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Reading Assignments: The book for this course is Joseph Singer, et al., Property Law, Rules,
Policies and Practices (6th ed. 2014). Supplementary material will be distributed by being
posted on Sakai. If we do not completely finish an assignment in one class, I will indicate the
portions of material for which you will be responsible during the next class.
Office Hours: I am in room 3185. Office hours are 2:00 3:00 pm each class day. You may also
contact me by e mail schroeder@law.duke.edu.
Class Logistics: I use a system that mixes random calling, taking questions, and engaging in
general discussion. Please come to class having read and thought about the assignment, and
ready to participate. If you are unprepared to participate, send me an email at least one hour in
advance; I will then avoid calling on you that day.
Laptops, tablets and cell phones: There is exactly one legitimate use of laptops in class: note
taking. I realize that many of you rely on this method of note taking, and so laptops are
permitted in class for that sole purpose. This policy is subject to midcourse corrections should
issues related to laptop use arise.
As for tablets and cell phones, there are no legitimate uses of either in class, so please turn
them off for the duration. One exception: tablets with physical keyboards that are substituting
for laptops are subject to the rules for laptops, above.
The Course Itself: As the casebook says, [p]roperty rights concern relations among people
regarding control of valued resources. Singer, xxxi. That definition embraces a lot of territory,
and we will certainly not cover all of it. What we will cover are a number of discrete topics
ranging from property acquisition to disposition, issues that arise during property ownership
when individuals place competing claims on property, and requirements or restrictions that
government places on property interests. We will discuss the some of the central themes of
the course during the first class.
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ASSIGNMENTS
2.
Trespass. 3-20.
State v. Shack. Property mediates relations between people regarding control of
valuable resources. When interests clash, evaluating possible resolutions requires
considering interests on both sides. The weight these interests have will depend in part
on context. The right to exclude is one of the core rights that define ownership, yet
even that interest may be limited or balanced by considerations on the other side.
Importance of interests served by providing access, ability to satisfy those interests
through alternative means, extent of intrusion into owners control of the property all
may bear on decision.
Desnick v. American Broadcasting Companies. Trespass enforces the right to exclude;
protects the specific interests of control of what happens on the property as well as
privacy of what happens within the property. Trespass is privileged if owner gives
consent; sometimes consent obtained by misrepresentation vitiates consent and
sometimes not. When invasion of property interests goes no further than what was
consented to, consent can remain a valid privilege.
3.
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5.
6.
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7.
8.
9.
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Trademark rules grow out of unfair competition and misappropriation; the social
welfare function they serve is to maintain the integrity of markets so that market
transactions are better able to produce exchanges that improve overall social welfare.
In copyright, fair use doctrine is one of features mediating the tension between
providing creativity incentives through ownership while ensuring others can draw on
prior work for new creativity.
10.
Patents. 205-215.
Association for Molecular Pathology v. Myriad Genetics. Juicy Whip v. Orange Bang.
Property rights in patents. Lockes labor theory of property provides further
justification for property in inventions (Patent) (also applicable to copyright). Everyone,
however, creates with the benefit of prior knowledge; in light of this, patent
requirements of non obviousness and novelty place limits on what is patentable, as do
the judicially created categories of laws of nature, natural phenomena and abstract
ideas, none of which can be patented. Invention must also have utility to warrant
protection
Conflicts Between Neighbors
11.
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13.
Nuisance. 333-359.
Dobbs v. Wiggins. Page County Appliance Center v. Honeywell. Boomer v. Atlantic
Cement Co. Where As use of property impinges upon Bs use and enjoyment of her
property, the conflict arises due to the presence of both As interests and Bs interests,
so it is a reciprocal conflict. The sic utere doctrine supplies no answer, because it
cannot be applied until you know what the respective legitimate interests are. A
starting point: interference with someone use and enjoyment must be substantial;
lesser interferences are an inevitable part of living in communities, and tolerating them
reflects a live-and-let-live attitude. Substantial interference constitutes a nuisance if it
is unreasonable, and it can be remedied through either injunctive relief or damages.
One aim of nuisance rules is to facilitate a solution that improves social value. Another
is to recognize the unfairness of having a few bear the costs of improving social value or
welfare that ought to be borne more widely. Injunctive relief can sometimes
accomplish both in cases where parties can bargain to achieve efficient (social value
improving) results. Where bargaining is difficult, either because of large numbers of
bargainers (Boomer) or because of bilateral monopoly difficulties, awarding damages
can be the most feasible way of accommodating both efficiency and equity. Nuisance
law also a case study in the pros and cons of bright line property rules versus rules of
reason. (Another instance: in Pierson v. Post, the majoritys more bright line rule
versus the dissents rule of reasonable pursuit.)
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14.
15.
16.
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each case the creation of the easement is thought to be consistent with the parties
unexpressed intentions (i.e., they would have recognized the easement if they had
thought about it). Recognizing the easements also enhances overall social value related
to land as the easements are very likely to be of greater value to the dominant estate
than the costs they impose on servient estate. Courts split on what to do when
intentions and social value considerations conflict.
17.
Covenants, 556-576.
Neponsit Property Owners Association v. Emigrant Industrial Savings Bank. Easements
can be useful devices for land use regulation when the question involves permitting
someone other than the owner of Blackacre to do something on Blackacre. E.g.,
providing a right of way or recognizing a profit prendre. These are affirmative
easements. In medieval England, easements were less useful when the desired result
was to restrict the use of Blackacre by its owner, e. g., limiting Blackacre to single family
residential uses, because English courts refused to recognize more than a few such
negative easements. Real covenants emerged as a means to improve land use
restrictions that ran with the land, but these required horizontal and vertical privity,
which were strictly defined in England, limiting their applicability. They are more useful
in the US, where the privity requirements are more generous. Equitable servitudes
replace the privity requirements with a notice requirement and have wider
applicability. For covenants or servitudes to run with the land, they must touch and
concern the land. The touch and concern requirement has proven difficult to pin
down, in part because judges who disfavor a restriction on policy grounds e.g., anticompetition covenants will use the touch and concern requirement as a means for
invalidating the restriction.
In this reading, the note on remedies for breaches of covenants, pp. 574- 577,
summarizes an opinion of Judge Posner, one of the countrys leading law and
economics scholars and proponent of applying the logic of utilitarian philosophy
through a law and economics lens to property rules. This is an excellent summary of
the pros and cons of damages versus injunctions in a situation of bilateral monopoly
and should be read in conjunction with the texts discussion of law and economics in
Assignment 14.
18.
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the value of the development in light of changed circumstances. In the early stages of
development, these mechanisms frequently remain in the control of the developers,
whose interests in making adjustments to maximize value of the development for the
developer may clash with the interests of the early purchasers who bought in
anticipation that community would be developed consistently with their expectations.
When the CCRs themselves provide the ability of the developer to make amendments
and exceptions to the CCRs, should there be any restrictions on that ability? Appel
reads a requirement of reasonableness into the developers freedom to make such
changes. The Restatement 3rd of Property permits develop to make material changes
only if the declaration of CCRs itself provides notice to purchasers that such types of
changes can be made.
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implicate constitutional protections, because they are not state action. The protected
values can and do influence whether the restrictions survives judicial review.
20.
21.
Estates. 737-761.
Wood v. Board of County Commissioners of Fremont County. Edwards v. Bradley.
Understanding the contemporary estate system, in which a number of historical
artifacts were not included in our discussion. Disregard the fee tail, the destructibility
of contingent remainders, the Rule in Shelleys Case and the Doctrine of Worthier Title.
Tension in the estates and future interest system is between effectuating the intent of
the conveyancer (whether inter vivos or a testator) and concern about the dead hand
of the past controlling present uses/users. The existing estate system provides
considerable flexibility for conveyancer to accomplish her objectives through correct
drafting, but cases often arise in which the meaning of language in the conveyance is
ambiguous. In those instances courts tend toward interpretations that avoid
forfeitures (e.g., Wood) and interpretations against finding life estates followed by
future interests (because this makes land more alienable), although when a
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construction creating a life estate best fulfills testator intent, those will be found. (e.g.,
Edwards).
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23.
24.
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25.
26.
27.
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29.
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confidence in the state of title basically, certainly as to who owns the property. All
recording systems reward the owner who records her title properly. In race
jurisdictions, that person has won the race against all subsequent possible challengers.
In notice and race-notice jurisdictions, proper recordation provides constructive notice
to them. On the other hand, the system also protects the interests of subsequent bona
fide purchasers for value who have satisfied the requirements of the states recording
statute. Protecting a BFP for value changes the otherwise operative common law rule
of first in time, first in right. Subsequent purchasers can be put on notice of
someones prior interest (and thus will not be BFPs) through actual knowledge of a
prior conveyance, through constructive knowledge of what a standard title search
would reveal, and through inquiry notice which arises when some extrinsic, non-record
fact about the land or the transaction would cause a reasonable person to inquire
further, and that inquiry would reveal a prior conveyance. While the basic recording
system is established by statute, important judge-made doctrines have developed
around it. Besides the definition of bona fide purchaser, the judicial doctrines we have
discussed are: wild deeds - recorded documents that the standard title search of the
chain of title would not reveal do not provide constructive notice and are not
considered properly or duly recorded; the shelter doctrine -- this secures marketable
title for a BFP by allowing a grantee of the BFP who would not otherwise be protected
by the recording statutes to shelter under the BFPs good title.
Many recording statute and related problems can pit two relatively innocent persons
against one another when the true scoundrel is not before the court. Should the prior
owner prevail or should the bona fide purchaser prevail? The problems of forged deeds
and deeds obtained by fraud illustrate the two choices: forged deeds are typically held
to be void, which means a prior owner is protected and the BFP is not; deeds obtained
by fraud are typically held voidable, which means the reverse.
31.
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alone is typically not sufficient when it can be redressed by money damages rather than
property transfer.
32.