Introduction to Property

Question 1

What is the definition of property law

Answer 1

A fluid, contested, sometimes contradicted discourse grounded in history and power.

Question 2

Property law cements the relationship of ____ and ____.

Answer 2

property, power

Question 3

Describe traditional property law and its origins.

Answer 3

Traditional property comes from common law and originated in modern England, dating back to the 1600s.

Question 4

Describe modern property law.

Answer 4

Born out of statutes, policies, and preferences of state and federal legislators. Each state has different property laws.

Question 5

Why is property law so important?

Answer 5

Property law is important because it is crucial to how power is distributed in society. Historically, and in the present, those in power, have property. Meanwhile, those of a lower socioeconomic status have a more difficult time obtaining property. Thus, those with property can remain in power and have influence over society.

Question 6

What are the three types of property?

Answer 6

Real, Personal, Intangible

Question 7

What are the sources of law for each type of property (e.g., common law)?

Answer 7

Real – common law
Personal – UCC (i.e., contract law)
Intangible – Constitution (see Art. I, § 8, Cl. 8)

Question 8

Describe real property.

Answer 8

Fixed/typically immovable property such as land or things built on the land.

Question 9

What is a fixture? Give an example.

Answer 9

A type of real property that is attached to the land or the structures on the land and is permanent/cannot be removed without causing damage to the property

i.e. Chandelier/wall to wall carpeting/radiator

Question 10

Why is a fixture treated as real property?

Answer 10

Because moving would cause damage since the thing is firmly embedded or connected

Question 11

Barnard v. Monongahela Natural Gas Co. holding

Answer 11

finding every land owner has the right to drill on his own land wherever they seem fit.

ad coelum et inferos

Question 12

ad coelum et inferos

Answer 12

to the heavens and to hell; idea that the owner of land owns the land from the heavens above the land to the center of the earth below it. Yes, ad coelum is more or less operative in the present.

Question 13

How has ad coelum changed in the modern day?

Answer 13

In the present, oil and gas law recognizes correlative rights which give land owners a fair share of oil and gas in each pool found beneath the surface. This means that adjacent owners cannot just drain everything in the oil/gas pools.

1926 Air Commerce Act set that at some point air/space above property becomes public, navigable airspace.

Question 14

What is a key factor that helped develop land owners correlative rights in relation to gas/oil?

Answer 14

Technology – it is now available to measure size and locations of oil and gas pools located under property lines and can calculate separate owners shares.

Question 15

How many feet in the air is considered to be public airspace?

Answer 15

Anything 500 feet in air is open to air traffic.

Question 16

What is personal property? What is the main defining characteristic? Give an example.

Answer 16

An Asset that is not real property called merchandise or chattel. Its main defining characteristic is that it is movable (chattels). Examples: vehicles, furniture, computers, etc.

Question 17

Why is personal property considered a lesser property than real property? (two reasons)

Answer 17

Depreciates quicker than real property. Harder to use as collateral or to secure a loan

Question 18

Dred Scott holding

Answer 18

finding the Missouri Compromise is unconstitutional as because it was taking away property without due process thus violating the 5th Amendment.

Question 19

Dred Scott syllogism (and fundamental problem)

Answer 19

M: Taking property w/o due process is unCon.
m: Missouri compromise takes property w/o due process
∴ The Missouri compromise is unCon.

m is not necessarily legally sound… are slaves “property?”

Question 20

Intangible Property used to be a subset of personal property, what was the old distinction? Give an example for each. Why did this change?

Answer 20

Corporeal v. Incorporeal Personal Property
Corporeal: Things you could touch. eg Books, cars, laptops

Incorporeal: Things you couldn’t touch. eg, Stocks, debt collection, bonds, bitcoin

It changed because the amount of things under incorporeal personal property kept growing

Question 21

What is Intangible Property? What major property type falls within it?

Answer 21

Property you cannot touch and cannot be physically possessed but is still able to be owned and expressed. Intellectual Property falls within Intangible Property.

Question 22

What is the general rule for intellectual property?

Answer 22

Ideas themselves are not protected but in order to gain protection you must express them.

Question 23

What is the difference between Right to Privacy and the Right to Publicity?

Answer 23

Violation of Right to Privacy: Tort Matter

Violations of Right to Publicity: Property Matter

Question 24

Tennessee ex Rel Elvis Presley holding

Answer 24

finding a right to publicity exists, and it is a descendible right.

Question 25

What is the difference between the right to bequeath and selling?

Answer 25

As noted above, descendible rights are bequeathed to heirs. Whereas making a sale can be to anyone.