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Property Flashcards

(73 cards)

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1
Q

5 Theories of Property Rights

A
  1. First Possession
  2. Encourage Labor
  3. Utilitarian Theory
  4. Ensure Democracy
  5. Personhood Theory
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2
Q

First Possession

A

“first come, first serve”; “first in time, first in right”

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3
Q

Lockean Labor Theory

A

ownership arises with the mixing of one’s labor with natural resources

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4
Q

Utilitarian Theory

A

recognizes property rights in objects when it will promote the welfare of all members of society

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5
Q

Civic Republican Theory

A

ensure democracy, economic security through private property ownership, political independence through private property ownership

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6
Q

Personhood Theory

A

facilitate personal development; property is necessary for an individual’s personal development; property is an extension of ourselves

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7
Q

Framing Standards for Possession

A
  1. Control
  2. Relativity of title
  3. Constructive ownership
  4. Custom
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8
Q

Rule of Capture

A

property in animals ferae naturae is acquired by occupancy only

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9
Q

Occupancy

A

kill, capture, or mortally wound without abandoning pursuit; mere pursuit does NOT constitute occupancy; efficiency rule

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10
Q

Efficiency Rule

A

everyone is better off, efficient allocation of resources

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11
Q

Coase Theorem

A

If property rights are well defined and tradeable, and transaction costs are low, then
efficiency will obtain through voluntary trade, regardless of initial allocation.

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12
Q

Invisible Hand Theory

A

competitive market will lead to the efficient allocation of resources regardless of
the initial distribution of wealth

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13
Q

Central Myth of American Property Law

A

“In the beginning, all the world was America…” (Locke), big wasteland, void, humans impose labor on land to make it theirs, start in world which no one has rights to anything

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14
Q

What is Property?

A

Rights among people concerning things; property as a bundle of rights

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15
Q

4 Key Implications of Property Rights

A
  1. legal positivism
  2. rights are relative
  3. rights are divisible
  4. rights evolve over time
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16
Q

Legal Positivism

A

property rights are defined by the government

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17
Q

Relativity of Property Rights

A

property rights are not absolute

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18
Q

Divisibility of Property Rights

A

property rights are divisible and may be split among multiple holders

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19
Q

Evolution of Property Rights

A

property rights evolve as law changes; property law is a dynamic process

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20
Q

Stability of Title

A

property rights should be certain and predictable

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21
Q

Bundle of Rights

A
  1. Right to Transfer
  2. Right to Use
  3. Right to Exclude
  4. Right to Destroy
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22
Q

Right to Transfer

A

owner may freely alienate any of her property to anyone; scope sometimes limited for public policy reasons; vital to market economy b/c property is devoted to its most valuable resource

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23
Q

Doctrine of Discovery

A

Europeans can discover land that is occupied only by Indians or non-Christians, not “civilized” people; acquire right via conquest; Johnson v. M’Intosh

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24
Q

Status Property/Whiteness as Property

A

Property is linked to identity, evolutionary trajectory of whiteness as property; identity–>status–>property; Sally’s Guardian v. Beaty

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25
Critical Characteristics of Status Property
1. Whiteness as a traditional form of property 2. Modern views of property as defining social relations 3. Property and expectations 4. The property functions of whiteness
26
Property Functions of Whiteness
1. Rights of disposition 2. Right to use and enjoy 3. Reputation and status property 4. The absolute right to exclude
27
Right to Exclude
The law protects an owner's right to exclude subject to privileges such as consent and necessity
28
Right to Use
owner is entitled to use her property as she wishes, as long as she does not injure the rights of others
29
Nuisance
non-trespassory invasion of another's interest in the private use and enjoyment of the land
30
Elements of a Nuisance Claim:
1. Intentional 2. Nontrespassory 3. Unreasonable 4. Substantial Interference 5. Use of enjoyment of land
31
Right to Destroy
scope of owner's right to destroy is unclear, law rarely intervenes to prevent destruction, but concerns arise when an owner seeks to destroy property that has substantial value to society
32
Adverse Possession
trespassing on someone else's land that can result in ownership of the land without buying it or obtaining a deed for long enough time with the right behaviors
33
Reasons for Recognizing AP
1. No public record in England before the 20th century 2. encourage improvement of land 3. punish those who sit on their rights 4. help establish disputed property rights 5. settle boundary disputes 6. protect lengthy reliance
34
3 Common Cases of AP
1. AP believes he or she owns the land, but there is a defect in chain of title. 2. AP is encroaching neighbor's boundary 3. AP intends to steal
35
Elements of AP
1. Actual Possession 2. Exclusive Possession 3. Open and Notorious Possession 4. Adverse and Hostile Possession 5. Continuous Possession 6. For the statutory period
36
Additional State Requirements for AP
claim of right, good or bad faith, payment of property taxes, color of title
37
Justification for AP
1. Prevent frivolous claims 2. Correcting title defects 3. Encouraging development 4. Protecting personhood
38
4 Ways to Acquire Rights
1. Capture 2. Find 3. Adverse Possession 4. Gift
39
Rule of Capture
awards property rights to the person who brings a wild animal under her certain control
40
Control (State v. Shaw)
confinement in own private enclosure, subject to use at his own pleasure, and maintains reasonable precautions to prevent escape; State v. Shaw
41
Control (Popov v. Hayashi)
When a person completes a significant portion of the steps to achieve possession of an item, but is prevented by the unlawful conduct of another, that person is entitled to a prepossessory interest in the item
42
Popov v. Hayashi
prepossessory interest constitutes a qualified right to possession
43
State v. Shaw
control must be pretty certain the animal will not escape; animal must be deprived of its natural liberties
44
Control
confinement in own private enclosure, subject to use at his own pleasure, and maintains reasonable precautions to prevent escape
45
What is Property?
Rights among people concerning things
46
animus revertendi
habit of return
47
partus sequitur ventrem
the offspring follows the condition of the mother
48
ratione soli
by reason of the soil
49
Johnson v. M'Intosh
Land title transfers are only valid when made under the rule of the currently prevailing government
50
Trespass
1. intentional entering of land 2. possessed by another 3. or causing a third person or thing to do so 4. regardless of if any harm was caused
51
Right to Use
owner is entitled to use her property as she wishes, as long as she does not injure the rights of others
52
Spite Structure
1. no purpose | 2. strictly to harm another
53
Doctrine of Prior Appropriation
first user to appropriate the resource has the right of the continued use to the exclusion of others
54
Right to Destroy
scope of owner's right to destroy is unclear; law intervenes to prevent destruction, but concerns arise when an owner seeks to destroy property that has substantial value to society
55
Qualified Right to Destroy
rational person's decision to destroy should be assumed to be in service of further expressive objectives
56
Eyerman v. Mercantile Trust Co.
When a landowner attempts to compel his successor in interest to do to the land something against public policy, a court may deem the condition void.
57
Gravity of Harm Test
gravity of harm can't outweigh the utility of the conduct
58
Actual Possession
physically use land in same manner the owner would
59
Exclusive Possession
possession cannot be shared with owner or with the public in general
60
Open and Notorious Possession
possession must be visible and obvious, so owner could become aware of A.P.
61
Continuous Possession
possession must be continuous as a reasonable owner's would be
62
Adverse and Hostile Possession
not authorized by the owner; 3 mental states (good faith, bad faith, or mind is irrelevant)
63
Preventing Frivolous Claims
bars lawsuits on stale, unreliable evidence, protecting the occupant from frivolous claims; security of title encourages productive land use
64
Correcting Title Defects
resolves technical mistakes occurring in conveyance of land by protecting title of the person who actually occupies the land
65
Encouraging Development
reallocates title from idle owner to industrious squatter, thus promoting the productive use of land
66
Protecting Personhood
a thing you have enjoyed and used for a long time takes root in your being--OWH
67
Finders
A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone but the true owner (and prior finders), and is entitled to keep abandoned property
68
Gifts
Immediate transfer of property rights from the donor to the donee without any payment or other consideration
69
Elements of a Gift
1. donative intent 2. delivery 3. acceptance
70
Inter Vivos Gift
ordinary gift of personal property that one living person makes to another; present interest in future estate
71
Testamentary Gift
future interest in present estate; only valid if its satisfied the statute of wills
72
Causa Mortis
gift of personal property made by a living person in contemplation death; must actually die of what death was contemplated
73
Elements of Causa Mortis
1. donative intent 2. delivery 3. acceptance 4. donor's anticipation of imminent death * donor may revoke the gift before his death

1L (9 decks)

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