Part One: Exclusion & Access

Question 1

What are the rights that go along with ownership/possession of property?

Answer 1

possess
exclude
alienate
use
enjoy the fruits/profits
to destroy
freedom from harm
security
privacy

Question 2

What does the Law of Trespass define?

Answer 2

It defines and protects the owner’s right to exclude

Question 3

Define Trespass and a requirement of it

Answer 3

unprivileged intentional intrusion on property possessed by another
Intent requirement meaning the defendant engaged in a voluntary act
not necessary that the trespasser intended to violate the owner’s legal rights
Mistaken entry on the land of another does not relieve the trespasser of liability

Question 4

What is an intrusion

Answer 4

an intrustion is when a non-owner enters the property and occurs the moment the non-owner enters the property

Question 5

When is a trespass privileged?

Answer 5

the entry is done with consent of the owner
the entry is justified by the necessity to prevent a more serious harm to persons or property
the entry is otherwise encouraged by public policy

Question 6

What case shows us a privilege of access based on public policy?

Answer 6

State v. Shack
RoL: The ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property.
Holding: Tedesco’s rights in his land did not justify refusing access to Tejeras and Shack when their aim was to provide aid in private to the migrant workers who were housed on the land.
Once you invite people onto your property you give up some of your rights
the tenant has a privilege to welcome visitors into their living quarters and the landlord has no right to deny those visitors/to exclude

Question 7

What is an injunction?

Answer 7

Injunctions are available to remedy trespass where the trespass is continuous in nature.
It is considered continuing when someone is personally present on the land of another or where they leave some object on the land.
Sometimes if it’s so repetitive as to cause an unfair burden on the landowner the courts will grant an injunction.

Question 8

Which case answered the question of whether restoration damages permitted in a trespass case involving cutting down trees on another’s property without permission?

Answer 8

Glavin v. Eckman
RoL: A judge has broad discretion in trespass cases to determine the appropriate measure of damages, including reasonable restoration damages, particularly where the property in question is unusual.
Holding: Restoration damages are permitted where damages measured by the value of the trees cut, or by the diminution in market value of the property affected do not preserve justice.
Takeaway: Courts can expand remedies as they see fit, and may expand to deter (a utility argument)

Question 9

Which case did we analyze to focus on the “right to exclude”?

Answer 9

Jacques v. Steenberg
Jacques have a right to exlude and Steenberg has a duty to respect that right
Jacques have power in respect to their property and power to create with their property
Liability is on the rest of the world, we are liable to exercise of that power

Question 10

What are eight basic kinds of legal rights?

Answer 10

Entitlements: RIPP
Rights
Immunities
Privileges
Powers
Negations: NDDL
no-rights
duties
disabilities
liabilities

Question 11

what are rights claims?

Answer 11

enforceable by state power, that others act in certain manner in relation to the right holder

Question 12

what are privilege claims?

Answer 12

permissions to act in a certain manner without being liable for damages to others and without others being able to summon state power to prevent those acts

Question 13

What are Power entitlements?

Answer 13

state enforced abilities to change legal entitlements held by oneself or others

Question 14

What are immunity entitlements?

Answer 14

security from having one’s own entitlement changed by others

Question 15

What is a no-right negation?

Answer 15

one does not have the power to summon the aid of the state to alter or control behaviors of others

Question 16

What is a duty negation?

Answer 16

the absence of permission to act in a certain manner

Question 17

what is a disability negation?

Answer 17

the absence of power to alter legal entitlements

Question 18

what is a liability negation?

Answer 18

refers to the absence of immunity from having one’s own entitlements changed by others

Question 19

What are the jural correlatives?

Answer 19

Rights-duty
Privilege-no-right
Power-liability
Immunity-disability
anytime the state confers advantages to some citizens it changes the situation of others

Question 20

How are jural correlatives useful in analyzing property rights?

Answer 20

1. They serve as a reminder that legal rights entail relations among persons
2. These concepts help disentangle bundles of rights into their constituent parts

Question 21

Civil Rights Act of 1964, Title II §2000a

Answer 21

Prohibition Against Discrimination or Segregation in Places of Public Accommodation
race, color, religion or national origin
However such accommodations shall NOT apply to a private club or other establishment that is not open to the public

Question 22

Civil Rights Act of 1964, Title II §2000a-6

Answer 22

Assertion of rights based on other federal or state laws and pursuit of remedies for enforcement of such rights

Question 23

List the case where the privilege of access prevailed over the right to exclude?

Answer 23

**Uston v. Resorts International Hotel
RoL: An individual has a right of reasonable access to property open to the public.
Holding: Resorts may not unreasonably exclude Uston from its casino and the reasonableness of a decision to exclude an individual must be determined on a case-by-case basis
the right to exclude for a quasi-public property (hotel) becomes limited because you are expressly inviting the public in
the court decided to interpret its common law as limiting a landowners right to exclude when they are running a business for commercial purposes that was open to the public

Question 24

Check-in: What is property law all about?

Answer 24

property is about allocating interests in the face of competing claims

Question 25

What type of arguments can we make?

Answer 25

Fairness: rooted in interests, justice, equality and what obligations we have to one another Utility: how does the outcome affect social welfare, how does this outcome incentivize future behavior Institutional arguments: who is better situated to handle these claims, judges, juries, legislation? Administrative ability arguments: a black-letter rule is more predictable but more rigid a standard is less predictable but more flexible/reasonable

Question 26

Rules v. Standards

Answer 26

A rule crumbles when a judge can't live with the consequences with strict adherence to it Rules do not determine the scope of their own application, judges need to exercise judgment in deciding whether a rule applies in a given context Standards can turn into rules when further defining the standard into a rule

Question 27

Which case did we discuss represents the difference between a rule and a standard?

Answer 27

Matthews v. Bay Head Improvement Association RoL: The public must be afforded reasonable access to the foreshore under the public trust doctrine. Holding: The public must be given access to and use privately owned dried sand areas as reasonably necessary. This is a standard of reasonable access

Question 28

What is the doctrine of Dedication?

Answer 28

Dedication involves a gift of real property from a private owner to the public at large must show clear evidence of an intent to dedicate the land to public use by the property owner

Question 29

What is the doctrine of prescription?

Answer 29

similar to adverse possession but an prescriptive easement does not grant full ownership of the land, only a limited right to use it.

Question 30

Why weren't prescriptive easements allowed to the public back in the day?

Answer 30

a. it was difficult to show continuous use by the public at large b. prescription might apply only to the particular tract of land at issue in the case, necessitating cumbersome and expensive litigation about every disputed parcel along the oceanfront c. when private land is used by the public, courts may infer that the use was permissive, thereby defeating an element needed for prescriptive rights to vest

Question 31

What is the doctrine of custom?

Answer 31

acquiring legal rights over property based on long-standing practice, custom focuses on community norms that can become legally binding

Question 32

Rule Reminder

Answer 32

Rules do not determine the scope of their own application Judges need to exercise judgment in deciding whether a rule applies in a given context