WHAT IS PROPERTY and TRESPASS: THE RIGHT TO RIGHT TO EXCLUDE AND RIGHTS OF ACCESS

Beach Access & The Public Trust Doctrine

- Another limitation on the right to exclude - PUBLIC TRUST DOCTRINE: Certain natural and cultural resources are preserved for public use, and the government owns and must protect and maintain these resources for the public's use > Ex. Under this doctrine the government holds title to all submerged land under navigable waters. Thus any use or sale of such land must be in the public interest

Matthews v. Bay Head Improvement Association

- Beachfront - RULE: The public must be given both access to and use of privately-owned dry sandy areas as reasonably necessary by allowing membership in the association to be open to the public > Stick of use: Public > Stick of ownership: State - Bay Head expanded the Public Trust Doctrine > The public has the right of reasonable access to the tidal waters. The test is whether the means available are reasonably satisfactory so that the public's right to use the beach can be satisfied ~ Consider the number of beaches, price, overcrowding

Utson v. Resorts International Hotel

- Counting cards - MINORITY RULE: When property owners open their premises to the general public, they have no right to exclude people unreasonably > The person does not threaten the security of the premises and its occupants and his actions do not disrupt the regular and essential operations of the premises - MAJORITY RULE: Property owners (apart from common carriers) can have an arbitrary reason for excluding non-owners as long as exclusion is not based on race, color, or religion (protected classes) > The owner will not have to explain why he/she has denied access to a non-owner - Casinos may bar the disorderly, the intoxicated and the repetitive petty offender. - limits on the right to exclude from property open to the public

Public Accommodations Law

- Federal law limits the right to exclude - Civil Rights Act of 1964, Title II > Discrimination > Protected class ~ Race, color, religion, natural origin (not sex or sexual orientation) > Access to goods/services denied > Place of public accommodation ~ Lodging ~ Sells food for consumption on premises ~ Place of exhibition or entertainment ~ Not private club

Commonwealth v. Magadini

- Homeless man trespassing - Necessity - Public policy limits on the right to exclude

Food Lion (Trespass)

- Key take away from this and Desnick is causation is still necessary - Consent was gained through fraud - Here, injury was traceable to the trespass and in desnick it wasn't - public policy limits on the right to exclude

Glavin v. Eckman

- Martha's vineyard landscaper - RULE: Restoration damages and treble damages are an appropriate remedy and are not excessive for a claim of trespass and destruction of property > Damages must be reasonable > Considered the uniqueness/devotion of the property - Dual character of the property > economic value > subjective value - trespass remedies

State v. Shack (No Trespass)

- Migrant farmworker - RULE: Non-owners may enter onto an owner's property to provide governmental services (or basic human rights) even if the owner objects to the entry > An owner cannot contract away occupants' rights that are essential to their health, welfare, or dignity > The right to own property does not extend beyond basic human dignity - Start of idea (right to exclude v. right of reasonable access) - public policy limits on the right to exclude

Jacque v. Steenberg Homes, Inc.

- Mobile home delivery - RULE: When nominal damages are awarded for an intentional trespass to land, punitive damages may also be awarded > There is actual harm in every trespass > There does not have to be physical harm to an owner's property for he/she to recover damages - Trespass protects owners' rights to possession - trespass remedies

Right to Exclude v. Right of Access

- Owners have the right ti exclude non-owners from their property (but not all the time) - Non-owners may have a legal right to enter the property (Shack)

Common Carriers & Inn Keepers

- Right to exclude diminished > The more the property is open to the public, the more limited the owner's right to exclude will be (Utson, Shack, innkeeper rule) - Justifications for Special Obligations .> More likley to be monopolies than other businesses, so denial of services is tantamount to denying the ability to travel or to find a place to sleep > These businesses provide necessities whose denial would place individuals at risk > Innkeepers and common carriers hold themselves out as ready to serve the public and the public relies on this representation

LLoyd Corporation v. Tanner

- Shopping center pamphlets - RULE: When there is no assumption or exercise of municipal functions or power; and the property is essentially private in character, a property owner's right to exclude non-owners is very broad - TAKEAWAY: 1. If property is considered a public space, a property owner cannot limit a non-owner's right to exercise his 1st Amendment rights 2. Even though property is technically private property, courts may treat it as public property if it assumes or performs the functions of a municipality - free speech rights of access to public and private property

Right to Exclude

- Spectrum: Jacque => Shack => Utson/Desnick => Bay Head => Common Carriers - String right to exclude & weak right of public access => weak right to exclude & Strong right of public access - Factors to consider: > Openness to public ~ Private Owner-Open to Public-Holding self out as municipality > Necessity of Trespass ~ Shack and Magadini > Causation

Desnick v. ABC INC. (No Trespass)

- Undercover investigation of doctor - RULE: Trespass is the interference with the ownership or possession of land and does not include a misrepresentation to enter the land > To enter the land of another without consent is a trespass. BUT consent is sometimes valid even though it was obtained through fraud > The law of trespass was made in order to protect a person's property. The harm did not come from a trespass, but from the broadcast (trespass claim does not fit) - public policy limits on the right to exclude

Privileged Trespsass

1. Entry is done with the consent of the owner (Desnick) 2. Entry is justified by the necessity to prevent a more serious harm to person or property (Magadini) 3. Entry is otherwise encouraged by public policy (Shack & Utson)

Trespass Elements

1. Unprivileged and 2. Intentional entry 3. Onto someone else's land 4. No damages necessary

Necessity

Definition: When the possibility of compliance with the law results in harm that outweighs the benefit of complying/harm from the violation Elements (some evidence): 1. Clear and imminent danger 2. Reasonable expectation that his action will be effective 3. No legal alternatives: You don't have to exhaust every option, just the ones most readily available to you 4. Legislature has not precluded the defense of necessity

What is property?

a. Property rights are relational b. Property rights are relative c. Property rights are not absolute i. Owners have rights as well as duties and obligations (Shack) d. Bundle of sticks

Bundle of Sticks

i. The right to use ii. The right to exclude iii. The right to alienate (transfer title) iv. The right to possess v. Immunity from takings