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PROPERTY
LAW
1
ATTY. ER
WIN L. TIAMSON
SATURDAY CLASS
8:00 AM TO 12:00 PM
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What is property?
! In General - Strictly speaking, ‘property’is a general term for the rules thatgovern people's access to and control
of things like land, natural resources,the means of production, manufacturedgoods, and also texts, ideas, inventions,and other intellectual products.
! A system of managing resources.! Capitalism vs. Socialism
! Common ownership vs. Private Ownership
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What is property
! Property in the broadest sense isa set of claims that people have inresources that correspond toduties of respect in others.
! En t i t l emen t to re sources
protected by legal institutions
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Property as Thing
! Property rights pertains directly onthings, rather than people, it is in rem! In rem - the right attaches to the object,
rather to particular people, it is universallybinding on all who encounter the object.
! Quieting - binds all conceivable claimantswhether or not they have participated in the
proceedings;
! Property must be things worth managingthough the exercise of exclusion right
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THEORIES ONPROPERTY
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Theories on Property
! Helps form the foundation ofproperty law.
!
No one theory is accepted as theonly justification for property.
! Property rights is usually a blend
of different approaches.
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! First Possession
! Labor
! Personhood! Utilitarian
! Democracy
Theories on Property
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First Possession
! Practical rule - Who had it first.
! Describes how unowned resourcescame to be owned
! Best in in settings were resourcesare plentiful but people are few
!
Less relevance today because almostevery tangible things are owned bysomeone
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! Carol Rose on Possession as Origin ofProperty
! Common law – possession or occupancy as
the origin of property! Wild animals, Discovery
! Analogies show up time and again when courtshave to deal on a non-statutory basis with
some "fugitive" resource that is being reducedto property for the first time, such as oil, gas,groundwater, or space on the spectrum ofradio frequencies.
First Possession
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! Pierson vs. Post - “occupancy" or"possession" went to the one whokilled the animal, or who at least
wounded it mortally or caught it in anet.
! ”Control” gives rise to possession and
hence a claim to ownership.! Notice/Intent – to enable others to
dispute the claim
First Possession
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!Brumagin vs. Bradshow – Is the owner’s(Treat) act sufficient notice of appropriation?
!The court ruled that the jury should decide
whether Treat's acts gave sufficient notice tothe public that he had appropriated theproperty. If so, he had "possessed" it andcould pass it on as an owner.
! Carol Rose - If the use that Treat madewas unsuitable, his use would not givenotice of his claim.
First Possession
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! Johnson v. McIntosh ! Thomas Johnson claim of title – Sale from
Piankeshaw Indian Tribes
! William McIntosh claim of title – Patent from US
Government! “Discovery Doctrine” – law of nations; extinguish
the right of occupancy by indigenous people
! Became the foundation of real property
ownership in colonies! Carino vs. Insular Government – Different view, Justice Holmes recognises property rights ofnative inhabitants of the Philippines
First Possession
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! First possessor not a worthy gatekeeper
! The doctrine of adverse possession operates to transfer property to one
who is initially a trespasser if thetrespasser's presence is open toeveryone, lasts continuously for a given
period of time, and if the title ownertakes no action to get rid of him during
that time.
First Possession
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! Problems! Signs, symbolic gestures or clear acts of
claiming and notice – difficult to demarcate
! Actions must be understood and takenseriously by the community
! Not appropriate when resources are scarce
!
“Tragedy of the Commons” – overconsumption, i.e. fishing in internationalwaters, maximum gain in shortest time
First Possession
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LABOR THEORY
An original owner is one who mixes his or her labor with athing and, by commingling that labor with the thing,establishes ownership of it. - John Locke
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! John Locke ! An original owner is one who mixes his or
her labor with a thing and by commingling
that labor with the thing, establishesownership of it.
! The one who expended labor uponobjects could remove them from the
common and claim them as privateproperty.
! But how much do you value labor?
Labor Theory
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PERSONHOOD
A right to personhood property should be given priorityover a conflicting claim by the owner of the non-personhoodproperty.
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Margaret Radin! A right to personhood property should be
given priority over a conflicting claim by the
owner of the non-personhood property.! People are bound up with things. Object
that has become part of oneself as againstobject that is perfectly replaceable
! Someone's relationship with an object maybe gauge by the kind of pain that would beoccasioned by its loss.
Personhood
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! What is important in personhood is acontinuing character structureencompassing future projects or plans,
as well as past events and feelings.! The general idea of expressing one's
character through property.!
Property for personal autonomy –absence of which will hinder libertyattributed to a person
Personhood
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! This view of personhood also gives us insightinto why protecting people's "expectations" ofcontinuing control over objects seems soimportant.
! If an object you now control is bound up inyour future plans or in your anticipation ofyour future self, and it is partly these plans for
your own continuity that make you a person,then your personhood depends on therealization of these expectations.
Personhood
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! Fetishism - A "thing" that someoneclaims to be bound up withnevertheless should not be treated as
personal vis-a-vis other people'sclaimed rights and interests when thereis an objective moral consensus that to
be bound up with that category of"thing" is inconsistent with personhoodor healthy self-constitution.
Personhood
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UTILITARIAN
Property rights is recognized in order to maximize theoverall happiness of society
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! Jeremy Bentham
! Property rights is defined anddistributed to promote welfare of all
and not only of the owners.
! i.e. X owning a farmland – of his rightis protected, he can cultivate and
harvest produce for consumption.Ownership gave X the security that heneeds to use the farm.
Utilitarian
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Harold Demsetz (Law andEconomics)! Property rights specify how
persons may be benefited andharmed, and, therefore, whomust pay whom to modify theactions taken by persons
! Internalisation of externalities
Utilitarian
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! Property rules have developed inresponse to externalities;
! Externalities are internalize by
property owners! i.e. If a single person owns land, he
will attempt to maximize its presentvalue by taking into accountalternative future time streams ofbenefits and costs and selecting thatone which he believes will maximizethe present value of his privately-owned land rights. 27
Utilitarian
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!Property exists to ensure that owners useresources in an efficient manner – that is, ina manner which maximizes economic value
defined as a person’s willingness to pay.!Avoids the “Tragedy of the Commons”
! X cuts tree in a communal forest
! X gained benefits but the cost is impose on
the others.! Everyone will try to cut trees resulting to
the “tragedy of the commons”
Utilitarian
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! Howard Gensler – Three basic featuresof property law to attain optimal level ofproduction
!
Universality – all resources must be owned,i.e. society that excludes minerals is at adisadvantage
! Exclusivity – no incentive to improve things,
if there is open access, i.e. free riders! Transferability – trading, i.e. everyone is
stuck with what they have, no gains from trade
Utilitarian
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PROPERTY ANDDEMOCRACY
Personal security and personal independence from thegovernment are guaranteed in a system in which rights ofownership are protected through public institutions.
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Property and Democracy
! The right to a stable system of property rightsone with which the state will interfere onlyoccasionally or in a limited way with a provisionfor compensation is necessary to democracy.
! The right to own private property has animportant and salutary effect on the citizens’relationship with the state and equallyimportant on their understanding of that
relationship.! A state in which private property does not
exist, citizens are dependent on the good will ofgovernment officials, almost on a daily basis.
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! The best ways to destroy a democraticsystem is to ensure that thedistribution of wealth and resources is
unstable and constantly up for newevaluation by the political process.! Personal security and personal
independence from the governmentare guaranteed in a system in whichrights of ownership are protectedthrough public institutions.
Property and Democracy
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Property and Democracy
Cass Sunstein – Function of Property! First, it takes advantage of the powerful
human inclination to bring goods andservices to oneself and to people one cares
about. A system without private propertystifles incentives and thus induces both slothand waste.
! Second, it performs a crucial coordinating
function. It ensures that the multiple desiresof hundreds, thousands, or millions ofconsumers will be reflected in market out-comes.
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Property and Democracy
Cass Sunstein – Function of Property! Third, it solves, all at once, a serious collective
action problem faced by people in any systemwithout that institution. When property is
unowned, no one has a sufficient incentive touse it to its full advantage or to protect itagainst exploitation.
! Finally, it creates the kind of stability and
protection of expectations that arepreconditions for investment and initiative,from both international and domestic sources.
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Property as an Institution
! Important source of individualautonomy! Provides material means for individuals to
achieve a degree of independence from others! Important to the preservation of
liberty!
It is a form of personal sovereignty! Countervails the power of the state
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Property as an Institution
! Division of things into small units loosecontrol;
! Use of property in ways that have
spillover effects for the owners of otherproperties – Negative externalities! May lead to Monopoly
! Every property right is a monopoly right;
! Commodification of values and socialrelations
! Promotes inequality
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PROPERTY AS LAW
In its strict sense, property signifies that dominion orindefinite right of user, control and disposition which onemay lawfully exercise over particular things or objects (63Am Jur 2d).
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Property as a Legal Concept
! Property rights is composed ofcertain constituent elements(Bundle of Rights), namely:
• The right to exclude• T h e r i g h t o f u s e a n d
enjoyment• The right to transfer or todispose
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Right to Exclude
! Advantage of starting with the rightto exclude is this permits us toprotect a wide range of interests in
use without requiring others toknow much about those uses.! Simple exclus ion strategy -
Gatekeeper’s right the owner can
select among those uses without thelaw having to spell out all potentialuse-rights or interest at all;
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Right to Exclude
Larissa Katz, 2008! What we mean when we say that
ownership is exclusive is that owners
have a right to exclude and that theright to exclude has a certain effect:the indirect creation of the space
within which the owner’s liberty topursue projects of her choosing ispreserved.
45
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Bundle of Rights
John R. Commons, The Distribution of Wealth (1893)
! Property is, not a single absolute right,
but a “bundle of rights” . The differentrights which compose it may bedistributed among individuals and
society— some are public and someprivate, some definite, and there is onethat is indefinite.
46
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Bundle of Rights
! Partial rights are definite. Full rightsare the indefinite residuum. ... The firstdefinite right to be deducted from the
total right of property is the publicright of eminent domain.
! It is merely a definite restriction upon
the unlimited control which belongs tothe individual.
47
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Ronal Coase, (1960)! We may speak of a person owning
land and using it as a factor of
production but what the land-ownerin fact possesses is the right to carryout a circumscribed list of actions.
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Bundle of Rights
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! Rules on particular use arisewhen there is a major resourceconflict, i.e. easement, nuisanceand zoning
! Reconfiguration of property
rights
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Exclusion to Governance
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Exclusion to Governance
! The law shifts from giving the ownerdictatorial control over who and whatto exclude (or include), and instead
seeks to prescribe rules aboutpermissible and impermissible usesthat constrain all relevantly situated
owners.! Exclusion is shading off into
governance.
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Property as Things
! Property rights pertains directly onthings, rather than people, it is in rem! In rem - the right attaches to the object,
rather to particular people, it is universallybinding on all who encounter the object.
! Quieting - binds all conceivable claimantswhether or not they have participated in the
proceedings;
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Types of Ownership
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Ownership Access Management
Private Private By Owner Private
Common Group By Joint-Owners By Joint-Owners
Public State State State
Open Access No One Uncontrolled None
O hi i ht d
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Right to Exclude
Art. 429 (general)
Art. 430 (fence)
Right to Dispose
Art. 428
Self-help: actual orthreatened, unlawful
physical invation or
usur ation
Right to Fence without
detriments to
constituted servitudes
Villafuerte vs. Court
of Appeals (2005)- lease expired,property enclosed byfence; violates
procedure
Right to Enjoy(Jus Untendi)
Arts. 428, 437, 438,
440
Jus Fruendi - right to the
fruits
Jus Abutendi - right to
consume
Jus Possidendi - right to
ossess
Ownership - over rights and
things
People vs. Goya (1965)Warehouse - must becouple with an attack onthe person
People vs. Narvaez ( 1983)- incomplete defense ofproperty; attack is
disproportionate
O hi i ht d
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Ownership - over rights and
things
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ExtentOwnership on Land
Art. 437Surface andeverything under it.
Can excavate,construct or plantsubject to servitude,special laws andordinance and aerial
navigation
Art. 438
Hidden Treasures -
belongs to the ownerof the land, building,
on which it is found
Found on property of
another or the state -
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Republic vs. Court of
Appeals (160 SCRA 228)
Jose dela Rosa land
registration vs
Benguet
Consolidated Bog WedgeCorporationMining Claim Patentremove it from the
public domain/delaRosa - assertsownership only onthe surface
NPC vs. Ibrahin (2007)NAPOCOR Tunnel 1978;discovered in 1992application for deep well;NAPOCOR - utility andconvenience/no
interference
Treasure HuntingNational Museum Actof 1998
Permit for treasurehuntingNational MuseumDeterminesPL - 75-25/Prvt Land30-70/shipwreck 50-50
O hi i h d hi
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Ownership - over rights and things
Accion Publiciana - lapse
of 1 year
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RIGHT OF
VINDICATION
Article 428 (right of
action par. 2)
Art. 432 (damages/
interference)
Accion Interdictal -
forcible entry and unlawfuldetainer
Accion Reinvidicatoria -
ownership; claim of title
Replevin
Presumption
- disputable
presumption given
to possessor(ART 433/539)
- in action to
recover, plaintiff
must rely on the
strength of his title
(ART 434)
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Co-Ownership
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Right to Exclude Right to Use Right to TransferArt. 486. In accordancewith the purposeArt 492 Administrationthrough majority withresort to court;controlling interestArt. 500. Mutualaccounting at the endof co-ownership
Preservation (Art. 488)Repairs (Art 489)Embellishment andImprovement (Art. 489)Alteration (Art. 491)Buildings (Art. 490)
Art. 493. May alienate,assign, mortgage,substitute anotherperson in its
enjoyment; exceptpersonal rights areinvolved.Art. 493. In alienationlimited to the portionwhich may be allotted
to him in the division.
Art. 487. Anyone of theco-owners may bring anaction in ejectment.-Trespass, interference,
prevents personsoutside the co-ownership from usingthe property
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Limitations on Ownership
Police Power(Art. 436)
Eminent Domain (Art. 435)
Taxation
• Mere regulation orrestriction;
• No taking;• No recovery;• Basis is General
Welfare • There is taking; and Just
Compensation• Property must be for
public use or publicpurpose
• Inherent power of theState to raise revenueto support itsexistence
• Must not be arbitrary
Limitations on Ownership
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Limitations on Ownership
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Injurious Use (Art. 431)
Interference with theuse of other’s
property (Art. 432)
Article 19. NCC “Every person must, in the exercise ofof his rights..give everyone his due, act with justice,honesty and good faith”Article XII, Section 6. The use of property bears a socialfunction; economic agent shall contribute to thecommon good.
Exception: State of necessity1. An actual or imminent danger;2. Interference is necessary to avert such danger3. The threatened damage compared to theattending interference is much greater
People vs. Rebutado
The state of necessity must not be brought aboutby the intentional provocation of the invokingparty
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Conditions imposedby law / the owner: 1. Easements; 2. Extravagance;
3. Restrictions onLand Grants
Limitation impose by the ownera. at the time he transmit the property
b. at the time he continues to be the owner of thepropertyArt. 494 and 870 (donor prohibit partition/alienationfor 20 years)
Leal vs. Court of Appeals - prohibitions
that is indefinite as to time; that it may beapplicable beyond the lifetime of theoriginal parties, is a nullityDeed of Restrictions
Bel Air Village, Inc. vs. Dionisio - affirmthe rule that automatic membership/abiderules and regulations - is a valid restraint onones ownership = interest of sanitation,security and general welfare
Cariday Investment Corporation vs. CA
Forbes Park Restriction - one single familyresidential building; 2 meters easement; 50years is a valid restriction, reason“overcrowding, pressure on common
facilities;
Limitations on Ownership
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Merry Christmas ………
to be continued next year