Property Attack Sheet Outline Ch 1

Important Notes: There are 3 sections to this "outline": 1. A one page attack sheet / issue checklist that should be semi-memorized to reflect the questions you should be asking yourself (i.e. "is the asshole government trying to take my property?"), thus the issues you need to spot in order to maximize points. 2. The corresponding "rule" sheet. Notice it is matched exactly to the issue checklist, so if you spot an issue but forgot the rule, you have an easy reference. 3. The full outline. This also matches up to the issue checklist and rule sheet. This is the 3" layer of reference only when you need detailed info on an issue/rule, if you absolutely need to cite/reference a case, or wish to throw in some policy at the end of your IRAC. Purple Font = Policy Yellow Highlighting = Rules Green Highlighting = Examples (including important cases) FINAL ATTACK SHEET How did I get this property? Do I have 1ST POSSESSION of the property? By FIND? By CAPTURE of a wild animal? By CREATION? Part of my BODY? By ACCESSION? By TRANSFER-NEMO DAT? By BONA FIDE PURCHASE? By GIFT? By a TRUST? A FIXTURE part of land I got? • AD COELUM? ACCRETION? • AVULSION? ADVERSE POSSESSION How do I prove the property is mine? Is the STATUTE OF FRAUDS satisfied? Did I REGISTER my TITLE? • Did I RECORD my TITLE? What TYPE of RECORDING ACT did I use? Is my interest even RECORDABLE? Does the SHELTER RULE apply? Do I have a WILD TITLE? Is the government the asshole trying to take away my property? Does my land fall under the PUBLIC TRUST DOCTRINE? Taking my NAVIGABLE AIRSPACE? Taking my NAVIGABLE WATERWAYS? Did the government TAKE my land? Is this PHYSICAL OCCUPATION or DEPRIVATION of my use? Are they claiming NUISANCE ABATEMENT? is the city doing some REGULATION? Did I get JUST COMPENSATION? Is the government taking for PUBLIC USE? How do I rent my property out? What type of LEASE is it? Does the STATUTE OF FRAUDS apply? Did I delivery ACTUAL POSSESSION? What are the TENANT'S DUTIES to me? How do I KICK TENANT OUT and REPOSSESS my property? Do I have to share this property with some other asshole? Is there a CONCURRENT OWNER? Am I MARRIED? Did I CONSTRUCTIVELY EVICT my tenant? Was there really a BREACH of the COVENANT OF QUITE ENJOYMENT? Or did I BREACH an IMPLIED WARRANTY OF HABITABILITY? WTF do I do after tenant ABANDONS the premises? Was this a COMMERCIAL LEASE? Did my tenant SUBLEASE his right to occupy? Did my tenant ASSIGN his right to accupy? Did I ASSIGN my property? How do I get rid of this property? Can IABANDON or DESTROY it? Can I TRANSFER it? SEE FREEHOLD INTERESTS CHART Can COMPLETELY RESTRICT FUTURE transfers? If I have a LIFE ESTATE did I WASTE something? Is some asshole trying to walk through or fuck up my property (or did he already)? Do I really need the ABSOLUTE RIGHT to EXCLUDE? Was it a CRIMINAL act? Did some asshole TRESPASS on my LAND? Did he fuck up my PERSONAL PROPERTY? Did he fuck up my INTERNETS? How do I REMOVE the asshole FROM MY LAND? Wait a minute, is there a legitimate reason or excuse for this asshole's trespass? How do I get a BUILDING ENCROACHMENT off my land? Dude is a fucking NUISANCE, how do I make him STFU? How am I going to GET MY SHIT BACK? Why don't I just use SELF-HELP? Did my TRUSTEE screw up? Was my BAILMENT fuck up? Ami getting DIVORCED? Can I kick my CO-TENANT out? Is my CO-OP or CONDO trying to kick me out? Was his trespass a NECESSITY? Was there a CUSTOM to hunt on my land? Did I make my land a PUBLIC ACCOMMODATION? Did I LICENSE it out? Did I (or a previous owner) GRANT an EASEMENT, how, and what kind? Was the EASEMENT properly TRANSFERRED to the new asshole? Is he blocking my LIGHT and AIR? Did the asshole ABANDON the EASEMENT? Did (or a previous owner) GRANT a REAL COVENANT? SEE PRIVITY CHART Did I (or a previous owner) GRANT an EQUITABLE SERVITUDE? Racing problem-rent dissipation: people would all pay $10 to get $10 is overinvesting Absolute right to be free from physical invasions OK but non-physical Invasions are more fact-specific in proving harm, damages Granting absolute right to be free from nuisance would stop a lot of socially productive activity EXCLUSION & GOVERNANCE 2. different strategies for resolving disputes about how resources are used: RULE Exclusion; owner is gatekeeper of the resource and decides how to use Land that has multiple potential uses, O's can decide what is most valuable, i.e. Jacque v Steenberg Homes, Inc. Owner has absolute right to decide how property will be used best RULE Governance: focuses on particular uses of resources, and permits or prohibits uses without regard to the other attributes of the resource Land that has heightened significance, i.e. Hendricks v. Stalnaker Judges determine how property will be used best PROPERTY RULES VS. LIABILITY RULES Property RULE: right can't be taken away unless you give consent (except thru eminent domain) Decision is who had initial entitlement but does not address value Property rule encourages people to talk it/courts wont enforce Liability RULE: right can be taken away at a price set by the court Transfer/destruction of property allowed based on value set by the court instead of by the parties themselves Not as good as if the people thought it out themselves? VINDICATING PROPERTY RIGHTS-INJUNCTIONS AND RESTITUTION The core attribute of property is that it cannot be taken without consent; the action of restitution can be viewed as a way for vindicating rights in property RULE for Injunctions: Equity not used to enjoin a mere trespass with exceptions - Where the injury is irreparable, or Where full and adequate relief can't be granted at law, or To prevent repetition of similar action/multiplicity of suits EXAMPLE: Baker v. Howard County Hunt (injunction justified against continuing or repeated trespasses in pursuance of a single purpose the hunters weren't going to stop trespassing) RULE Building Encroachments: No universal rule as to injunctions for encroachment, sometimes compensatory damages (restitution), sometimes mandatory injunction (remove ur shit) EXAMPLES Pile v. Pedrick (doesn't matter the foundation was built only 1" on accident- absolute property right means the defendants must tear down the building or pay damages) Plaintiff chooses injunction is this a problem? (may want to prevent defendants from operating the factory) Opportunism is the cost, if you know somebody has invested a lot in you, you can take advantage (maybe even wait until the factory is built before suing out of spite • Golden Press, Inc. v. Rylands (mandatory injunction denied because defendant's encroachment was unintentional and slight, plaintiff's use not affected (damage small and compensable), high cost of removal would cause hardship or even unconscionable) Supports equity rule against injunction if person seeking it has unclean hands Doctrine of laches you can't get an injunction if you wait too long and the trespassing party relies on you not enforcing the property right Coasean analysis Pile if cost of removal greatly exceeds harm from encroachment, parties will bargain so entitlement goes to def, and the wall stays up Efficient result would be for def to offer compensation up to the amount of tearing down the wall Probably won't happen in this case b/c plaintiffs don't want structure at all Golden Press plaintiff has to sell entitlement for a trivial amount to money set by the court If having wall taken down worth more to plaintiffs than having it for defs, ideally would pay enough to get it taken down Might not happen if defs don't have enough money RULE Restitution: (1) an unjust enrichment of the defendant, (2) at the expense of the plaintiff, (3) under circumstance that are unjust EXAMPLE: Producers Lumber & Supply Co. v. Olney Building Co. (building on another's property could not be destroyed by the builder - there were many options the plaintiff landowner could have taking, but issue is his right to choose was taking away by the defendant, doesn't matter the defendant was an innocent and accidental trespasser) Also destroying the house was waste done with unclean hands ORIGINAL ACQUISITION OF PROPERTY BY CAPTURE/OCCUPANCY (FIRST POSSESSION) RULE Possession: the controlling or holding of personal property, with or without a claim of ownership: (1) an intent to possess on part of the possessor, and (2) her actual controlling or holding the property First-in-time, first-in-right Constructive possession has the same effect in law as actual possession but is not actual possession RULE Capture of Wild Animals: actual possession of a wild animal with its freedom restricted gives property rights • EXAMPLES: • Pierson v. Post (dispute wasn't about the fox, it was value of the hunt, but hunter must have possession before getting property rights) Rule of capture designed to minimize disputes because unlikely that more than one person can claim such possession or capture Landowners ratione soli are deemed to have constructive possession of wild animals on their property, even if a trespasser captured the animal by first possession • Keeble v. Hickeringill (D maliciously interfered with P's lawful use of his land, the damages not rewarded for last ducks for D interfering with P's use of his land for pleasure or profit) Must show malicious intent is bad for society, not that it only creates competition Ghen v. Rich (whaler granted possession of whale because whaling custom says the whale killer owns it, not the person who finds it) Court says whaling would stop if people didn't have assurances that the fruits of his labor could be appropriated by any chance finder Economic policy concerns with rewarding and encouraging productivity, and minimizing free riders Minimizing disputes, maintaining social order Rule of capture is based on open access to the Commons • Open access access is open to all members of a particular community, but not to all outsiders Rule of capture establishes ownership of a resource once it is withdrawn (le. fisher owns fish he catches in an open access fishery) Problems with free riders depleting from investment rather than trying to improve it • Individuals only think of their slight gain, not the net loss to society So internal arrangements or control by a private owner/the state necessary to regulate open access resources "COMMONS" DEFINITIONS: Tragedy of the Commons no one has the right to exclude anyone else, and thus everyone will exercise his right of access Tragedy of the Anticommons-too many have the right to exclude, so no one is able to use the resource Problem of the Semicommons- when a given resource is subject to private exclusion rights in some uses, but open access for other purposes people incentivized to favor their part of the semicommons and trash the other parts BY CREATION RULE Creation: the first to create some new or novel thing is rewarded with a right exclude others from using it Main reason for creating property rights in info is to provide incentives for producing more of it Need to protect so there is incentive to create, but not overprotect which would limit competition and raise prices EXAMPLES . Hot News International News Service v. Associated Press (court finds quasi-property right/ unfair competition because this is an unauthorized interference w/ AP's legitimate business precisely at the point where profit is to be reaped) Property right not against the whole world, just the competitor because the gains/ profits are at issue, not the property itself Patents-Trenton Industries v. A.E. Peterson Manufacturing Co. (no patent protection because idea not inventive enough so no infringement) Was product of mechanical skill, not exercise of inventive faculty Court does allow protection to a limited degree by law of unjust enrichment • Something of a quasi-property/contract right - a party is liable for use and must pay compensation if he appropriates an idea and uses it for himself Depends on if there has been unjust enrichment-patentability of idea irrelevant BY ACCESSION & AD COELUM RULE Accession: Ownership given when someone mistakenly takes up a physical object that belongs to someone else and transforms it through his labor into a fundamentally different object Accession appears to involve the perception that one thing bears such a prominent relationship to another thing that possession of the one is also possession of the other • EXAMPLES: Wetherbee v. Green (Wetherbee's trespass wasn't willful - he thought he had permission, and he converted the wood into something much more valuable so the hoops belonged to him now) Ultimately comes down to whether trespass was willful or not If deliberately take something and convert it, must give new thing back to original O even if value has changed significantly by addition of labor or money if wrong is involuntary, original O can't reclaim if the property has been transformed into something substantially different Enforcing original ownership with liability right (compensation for value of what you gave up or lost) rather than property right The good/bad faith consideration deters theft But couldn't argument be made that the value of what you lost was the value of it transformed, rather than the its actual value when taken? Want to encouraging manufacturing Court says degree of transformation not about physical changes, but about how much value is added RULE Fixtures: a thing which was originally a movable chattel, is by reason of its annexation to, application and association in use with land, and intent of the party making annexation - regarded as part of the land EXAMPLE: Strain v. Green (the seller's secret intent to keep those items does not mean they are