Relational Nature of Property Rights

Question 1

what’s the goal of nuisance law

Answer 1

to balance the right to use one’s property as one sees fit vs. right to enjoy ones property secure from harm or damage

Question 2

what two questions are used to assess nuisance law problems

Answer 2

1. does π have a right to be secure from this kind of harm or does ∆ have a right to engage in this activity
2. what remedy should be used

Question 3

what are the elements of nuisance

Answer 3

1. ∆’s intentional act results in
2. interference with π’s use and enjoyment of land that is both
3. substantial and
4. unreasonable

Question 4

what factors should you consider for if a nuisance is substantial and unreasonable

Answer 4

1. extent/ gravity of har
2. character of harm (aesthetic or something serious)
3. economic and social value of the two conflicting activities (which do we want to incentivize)
4. suitability of activities for the location
5. ability of either party to avoid the conflict (who can bear the cost, who came to it)

Question 5

what are the 4 kinds of nuisance

Answer 5

intentional
negligent
nuisance per se
ultrahazardous

Question 6

what is intentional nuisance

Answer 6

focuses on result of the conduct rather than the conduct itself

if the conduct results in harm to the neighbor’s property interest that is NOT justified by the social utility of the conduct –> nuisance

Question 7

what is negligent nuisance

Answer 7

reasonable person would’ve foreseen the harm and prevented it

Question 8

what is nuisance per se

Answer 8

activities that are so disfavored that they will be held to constitute nuisances no matter where they take place or what consequences they have (like criminal activities)

Question 9

what are ultra hazardous activities

Answer 9

activities so dangerous that they are strict liability

Question 10

what are the defenses to nuisance

Answer 10

coming to the nuisance

unusual sensitivity

Question 11

what is the majority rule on light and air cases

Answer 11

fountainbleau: no entitlement to land or air coming across your neighbor’s land

Question 12

what is the minority rule on light and air cases

Answer 12

Wisconsin: nuisance balancing test

Question 13

what are the remedies for nuisance

Answer 13

property rule (injunction)

liability rule (damages)

Question 14

what is a property rule remedy

Answer 14

injunction. but parties are free to bargain to give up their rights

Question 15

what is a liability rule remedy

Answer 15

damages determined by court. prevents one party from interfering with the interests of the other UNLESS they are willing to pay the money

Question 16

what is the majority and minority rules on right to exclude

Answer 16

majority: property owners can exclude for any reason not inconsistent with civil rights

minority rule: property owners can exclude only for reasonable reasons not inconsistent with civil rights

Question 17

in what ways is right to exclude a qualified right

Answer 17

qualified by other landowners and the public and by necessity. and common carriers can’t exclude

Question 18

what do you need to show discrimination in place of accommodation

Answer 18

1. complainant is member of protected class
2. complainant attempted to avail self of place of public accommodation
3. complainant was denied full and equal enjoyment of the place because he’s a protected class
   OR that the place was available to other people not of the protected class

Question 19

how do you assess if a place is a public accommodation or private

Answer 19

is the organization selective in membership?
does it have limits on how many people can join?
does the organization maintain close relationship with fed or state gov?
does organization maintain close relationship with other public accommodations?

Question 20

what 3 principles does public trust doctrine rest on

Answer 20

1. certain interests like the ocean are so important to citizens as a whole that it would be nuts to make them private
2. these interests are made by nature and not individual enterprise so should be free
3. main purpose of gov is to promote the interests of general public rather than redistribute public goods for private benefit

Question 21

what is public trust doctrine re: the ocean

Answer 21

the public has a right to use tidal waters, extending to the high water mark

Question 22

what is the New Jersey approach for public trust doctrine

Answer 22

public has a right to access and use the beach for recreational and traditional purposes

reasonableness standard -
private owner doesn’t have to put up with unreasonable intrusions (but court doesn’t say what those are)

Question 23

what is the Massachusetts approach to public trust doctrine

Answer 23

public has right to access tidal waters

only for traditional uses of commerce and navigation

Question 24

what is the California approach to public trust doctrine

Answer 24

dedication - a gift of real property from private owner to the public. requires offer and acceptance. letting people use it for a long time may be implied offer and acceptance

Question 25

what is the prescription approach for public trust doctrine and who uses it

Answer 25

if the public has used someone’s property for a particular purpose for a long time, the public can acquire permanent rights to use it for that purpose

Florida, North Carolina, California by statute

Question 26

what is the custom approach to public trust doctrine and who uses it

Answer 26

longstanding, uninterrupted, peaceable, reasonable, uniform use confers continuing right of access

Oregon, Hawaii, Mexico