Property Outline

1. CONCEPTS OF PROPERTY

   1. The Bundle of Sticks

      1. Right to Exclude: Paramount Right

         1. See Loretto: even small invasion, if permanent, violates the fundamental stick in the bundle

         2. See Jacque v. Steenberg Homes: even a nonsensical refusal to waive this right will be vigorously protected by the courts through both legal/equitable relief.

      2. Right to Alienate: Fundamental Right

         1. Policy: Let property end up in hands of people who value it most

         2. General prohibitions on alienation are never enforceable

            1. Read out of contracts, deeds, and wills as advisory language

         3. Targeted Restraints on Alienation

            1. Do they frustrate the value of the property?

            2. Is the prohibition limited to a small group of people, or to the general public?

               1. The fewer people excluded, the more enforceable

         4. Use Restrictions: Enforceable unless a backdoor to alienation restriction

            1. E.g. Mountain Brow Lodge v. Toscano: No-sale language unenforceable, but limitation to use as a fraternal lodge is valid because it could be sold to another fraternal organization.

         5. Right of First Refusal: Generally valid so long as this person must pay FMV, and the property may be sold on the market after they decline.

            1. Especially valid if family/community concerns

            2. Less enforceable if no time limit on restraint

      3. Right of Occupancy: Lesser Right

         1. Does not necessarily carry the right to transfer, etc.

         2. See Johnson v. McIntosh: Tribes retained this after Europeans took land.

            1. Right of Discovery: Europeans never had to possess land to exercise full rights over it and restrict Indians to occupancy rights alone.

   2. Complement of Tort/Contract Law

   3. Coase

2. ACQUISTION OF PROPERTY

   1. First Possession

      1. Actual Possession: May encourage anti-social behavior; opportunism

         1. Pierson v. Post: Fox case; no ownership of animal until actually possessed despite Post “stealing” the fox.

      2. Close Possession: Does not reward ultimate success

         1. Close Possession with But-For: success but for the adverse actions of a hostile party

            1. Distinguish true competition from antisocial behavior

            2. Keeble v. Hickeringill: Neighbor shot to send ducks away because he hated duck blind.

               1. Spite only allowed if done in honest competition

               2. Would have been a nuisance case today

            3. See also: Nuisance

         2. Other key element: Notice and Continuity of pursuit

            1. See: Pierson, Eads

            2. Notice (from Eads): Possession requires more than notice, but also due diligence in acting to achieve full dominion and control over the resource.

      3. Fleeting Possession Popov V. Hayashi (Barry Bonds Baseball)

         1. Courts split baby between pre-possessory interest and post-possessory interest.

      4. Effort Without Results: Never used

      5. Usage of Trade: May follow established area rules

         1. Take all circumstances and policy goals (efficiency, social behavior, etc.) into account

         2. Salvage Fees

            1. Ghen v. Rich: Whaling; iron holds the whale but man who called up to P’town gets a proportional fee.

            2. Eads v. Brazelton: Admiralty; shipwreck. Marking the ship is not enough; must be a continuous pursuits.

               1. New Rule: Abandoned Shipwrecks Act. Gives first possession to gov’t to allow historic value to be ascertained.

   2. Creation

      1. General Principle: what you create is yours

         1. Carveouts

            1. Fair Use

            2. Licensing

            3. Copyright

      2. Quasi-Property Right

         1. News (Temporary Right)

            1. INS v. AP: Court creates a limited right to exclude in the news, through time of distribution.

               1. Copyright not applicable—too long to develop.

               2. Dissents: Not within powers of courts to create this additional property right

      3. Right to Publicity and Persona: Exists in about half of states

         1. Midler v. Ford Motor Co.: Person’s distinctive identity incurs a property right to the extent that it allows them to make a living.

         2. Vanna White Dissent: Judicial creation of this and other property rights stifles innovation and creativity

         3. Possible synthesis: weigh social value of imitation vs. protection of original party’s right to news/identity

         4. Role of legislatures: Judges’ willingness to create new property rights inversely proportional to faith in the political system.

   3. Purchase

      1. Nemo Dat: Seller may not transfer what he does not have

         1. Johnson v. McIntosh: Predecessors of parties got same land from government and Indian tribe

            1. Right of occupancy is not the right to transfer

            2. Indians’ right of occupancy does not trump government’s sole right to transfer

      2. Fixtures: Automatically ollow real property; distinct from personal property that requires separate contracting and consideration

         1. General Rule: Buyer and seller specify what are and are not fixtures; if not specified, something that makes the house less of a “house” or makes an eyesore is a fixture

            1. See Strain v. Green

            2. Default rules encourage contracting

            3. Seller may classify more things as fixtures in exchange for a higher price

            4. Close to the line cases: Courts err on side of buyer

               1. Sellers may recoup investment costs in purchase price

            5. Mortgage Cases: Lower assumption of fixtures; more leeway for foreclosed party to take back stuff.

            6. Tenant Cases: Broader right for tenants to take improvements they made even if they look like fixtures.

               1. No reasonable avenue for tenant to recoup investment cost

               2. Tenants encouraged to contract around fixture law for additional security.

      3. Four Steps

         1. Negotiation and Agreement: Memorialize in writing to satisfy SOF

            1. Include essential terms, both parties sign

         2. Executory Period: Financing, inspection, title search

         3. Closing: Security interest granted

         4. Post-Closing: Lawsuits

   4. Gift

      1. Test

         1. Intent

         2. Delivery: See Irons v. Smallpiece (colts promised to son but never delivered and son never assumed responsibility by paying for hay)

            1. May be constructive delivery: goods need not be actually delivered (more for big things)

         3. Acceptance

            1. Presumed for positive value property

            2. Disclaimer presumed for negative value property

      2. Inter Vivos Gift: Any gift made during the giver’s lifetime

      3. Gift Causa Mortis: Deathbed gift that supersedes will, but only enforceable if giver dies.

         1. Test, see Foster...

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