Property Class Notes 1/7/04


Here he is!  Braunsteeeeeen…Not Stine.  Braunstein.


If you e-mail him, put just Property in the subject.  He has a filter on his Inbox.


He’s going to miss a couple classes, but he’ll find a time to make them up.


Overview of the course


Don’t spend all your time looking up cases and reading them.  Don’t spend hours and hours in library reading note cases.


Why are we here?  What is this class about?  It’s about crap!  Or stuff.  Or things.


What does it mean to own something?  When you own something, the government will come to your aid to protect your ownership rights.  But that answer sort of begs the question.  When will the government protect you?


Lots of people own stuff.  Do we care about stuff?  Sure we do!  We like our computers!  We wouldn’t want them taken away!


Robinson Crusoe!  The famous dude.  He lived all alone on an island.  It’s like Cast Away sort of.  Robinson Crusoe has no interest in reading a Property book because there’s nobody else around who could contest his control of his stuff.  It’s only when there is another person or group of people involved that you need to develop a law of property.


Property is about how we allocate resources between people.  We’re not talking about my relationship to stuff, because the stuff doesn’t care.  The only context in which it makes sense is when I can use the force of the state to keep another person from messing with stuff that the state has allocated to me.


The scarcer the resource, the more law you’ll find.  For example, in areas like Ohio where water is generally plentiful, there’s very little water law.  Out west, where water is much scarcer, there is a lot more water law and it’s more complex.  People compete for water a lot more out there than here, and so you need more law to settle it.


We don’t start off with a big pile of things and have people make a mad scramble for them.  We start off with a system of allocation that is already in place.  That allocation may or may not be fair and equitable.  Many argue that it is not equitable.  One thing that the law of property does is preserves the current allocation, whether or not it’s equitable, with the full force and power of the state.


What we’re doing, then, is looking at a body of law that regulates how people relate to other and which is designed largely to preserve the status quo.  There are very good reasons to preserve the status quo and to recognize and protect private property.  But you can’t have an efficient economy unless you start with an allocation of property rights.  If people don’t know what they own, they have no incentive to try to invest in it because they might not have it tomorrow.  You could allocate property in a lot of different ways.


Property is relative.  If I say that I own something, it implies that I have the right to exclude everybody.  However, that’s not how our system works.  I can own things relative to you.  In a lawsuit against you about who owns the computer, maybe I would win.  On the other hand, if I got into a dispute with some other person or the government, I might lose.  Title or ownership are relative.


1.     How are resources allocated in society?

2.     Once we say a resource has been allocated to a certain person, what does that mean?


These are the main issues we’ll be dealing with in this course.


This course is not about how to make money in property.  There is very little in this course that deals with commercial transactions.  If that’s what you’re interested in, there are other courses you can take that deal with that.


Why in the world do we allocate property rights the way we do?  Is it fair and just?  Does it serve a good social purpose?


In addition to answering the Big Questions, this course also serves as a foundation for other courses like Wills and Trusts, Family Law, Environmental Law, Intellectual Property, and so on.


Property law and constitutional law don’t have much in common.  But property serves to separate individuals from the government.  Property is a restriction on what the government can do.  The Fourth Amendment says that the government can’t unreasonably search and seize your stuff.  The government can’t enter your property without good reason.  One goal of the law of property is to restrict what government can do and establish a “zone of privacy” for private property owners.


Title is relative.  The government can deprive people of private property using eminent domain.  Even though we say you’re the owner of some property, the government can still step in and take it from you.


The law of finders and adverse possession deals with the same thing.  The person who owned something before you found it will have a better title than you.


There is no absolute ownership in our society.


It’s one thing to say that someone owns property and thus has the right to exclude others.  But how can we own property?  What forms of ownership will be recognized by society?  Some forms of ownership are considered bad, others are considered good and will be encouraged or discouraged as the case may be.  We’ll look at doctrine in this area as well as social policy.


We will also see that there is a constant struggle between the sovereign (the government) and the individual.  One way this comes out is in tax avoidance.  Another is the law of eminent domain.  We’ll also see the competition between the wealthy and the poor, for example, in the context of landlord-tenant law.


We’ll also look at private allocations of property rights.  The major area where we look at this is the context of servitudes and easements.  How can you set up a little “private government” if you want?  For example, residential subdivisions are run this way: property owners submit to all sorts of rules and regulations as to what they can and can’t do on their property.


The many roles of Braunstein


What’s Braunstein’s job?  Job One is entertainment.  He’s also going to inform us.  He won’t “hide the ball”.  But there are limitations on what Braunstein can do.  There are some concepts that we think are really simple now that we’re going to find to be complex.  He will also try to motivate us to learn more.


The many roles of us


Read the material!  Raise our hands and have something intelligent to say!


If we could avoid the course all together, Braunstein would like to.  Why not just say that “might makes right” and power creates property?  If we could do that, we could all leave and spend our time lifting weights.


Think about the cases we read for today: the way property used to be allocated in Hawaii was pretty close to “might makes right”.


Taxation is like this too, because the government uses its power to take your property by force.  The majority takes property from a minority.  That’s often the way the debate is phrased.


Power is a pretty good way to understand the initial allocation of property rights.  Property law arises to protect this initial allocation.  Is this good?  Why might we want to change this status quo?


An inequitable distribution of property might lead to physical confrontation.  That would be a waste of time and resources.  We want to give people a chance to engage in activities other than protecting their property rights.  Protecting your property rights isn’t a terribly productive activity.


Six goals for the course


1.     Learn legal rules in order to sharpen our analytical skills

2.     Recognize that the law is used as an instrumentality – there is no natural law of property.  The law of property is an instrument of social policy.  It’s important to ask whether it’s successful: has the law as it’s developed accomplished that purpose?  We will find that frequently it has not.  For example: in landlord-tenant law, rent control is a disaster.  Think about how it affects people’s incentives.

3.     Understand that there is a limit to doctrine and rules.  The limit is inherent in the nature of the law.  We need to understand what the competing policies are because a particular statute reflects a judgment that one policy is more important than another one.  One issue that comes up repeatedly is freedom of contract coming into conflict with certain other policies, such as property being “freely alienable”.  We want property to be out on the market.  Freedom of contract says that we can do whatever we want, but the policy of “free alienability” says that we won’t enforce a contract that says “you can never sell this land”.  The rules alone won’t give you answers; you must get to the policy issues in order to understand how the rules and doctrines ought to apply in a particular case.

4.     We’ll be asked how we would have written or drafted something in order to avoid the problem that came up in a certain case.  What kinds of skills do attorneys in this area need to avoid the kinds of problems that come up?  These problems represent the failure of parties to agree.  We would have been better off if the parties could have settled the dispute themselves without having to involve the state in the resolution of the problem.

5.     This is a foundation course which will give us the background we need to go on to more advanced courses.

6.     We are talking about relationships between people and relationships between groups.  In every case, we’re making a decision to favor one group over another.  We’re not talking about the rights of things, we’re talking about the rights of people.  If we understand that, it will help us to organize this material and see it as a cohesive whole.


Back to Class Notes