Property
Class Notes
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
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
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.