land
  66. Partition in sale: selling of land and giving fractional interest of the sale to each party
  67. Severance
  68. One of four unities disturbed
  69. Duties of cotenants
  70. Possession: each must have right to possess all of property
  71. Accounting: Profits need not be shared, but leases must be paid for
  72. Contribution: Each must pay for necessary repairs, and taxes

III.  Leaseholds

  1. Intro
  2. 4 leasehold interests
  3. Term of years
  4. Any lease for a specific period of time
  5. No notice required, lease simply ends at lapse of lease
  6. If tenant stays past date, landlord can sue for trespass
  7. Periodic Tenancy
  8. Period lasts for fixed duration, and will continue until landlord or tenant gives notice of termination
  9. Common law: Must give 6 months notice for anything longer than a year
  10. Common law: Anything short of a year requires the notice to be as long as the period, but not longer than a year
  11. Many statutes: can cancel with 1 month of notice
  12. Tenancy at will
  13. No fixed period
  14. Tenancy lasts as long as both parties desire
  15. Terminable by both parties
  16. Waste by tenant can cancel tenancy
  17. When tenant or landlord dies, or one transfers interest, lease ends
  18. Tenancy at sufferance
  19. Holdovers
  20. Tenant wrongfully maintain possession of premises after lease is up
  21. Remedies: issue a trespass order, and eject tenant
  22. Alternative: find new tenancy. Generally, terms of old lease apply, with maximum extension of one year.
  23. Subleases and assignment
  24. Privity of estate: between landlord and present tenant
  25. Privity of contract: agreement between landlord and initial tenant (or assignee that expressly takes the obligations)
  26. Assignment-tenant transfers entire interest for entire term to 3rd party
  27. Assignee and landlord in privity of estate
  28. Tenant and landlord in privity of contract
  29. To get out of privity of contract, tenant must expressly be released
  30. Sublease-transfer of lesser interest to 3rd party
  31. T1 has some right of re-entry
  32. No privity of estate or contract between sublessee and landlord
  33. L can sue T1, but T1 can sue T2
  34. Landlord can reasonably withhold right to sublease or assign
  35. Landlord that accepts rent of assignee accepts assignment
  36. Tenant who defaults
  37. Common law rule: landlord can use self-help to retake premises
  38. Even with quick court action, could still be a while to let judicial system workàthis could lead to more misuse of premises
  39. transaction costs of going through courts
  40. Can also lead to violence
  41. Residential v. Commercial
  42. More restrictions on self-help for residential (More emotional attachment to home, Radin view)
  43. Vacation of premises
  44. Landlord must attempt to mitigate damages-find another tenant
  45. Can, however, lease for less, and then sue for damages
  46. Argument: mitigation good for society using property well. Also, landlord is no worse off.
  47. If mitigation required, landlord will simply raise rents, have more background checks, etc.
  48. Anticipatory breach: sue for termination and future rent
  49. Could have contractual remedy (fixed breach costs)
  50. Duties of landlord
  51. Implied covenant of quiet enjoyment
  52. Total eviction of tenant (Tenant physically removed, but L still wants rent)
  53. Partial eviction (landlord keeps part of leased property). T can stay on the rest of the land w/o paying rent
  54. Constructive eviction: landlord who fails to provide a service that makes leased property uninhabitable. You can leave, and be excused from rent
  55. Landlord must be responsible for condition
  56. Substantial interference with quiet enjoyment
  57. Must abandon premises within a reasonable time
  58. This evidences that eviction occurred
  59. Idiosyncratic tenant
  60. Generally must be a reasonable person’s needs
  61. Implied warranty of habitability
  62. Cannot contract around it
  63. Found if premises are uninhabitable by a reasonable person
  64. Remedies
  65. Terminate lease, abandon premises
  66. Can take to court for abatement of rent, and recoup back rent
  67. May stay and withhold rent until conditions fixed
  68. Why do we have this?
  69. Tenants have lower bargaining power than landlords
  70. Negative externalities hurt surrounding property
  71. Duties of tenant
  72. Tenant cannot commit waste
  73. If tenant covenants to repair, tenant is liable for every repair
  74. Exception: ordinary wear and tear
  75. Rent control
  76. Price ceiling of rent
  77. Fewer services
  78. Fewer landlords in general (move towards ownership)
  79. Higher safety deposits
  80. Rich people, the ones that we are not trying to help, benefit
  81. Radin: people attach personhood to their community, and home
  82. Nuisance
  83. Intro
  84. Nuisance: you use of the land interferes with another’s use of land
  85. Generally come up from negative externalites
  86. Must be substantial to be classified as nuisance
  87. Extent and character of nuisance (Loud music at 3pm v. 3am)
  88. Extent and character of the harm (eg oil refinery keeping from growing flowers vs. oil refinery making people sick).
  89. The social value of the plaintiff’s use of the land
  90. Suitability of the parties use of their land in a particular setting (eg pig farm in rural area v pig farm in downtown)
  91. What is the burden on the plaintiff to stop the harm (eg shutting window v no possible remedy)
  92. what is the burden on the defendant to solve the problem?
  93. Who was there first?
  94. is the social value of the defendants conduct?
  95. Nuisance determines rights (eg right to pollute vs. right to clean air)
  96. Coming to the nuisance
  97. Moving into the nuisance should assume risk
  98. First in time principles
  99. If you came to the nuisance, probably paid a lower price
  100. Considerations
  101. Is it coming to the nuisance by moving next to a factory?
  102. What if the factory expands?
  103. What if diligence would have found this information?
  104. Remedy
  105. Injunction
  106. Mandatory end of nuisance
  107. Post injunction bargaining: Δ could buy out Π.
  108. Still have traditional bilateral monopoly problems
  109. Spite
  110. Holdout
  111. Personal Value
  112. Damages
  113. Could steal lead to end of nuisance, by costing too much to continue
  114. Rights, liability rule, and property rule
  115. Right to clean air with property ruleàactivity must be abated by injunction
  116. Right to clean air with liability ruleàΔ must pay damages to continue pollution
  117. Right to pollute w/ property ruleàLet factory owner continue with no relief
  118. Right to pollute w/ liability ruleàAbate the activity if factory given damages

IV.  Servitudes