Property 1.3 – Organizing Property Doctrines
I. Advantages of the “Bundle of Rights” Metaphor
A. Organization of Property Law Doctrines
- The “bundle of rights” metaphor allows us to see the bigger picture of how the various property law doctrines all fit together, as described below in Section II.
II. Property Law Issues & Corresponding Doctrines
A. Protecting & Enforcing Property Rights
- The doctrine of trespass protects “the right to possess” and “the right to exclude,” and it provides a legal remedy for when those rights are intruded upon.
- Example: If someone is intruding on your property (infringing upon your right to possess and your right to exclude), the doctrine of trespass provides a legal remedy for this type of situation.
ii. Adverse Possession
- The doctrine of nuisance protects “the right to use and enjoy,” providing a legal remedy for when those rights are infringed upon.
- Example: If your neighbor builds a factory that emits smoke and noise, infringing upon your right to use and enjoy your own property, the doctrine of nuisance provides a legal remedy for this type of situation.
B. Transferring Property Rights
- Through an easement, a particular right can be transferred from one’s “bundle of rights” in a particular piece of property to someone else or to someone else’s property (i.e. to the “bundle of rights” that corresponds to the other person’s property).
- Example: Through an easement, one could take the right to use a road on their property and transfer that right to someone else, or to someone else’s property.
iii. Equitable Servitudes
C. Allocating Property Rights
i. Concurrent Ownership
- The doctrine of concurrent ownership governs the rights among joint owners of one particular piece of property.
- Example: If a husband and wife are joint owners of one home, the doctrine of concurrent ownership allocates and addresses the property rights held in that property between the two of them.
ii. Estates & Future Interests
- Estates and future interests allow us to allocate rights in a particular piece of property over time.
- Example: One could grant a present estate in a piece of property to their spouse, on the condition that, if the spouse dies, then that property should then go to the grantor’s sister (who receives a future interest in the property).
- Leaseholds allow us to allocate rights between concurrent owners while also allocating rights over time.
- Example: If a landlord leases a piece of property to tenants for a certain period of time, property rights are allocated among the landlord and the tenants. The landlord may possess ownership of a particular piece of property, while the tenants also have some property rights over the property. Property rights in the property may also be allocated over time, as current tenants are replaced by new ones.
D. Regulating Property Rights (Eliminating or Restricting Rights)
i. Recording & Real Estate Transaction System
ii. Fair Housing & Anti-Discrimination
- Through fair housing and anti-discrimination measures, the government may limit one’s ability to exercise certain rights over one's property.
- Example: The government may limit one’s right to exclude on one's own property, by saying that one cannot exclude others from the property on the basis of race or religion.
iii. Zoning & Land Use Controls
- Through zoning and land use controls, the government may limit one’s ability to exercise certain rights over one's property.
- Example: The government may limit someone’s right to use and enjoy property that they own, by saying that they can use the property as a house, but not as a factory.
- The doctrine of regulatory takings also places a limit on the extent to which the government can limit one’s rights over one's own property.
- This lesson provided a broad overview of the various types of issues addressed in property law, as well as the doctrines and rights (within a larger “bundle of rights”) that correspond with each of those issues.
- As we move through the course, if you ever feel confused about how a certain concept that we are studying fits within the bigger picture of property law, you can refer back to the overview provided in this lesson.
Topic of Current Lesson: How the “Bundle” Metaphor Helps Us Organize Property Law Doctrines
So, in our last class, we talked about property as, essentially, a "bundle of rights." I explained how looking at property as a bundle of rights allows us to disaggregate the various rights involved in property, and deal with them one by one.
Another Advantage of the “Bundle” Metaphor: Organizing Property Law Doctrines
But thinking about property as a bundle of rights has another advantage, which is [it] allows us to actually organize property doctrines. And here, I’m talking specifically about the Property class.
“Bundle” Metaphor Reveals Bigger Picture/How Doctrines Fit Together
Now, one of the issues I often confront in Property is that students express a confusion with regard to how the various doctrines that we cover and learn actually fit together. It’s not that they don’t understand the specific doctrines by themselves. They don’t have a good sense of the bigger picture. How is this Property class organized? Well, actually, the “bundle of rights” idea actually gives us a framework for organizing those particular doctrines in a Property class.
Four Discrete Types of Issues in Property Law
So, more specifically, what I’m referring to is that you can divide the Property class into four discrete types of issues.
Type of Issue #1: Protecting and Enforcing Property Law Rights
A certain set of issues and doctrines deal with how we enforce particular rights—how we take one of the rights in the bundle of rights, and we actually protect and enforce [it].
Type of Issue #2: Transferring Property Rights
Another deals with transferring of those rights. So, having identified a property as a bundle of rights, can we take one of the rights [from one person’s bundle], and transfer it to another person, or another person’s property, as a part of their “bundle”?
Type of Issue #3: Allocating Property Rights
The third is how we allocate rights. How do we divide, let’s say, ownership between different people over the same property? How we divide ownership over time.
Type of Issue #4: Regulating Rights
And the last is with regard to regulating rights. How do we take, for example, one of those rights, and regulate them? Can we say we eliminate one of those particular rights, or we restrict how those can be used?
Property law doctrines fit into those four aforementioned categories.
Now, in looking at property through these four particular examples, we can see how the various doctrines that you see fit into these particular categories. So, (01:50) for enforcing rights, we have trespass, adverse possession, and nuisance. (01:53) For transferring rights, we’re going to be talking about easements, covenants, and equitable servitudes. (01:58) Allocating rights would be concurrent ownership, estates and future interests, and leaseholds. And (02:04) regulating rights would be the recording and real estate transaction system, fair housing and anti-discrimination, zoning and land use controls, and takings.
How some of the aforementioned doctrines in each of those four categories work.
Now, to illustrate this, let’s go through these very specifically, and one by one. I’m not going to give you all of them, just going to give a sense of how it works. So, for the first category— enforcing rights—essentially, these sections deal with a particular right that we’ve identified in property and try to determine: how does the law protect th[at] right?
Protecting and Enforcing Property Law Rights: Doctrine of Trespass (Intruder Example)
So, for example, as we talked about in the last class, part of the bundle of rights includes the right to possess, and the right to exclude. So, how do we protect that, let’s say, against an individual that wants to intrude upon those rights? Well, that’s the doctrine of trespass. When essentially saying that someone is trespassing on your property, you’re essentially making the argument that they are violating your right to possess and your right to exclude. And the law, through trespass, gives you a remedy to deal with that particular violation.
Protecting and Enforcing Property Law Rights: Doctrine of Nuisance (Example of Neighbor’s Factory)
Let’s talk about another right in the “enforcing rights” category. Let’s say we’re talking about the right to use and the right to enjoy. So, what if your neighbor is doing something that infringes upon that right? I’m enjoying my land, essentially, as a house in which I live in, but my neighbor has decided to turn his property into a factory. And the smoke and the noise is essentially interfering with my right to use and enjoy my property as a house. How is that protected? Well, that’s the doctrine of (03:25) nuisance. Essentially, nuisance is the legal remedy that I would pursue to try to get my neighbor to stop polluting, stop making all those noises, because it infringes upon my right to use and enjoy.
Transferring Property Rights: Easements (Example of Right to Use a Road)
Let’s go to the second category of rights. So, another part of Property class deals with doctrines that are about the transferring of particular rights. Now, we’re not talking about the transferring of your entire property—the entire bundle of rights. That would be alienation—I sell my land to you. I’m talking about whether or not we can take a particular right in that bundle and transfer that right to someone else. Here, let’s look at the right to use and the right to alienate.
So, I have the right to alienate my rights. But I also have the right to use (in the context of my house) all sorts of things on my house. So, let’s say I have the right to use the house. I have the right to use the road. I have the right to use the yard, etc. And let’s say, in this particular case—the right to use the road—I want to take that particular right and (04:21) transfer it to someone else. In this case, I can do that. That would be called an (04:26) easement. So, in the study of easements, what we’re dealing with is me taking a particular right, and maybe even, in this case, a subset of that right—just the right to use the road—and giving it to someone else. I don’t have to just give to another person. I can also transfer that right (04:41) to someone else’s property. I can transfer it into, in other words, their bundle of rights. So, in this case, the right to use the road on my land can be given to the land of my neighbor. Therefore, anyone that lives in my neighbor’s property now possesses, in their bundle of rights, the right to use my land.
Allocating Property Rights: Doctrine of Concurrent Ownership (Example of Joint Owners)
In addition to doctrines about transferring property, there’s also doctrines that relate to allocating rights within that property. And here, what we’re talking about is not necessarily allocating the specific individual rights. It’s rather, can we allocate all those rights in different contexts? Let’s say, between different people over time? And here, the answer is yes. The doctrine, for example, of (05:23) “concurrent ownership” governs what happens if a bundle of right[s] is given not just to one person, [but] to multiple people. I own my house along with my wife. We both possess the entire bundle of rights. We both can exercise all those rights. But how does the law allocate the rights between me and my wife? We may have (05:41) rights against the world, and those may be the same. But what are the (05:41) rights among us as joint property owners? And the law of concurrent ownership addresses that.
Allocating Property Rights: Estates & Future Interests (Example Similar to a Will)
We might also be thinking about how do we, and can we, allocate property (the entire bundle, in this case) over time. Can I say, for example, that I want to give a specific property first to my wife for the rest of her life, but if she dies that that property should then go over to my sister? And when my sister dies, that then the property should then be transferred to my daughter? Property allows this, as well. This is something we call (06:14) "estates" and (06:15) "future interests." It allows me to, essentially, allocate that property over time, and grant not only a (06:21) present estate to someone, but also (06:24) future interest in that property to other people, depending on whether or not a condition triggers.
Allocating Property Rights: Leaseholds (Example of Landlord & Tenants)
What if I want to do something that is a combination of both? What if I want to allocate rights (06:34) between certain individuals at the same time, but also allocate rights over time? Interestingly enough, this is not that unique. It’s probably something you’re quite familiar with. It’s called a (06:29) “leasehold.” A leasehold is an ability to allocate rights between its concurrent owners—let’s say, in this case, the landlord, which possesses the ownership of the property, but also tenants, which possess a lot of the property rights over the property. But because tenancy in a property (a lease) lasts for a certain amount of time, the property is also allocated over time. A landlord may be dealing with one person at a specific time, but once a new tenant comes in, it’s another tenant, another time. And here, we have a hybrid of both concurrent ownership between individuals, but also allocated over time.
Regulating Property Rights: Zoning and Land Use Controls (House vs. Factory Example and Housing Discrimination Example)
A fourth category of property doctrines deals with regulating rights. What we’re talking about here is we’re taking a specific right, and essentially, the government is trying to decide whether or not those rights can be exercised in a particular way, or potentially nullifying all those rights, as a whole. Here, for example, through (07:35) zoning and land use controls, the government might say that I have the right to use my property as a house, but I don’t have a right to build a factory on that property. Through fair housing and anti-discrimination, the government might be saying I have a right to exclude, but maybe I can’t exclude on the basis of race or religion, and therefore, that particular ability to exercise that right is limited. Of course, there are limits on that, as well. The government can certainly restrict or limit my ability to exercise a right, but can they go too far? Just like what we talked about earlier, with regard to things that are considered essential to propertyーare there also certain regulations and limitations on a particular right that goes so far that we, essentially, say that the government has taken our property? We have doctrines, constitutionally, called (08:20) regulatory takings, that essentially says that that would be an issue if they do that.
Summary of Lesson: Broad overview of Property Law course and how it will be organized
In other words, what I’m trying to illustrate here is not only a (08:20) broad overview of all the various property doctrines that we’ll be considering, but to also use the “bundle of rights” idea to give a sense of how to organize in our head. That, essentially, the Property class is about different facets of playing with that bundle of rights: some with regard to taking a particular right, and (08:44) enforcing and protecting that particular right. Some with regard to (08:47) transferring those rights; some with regard to (08:50) allocating the entire bundle among different people over time; and some with regard to the government’s ability to (08:55) regulate those rights. You should keep these in mind as we go through the individual doctrines. And if you ever feel confused of understanding how it connects to the whole, refer back to this, to understand that, at the end of the day, what Property class law is about is essentially giving shape to the “bundle of rights.”
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