Erwin L Tiamson - Property Keynote

8/9/2019 Erwin L Tiamson - Property Keynote

1/60

PROPERTY

LAW

1

ATTY. ER

WIN L. TIAMSON

SATURDAY CLASS

8:00 AM TO 12:00 PM


2/60

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


3/60

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


4/60

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


5/60

THEORIES ONPROPERTY

5


6/60

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.


7/60

! First Possession

! Labor

! Personhood! Utilitarian

! Democracy

Theories on Property


8/60


9/60

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


10/60

! 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


11/60

! 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


12/60

!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


13/60

! 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


14/60


15/60

! 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


16/60

! 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


17/60

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

17


18/60

! 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


19/60

PERSONHOOD

A right to personhood property should be given priorityover a conflicting claim by the owner of the non-personhoodproperty.

19


20/60

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


21/60

! 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


22/60

! 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


23/60

! 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


24/60

UTILITARIAN

Property rights is recognized in order to maximize theoverall happiness of society

24


25/60

! 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


26/60

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


27/60

! 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


28/60

!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


29/60

! 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


30/60

PROPERTY ANDDEMOCRACY

Personal security and personal independence from thegovernment are guaranteed in a system in which rights ofownership are protected through public institutions.

30


31/60

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.


32/60

! 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.



33/60


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.


34/60


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.


35/60


36/60


37/60


38/60

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


39/60

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


40/60

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).

40


41/60


42/60

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


43/60


44/60

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;


45/60

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


46/60

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


47/60

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


48/60

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.

48

Bundle of Rights


49/60

! Rules on particular use arisewhen there is a major resourceconflict, i.e. easement, nuisanceand zoning

! Reconfiguration of property

rights

49

Exclusion to Governance


50/60

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.


51/60

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;


52/60

Types of Ownership

52

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


53/60

53

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


54/60

Ownership - over rights and

things

54

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 -

1/2

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


55/60

Ownership - over rights and things

Accion Publiciana - lapse

of 1 year

55

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)


56/60

Co-Ownership

56

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


57/60

57

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



58/60


58

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


59/60

59

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;



60/60

Merry Christmas ………

to be continued next year

Documents

Erwin L Tiamson - Property Keynote