Property Definition, and Essential Sticks

Question 1

Property

Answer 1

rights in some thing enforced by someone other than the holder of the rights

Question 2

Who is the enforcer?

Answer 2

The legal system (Court, Executive, Administrative agency)

Question 3

What are the “things”?

Answer 3

Tangible things (physical)-
Land and things attached to land: realty; Movable things: personalty
Intangible things-
Images, persona; sometimes broadcast spectrum rights; Intellectual property (patents, copyright, trademark)

Question 4

What is a “bundle of sticks” and what specifically are the sticks?

Answer 4

A “bundle of sticks” are bundles of rights:

• rights to lease or sell these rights at your price
• right to make some economically viable use of the thing
• right to do anything not prohibited
• the right to ignore your rights and do nothing at all
• the right to exclude
• the right to not be excluded

Question 5

State v. Shack
What happened?
What was the holding?
Courts reasoning?

Answer 5

In State v. Shack NJ 1971, Shack and Tejeras worked for federally funded not-for-profit corps attempting to aid migrant farm workers. Tedesco refused entry. Both were convicted of trespass, and appeal.

Their convictions were overturned. Tedesco had no right to exclude Shack and Tejeras

“defendants invaded no possessory right of the farmer-employer”

Question 6

What are the 3 exceptions to the “stick” of the right to exclude others?

Answer 6

1. Police and fire fighters in emergencies.
2. In some states strangers could enter unimproved and unfenced land.
3. Property owners do not have the right to refuse access to individuals providing government services to workers who are housed on the property. (from State v. Shack)

Question 7

1. In State v. Shack, what would be the implications if Tedesco could exclude?
2. What are the implications if Tedesco cannot exclude?

Answer 7

1. Workers are less likely to get help

2. Tedesco loses privacy, and the workers may also lose some privacy

Question 8

What is the paradox between property rights and the state?

Answer 8

Property rights are helpful in keeping the state from being too strong. However, a strong state is necessary (but not sufficient) for property rights.

Question 9

According to Loretto v. Teleprompter Manhattan CATV Corp. (1982), when does a taking occur and what is the relevant constitutional provision?

Answer 9

Laretto v. Telepromptor (1982)

• A “permanent physical occupation” is a taking per se.
• 5th Amendment: “nor shall private property be taken … without just compensation.”

Question 10

What are the 3 things that are not relevant to whether a taking per se occurred?

Answer 10

• The importance of the government interests is irrelevant to whether there is a per se taking.
• The value of the harm is irrelevant.
• Whether the action was within the police power is irrelevant.

Question 11

What is a “taking per se”?

Answer 11

When the government permanently deprives the owner of an essential stick or fundamental attribute of property

Question 12

What does “De minimis non curat lex” mean?

Answer 12

This means “the law does not cure minimal losses.”

Question 13

Is property taken within the meaning of the Fifth Amendment by a direct and immediate interference with the enjoyment and use of private land that renders it uninhabitable?

Answer 13

Yes. In U.S. v. Causby (1946), the court found that the low and frequent flights were the direct and immediate cause of a diminution in the value of the land.

Question 14

May a permit condition constitute a taking if there is not an essential nexus connecting the imposition of the condition to a legitimate state interest in solving a problem related to the development?

Answer 14

Yes. In Nolan v. California Coastal Commission (1987), it was found that the government can’t create a condition for issuing a building permit, such as requiring the builders to create an easement for the public to pass over their property to get to a public beach.The government can place such a condition ONLY IF there is a “proportional connection” between the conditions and the impact of the proposed development (Dolan v. City of Tigard (1994)).

Question 15

Do rent controls constitute a physical taking?

Answer 15

No. Yee v. City of Escondido (1992)

Question 16

Does a state’s enforcement of individuals’ freedom of speech on private property that is open to the public amount to a taking of the owner’s property?

Answer 16

No. PruneYard Shopping Center v. Robins (1980)

Question 17

What are the two groups/types of takings?

Answer 17

intentional and unintentional takings.

Question 18

What are unintentional (implicit, inverse condemnation) takings?

Answer 18

the government is not attempting to take property and does not want to pay compensation.

Question 19

What are intentional (explicit, “condemnation”) takings?

Answer 19

the government attempts to take property. The government says it is taking property and intends to pay compensation.

Question 20

What are 2 groups of unintentional takings?

Answer 20

Per se takings and takings in fact

Question 21

What is a Per se taking?

Answer 21

the government permanently deprives an owner of some fundamental attribute of property, some essential stick in the bundle.

Question 22

What is a Taking in fact?

Answer 22

the government does something that reduces the owner’s rights.
These takings are identified with a three-factor test

Question 23

What is the 3 factor test for takings in fact?

Answer 23

• Degree of deprivation
• Interference with investment-backed expectations
• Character of the government action

Question 24

What determines if an owner has the right to exclude?

Answer 24

the rule varies by jurisdiction and by the issue being decided. The law depends upon what the supreme court of the relevant jurisdiction says it is.

Question 25

According to Horne, does the Government’s ‘categorical duty’ under the Fifth Amendment to pay just compensation when it ‘physically takes possession of an interest in property’ apply only to real property and not to personal property?

Answer 25

No. Permanent physical occupation is a per se taking, whether the thing is real or personal.

Question 26

According to Horne, if the government effects a physical taking of personal property, must the government pay just compensation even if it reserves for the property owner a portion of the property taken?

Answer 26

Yes.

Question 27

What are some factors considered in determining what is "just compensation" after the government does a taking?

Answer 27

-just compensation analysis includes enhancements to property not taken -whether the owner lost money overall

Question 28

Is flooding a taking?

Answer 28

Yes. Pumpelly v. Green Bay (1872)- Gov’t flooded land butsays it did not take land. USSC says, yes gov’t did take land. HOWEVER, a temporary flooding is not a taking per se. (Arkansas Fish and Game Commission v. U.S. (2012)) . . . So, it is the permanent deprivation of the right that is a per se taking.

Question 29

What are 2 exceptions to the "stick"/right to not be excluded- meaning they would not be considered takings?

Answer 29

-Firefighters blow up a house to stop a fire from spreading. (Pennsylvania Coal v. Mahon 1922) -The government seizes property being used in the commission of a crime, contraband or an instrumentality of the crime. -the state may prohibit uses that are nuisances under the common law because if you never had the right in the first place, if it was always illegal to use land in some way, it is not a taking for a government to make that clear by statute or decision.

Question 30

What is an exception to the "stick"/right to lease or sell your rights at your price- meaning they would not be considered takings?

Answer 30

EXCEPTION: A prohibition on the sale of lawfully acquired property is not a taking for Fifth Amendment purposes. Example: Andrus v. Allard (1979). Federal statute prevented sale of valuable eagle feathers, but government did not stop owner from excluding others or taking possession or devising to others at death

Question 31

Does a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United States Constitution?

Answer 31

No. a temporary regulation that, while in effect, denies a property owner all viable economic use of property does not give rise to an obligation of compensate for the value of its use during that period. If the nature of the taking had been a physical occupation of the landowners’ property by the government, a per se taking would have occurred despite the temporary nature of the taking.

Question 32

According to Hadacheck v. Sebastian, may a state's police power be used to prohibit the operation of a lawful business to protect the community's health and comfort?

Answer 32

Yes.

Question 33

What can be discovered?

Answer 33

a res nullius or terra nullius (a thing or territory belonging to no one)

Question 34

What is conquest?

Answer 34

Conquest is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror. – is a method of territorial acquisition under contemporary international law

Question 35

What is the law of accession?

Answer 35

when one adds to the property of another by labor alone