Property Outline

02/01/2014

1. What is property?
a. Two Conceptions of Property
i. Trespass
1. Any intentional intrusion that deprives another of
possession of land, even if only temporarily
2. The sovereign owner gets to decide how the land is
used and can choose to exclude people (not absolute)
3. Jacque v. Steenberg Homes, Inc.
a. Trespassed mobile home across land. $100,000
in punitive damages
b. Necessity is not enough
i. Right to exclude enforced because it is an
important right
ii. Two reasons for enforcing
1. To avoid potential violence (self-help)
2. To protect privacy rights
c. Owner is in best position to know about fragile
goods or dangers on property
d. Owner figures out how property is best used, they
get to receive returns from it
e. Barnard Rule: The rationale for the compensatory
damage requirement is that if the individual
cannot show actual harm, he or she has but a
nominal interest, hence, society has little interest
in having the unlawful, but otherwise harmless,
conduct deterred, therefore, punitive damages.
i. Overturned punitive damages
ii. Nuisance
1. Hinman v. Pacific Air Transport
a. Two airlines fly within 100 feet of plaintiffs
ground. Is not trespass, but nuisance
b. Ad coleum doctrine (doesnt apply here)

i. Whoever owns the soil owns also to the sky

and to the depths
c. Injunction: Court orders you to do or not do
something
2. Hendricks v. Stalnaker
a. Race to install water well before septic system
b. Court found not an unreasonable use of land
c. Test: reasonableness or unreasonableness of the
use of the property in relation to the particular
locality
i. Unreasonable: the gravity of the harms
outweighs the utility of the actors conduct
d. If he knew going over property line or doing
maliciously matters
iii. Trespass v. Nuisance
1. Showing of Harm
a. Trespass: No showing
b. Nuisance: Show significant harm
2. Show Unreasonableness
a. Trespass: No
b. Nuisance: Yes
3. What interest are you protecting?
a. Trespass: Possession
b. Nuisance: Use & Enjoyment
b. Property and Equity
i. Repeated Trespassers
1. Baker v. Howard County Hunt

a. Hunting dogs regularly trespassed. Would be

unfair for Baker to have to file lawsuit for every
trespass. Injunction granted
b. Damages would not be sufficient since dogs
repeatedly on land
c. In most cases people not held liable for dogs
trespassing on others lands if no harm is done,
but if know dog over there and harm is done,
liable
2. Equity Distinctive Features
a. Emphasizes exceptional cases
i. Some kind of deviation from the norm
ii. Not typical case where damages will be
enough
b. Has specifically implicated moral reasoning
c. Has a habit of starting with the remedy and
working backwards
ii. Building Encroachments
1. Encroachment
a. Not intentional chance of injunction goes down
b. Insignificant chance of injunction goes down
c. Great hardship to remove chance of injunction
goes down
d. If good faith
i. Insignificant encroachment & great hardship
to remove become more important. Not just
a cost benefit. Really has to be a great
hardship
e. If bad faith
i. Doesnt matter about insignificance or
hardship
ii. Will lead to injunction
2. Pile v. Pedrick
a. Using a trespass style of property

b. Def. built wall where surveyor said ok. Turns out

over property line. Must remove wall without
entering other land
3. Golden Press, Inc. v. Rylands
a. Using a nuisance conception of property
b. Wall extended 2 inches over property line.
Plaintiffs use not affected and removal is great
hardship for defendant. Pay cost to acquire land.
2. How does property begin?
a. First Possession
i. Importance
1. Advantages
a. Clear Signaling; Less Disputes; More Clarity
b. High Incentives to Search
2. Disadvantages
a. Unequal Distribution
ii. Wild Animals
1. Pierson v. Post
a. Pursuing fox in woods vs. shooting fox (ownership
issue)
b. Possession of a wild animal (fox) one has
intercepted them in such a manner that they
deprive them of natural liberty and render escape
impossible
c. Ratione Soli: by reason of the soil; because you
own the land, whatever is on it is yours
d. Signaling matters to avoid wasteful races
e. Abandoned pursuit no possession
2. Ghen v. Rich
a. Shot whale with spear identifiable to him. Person
not familiar with custom, found whale and sold it.
Def. must pay for conversion

b. Under Pierson v. Post

i. Got mortal wounding but abandoned pursuit
so no possession
ii. Wouldnt work here as incentive structure to
hunt whales would be demolished
c. Only safe and appropriate way to capture whale;
if no recognized practice, no one would engage in
industry
3. Keeble v. Hickeringill
a. Duck decoy near neighbors decoy; def. fires gun
to drive Ps ducks away. Interfered with Ps use of
land for employment
b. Not property interest in the ducks but property
interest in his trade/occupation
i. Ducks would need to be trapped in decoy
c. Fair v. Unfair Competition
i. Is society better or worse off?
iii. More Cases
1. Popov v. Hayashi
a. Barry Bonds ball. P established pre-possessor
interest when ball touched mitt in being allowed
to complete catch without interference. D first to
unambiguously establish possession of ball
b. Must sell ball and split proceeds
2. Hammonds v. Central Kentucky Natural Gas Co.
a. Re-inject gas into ground for storage under
neighbors land, not a trespass
b. Wild animal analogy; released into wild, now
ownerless and wild; eligible for recapture
3. Lone Star Gas Co. v. Murchison
a. Re-inject gas into ground for storage under
neighbors land. Neighbor sued for conversion
when trying to extract
b. Court rejected wild animal analogy; if a horse
strays over on a neighbors land, the neighbor
may be entitled to his damages, but he does not,
by virtue of trespass, acquire title to the horse
c. Upheld conversion cause of action

iv. Open Access and the Commons

1. See 10. Theories; subsection (b): Ostrum
b. Creation
i. Misappropriation and Quasi-Property Right
1. Quasi-Property
a. Property for one purpose but not property for
another purpose
b. Right to protect against competitors, but not
against the world
2. Sic Utere Tuo
a. Duty to use your property so it doesnt hurt other
people
3. International News Service v. Associated Press
a. (Hot News) AP receives stories from writers and
publishes them. D copied bulletins and early
editions exactly and sold them to customers.
Unfair business practices
b. Quasi-Property. If treated as property-property,
me telling you a story I read is violating property
right. No property, no one will pay to put
someone in Syria to get the story because every
newspaper will get and take it
c. Property case because
i. Valuable
ii. Valuable now/hot
iii. Labor/expense
iv. Against competitors
c. Accession
i. Increase
1. Calf always goes to the owner of the mother
a. Signaling/Legal Certainty

i. Know calf belongs to mama cow/potential

paternity issues
b. Incentives
i. Owner has the ability to take care of the calf
ii. The Doctrine of Accession
1. Definition
a. Someone mistakenly takes up an object owned by
someone else and turns it into something else
through the process of labor
2. Wetherbee v. Green
a. Cut trees on defendants property possibly in good
faith. Converted trees in more valuable chattels.
b. Replevin legal remedy to recover goods
unlawfully withheld from his or her possession
Bad Faith
No Change
Dont get to
keep
Substantial
Dont Keep
Transformation
Untraceable
Keep
d.
i. The Ad Coelum Rule
1. Edwards v. Sims
2. Part of cave may go under Ps property. D sue judge to
prevent inspection. Maj: Ad Coleum rights Dis: belongs
to him who owns the entrance especially when he has
prepared it for exhibition
e. Adverse Possession
i. Purpose of Adverse Possession
1. Purposes
a. Reliance Interests

Go
Do
kee
Kee

Kee

b.
c.
d.
2. Color
a.

Sleeping on their rights

Transaction costs
Redistributive costs
of Title
Have a document that says it was yours, but
there is a defect in the document
b. Purposes have shorter time period under color of
title
3. Prohibition of AP against government
a. Monitoring costs are really high
b. Hard to be best gatekeeper
c. Political activity and protest
4. Marengo Cave Co. v. Ross
a. AP Definition
i. When an owner sits on her right to exclude
and the statute of limitations for challenging
the original unlawful entry expires, not only is
the original owner barred from asserting the
right to exclude but a new title also springs
up in the adverse possessor
ii. The possession must have been 1. actual, 2.
visible, 3. notorious, 4. exclusive, 5. under
claim of ownership and hostile to the owner
of the legal title and to the world at large and
continuous for the full period prescribed by
the statute
iii. Equity rule - Statute of limitations does not
begin until the injured party has realized it
iv. General rule good faith or objective
b. D claims cave under P under AP. P did not
discover until recently. No AP.
5. Carpenter v. Ruperto
a. P sought title to land had been using in bad faith.
Could not acquire by AP in bad faith. Court made
D deed her strip of land & to pay costs of moving
propane tank to her lot
f. The problem of Sequential Possession
i. Armory v. Delamirie

1. Chimney Sweep found jewel. Apprentice removed

stones. P sued for value of jewel. Court return jewel or
compensate jewel of the finest water.
2. Finder has possession of property even if not the
rightful owner. Can keep property from all but the
rightful owner
3. Finder has greater claim than converter
a. Even if conversion first and then found, but would
still lose to true owner
4. Converter has possession against all but true owner
5. First finder keeps possession because easiest for true
owner to find it/encourages stealing/minimizing
problems of proof and jurisdiction
ii. Clark v. Maloney
1. Floating logs in bay and moored. Later found in
possession of D
2. First finder has greater claim than second finder
3. Finder maintains possession against conversion
iii. Anderson v. Gouldberg
1. Trespassed to cut logs. D claimed from his land, which
they were not
2. Possession is good title against the world except those
who have better title
3. Converter 1 has better claim than Converter 2
4. Jus Tertii: a defense based on the rights of third parties
iv. Relativity of Title and Rejection of the Jus Tertii defense
g. Conflict between the ways property can begin
i. Fisher v. Steward
1. Trover for a swarm of bees
2. First possession vs. accession
3. Think through what the incentives are, the rules in a
thorough way

a. Just saying a rule of law for property wont work;

but need to work through situation to persuade
why rule should be applied in this particular
situation
ii. Hannah v. Peel
1. Requisitioned home. Brooch found by member of
military. Owner of home claimed from police and sold.
P sued for brooch or value.
2. D didnt know about brooch or had lived there so first
finder
3. Finder wins except when
a. Attached to or under the property
b. Employee/agent of another
c. Trespassing
4. Change one thing and result would flip
a. Peel never went to property
b. P does everything right
3. What can be property?
a. Personhood
i. Body Parts
1. Moore v. Regents of the University of California
a. Used plaintiffs cells for medical research without
plaintiffs permission. Court: plaintiff had no
ownership interest in cells after they left his body
b. Focus on both incentives and moral arguments
ii. Publicity
1. Midler v. Ford Motor Company
a. Bette Midler commercial sound-a-like
b. Distinctive voice imitated in order to sell a
product, the sellers appropriated what is not
theirs

c. As value goes up, pressure to have an increase in

property rights goes up
b. Water
i. Watercourses
1. Evans v. Merriweather
a. D obstructed and diverted water. P downstream
no longer received
b. England uses natural flow theory doesnt really
looks at reasonableness
c. US follows Reasonable Use
i. Pro-social balancing of the competing
interests
ii. Mainly only involved in artificial uses
2. Coffin v. Left Hand Ditch Company
a. D tore out Ps dam
b. Prior appropriation Theory
i. As resource is more valuable move more
toward propertization as a strategy
ii. Use must be beneficial; cant be done just to
spite people
c. Public Rights
i. The Navigation Servitude
1. Navigable Waters
a. Right to travel by vessel and fish on a body of
water that is navigable
b. Navigable water presumptively owned by govt
2. Navigable Airspace
a. Airspace is public

b. Cant have state variation

ii. The Public Trust Doctrine
1. Purpose
a. Way to keep some things from being property
because theyre too public
b. Good for stopping development by private parties,
but does nothing to stop development by govt
c. Exception: State can sell small part of harbor to
build dock or pier but cant give away whole thing
2. Illinois Central Railroad Co. v. Illinois
a. Tried to sell part of Chicago Harbor. Could not too
public
3. Transformation of the Public Trust Doctrine
4. State of Oregon ex rel. Thornton v. Hay
a. Wanted to build fence on beach
4. What can be done with property?
a. Protecting the Right to Exclude (and Its Enforcement)
i. Criminal Laws
1. Criminal Laws Protecting Personal Property
a. People v. Olivo
i. Larceny
1. Intent to steal
2. Exercising control inconsistent with
owners rights
3. Movement of the object
2. Criminal Laws Protecting Real Property

a. Reasons
i. Under enforcement of property rights if
merely left to private enforcement
ii. Reduce self-help and violence
iii. Insolvent defendants
iv. Not just harm to property owner but a harm
to society
v. Criminal law often expresses society values
ii. Civil Actions
1. Civil Actions Protecting Real Property
a. People dont have access to resources to hire a
laywer
2. Civil Actions Protecting Personal Property
a. Intel Corporation v. Hamidi
i. Using Intels email system to send e-mails to
employees criticizing company. No property
tort
iii. Self-Help
b. Exceptions to the Right to Exclude
i. Necessity
1. Usually fails
a. Everyone says it was necessary
b. Can use if you really dont care whether you get
sued for trespass, because consequences will be
worse if you dont trespass
ii. Custom
1. McConico v. Singleton
a. Hunting on unenclosed land in pursuit with no
permission okay. Wrong in modern times

b. Not a trump card argument, subordinate to more

formal laws
iii. Public Accommodation Laws
1. Certain business owners have to serve the entire public
2. Duties
a. Provide service if available
b. Have reasonable rates
3. s
iv. Public Policy
1. Uston v. Resorts International Hotel, Inc.
a. Card counter excluded from casinos. Casino
Control Act regulated but had no rule for
excluding patrons for strategies
b. No right to exclude people from just because you
feel like it, must be for reasonable reasons you
express
v. Antidiscrimination Laws
1. The Fair Housing Act
a. Prevents range of discriminatory behaviors
against members of enumerated protected classes
in the housing field
i. No discrimination on basis of race, color,
religion, sex, familial status, national origin,
or disability
b. Cant refuse to sell (subsection a)
c. Cant advertise indicating preference [list of
protected characteristics]
c. Bailments
i. Allen v. Hyatt Regency-Nashville Hotel
1. Vehicle stolen from garage operated by hotel. Bailment
for hire had been created
2. To establish bailment must be a sufficient delivery of
possession and control

3. Transfer your property to another so they act like owner

but not the owner for those purposes
ii. The Bailees Duty of Care
1. In determining whether the bailee exercised reasonable
care, such as standard would take into account all the
circumstances surrounding the bailment relationship,
including whether the bailee received compensation or
whether the bailment was for the benefit of the bailee.
d. Abandonments and Destruction
i. Pocono Springs Civic Association, Inc. v. MacKenzie
1. Could not find buyer. Abandoned lot and did not pay
fees
a. Intent and lack of maintenance important
i. Effort to abandon
2. Owners of lot in fee simple and were liable for fees
3. How you use property can hurt others
4. Can abandon personal property, but not real property
ii. Eyerman v. Mercantile Trust Co.
1. Home owner directed will to destroy house. Doing so
would hurt neighbors property rights
2. Will in violation of public policy
3. Can destroy property as you wish but not to the harm
of others
5. What are the forms of property?
a. The Forms of Ownership
i. Divisions by Time
ii. Estates in Land
1. Fee Simple
a. Full ownership; owner indefinitely

b. In will To A
2. Life Estate
a. Gives someone ownership for that persons life
b. To A for life
c. When you buy a life estate, doesnt become
measured by your life but still that persons
3. Remainder
a. To A for life, and then to B
b. B has a remainder interest, comes after life estate
and goes to someone other than the grantor
4. Reversion
a. To A for life and then back to me/To A for life
b. Back to the grantor
5. Rule Against Perpetuities
a. Are we going to know who is going to get the land
21 years after everyone is dead; if dont know,
defaults back
iii. Present Possessory Interests
iv. Future Interests
1. Interests Retained by the Grantor
2. Interests Created in a Grantee
v. Using the Estate System for Estate Planning
vi. Personal Property
b. Waste and Restraints on Alienation
i. Waste

1. Brokaw v. Fairchild
a. Wanted to tear down bequeathed life estate and
increase value. Could not as would be waste and
against testators wishes
ii. Restraints on Alienation
1. Morse v. Blood
a. If heir gave once cent to family would lose estate.
Would be restraint on alienation
b. Alienation: Restriction on ability to sell, give away
or devise property
c. Cant limit selling ability, but if doesnt its ok
i. As inefficient, goes against public policy, may
not be enough buyers, best person doesnt
get it
c. Conflicts Between Co-Owners
i. Partition
1. Delfino v. Vealencis
a. Co-owners one wanted to sell, other lived on
b. Partition by kind:
i. Carving up the thing itself (the land)
c. Partition by sale: (more common now)
i. Splitting proceeds from money based on
percentage
ii. Contribution and Accounting
1. Gillmor v. Gillmor
a. Cow grazing issue
b. Cant damage land or refuse to accommodate
fellow co-owner
iii. Severance

1. Harms v. Sprague
a. Brother mortgaged to defendants without other
brother knowing. Mortgage does not survive
brothers death. Did not sever joint tenancy
b. Need to make sure both co-owenrs sign
iv. Special Problems of Joint Bank Accounts
1. In re Estate of Filfiley
a. Daughter withdrew funds from joint bank account
with mom right before she died so dad may not
get some as inheritance
b. She was entitled to whole fund because she was
the surviving joint tenant
c. Joint tenancy if about land, not money
i. Cant sell the entire thing, but sell your part,
becomes tenancy in common
ii. Cant use all the property you want, as long
as others wishes arent incompatible
d. Two actions possible when one party withdraws
more than her moiety
i. Severs joint tenancy
ii. Claim by one joint tenant against another
d. Marital Interests in Property
i. OBrien v. OBrien
1. Wife contributed to husbands medical school, license to
practice only asset at time of divorce. Came into
marriage while they were married. Court sees marriage
as economic partnership, consider potential earnings
2. Assets would be split unfairly with whoever making
money getting more
ii. Marvin v. Marvin
1. Plaintiff gave up career and was companion,
homemaker, cook, in exchange for Ds financial promise
to support for life. Should be able to have this contract
between them even if not married. Enforceable, not
void
2. People with most money wouldnt want to get married,
incentivizes people to get married by enforcing contract
e. Property-like Systems (Property as an Instrument of Social Policy)

i. The Proposed Google Books Settlement

1. Authors Guild v. Google, Inc.
a. Google only showing snippets but scanned whole
book
ii. ITQs and the Destruction of Ocean Fisheries
1. Adler Legal Obstacles to Private Ordering in Marine
Fisheries
a. Fishing quota
b. Incentives
i. Conserving the fish
ii. Innovating
1. Need space to be able to make
mistakes
2. Could try new technology
iii. Incentive to trade
1. Can sell rights to better fisherman
c. Weaknesses
i. Enforcement costs
ii. Politics
1. Lobbying problems
2. Anti-trust issues
iii. Distribution within the group of fishers
2. Alliance Against IFQs v. Brown
a. Groups dont like idea of IFQs, argued arbitrary
and capricious, was found not

b. Set date retroactively so as to not incentivize

prople to enter market
c. Greater ease of ascertaining how many fish boats
as opposed to individual fishermen
3. Wyman From Fur to Fish: Reconsidering the
Evolution of Private Property
a. Hard to set up in US because of so many veto
ideas
b. Reduce political opposition
6. How can complex collections of property rights be managed?
a. Leases
i. Reasons to Lease
1. Financing Device
2. Risk Spreading and Diversification of Device
3. Specialization of Functions
4. Lock in Possibility/Hold up
ii. Lease Types
1. Term of Years
a. Fixed time
2. Periodic Tenancy
a. Keeps rolling over
3. Tenancy at Will
a. Either party may terminate at anytime
4. Tenancy at Sufferance
a. Individual who was once in rightful possession
holds over after the right has ended

iii.

iv.
v.
b. The
i.

c. The
i.

b. Overstaying welcome but no one has kicked you

out
The Independent Covenants Model
1. What
a. Somebody is going to bear the risk that things are
going to turn out good or bad
i. Usually placed on tenant
1. Have to pay rent no matter what
a. Unless landlord prevents
possession and evicts tenant
2. Paradine v. Jane
a. Still has to pay rent even though Prince Rupert
has come onto land preventing farming
3. Smith v. McEnany
a. Trying to get out of paying rent with argument
were evicted by a very small sliver of wall
encroaching on property
b. Court said if youre evicting a little bit, youre
evicting the whole
Duty to Deliver Possession
Extensions of the Independent Covenants Model
Model of Dependent Covenants
Javins v. First National Realty Corp.
1. Allege 1500 housing violations
2. Landlord in better position to fix
3. Retaliatory eviction doctrine prevents landlord from
kicking you out immediately after you do something
Implied Warranty of Habitability
Consumer protection, very fact specific, left to jury, dont need
AC in Santa Monica, do in NYC

ii. Not only limited to housing codes, can consider other

circumstances
iii. Doesnt mean if violation dont have to pay rent, is an
evaluation
iv. Consequences
1. Cause rents to rise and the supply of low-cost housing
would fall
2. Might improve the quality of housing without any
significant increase in rents
a. Supply of housing inelastic
3. Rent control and enforcement also matter
v. Craswell
1. Marginal consumer
a. Pay the max they are willing to pay
b. Rent goes up a little bit with IWH and cant afford
2. Infra-marginal consumer
a. Willing to pay a higher price than the market price
b. Rent goes up a little bit and get better quality of
living like it
3. Landlord
a. Lose out some, have to spend more on
maintenance and may not be able to pay it all
through rent
d. Condos and Coops
i. Condos versus Coops
1. See Terms
ii. Judicial Review of Governance Disputes
1. Nahrstedt v. Lakeside Village Condominium Association

a. CAT LADY
b. Ones you knew getting into before you bought
upheld: if measures were arbitrary, impose
burden on use of land that outweighs benefits or
violates public policy
c. Ones you didnt know you were getting into, must
be reasonable
2. 40 West 67th Street v. Pullman
a. Want to get rid of crazy neighbor
b. Business-Judgment Rule (chose this one)
i. Deferential standard that lets boards make
any decision it wants on substance as long as
it follows procedural rules
c. Real Property Statute
i. Coop would prove Pullman was a bad tenant
e. Trusts
i. Trust Fiduciary Duties
1. Separating someone out to manage and not allowing
those it benefits to manage it
2. People involved in trusts
a. Settlor has the wealth
b. Trustee manage the trust (has legal title)
i. Must act in best interest of beneficiary
c. Beneficiary receive the wealth (has equitable
title)
3. Reasons
a. Good way to transfer property not in fee simple
b. Settlor can control how money is managed
c. Fewer gifts in the first place if didnt have this
type of device

4. Problems
a. Principal Agent Problem
b. Trustee must use a lot of discretion Rothko
c. Changed circumstances - Wilbur
5. Rothko v. Reis
a. Artist; three trustees, two benefit from selling
paintings
ii. Changed Circumstances
1. Wilber v. Owens
a. Exton-Bamford Research Fund
b. Cy Pres: changing specific intent of will to fulfill
general intent
c. Getting away with it when means of getting there
are crazy
d. Traditionally strong skepticism of cy pres have
to find general charitable intent
7. How do I know who owns what?
a. Transfer and the Delivery Requirement
i. Disclaimer
1. I dont want it
ii. Transfer and Alienability
1. Rules Designed to Enhance Transferability
a. The Statute of Frauds
i. Requires any contract for sale of land to be in
writing
ii. Signed by whoever the contract is being
enforced against

2. The Delivery Requirement

a. Irons v. Small Piece
i. Son gives colt (horse) to son verbally, no
delivery
ii. Gift requires possession, acceptance, and
delivery
1. Cannot be oral gift, needs to actually
be delivered
2. Prevents fraudulent claims and will
know who is responsible for item
iii. Reasons for Delivery Requirements for Gifts
1. For better or for worse, we nee an
owner
2. Want to reduce fraud
3. Want to reduce disputes about the
scope of the gift
4. To avoid conflicting gifts
5. To encourage careful decision making
b. Foster v. Reiss
i. Letter on deathbed to leave money to
husband, need delivery
ii. Valid gift: intent to relinquish possession +
delivery or deed
iii. Wills act requirement
1. Has to be in writing
a. Reduce disputes
2. Have to have at least one
disinterested witness
a. Prevent coercion
3. Sometimes signature has to be
notarized

a. Prevent fraud
iv. Two exceptions to wills act can preempt will
in regards to those assets
1. Holographic wills
a. Written out by hand
2. Gifts causa mortis
a. Gift made in contemplation of
death
b. Requirements
i. Sick and about to die
ii. Actually have to die
iii. There must be delivery
b. Defining and Proving Ownership
i. Three strategies
1. Possession
a. Low value. Fungible, small, easy to move
2. Marking
3. Recordation
a. Too big to move
b. Registration is required for tax purposes
c. A need to relinquish the possession
d. Two conditions for registry to work
i. Has to be sufficiently valuable to be worth the
cost of registry

ii. Enforcement mechanism

ii. Land Transactions
1. Land Demarcation
2. Statute of Frauds
a. Contract for sale of land must be in writing
b. Signed by whoever the contract is being enforced
against
3. Quick Claim deed
a. Uncertainty about title, want to resolve
b. Making no warranty you actually own it, if have an
interest no matter what it may be, you get it
i. Not going to want to pay a lot, may not have
full interest in property
iii. Nemo Dat
1. One cannot give that which one does not have
a. Can only pass along what you own
b. Thief cannot transfer title in painting to someone
else
c. Can transfer finders rights
d. Life estate duration of givers life
iv. The Good Faith Purchaser
1. Exception to Nemo Dat
2. Requirements
a. Seller has to be able to sell
i. Seller cannot be a thief

b. Buyer is acting in good faith

i. Whether you knew that the goods did not
belong to the person selling
ii. Inquiry notice know enough going on you
should make inquiries
c. Good faith purchaser has to be a purchaser
i. Cant get as a gift
v. Baird & Jackson Information, Uncertainty, and the Transfer
of Property
1. Land
a. Arrunada Institutional Foundations of
Impersonal Exchange: Theory and Policy of
Contractual Registries
2. Airplanes
3. Ships
4. Automobiles
5. Art
c. Recording Acts
i. Title Search and Chain of Title
1. Three kinds of notice
a. Actual
b. Constructive
c. Inquiry
2. Race notice
a. First person to write down in office owns
i. Someone can gain ownership of property
dont own

ii. Someone can sell property twice

3. Notice Statute
a. Even if you record first cant win if you had notice
first
i. Might not be first to record, but can still win
ii. Not protected from subsequent good faith
purchasers
ii. Types of Recording Acts
iii. Electronic Land Records
1. Works as well as paper
2. Now have to go to two places that may possibly conflict
iv. The Limits of Title Searches
1. Mugaas v. Smith
a. Adjoining properties, plaintiff claims part of land
by AP, new owners title includes disputed strip;
good faith purchase vs. adverse possession; AP
wins
b. AP dont have to record
i. Bad faith AP will record
ii. Good faith AP will never record because they
never think they are AP
c. Title search isnt going to catch AP
8. Where does my property end and my neighbors property begin?
a. Nuisance
i. Adams v. Cleveland-Cliff Iron Company
1. Not allowed to recover for nuisance if knew nuisance
was there typically
2. Trespass easier to recover damages for

3. Trespass
a. Tangible, appreciable invasion
b. Strict liability/presumed harm
c. Reasonable or unreasonable
4. Nuisance
a. No invasion
b. Significant harm
c. Unreasonable activities
5. Nuisance style trespass
a. No tangible appreciable invasion
b. Harm or no harm
c. Reasonable or unreasonable
6. Nuisance style trespass 2.0 foreseeably significant
harm
ii. Balance of Hardships
1. Assuming no bad faith, is the hardship on the defendant
of giving the injunction extreme compared to the value
for the plaintiff opportunity cost high for owner, hard
to find another home like this one
iii. Prescription
1. Do it long enough have a right to keep doing it
iv. Spur Industries v. Del Webb Development
1. Sun City Cattle Lot
a. Residential community has public nuisance claim,
not developer though
b. Easements

i. Have the right to use

1. Have a use but there still is an owner
2. Most easements last forever
ii. Exceptions to deed requirement for easements
1. Prescription
a. Open and notorious
b. Continuous
c. Adverse
d. Uninterrupted for five years
e. Clear and definite line
2. Seeking an equitable remedy
iii. Hard to keep a track of, not always written down
1. Easement in Land
2. Easement in Gross
a. Doesnt go with the land, kept by the person
iv. Cant subdivide an easement, implies more intensive use
v. Too hard to determine what is too much use of an easement
1. If use easement for another parcel, is misuse
a. Does not equal forfeiture or abandonment of
easement
b. To hard to figure out which property is using
easement, enjoin them all
2. Can only use easement for parcel you have it for

vi. Four kinds of negative easements; have to get deed for in US

1. Light; air; water, ??
vii. License waiver of a right to exclude
1. Can always revoke
c. Zoning
i. Two Stories
1. Motivation
a. Good: health reasons, protect value of your land
b. Bad: urban renewal, often used as a tool for
explicit racial discrimination, class
2. Economic
a. Good: encourages investment in land, more
adapted uses, resources, zones to reduce taxes,
keeps people from freeloading and imposing costs
on others
b. Bad: regulation expensive, can create
externalities, increase costs (prices people out)
ii. Cant do anything about existing developed properties but can
do something about developing properties like Mount Laurel
1. Must affirmatively make possible an appropriate variety
and choice of housing
2. Must sustain the heavy burden of demonstrating
peculiar circumstances
iii. Non-conforming use
1. Becomes more valuable because others cant enter
2. Four options:
a. Leave it
i. Sometimes die out
b. Take it away

i. Violates rights
c. Imminent domain
i. Govt. takes it but pays you market
value/expensive
d. Amortization
i. Give fair warning and phasing out a certain
land use after a period of time; grace period
before use is wiped out
ii. Courts will look at loss to owner and
reasonableness of amortization period
iv. Cumulative (more flexible) and non-cumulative zones
1. Danger: mansion living in middle of industrial area
v. Pros & Cons:
1. Pros: 1. Allow more and better development aligning
uses to eliminate costs, help welfare 2. Reduces
uncertainty
2. Cons: 1. Excluding outsiders 2. Unfairness to existing
users
9. How can (and should) the government give, change, or take away
property?
a. The Limitation of the Takings Clause
i. No person shall be deprived of life, liberty, or property without
due process of law nor shall private property be taken for
public use without just compensation
ii. Benefits of Eminent Domain
1. Assembly and Holdouts
iii. Dangers
1. Potential for discrimination against whoever doesnt
have political power
2. Uproot
3. Use ED more than it should
4. Potential for corruption and patronage
b. Kelo v. City of New London, Connecticut
i. Whether Citys economic development plan serves a public
purpose
ii. Public use = some benefit to the public (majority public use
= available to the public (dissent)
1. Follow majority
2. Deference to the local govt. on whether there is a
benefit to the public
10. Theories
a. Coase The Problem of Social Cost

Entitleme
nt

Farme
r

Ranch
er

More
valuab
le
Farmi
ng
No
deal
->
farmin
g
Deal
->
farmin
g

Ranchi
ng
Deal
->
ranchin
g
No
deal ->
ranchin
g

b. Entitlement Legal right to keep someone from doing something

i. It doesnt matter who has the entitlement, end up with the
most valuable
ii. Takeaways
1. Both sides cause the harm
a. Because of their activities
b. Because rancher is causing harm to the farmer it
doesnt tell us who we need to move
2. If transaction costs were zero, there would be an
efficient rearrangement of rights
3. Transactions costs are not zero

4. The initial allocations matter when transaction costs are

high
5. Two Assumptions
a. All people are rational maximizers
b. All values are capable of being expressed in
monetary terms
i. Theorem will work better for situations where
people are predominantly concerned over
economic interests
iii. Impediments to contract
1. Assembly Problems
a. Have to talk to too many people to make the
deals
2. Bilateral Monopolies
a. One person has to deal with one person
i. Holdout problems, bad impressions
3. It is important to look down the road in order to identify
potential assembly problems and bilateral monopoly
problems before the client gets trapped in a situation
that precludes any kind of Coasean bargaining
c. Ostrum Governing the Commons
i. Tragedy of the Commons
1. Incentive to add more cattle, as only bear small share
of overgrazing costs
ii. Prisoners Dilemma
1. In two person interaction, incentive to cheat rather than
cooperate; if both cheat, both lose
iii. Leviathan
1. Central government control most natural resource
systems
2. Have authority to keep people in line
3. May not be best to determine optimal use; fisherman
example govt. may not know best, local fisherman
have better information

iv. Privatization
1. Creation of private property rights
2. Provides own profit incentive
3. Can do with as they see fit, have to figure out own land
4. Plots of land may not be equal (rainfall); also problem
with deciding whos distributed what
5. Dont know optimal scale of property
v. Ostrum says should use low level institutions
1. Conditions
a. Clarity of the Law
b. Mechanisms of conflict resolution must be local
and public, so as to be accessible to all individuals
of a community
c. The rules, in addition to being clear, shared and
made effective by all users, must not conflict with
higher levels of government
2. Difficulties
a. Need a level of trust to get started; need low
transaction costs; need monitoring & compliance
to handle ongoing issues
d. Demsetz Toward a Theory of Property Rights
i. When something is your property you internalize the costs and
benefits
ii. Things will be treated as property when the benefits from
treating them as property outweigh the costs of treating them
as property
1. Benefits
a. Incentives
i. Reap what you sew
b. Collective action
i. Avoid wasteful races and depletion of
resources

c. Easier to bargain with one person who owns

property than it is a large group
2. Costs
a. Defining the property rights
b. System of monitoring and enforcement
c. Can deter people from using, creating, inventing,
if not sure property is theirs
iii. When something becomes increasingly valuable, we should
expect greater propertization
e. Radin Property and Personhood
i. Five Distinctions
1. Different people have different relations to property
2. Invest ourselves in our property; can be good or bad in
a moral sense
3. The self vs. things separated from the self
a. Things do not become property until theyre
separated from your body
4. Property and Property for Personhood
a. If no personal connection, still going to distinguish
as property
5. Continuum from fungible to personable
a. Things you care a lot about and very little about
ii. Property no just out there in the world, we have a relationship
with it
iii. Dont have to think that anything different than market value
due to personal connection to property as a flaw
11. Themes
a. Custom
i. Danger custom will be self-interested, favor insiders over
outsiders
ii. Value of looking to custom
1. Whats evolved is probably something that doesnt have
wasteful races
Courts should not look to custom unhesitatingly, need to look at
potential dangers and benefits