PROPERTY – Nunziato – Spring 2010
-Real Property and Intellectual Property
-What rights do I enjoy when I own property?
1) The right to exclude
2) The right to use and enjoy property (also improve/destroy)
3) The right to alienate property (sale, transfer, etc.)
4) The right to maintain ownership of property
-Justifications for our system of property rights
1) Promoting free market economy and economic growth
2) Privacy/Autonomy
3) Avoid conflicts and controversy about use
4) Labor theory (contribution of labor lends itself to ownership of property)
-With respect to an individual’s home:
-the right to exclude is pretty absolute
-the right to alienate (i.e. rent/sale) is limited by fair housing laws
-the right to use and enjoy is limited by nuisance laws, H.O. Ass’ns, Bldg/Zoning codes
-the right to maintain ownership can be cut off by the state (eminent domain/Takings law)
-With respect to a shop
-the right to exclude is limited by anti-discrimination and public accommodation statutes
I. PROPERTY RIGHTS
A. Trespass Law – The Right to Exclude
State v. Shack – volunteers for farm workers organization sought access to farmer’s property
-What options do we have to challenge the criminal trespass statute?
Social policy / Balancing of harms considerations
Necessity
Tenant rights to receive visitors (migrant workers as tenants)
Supremacy Clause argument b/c the alleged trespassers worked for government orgs
General maxim that you cannot use your property to cause harm to someone else
First Amendment argument (from Marsh v. Alabama; court distinguishes this case tho)
-The court construes the NJ criminal law statute with consideration to common law trespass
-The Shack privilege: in circumstances similar to the Shack case, individuals have a privilege to enter private land to transact with individuals living on/in that property
Desnick v. American Broadcasting Companies, Inc. – ABC runs investigative report on optometrist
-When is express consent procured by fraud valid (no trespass)?
i.e. Restaurant critic posing as a regular customer
-When is express consent procured by fraud invalid (trespass)?
i.e. Meter-reader impersonator that gains access to a home
-There is a distinction between mere entrance through implied consent, and doing things beyond the initial entrance (i.e. videotaping like in Food Lion case)
Places of public accommodation
-CL Majority rule provides right of reasonable access only to inns/hotels and common carriers
(all others, like amusement venues, have an absolute right of arbitrary exclusion)
-CL Minority rule provides right of reasonable access to all places held open to the public
-The more property owner opens up property to the public, the more curtailed its right to exclude
Uston v. Resorts International
-Uston sought an elimination of the absolute right of exclusion for places of amusement (like casinos) when he was barred from entry to A.C. casinos because of his card-counting skills
-The NJ court agreed with Uston and extended right of reasonable access where property owners open their premises to the public in the pursuit of their own property interests (minority rule)
Madden v. Queens County Jockey Club, Inc.
-Jockey club sought absolute right to exclude; the NY court agreed (majority rule)
Right to Exclude
-Limited by:
Necessity
Free speech (Marsh v. Alabama, State v. Schmid)
Supremacy Clause
Consent (implied consent and express consent, even if procured by fraud)
Shack privilege (access to a property of another for govt. officials providing services)
Entry privileged on public policy grounds
-Common law majority rule:
Right of reasonable access only to inns and common carriers
-Common law minority rule:
Extended to all places “open to the public” (Uston – “reasonable reliance on open”)
-Statutory law covers discrimination based on religion, race, sex, national origin, etc.
Federal Civil Rights statutes
State human rights/civil rights/anti-discrimination statutes
Civil Rights Act of 1964
-What are the elements of a claim that the Act has been violated?
1) discrimination or segregation
2) on grounds of race, color, religion, nat’l origin
2) must occur in a place of public accommodation (listed in the Act)
3) cannot be in a private establishment or one not open to the public
Civil Rights Act of 1866
-§1981: All persons shall have the same right to make and enforce contracts…and to the full and equal benefit of all laws for security of property as is enjoyed by white citizens
-§1982: All citizens shall have the same right as white citizens to purchase, lease, and hold real and personal property
-protects against discrimination on the basis of race only
Dale v. BSA – BSA refuses membership to Dale b/c he is gay
-Places of public accommodation in NJ prohibited from discrimination on the basis of sexual orientation
-The issue is whether the discrimination against Dale violates the NJ statute
-The NJ court says (1) a membership organization like BSA may be a place because place may be construed beyond a geographic location, (2) BSA is a place of public accommodation because it solicits the public for membership and maintains relationships with other recognized bodies of public accommodation, and (3) is not “distinctly private” because it does not actively employ a selective process or limit its membership
-The Supreme Court (5-4) reverses the NJ SC’s decision on grounds that prohibiting the BSA from excluding gay Scouts violated the First Amendment’s freedom of association
Right of expressive association (as opposed to intimate association)
“State laws can limit 1st Amend. association rights only if they serve compelling state interests”
-The dissent argues that the BSA did not have a well-publicized stance on exclusion of gays
-There is a right of free speech in private property open to the public (i.e. shopping malls)
Lloyd Corp. v. Tanner – individuals distributing handbills asked to leave the mall
-Court looks at Marsh and Logan Valley
Marsh dealt with Jehovah’s Witnesses distributing literature in a company town in AL
Logan Valley involved a protest outside a small shopping center
-Lloyd claims that the First and Fourteenth Amendments only apply to state action, not to their private action, and that they are being deprived of use of property without due process
-The Supreme Court does an about face from the earlier decisions and finds for Lloyd Corp., going to great lengths to distinguish the case from Marsh and Logan Valley (5-4 decision)
-Dissent emphasizes the two precedents, and the balance between freedom of speech and of private prop.
- Hudgens v. NLRB – the SC expressly overrules Logan Valley (leaving just Marsh)
-In NJ Coalition Against War in the Middle East v. JMB Realty Corp., the NJ Supreme Court held that free speech rights must be balanced against property rights and distributing leaflets would not interfere with the normal uses of the property, so the balance favors free speech
-In PruneYard Shopping Center v. Robins, the SC held that no constitutionally protected property rights were violated by the California state constitutional provision that granted right of access for free speech purposes to shopping centers.
B. Adverse Possession & Prescriptive Easements
Adverse possession – a doctrine under which a trespasser becomes the owner of the property
Elements of adverse possession:
1) Actual possession, that is
2) Open and notorious (giving constructive notice)
3) Exclusive
4) Continuous
5) Adverse/hostile
-The controversy must also have been brought within the statutory period of limitations
- Nome 2000 v. Fagerstrom – family built on and used land owned by Nome 2000 company for years
-“tacking” permits adding together time period that successive APers claim the property if the tackers are in privity of title
-Objective test for AP: “non-permissiveness” use of the property
-Subjective test for AP: intentional trespass with the intent of adversely possessing the property
-In rural areas, a lesser level of dominion and control may suffice
-When does statutory period start running for personal property?
1) Conversion rule – when property was taken
2) Discovery rule – when true owner should have discovered where property was located
3) Demand rule – when true owner unsuccessfully demands that property be returned
-An easement is a limited right to use (or control use of) the property of another
Affirmative easement – right to do something on someone else’s property
-May be acquired by prescription
Negative easement – right to prevent someone else from doing something on your property
-May not be acquired by prescription
Prescriptive easements give limited use rights
-Requirements (similar to AP, but doesn’t need to be exclusive):
1) Limited use, that is
2) Open and notorious
3) In which owner Acquiesced
4) Continuous
5) Adverse/hostile
-The controversy must also have been brought within the statutory period of limitations
-The “acquiescence” requirement is similar to the open and notorious constructive notice
But some courts say that acquiescence means actual notice (not just constructive notice)
- Community Feed Store v. Northeastern Culvert Corp. – dispute over use of gravel lot on border of prop.
-Most states presume that use by a non-owner of one’s land is nonpermissive
-Improving trespassers – what happens when a person builds a structure that encroaches on someone else’s property that improves the value of the property? (the traditional remedy is injunctive relief)
-When encroachment is innocent, result depends upon circumstances and on the view of the judge
-When the encroachment is in bad faith, courts will almost always not get involved
- Somerville v. Jacobs – mistake in conveyance of land led to building being built on other’s land
-Court gives owner of land option of (1) purchasing the building, (2) selling the property, or (3) requiring the plaintiff to remove the building
-When a builder mistakenly constructs an entire structure on land belonging to another, courts generally rule that the landowner becomes the owner of the structure
-Some courts (like Somerville) hold that an innocent improving trespasser has a right to fair compensation
C. Nuisance
Nuisance – substantial and unreasonable interference with a person’s use and enjoyment of their property
- substantiality requirement focuses on plaintiff’s rights
- reasonability requirement focuses on balance of utilities for π’s conduct & Δ’s conduct
- Pendoley v. Ferreira – the piggery case (the smell was a nuisance)
- Page County Appliance Center v. Honeywell, Inc.
-The court gives factors for reasonableness (from Bates v. Quality Ready Mix Co.):
1) Manner in which defendant’s business is conducted
2) Where defendant’s business is conducted
3) Circumstances under which defendant operates
Also: Priority of location, Character of the neighborhood, Nature of the alleged wrong
-The “character and gravity of the resulting injury is a major factor in determining reasonableness”
-Jost v. Dairyland Power Cooperative – all about plaintiffs’ rights
-Boomer v. Atlantic Cement Co. – all about balancing of utilities
-“substantial and unreasonable” factors for nuisance: look to Restatement (2d) of Torts on Nuisance:
If Δ has invaded the use and enjoyment of π’s land, then ask:
-Is the harm severe and greater than π should be required to bear w/o compensation?
-Is the harm serious and could Δ still feasibly afford to continue the activity after compensation?
-Does the gravity of the harm outweigh the utility of the actor’s conduct?
If you can answer no to all of the above questions, there is no nuisance liability
If you can answer yes to any of the above questions, Δ is liable for the nuisance
-For gravity/seriousness/serverity, look to §827 factors
1) Extent/character of harm,
2) Social value and suitability to locality of π’s use
3) Burden on π of avoiding harm
-For utility of conduct, look to §828 factors
1) Social value and suitability to locality of Δ’s conduct
2) Δ’s ability to prevent invasion
-In determining remedy, look to §941 (injuction vs. damages)
Consider “relative hardship on the parties” and “balancing of the equities”
Possibilities for nuisance:
-Complaint dismissed -Damages -Injunction -Purchased injunction (π must pay for Δ)
-A public nuisance is “an unreasonable interference with a right common to the general public.”
Public health, public safety, public morals, public comfort, public convenience
-The modern rule is that anyone of the public who has suffered from the public nuisance has standing to bring a lawsuit (but a special representative may be more effective)
- Spur v. Del Webb – AZ development expands toward cattle farm; developer sues for injunctive relief
- Fontainbleau Hotel Corp. v. Forty-Five Twenty-Five – Miami hotel blocking sun from other hotel pool
- Prah v. Maretti – π claimed that Δ’s house blocked the sun onto his solar house
-The majority rule is that interference with light and air cannot constitute nuisance
D. Zoning Law
-Use zoning: type of use for property (cumulative, so upper levels also include lesser ones)
Residential Commercial
Agricultural Industrial
-Area zoning: size and height restrictions on property
-When do zoning regulations constitute a taking?
5th amend: Private property shall be taken for public use without just compensation
14th amend: Nor shall any State deprive any person of…property without due process
5th Amend: Private property shall not be “taken for public use without just compensation”
-The issue of whether or not regulation/taking is compensable
-Neither federal nor state governments can “take” private property unless it’s for public use and they pay
-Under 10th amend, states retain/enjoy police power to regulate property to promote general public health, welfare, safety, etc.
1887-1917: regulations of land uses upheld even though they deprived owners of value of land
Mulger (1887) – regulations cannot be taking if they’re designed to protect public
Powell (1888) – regulations cannot be taking if they’re designed for public health/safety
Hadacheck (1915) – ordinance prohibiting brickyard was not taking
Penn Coal (1922 – p916-17) – held that prohibition of digging was a taking
-Holmes: Taking = when regulation is designed to prevent damage not common to the public
When a regulation goes too far, it constitutes a taking
If it’s a regulation of public safety, health, welfare then no taking
-Brandeis (dissent): The regulation doesn’t cease to be public just b/c a private owner benefits
He sees the regulation as protecting against a public harm