THE RIGHT TO EXCLUDE

Trespass Law

1. Rules

   1. Trespass. It is generally considered (civilly or criminally) unlawful for someone to knowingly enter another’s land without permission.

      1. Punitive damages. To protect this right, courts will award punitive damages for intentional trespasses to land, Jacque.

      2. Criminal punishment. Several states criminalize trespass, with limited exceptions for if property is in imminent danger of damage or Δ needs to recapture personal property. Likar.

2. Analysis

   1. Most essential stick in the bundle. The right to exclude others from land is “the most essential stick in the bundle of rights commonly characterized as property.” Jacque.

      1. Power of transfer. The power to transfer property requires the right to include (via sale) and the right to exclude. Both are necessary and sufficient for effective transfer.

      2. Adverse possession. Enforcement of trespass also gives landowners a relatively easy remedy for preventing adverse possession.

      3. Background texts. See Error! Reference source not found. (esp. Blackstone; F. Cohen)

   2. Criminal exceptions. These are extremely limited to deter people from throwing waste on property in order to trespass by retrieving it. In that situation, trespasser should use lawful means to retrieve property, including asking landowner.

3. Major Cases

   1. Jacque v. Steenberg Homes, Inc. (Wis. 1997) (89)

      1. (Bablitch, J.) Δ wanted to move mobile home across Π’s land; Π said no but Δ moved across land anyway. Π claimed and received $100k punitive damages and $1 in nominal damages. Punitive damages were reversed on appeal, but Wis. Supreme Court claimed that a landowner must be able to protect the right if it is to mean anything.

   2. People v. Likar (Ill. App. Ct. 2002) (Supp. I, 143)

      1. (Gordon, J.) Δ wanted to investigate daycare on neighbor’s property. While on sidewalk, told not to enter by neighbor. Papers Δ was holding either flew out of his hand or he threw them onto lawn. Δ walked onto property and neighbor called 9-1-1. Since right of recapture is very limited, Δ guilty of criminal trespass.

The Right to Exclude v. Other Rights

1. Rules

   1. Relative right to exclude. A landowner’s right in real property is not absolute, and does not include the right to bar access to government services or fundamental rights. State v. Shack.

      1. Tenants & licensees. Tenants (and in case of Shack, licensees) also are allowed to receive visitors, press, legal services, medicine, etc. Shack.

   2. Takings Clause v. First Amendment.

      1. Takings Clause. The right to exclude is considered an “essential stick” in the bundle of property rights, and therefore is protected by the 5th and 14th amendments. The right is violated when a regulation forces some people to bear a burden rightfully borne by the public as a whole. Pruneyard.

      2. First Amendment. The first amendment only prohibits government deprivations of speech, so does not require private landowners to provide speech access. States may adopt more expansive requirements. Pruneyard.

         1. State limits. First/Fifth Amendments prohibit states from (1) impairing a property’s value or usefulness; (2) eliminating a landowner’s ability to disassociate from the message; or (3) preventing landowner from creating reasonable time, place, and manner restrictions on others’ speech. Pruneyard.

         2. N.J.’s balance test. Free speech rights are determined by (1) the nature of the private property, (2) the public’s invitation to property, and (3) the purpose of the expressional activity. As property becomes more committed to public use, there is a balancing between expressional rights and the right to exclude. N.J. Coalition.

         3. 44 other states. Generally require state action or “unreasonably restrictive and oppressive conduct by private entities” for free speech implications. N.J. Coalition.

2. Analysis

   1. Relative right to exclude. The doctrine of sic utere tuo ut alienum non lædas (“use your property in such a fashion so as to not to disturb others”) has been applied to preserve rights that conflict with the right to exclude. New Jersey has extended the doctrine to protect “human values” and prevent property owners from “deny[ing] dignity,” but the U.S. Supreme Court has only embraced more concrete rights, such as the First Amendment. State v. Shack; Pruneyard.

      1. Other limitations. There are many limitations on the “absolute” nature of property, including civil rights antidiscrimination laws; rent controls; adverse possession; public rights of access; and mortgage default holds. Shack.

   2. Quasi-public property.

      1. In the United States.

         1. The Supreme Court. The majority (and Blackmun & Marshall) in Pruneyard seemed receptive to First Amendment limitations on the right to exclude because the mall was so large and “replaced” public Central Business Districts. White & Powell, meanwhile,...

Buy the full version of these notes or essay plans and more in our Property Outlines.