GENERAL RULE: any owner may freely
alienate any property to anyone limited
in scope by public policy.
- In order to transfer property, one must
have title to convey to others. (Johnson)
- You cannot sell what you do not own!!
- CHAIN OF TITLE: Succession of
ownership over time
Restrictions:
-
Market-inalienable
meaning some items
cannot be sold at all (e.g., human body
organs)
-
Cannot be transferred at death (e.g., a life
estate)
Right to Occupy the Land (Use)
Ways to Injure:
1.
Spite Fence
2.
Private Nuisance
GENERAL RULE: Landowner is entitled
to use land as she sees fit, as long as
she does not injure the rights of others.
Remember: If O leases Redacre to
tenant T for a 20-year term, O
temporarily surrenders his right to
possess and use the land; but O still
holds property rights in Redacre.
Right to Exclude Others
GENERAL RULE: Each owner has a
broad right to exclude others from
- The court may find instances where
because of important social policies the
right to access will override the owners
right to exclude. (ie. Police, medical
personnel)
property.
- Landlord are entitled to reasonable
access with notice.
Right to Destroy
GENERAL RULE: Landowners have the
right to destroy property unless
destruction contravenes with public
policy.
CHAPTER 2 – OWNING “REAL” PROPERTY
From “Rights” to “Relationships”
Property owners both hold rights and owe duties…..4 distinct elements with a “correlative” counterpart
Rights
-------------------------Duty
Privileges---------------------- No Right
Powers------------------------- Liability
Immunities -------------------- Disability
3 Ways of Acquisition of Property Other Than by Voluntary Transfer
RULE OF CAPTURE
POSSESSION (unowned things)
The law of Discovery
Acquisition by discovery is related to first possession. Ex. If you discover a rare shell on an
unowned
beach, you are simultaneously its discoverer and first possessor.
HOWEVER, if captured on private land:
apply the doctrine of
Ratione Soli.
The law of capture
Unowned property that is captured (e.g. wild animals, fugitive minerals like oil and gas) becomes the
property of the person effecting the capture.
Pierson v. Post
The law of Creation
Lots of property is acquired by creation (e.g., copy rights, patents, trademarks, etc.) A key issue with
respect to intellectual property is the degree of exclusivity the creator ought to have.
POSSESSION (Owning “Real” Property)
Trespass
Subject to strict liability if:
(1) intentionally; irrespective of subjective intent to trespass; and
(2) enters land of another or causes a thing or third person to do so. (RST 2d Torts §
158)
Trespass Exceptions
Consent; Necessity.
The court says that the possession of land carries with it everything attached to or under the land.
Doctrine of Accession - when one person adds to the property of another either labor or labor and new
materials. (Depends on: mental state of improver (good faith v. trespasser = conversion); degree of
transformation (waives in favor of compensation or giving full property to original owner); and relative
values contributed (if the final product is of greater value than the raw materials).
