Property – Kieff – Fall 2011

VALUES SUBJECT TO OWNERSHIP

  1. Human Body
  2. Rule
  3. Generally people are not subject to property rights
  4. Approaches to defining human body as property
  5. Bundle of rights approach
  6. It’s property but only right to exclude holds
  7. No conversion, but due process rights exist
  8. Peggy Radin says we should have property rights (in rem) because they work to protect personhood interests better than contract rights (in personam), because property rights bind the world rather than just the first or second party who contracts
  9. Might be property for SOME purposes, but not all
  10. Argument for finding that you have a claim in tort
  11. Conversion: P must establish actual interference with ownership or right of possession
  12. If you abandon your organs/parts, cannot bring conversion (bc you need possession, and you have relinquished)
  1. Artists’ Moral Rights
  2. Rule
  3. Artists can retain control over the use of their expressions/beliefs through:
  4. Attribution
  5. Allows artists to claim authorship
  6. Prevents others from using artist’s name on something they didn’t create
  7. Integrity
  8. Prevents use of name for distorted, mutilated or modified work that would ruin reputation
  9. Prevents destruction
  10. Run along of profit
  11. Contractual rights
  12. Remedy
  13. Injunction
  14. But see Moakley, where the owner of property could renovate his property how he wants because the art became a fixture to his property
  1. Cultural Patrimony
  2. Rule:
  3. Historical preservation laws exist that prohibit right to transfer
  4. Cultural item must:
  5. Have ongoing historical, cultural or traditional importance
  6. Be considered inalienable by tribe by virtue of its importance to the tribe’s culture.
  1. Public Trust
  2. See Eminent Domain section

RIGHT TO EXCLUDE

Trespass to Land

  1. Rule
  2. Trespass is an actual invasion of exclusive possession of land
  3. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of foreign matter
  4. Not airborne, pollution, noise or vibrations [use nuisance]
  5. Remedy
  6. Strict Liability: we don’t care about reasonableness or reason of trespasser
  7. Actual harm from trespass is recognized in every trespass to land because it is the loss of individual’s right to exclude others
  8. Finding of actual harm gives rise to nominal damages, which may then support award for punitive damages
  9. When are damages inadequate and an injunction more appropriate?
  10. Repeated action by same or multiple parties
  11. Involving subjective value
  12. Reasoning: Right to Exclude is essential to property right
  13. Exceptions
  14. Ad Coelum
  15. Rule
  16. Can only have action available in trespass if you are:
  17. In possession of the airspace and
  18. Trespasser causes actual harm
  19. Reasoning
  20. Airspace is publicly navigable property (transaction costs would be too high) – Hinman v. Pacific Air
  21. Necessity
  22. Rule:
  23. If you need to save human life, you can trespass - more efficient for this to be a liability rule
  24. Liability is: pay compensation for damages

Building Encroachments

  1. Rule
  2. A building encroachment is seen as a permanent and continuing trespass
  3. Make sure this does not to get to the point where it becomes adverse possession  See Adverse Possession
  4. If this is an ENTIRE mistaken improvement, use the next section (MISTAKEN IMPROVER)
  5. Remedy
  1. If encroacher was in good faith
  2. Majority view (Rylands)
  3. Ex Post (You should have known, but…)
  1. Court will weigh circumstances to find out if it is an unintentional and slight harm
  2. Is plaintiff’s use of property affected?
  3. Is the damage small and compensable?
  4. Is the cost of removal so great as to cause grave hardship or removal to the encroacher?
  5. If harm is unintentional and slight, the Court will DENY INJUNCTION AND ALLOW DAMAGES if removal is too costly
  6. Liability Rule
  7. Minority Rule (Pile)
  8. Ex Ante view
  9. Court will grant the injunction and require removal of the encroachment regardless of the costs or actions of the encroacher
  10. Property Rule

2.If encroacher was in bad faith

a.Equity may require restoration regardless of the cost of removal

Mistaken Improver [UNJUST ENRICHMENT]

A mistaken improver is one who accidentally buildsan entire building on someone else’s land.Typically under ordinary property law, the building would be a fixture attached to the land and would pass to the true owner by accession (would be a windfall, and landowner is benefited unjustly at expense of other– this is a Pile approach).

Can mistaken improver recover another way?Producers Lumber & Supply v. Olney

  1. Rule
  2. If mistaken improver builds in GOOD FAITH, court can grant relief in several ways
  3. If mistaken improver is NEGLIGENT in building, there is no relief
  4. Mistaken improver cannot demolish improvement w/o landowner’s knowledge and consent
  5. No self-help
  6. This would give rise to an action of WASTE on behalf of original landowner against the mistaken improver
  7. Remedy for Good Faith mistaken improvers
  8. If building can be removed w/o injury, mistaken improver can move building
  9. If building cannot be removed, court can determine market value and allow improver to recover amount of enhanced value to the new land through unjust enrichment
  10. Premise is, you benefited the landowner unjustly and you deserve reimbursement in equity for FMV
  11. If landowner can’t pay for the improvement, sell land to third party and divide proceeds

Nuisance

  1. Rule
  2. Interference with use and enjoyment of LAND (use trespass for actual invasion, cannot be used for other things – see Hamidi)
  3. Is interference substantial and unreasonable?
  4. Would reasonable person find it to be offensive or seriously annoying
  5. Character of surrounding area matters
  6. Must show significant harm
  7. Remedy – Hendricks v. Stalnaker
  8. Balance competing landowners interests to determine if injunction is warranted
  9. If nuisance is permanent, good case for damages

Hendricks v. Stalnaker
[private nuisance] /
  • D’s water well effects P’s property but D argues water well is not unreasonable use of land [D “rushed to use”]
  • Only location for P’s septic tank is near D’s property, in conflict with water well
  • Court balances competing landowners interests, finds that either use is a burden, but septic tank places more invasive burden (although says interests are equal practically)

ACQUISITION OF PROPERTY

Lockean Theory: All resources held in common, when you attributed labor, you owned so long as there was enough and good for others

First Possession

  1. First Person with Possession Becomes Owner
  2. Possession is intention to assert control and establish significant degree of power
  3. Important in this is the notice to others that such a claim is being asserted (but notice is NOT enough)
  4. Simplicity, no ambiguity to un-owned asset, less wasteful of resources
  5. Rule of Capture (Pierson v. Post) [ON OPEN LANDS NOT PRIVATE LANDS, but look at beehive and animus rivertendi]
  6. Rule
  7. Physical seizing of animal = possession (certain control) (question of fact)
  8. Mortal wounding = constructive possession
  9. Exception
  10. Cannot interfere with someone else unless you intend to capture animal too (no unfair trade practices)
  11. Custom (Ghen v. Rich)
  12. When it should be recognized
  13. Application limited to industry and those working in it
  14. Recognized by the whole industry
  15. Requires in the first taker the only act of appropriation that is possible
  16. When necessary to the survival of the industry
  17. When it works well in practice
  18. Why it can be dangerous
  19. Society’s benefit not considered
  20. Dangerous to those employed
  21. Wasteful of resources
  22. Overinvestment in technology
  23. Dominion/Discovery (Johnson v. McIntosh)
  24. Extinguishes right of title by occupancy
  25. Important for chain of title, conquest can extinguish right of occupancy
  26. Right of occupancy does not give ability to transfer or sell

Creation

Applies to property in the form of information; Claim of ownership, not “possession”

International News v. Associated Press / A common law right exists to exclude others from time-sensitive information that P has produced with some effort [quasi-property right against THESE PARTIES not against the world]; some basis in custom. AP was interfering to derive profits
  • Court says that parties abandoned news to world, but not each other
  • Allows right until commercial value has passed; then becomes open access commons
  • Incentivizes new information/ prevents free rider problem
  • Like Keeble unfair competition
  • Like Lumber Supply re: restitution
  • Upholds Lockean Labor theory
  • REMEDY: Injunction

Midler v. Ford Motor Company / Right to Publicity
  • Cannot use name, likeness, voice, or signature or imitation for profit w/o consent
  • REMEDY: Damages
  • Copyright protects original works of authorship in any medium of expression  voice not copyrightable: Assign entitlement to the producer of the right, not the exploiter
  • Unfair competition when imitation of voice used for commercial if D’s conduct saturated P’s audience
  • Issue when the commercial makes it appear like a particular person is endorsing a product Impersonation equivalent

Trenton Industries v. A.E. Peterson / Claim for patent infringement requires objective standard:
  • New to the world (need novelty)
  • Non-Obviousness
If someone communicates a novel idea to another with the intention that the latter may use the idea and compensate for use, the other party is liable and must pay compensation for damages and profits if he actually appropriates the idea and employs it with his own activities (quasi-property right)
Trademarks
[branding] /
  • Requires association to what you are claiming. Can only get rights in terms that are descriptive if you can show "secondary meaning." IE, when you use the phrase, the meaning the consumer attributes to the phrase becomes the trade name not descriptive meaning.
  • The more the words are functioning in their generic, functional sense, the more the legal system will not give them property rights. The more they take on some other meaning (secondary meaning for descriptive terms), the more you can have TM rights.

Copyright
[authorship] /
  • Requires "origination." Not first, but created by the author.
  • Rights only to stop copying. If create same poem without copying, no infringement. If make copyright claim, must prove access.
  • Origination easier to prove than novelty as a potential owner.
  • Gives property rights to people who originate creative expression.
  • Yellow pages - copyrighted. Arrangement on the page of colors, fonts, etc, not the underlying information, are what is copyrighted.
  • White pages - not. Functional arrangement of information.
  • Rights come into being the moment you do the creation. Copyright law calls that "fix them in a tangible medium of expression"

PRINCIPLE OF ACCESSION

Principle of Accession

  1. Family of doctrines that share a common feature
  2. Rule:
  3. Ownership of some unclaimed or contested resource is assigned to the owner of some other resource that has a particularly prominent relationship to the unclaimed or contested resource
  4. Defines asset and accumulates wealth

Doctrine of Increase

Rule: The offspring or increase of tame or domestic animals belongs to the owner of the dam or mother

Doctrine of Accession

When someone mistakenly takes up a physical object that belongs to someone else and transforms it through her labor into a fundamentally different object

  1. Remedy for person whose item was taken: Replevin
  2. Generally you can take back property provided there has been no destruction of substantial identity
  3. Factors that determine destruction:
  4. Degree of transformation (less importance, more about value)
  5. How much labor was contributed
  6. Comparison of relative values (equity balancing)
  7. If destruction of identity, then transformer can keep object and pay restitution as long as transformer was in good faith
  8. If bad faith improver/willful trespasser, has to return the property

Ad Coelum

Ownership of the surface brings along with it ownership of sub-surface and airspace [except public trust navigable air space]

  1. Rule:
  2. Wild animals that are captured are awarded to the owner of the land on which the capture occurs, not the first possessor
  3. Includes caves: Whatever portion lies under boundary, is each owner’s entitled to profit sharing
  4. Compare with oil & gas, where rule of capture is used
  1. Law of trespass crucially relies on bright line furnished here in order to define an invasion
  2. Determines ownership of minerals

Accretion

  1. Interest earned on a fund of money belongs to owner of the principle
  2. Riparian rights
  3. Accretion:
  4. Leaves boundary line at the center of the channel
  5. Gradual
  6. Avulsion:
  7. Has no effect on boundary and leaves in the center of the OLD channel
  8. Rapid, sudden change
  9. Owners of riparian land that grows through the operation of accretion automatically gain title to the new land
  10. Owners of riparian land that shrinks due to erosion automatically lose title to the lost land

Fixtures

  1. Rule:
  2. A thing which, although originally moveable, is by reason of its annexation to, or association in use with land, regarded as part of the land and therefore automatically transferred to the next grantee to the realty.
  3. Factors which would cause it to be a fixture and thus NOT REMOVABLE:
  4. Must be physically attached (actual or constructive), ex: would damage if you removed it
  5. Applied to a particular/peculiar use or purpose beyond itself and made part of a larger component or function of the realty (essential to functioning)
  6. Objective intention to annex to the realty
  7. Intent of parties (not secret/subjective intent)
  8. Did someone expect to take this with them? Did owner enrich the property? Or did tenant want to take it?

Coase would argue as long as rules clear, parties can contract around. BUT if there are transaction costs, like everybody has to privately contract for things like light switches, should pick a gap filling rule, so that property transfers with the light switches by default. Or could everybody nothing, and this is called an information forcing rule or penalty default rule – force discussion about which items buyer really wants.

ADVERSE POSSESSION (O > AP1 > AP2)

Allows an individual to acquire title by possessing property (real or personal) until SOL by title owner to recover possession runs, and claim is barred (ejectment); while in process of AP’ing, can exclude all but original owner

Possession must be:

  1. Exclusive
  2. Cannot share with owner or public
  3. Can be an AP’er with someone else in Tenants in Common situation
  4. Actual
  5. Entry requirement which triggers SOL
  6. SOL is tolled for people underage, legally incompetent or in prison at the time the AP entered
  7. AP’s title relates back to point of original entry, so is entitled to keep any rents and profits earned during SOL period
  8. Open & Notorious
  9. Reasonable notice
  10. What would a member of the community view as being notice? Totality of the acts
  11. Continuous
  12. Enter and remain in possession for period of time throughout SOL period with degree of occupancy of average owner consistent with use of property
  13. See: summer homes
  14. If AP’er abandons with no intent to return, SOL would end
  15. TO cannot interrupt (you also would lose the adverse part here if they did)
  16. Tacking is allowed – various A/P can aggregate periods of possession but must have privity of estate
  17. Must be voluntary transfer and successive
  18. AP can DEED to purchaser if obtains quiet title
  19. Adverse under a claim of right
  20. WITHOUT permission
  21. Mental state
  22. Majority RULE: Test is objective w/r/t actions of AP; Mental state immaterial (legal commentators favor)
  23. Minority #1: Subjective: must think he has title but is mistaken (good faith/Majority rule)
  24. Minority #2: Subjective: does not think he has title (bad faith/Maine rule)
  25. Must act as owner would by restricting others’ access (or giving permission)

Outcome:

  1. Look at what title is held by original TO when AP enters (because AP will only have what original owner had)
  2. If AP has color of title, will get ALL portion in deed
  3. If AP does not have color of title, will get whatever he has possessed
  4. A tenant to a lease is not an AP until treated as a trespasser

Real Estate

  • SOL does not run against a remainder existing at the time of entry by an AP because the remainder has NO CAUSE OF ACTION to eject AP
  • Can apply to easements

Personal Property

  • SOL period of pp starts when theft or conversion occurs
  • NY rule: SOL period of pp starts when original owner makes demand
  • NJ rule: SOL period of pp starts when owner knew or should have known through exercise of rsbl diligence, the identity of the person who has the pp

PURPOSES

  • To prevent owners from sleeping on their rights/put to best use
  • Protects reliance interests
  • Reduces transaction costs

THEORY

  • Lockian: Person possessing deserves, and person who doesn't notice doesn't deserve.
  • Hegelian or personhood: If you are spending all this time connecting yourself with it, it must be important to you. If you are so disconnected you can't even give permission, must not be.
  • Efficiency/utilitarian: Possessor can be easily found by others. Since assets have to move to highest/best use over time, potential owners need to be able to find owner so they can buy, cut off adverse claims of others.

RELATIVITY OF TITLE

We reject Jus Tertii

  • So we say, parties cannot claim third party rights on behalf of true owner

General rule for relativity of title: True owner  possessor  subsequent possessor

  1. Finders
  2. Rule
  3. Can become possessors if they have actual physical control and have an intent to assume dominion over it
  4. Responsibilities
  5. Finders act as bailees for true owners
  6. Under legal duty not to convert the object
  7. Cannot deliver object to anyone but true owner
  8. Rights
  9. Finder #1 has rights against all others (including finder #2) except rightful owner
  10. Items found in residence belong to owner or renter of residence, assuming owner or renter lives there
  11. The owner of the house is not in constructive possession of articles he is not aware of
  12. Tenant would prevail over owner if owner didn’t have physical possession to begin with
  13. Objects embedded in the soil belong to property owner not to the finder (ad coelum)
  14. Animals found on land that are fixed (like beehives) belong to owner, not finder (ratione soli)
  15. Finder as Trespasser
  16. Trespassers who find property will lose out to the landowner
  1. Converters
  2. Converter #1 has rights good against subsequent converters
  3. But see Russell v. Hill, where converter #2 was able to show who the true owner was, so converter #2 defeated #1

Popov v. Hayashi /
  • Pre-possessory interest exists b/c ball was grabbed first by P
  • D grabbed and held on to ball
  • Sold ball and split proceeds

  1. Lost property
  2. Original owner unintentionally and unknowingly drops or loses
  3. Awarded to finder with rights good against all but original owner
  4. Mislaid property
  5. Original owner intentionally places and leaves and intends to return for it later
  6. Awarded to owner or occupant on premises where it is lost
  7. Abandoned property
  8. Original owner intentionally and voluntarily relinquishes
  9. Awarded to finder
  10. Treasure trove
  11. Intentionally conceals so long that owner has died (requires antiquity)
  12. Awarded to landowner

TRANSFER OF INTERESTS