Property - Nunziato, 2003 - OUTLINE – R. Chang
I. Intro
Property is a bundle of rights - to exclude, use, enjoy, destroy, transfer, maintain ownership, etc.
Real Property - land and things permanently attached thereto
Personal Property - Tangible
- Intangible (financial instruments, IP)
3 theories: Occupation/possession - simple; Labor - Locke; Social Utility - who can use it best
Limitations: necessity, foreclosure, civil rights, federal/state, public use, public policy, fair use, etc
II. Legal Rights other than voluntary transfer
A. Possession
Popov v. Hayashi (sup i): Bonds 73rd HR; first person to retain control of the ball -or- when a person has an intent and manifests the intent by stopping the forward momentum of the ball ?
Held: ct picks control of ball theory but P had a pre-possessory interest so 50/50 split.
B. Adverse Possession
1. AP of Real Property
a. Justifications for AP
- Traditionally: 1) providing a degree of certainty of ownership to possessors of land by eliminating the possibility of stale claims; and 2) encouraging maximum usage of land.
- Other approaches emphasize economics -or- justice and fairness
b. Elements of AP
Adverse Possession / Prescriptive EasementActual Possession - use in the same manner as rxble owner / Actual Use
1) Open and Notorious - visible and obvious to a rxble owner / 1) Open and Notorious
2) Continuous -as continuous as a rxble owner(nature of land) / 2) Continous
3) Exclusive - as exclusive as a normal owner’s / XXX
4) Adverse/Hostile - 1)Objective; 2)good faith; 3)intentional / 3) Adverse/Hostile
5) For the Statutory Period / 4) Statutory Period
Nome 2000 v. Fagerstrom (p.208): N sued in ’87 to eject Fs who started to use in ’66.
Held: AP ok re northerly portion b/c the site was rxbly used as a seasonal homesite so continuous, exclusive, and notorious + objective hostile “acted toward the land as if he owned it” test + SoL; But southerly portion were only used as trails so remand.
c. Squatting - squatters in LES and Lower Haight
2. AP of Personal Property
a. “Discovery” approach: particularly where the property has artistic, historical, or other special importance. Under this approach, the statutory period does not start running until the true owner who uses ordinary diligence, knows or reasonably knows of the adverse possessor's hold on the item. See O'Keefe v.Snyder.
b. NY rule: SoL begins when the “true owner makes a demand for return of the chattel and the person in possession of the chattel refuses to return it.”
C. Intro to IP
- U.S. Const. art. I § 8, cl. 8: “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
1. Trademark Law - squatters’ and cybersquatters’ rights
- Trademark law grants exclusive rights in symbols that indicate the source of goods or services.
a. The Lanham Act (s.43) - 15 USC §1125
(a) Infringement: Any person who, in connection with any goods or services uses in commerce any mark that is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person shall be liable in a civil action . . . .
(c) Dilution = reduction in famous mark’s ability to identify/distinguish goods/services,
1. blurring: use of plaintiff’s mark by defendant to identify non-competing goods (such as TIFFANY mark for café)
2. tarnishment: plaintiff’s mark weakened through negative or unsavory association with or distortion of defendant’s use of mark (such as BARBIE for pornographic material)
(d) Anti-cybersquatting Consumer Protection Act
b. Domain Names
- DN map IP addresses; first come first serve
Nissan Motor Co. v. Nissan Computer Co.: N want permanent injunction, transfer, disclaimers prior to transfer & refrain from posting auto links and negative commentary.
Held: Injunction as per §1125(c); NCC can use site for noncommercial purposes and refrain from posting or linking disparaging remarks (b/c exploiting Nissan TM goodwill)
2. Patent Law - ex. Genetic material
- Patent law grants exclusive rights in inventions, including processes and machines.
- An inventor must submit an application to PTO that meets 4 reqs.: patentable subject matter; novelty; non-obviousness; and usefulness
-The Great Gene Grab
- “Business method”: Amazon’s one-click shopping, 9th Cir. says not novel nor non-obvious.
Moore v. Regents of CA (p. 51): π’s spleen, bone marrow, etc. withdrawn during treatment for hairy cell leukemia but stuff used for research + establishing a cell line (w/ $3B potential).
Held: 1) No Conversion b/c π did not retain any ownership interest in them b/c a) privacy interest not congruent w/ property interest; b) CA law re tissue disposal limits prop. interest; and c) patent is distinct from π cells;> decline to extend conversion liability b/c broad impact and legislature should decide; BUT he still has a cause of action re breach of fiduciary duty.
3. Copyright Law - Information
- Copyright law grants exclusive rights in original literary and artistic works of authorship.
- regulated by 17 USC §§101 et seq. (1976 Copyright Act)
- look at the EU, which has strong database protections (but reciprocity provision)
Feist Pub. v. Rural Telephone Serv. Co.: Feist consolidates phone listings and copied some from π; generally, facts are not copyrightable but compilations are; original? name, town, #.
Held: Rural’s listings are not protected b/c not original and Ó rewards originality
III. Voluntary Transfer
A. Deeds and warranties of title
1. Deeds
- Deed must 1) identify the parties, 2) describe the property being conveyed; 3) state the grantor’s intent to convey the property interest in question; 4) contain the grantor’s signature.
- Deed must be delivered (physical -or- constructive delivery, e.g. to atty)
2. Warranties of Title
Six express warranties of title
Present covenants: breached at closing and SoL begins to run
1. Covenant of seisin: grantor warrants that he owns the property interest being conveyed.
2. Covenant of the right to convey: the grantor warrants his right to convey the property interest. Usually same as covenant of seisin BUT If the seller does not own the land, the seller does not have the right to convey (e.g. has title but land AP; restraint on alienation)
3. Covenant against encumbrance: the grantor warrants that there are no encumbrance on the property (e.g. easements, servitudes, mortgages, liens, taxes).
Future covenants: breached after closing, when disturbance occurs, then SoL runs.
4. Covenant of general warranty: The grantor promises to compensate the grantee for any monetary losses that arise from grantor’s failure to convey title.
a. General Warranty Deed: covenants against all defects in title
b. Special Warranty Deed: limits covenant to defects caused by grantor not prior owners
c. Quitclaim Deed: no warranty/covenant (only grantor’s interest)
5. Covenant of quiet enjoyment: the grantor warrants that the grantee will not be disturbed in possession and enjoyment of the property by assertion of superior title. This covenant is, for all practical purposes, identical to the general warranty.
6. Covenant of further assurances: the grantor promises that he will execute any other documents required to perfect the title conveyed. Rarely used.
B. Recording Acts
- 1) protects existing owners from losing their property to later purchasers; 2) protects new buyers.
- BUT often do not protect against AP, prescriptive easements, etc.; and do not protect donees.
1. Types - 50% states have race-notice; 50% notice
a. Race-Notice: Subsequent grantee must 1) not have had notice (actual, constructive, inquiry) of the prior grantee’s interest at the time he acquires his interest; and 2) record the instrument by which he obtained his interest before the prior grantee records the instrument by which she obtained her interest.
b. Notice: just #1 of Race-Notice
c. Race: just #2 of Race-Notice
2. Conducting a Title Search
1) Search Backward in Time in Grantee-Grantor Index
2) Search Forward in Time in Grantor-Grantee Index
3) Read and Evaluate Documents That Affect Title
3. Chain of Title Problem
- chain of title = the instruments that the subsequent grantee will find if he performs the title search required by the jurisdiction
- estoppel by deed: If grantor conveys property to A but does not own it, grantor cannot later acquire property and assert ownership rights against A.
- Shelter Doctrine: O>A; O>B>C; A doesn’t record, B doesn’t know of O>A, but C has notice of O>A; C will prevail when he records. (b/c it would be unfair to B)
- prevents fraud on subsequent grantee and prior grantees can still sue for fraud.
Sabo v. Horvath (p. 907): race-notice statute; land patent; 1/70, L to H quitclaim; 8/73, Govt to L; 12/73, L to Sabo, quitclaim. So, is H’s claim outside chain of title?
Held: H’s claim, recorded outside of chain, does Not give constructive notice b/c promoting simplicity and certainty (following majority rule)
IV. Default Property Ownership Rights against private parties
A. Trespass and public accommodations law
Property Owners Right to Exclude / Public’s Right of AccessRight to Expressive Association (1st A) Dale / Shack privilege
1st amend. right to access against (state actor)
Public Accommodations Law - CL, statutory
1. Scope of the common-law right - right to exclude v. right of access
- Trespass is an unprivileged intentional intrusion on property possessed by another.
- trespass is privileged when 1) consent; 2) necessity; 3) public policy
- 3 classes of case: 1) owner excludes most people but nonowner still has right to access; 2) owner allows nonowner possess all or part of property (tenants); 3) property open generally to public.
State v. Shack (p. 106): Ds SCOPE worker +lawyer arrested for trespassing on Tedesco’s land
Held: (did not examine constitutional issues re migrant workers) property rights serve human values; Congress found a need of outreach to migrant workers; no need to fit migrant workers into tenant category; employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and enjoy associations.
2. Remedies for Trespass
- Damages (nominal, compensatory, punitive); injunction; declaratory judgment; criminal
- Removal of encroaching structure: majority rule is relative hardship doctrine where compensation if removal difficult and true owner’s interest small. old rule says removal of encroachment.
Samson Construction v. Brusowankin (s. 71): SC clears trees on B’s land, leaving it bare as a board but not as smooth; πs had intent to build. value of timber x 3? diminution? restoration?
Held: jury verdict ok, damages seemed to be based on restoration
First Baptist Church of Lombard v. Toll Highway Authority (s. 77): church parking lot gets flooded b/c of an improperly constructed highway. diminution or remedial?
Held: Test for Remedial damages: 1) personal/business; 2) capable of repair; 3) repair not disproportionate to value of land; remedial ok but not to expand parking lot.
3. Trespass to chattels in real space and cyberspace
- guy arrested for trespassing for recording prices at Best Buy found not guilty.
Intel v. Hamidi (s. 84): ex-Intel employee sent mass emails to Intel employees; Intel seeking permanent injunction on theory of trespass to chattels (6 emails to 8-35K ppl w/ opt-outs)
Held: there was a trespass b/c R2dT says using or intermeddling with a chattel in the possession of another + analogues to mail and phone calls (waste of time); Injunction is constitutional b/c content discrimination is part of a private property owner’s bundle of rights.
4. Public accommodations - The Common Law
- anger at exclusion -versus- the intelligent Bayesian (statistics playing odds)
- traditionally, innkeepers and common carriers have special obligations b/c 1) more like monopolies; 2) essential services (b/c bandits); 3) represents that they are ready to serve the public.
- Uston v. Airport Casino: Nevada said casinos had a right to exclude Uston.
Uston v. Resorts Int’l (p. 119) -NJ: card counting gambler excluded π from blackjack tables
Held: Uston can play b/c the decision to exclude is unreasonable since he does not threaten the security or functioning of the casino (cites State v. Shack). (doesn’t follow majority rule)
5. Discriminatory enforcement of trespass law, federal civil rights act and congressional authority
CRA 1964 Title II §2000a - Public Accomodations
CRA 1866 §1981- Contracts; §1982 - Property > damages available
- Perry v. Command Performance: §1981 may have been violate by a hair salon that refused to cut the hair of an African-American woman.
Heart of Atlanta Motel v. US (s. 100): motel wants declaratory judgment and injunction that CRA 1964 is unconstitutional.
Held: Congress’ power to promote interstate commerce includes power to regulate local activities that have a substantial and harmful effect on commerce.
6. Public Accommodations statute v. Freedom of Association
Dale v. Boy Scouts of America (rev’d sub nom)(p. 138): NJ Law against Discrimination
Held: NJ says that BSA is a public accomodation b/c of its solicitation activities and close relationship with govt + large membership is not distinctly private > [ S.Ct. reversed 5-4 b/c 1st A right to “expressive association” and homosexual conduct inconsistent with BSA values]
7. Enforcement of Trespass Laws v. Freedom of Expression
- Marsh v. Ala.: company town cannot exclude Jehovah’s Witness b/c 1st and 14th amends.
- Logan Valley (overruled): extended Marsh, but picketing directly related center’s operations
- 1st amend. sets a minimum that states can build upon.
- but see Pruneyard where Cal. Const. gave more free speech protection.
Lloyd v. Tanner (p. 160): Shopping Center in Oregon; Vietnam War protesters handing out pamphlets; Mall previously allowed some use by American Legion, BSA, GSA, Cancer Society, and had presidential debates but nothing else.
Held: No, Lloyd’s is still private and 1st amend does not apply
8. Copyright Law’s Fair Use Privilege in Works of Authorship
- 17 USC § 106 gives copyright owner exclusive rights
- Public has right to Fair Use (§107); and Facts and Ideas (§102)
- Fair Use Factors (§107)