PROPERTY LAW OUTLINE

Transcription

1 PROPERTY LAW OUTLINE Table of Contents I. II. III. IV. V. VI. BASICS OF PROPERTY: TYPES, ACQUISITION, THEORIES... 3 I.A. FUGITIVE RESOURCES AND CAPTURE... 3 I.A.1. Wild Animals... 3 I.A.2. Oil and Gas, Water... 4 I.B. LAND AND DISCOVERY/CONQUEST... 6 I.C. ECONOMIC THEORIES OF PROPERTY... 7 I.D. INTELLECTUAL PROPERTY AND CREATION OF PROPERTY... 8 I.E. PERSONHOOD I.F. EXCLUSION, TRANSFER, USE TRANSFER OF PERSONAL PROPERTY II.A. FINDERS LAW II.B. GIFTS PROPERTY IN LAND: THE SYSTEM OF ESTATES III.A. PRESENT POSSESSORY ESTATES III.A.1. History, Fee Simple, Fee Tail III.A.2. Life Estate III.A.3. Defeasible Estates III.B. FUTURE ESTATES III.B.1. Background III.B.2. Rule Against Perpetuities III.C. JOINT OWNERSHIP III.C.1. Intro III.C.2. Severance III.C.3. Relations Between Joint Owners III.D. MARITAL OWNERSHIP III.E. LEASEHOLDS III.E.1. Intro III.E.2. Leases III.E.3. Subleases III.E.4. Default III.E.5. Duties III.E.6. Affordable Housing III.E.7. Housing Discrimination VOLUNTARY LAND TRANSFERS IV.A. INTRODUCTION IV.B. CONTRACT OF SALE IV.B.1. Marketability of Title IV.B.2. Duty to Disclose Defects IV.C. DEED IV.D. MORTGAGE INVOLUNTARY LAND TRANSFERS: ADVERSE POSSESSION MAINTAINING A PROPERTY SYSTEM: TITLE RECORDING of 54

2 VII: VI.A. RECORDING SYSTEMS VI.B. RECORDING ACTS VI.B.1. Basics VI.B.2. Inquiry Notice CONTROLLING THE USE OF LAND VII.A. NUISANCE AND ENVIRONMENTAL LAW VII.B. EASEMENTS VII.B.1. Intro VII.B.2. Creation VII.B.3. Scope VII.B.4. Termination VII.B.5. Easements and Conservation VII. C. COVENANTS VII.C.1. Intro VII.C.2. Equitable Servitudes: Creation VII.C.3. Equitable Servitudes: Enforcement and Validity VII.C.4. Equitable Servitudes: Termination VI. D. CONDOMINIUMS VII.E. ZONING VII.F. TAKINGS VII.C.1. Eminent Domain and Public Use VII.C.2. Regulatory Takings of 54

3 I. BASICS OF PROPERTY: TYPES, ACQUISITION, THEORIES Property law is about how people use resources. Modern view: Property is a bundle of rights. Bundle of rights theory Basic rights: o Exclude, o Use, o Transfer, o Harm/destroy. Theoretically anything could be property. Hence the court s struggle in Moore (see I.E. Personhood). Rights are vis a vis other people, not directly against the property. Rights vary by the type of resource and whom the rights are being enforced against. I.A. FUGITIVE RESOURCES AND CAPTURE I.A.1. Wild Animals RULE OF CAPTURE: Animals in nature are nobody s property, and need to be captured to become property. DEFINITION: Capture = intent to possess + deprivation of liberty + certain control. RULE: Between a pursuer (who has not yet injured the prey) and one who kills the prey, the prey belongs to the killer. Pierson v. Post Sup. Ct. NY 1805 Fox hunting case. Maybe wounding is sufficient, but this is left open. Similarly, trapping is enough you do not have to be on the scene to have captured an animal. Purpose of these restrictions: proof. Certainty vs. fairness. Policy: certainty, clarity, peace and order. An unclear rule could lead to violent self-help. Dissent: Reasonable prospect standard (rather than certain control ). Mainly a policy argument. Encouraging investment in hunting. Discussion: Consequences: Overexploitation. The rule of capture promotes the extinction of whatever is being captured. Example: the passenger pigeon. Creates a gold-rush mentality with no incentives for leaving any of the resource for later. 3 of 54

4 RULE re: CUSTOM: Factors for enforcing custom: 1) (Extremely) limited application to those in the trade ensures notice; 2) Longstanding practice - widespread, established recognition - promotes reliance; 3) No better alternative form of capture - necessity - promotes economic development or efficiency. Ghen v. Rich USDC MA 1881 Whale hunting case. Customarily handled by a form of the rule of capture. Custom supports this outcome. Policy: there was no other way to whale, except for this customary way. RULE re: MALICIOUS INTERFERENCE: Competition with another s business is okay, but malicious interference is actionable. (Policy: economic efficiency) Keeble v. Hickeringill England 1707 Duck decoy case. Policy argument: wealth maximization should be encouraged for the benefit of society. Malicious harm cuts against this goal, although proper competition does not. Discussion: Textbook hypos o X hunts deer, about to catch him, hunter Y shoots and kills deer. What result under Keeble? Y wins because he had possession. o X hunts deer, about to catch him, animal lover Y scares off deer. What result under Keeble? X wins because he had constructive possession. Legal labels vs. rationales/relativity of title: Look at the court s underlying goals to help make sense of the malleability of what is possession and what is not. RULE of RATIONE SOLI: Landowner has constructive possession of the wildlife present on his land. RULE of ANIMUS REVERTENDI: If you have possession of a wild animal, but it runs away, you do not have a claim against someone who hunts and kills it. What if it was a domestic animal? If it s domestic, the wild animal rule doesn t apply. Policy: We want to a) encourage investment in domestication; b) discourage wanton destruction of animals which have purposes and have been invested in. I.A.2. Oil and Gas, Water RULE OF CAPTURE for OIL & GAS: Rule of capture applies to these sorts of resources even if they were sucked from someone else s property. Barnard v. Monongahela PA of 54

5 Discussion: Treats these natural resources like wild animals fugitive by nature. This rule is not ideal, but is the best we can do because we have no way of knowing how much of the resource came from whose land. o Pro: administrability. o Con: encourages everyone to a) rush to deplete the resource before someone else gets it (bad - depletion), b) consolidate ownership of resource-rich land (bad - monopoly), c) extract and artificially store it or otherwise protect the resources (bad - inefficient since the ground was already taking care of storing it / unnecessary waste of resources). o Partial solution: regulations controlling when, where, and how much property owners can drill for oil and gas. Exception: slant-hole well ( directional drilling ). This counts as a trespass, especially if driller doesn t have resources under their own land. Problem: Resources injected into the ground (e.g. for storage). o Issue: How should a neighbor know the resource didn t get there naturally? o This can count as trespass. RULE for GROUNDWATER: Can freely withdraw groundwater unless: 1) unreasonably causes harm to a neighbor or waterway by reducing the groundwater table, or 2) exceeds the proprietor s reasonable share. Cline v. American Aggregates Ohio 1984 Discussion: Traditional rule: rule of capture. Why? Administrability: at one point (during development of the English common law), we didn t know how groundwater moved. Cons: investment based on assumption of access to water can be quite substantial, and development could be discouraged if a neighbor can just dig a deeper well and take all the water away. Now that we do understand more about how water moves, moved to a reasonable use standard. Nowadays there are also a lot more regulations. SURFACE WATER Types of rights: Prior Appropriation vs. Riparian Doctrine o Natural Flow o Reasonable Use Ranking of (competing) uses: 1. Domestic Water 2. All other developed uses 5 of 54

6 RULE re: RIPARIAN DOCTRINE: Can t have one use destroy another use If one use interferes with another use, determine whether unreasonable: o Law seeks to promote the greatest beneficial use of the water o In determining unreasonableness, look at what the use is for, its extent, duration, necessity, and application, the nature and size of the stream, and the several uses to which it is put, the extent of the injury to one proprietor and the benefit to the other, and all other facts which may bear upon the reasonableness of the use. Harris v. Brooks Arkansas 1955 Facts/procedure: D s use of lake to irrigate rice brought down water level, ruining P s recreational boating/fishing business. Available options: o Prior appropriation doctrine o Riparian doctrine 1: natural flow. Only grants rights to domestic use; cannot bring water level below normal. o Riparian doctrine 2: reasonable use. Domestic use is still most heavily favored, but can also apply to commercial enterprises. Can bring water level below normal it doing so doesn t interfere with the rights of others. ***Chooses this one*** I.B. LAND AND DISCOVERY/CONQUEST Rule, derived from right of conquest/discovery: Private parties cannot (validly) purchase land from Native Americans. Johnson v. M Intosh SCOTUS (from Illinois), 1823 Facts/procedure: Conflicting titles, one granted by NA and one by the US government. Title could not be granted by Indians as opposed to the federal government. The Indians had a right to occupy, but not to transfer. Relies on discovery/conquest. Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest Conquest gives a title which the Courts of the conqueror cannot deny. Takeaways: Allocation of property requires power, and giving people property gives them power. The force of the state stands behind one s claim to property. RULE of FIRST IN TIME: being there first somehow justifies ownership rights Pros/justifications: clear and simple, individualistic. Cons: makes humans alien to nature, deterrence of resource development if only one entity owns all the rights to a tract but can t or won t develop it, doesn t incentivize group efforts, inheritance doesn t necessarily make sense. 6 of 54

7 Not applied to the Native Americans. o Why? Locke s labor theory: they didn t truly take possession because they didn t work the land. o But this labor theory is problematic because normatively it seems that there needs to some ratio of effort expended to property gained. o Also, do we really own ourselves by default? LAW OF ACCESSION C mixes her property (oils) and labor (painting) with D s property (canvas). Can C now claim the completed painting as her own work? o Basic solution is that the painting belongs to D because the canvas did. o But sometimes a forced sale from the original owner to the developer can be required. I.C. ECONOMIC THEORIES OF PROPERTY Concepts Externalities Transaction Costs Economic Efficiency Assumptions(/Limitations) Rational wealth maximizers. Measures everything in terms of economic efficiency. o Inefficiency exists when another use would make society better off (if wealth transfers are possible). Going through the semester, we will NOT be looking exclusively at these factors. We will consider how: o Externalities, economic efficiency, efficiency conflict with o Distribution, equity Externalities. DEFINITION: whenever someone makes a decision about how to use resources without taking full account of the effects of the decision Can be either positive or negative. They are not ideal, but never can be eliminated completely. Externality-based justification of property rights o Community property is harmed (an externality) by individual appropriations. Incentives to consume become stronger as the resource gets more rare. (See Demsetz, below) o Individual property rights minimize these externalities. o Property is meant to be a system that reduces externalities without costing too much. In cases of many parties, making deals is not feasible because of holdouts, freeriders, etc. Thus we get externalities like pollution. 7 of 54