2011©Cengage Learning. All Rights Reserved.. Nature of Property 2011©Cengage Learning. All Rights Reserved.

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Nature of Property

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PROPERTY RIGHTS IN A DEMOCRACY

Absolute Rights Abolished The owner exercised absolute dominion

over his land. A man’s home was his castle

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PROPERTY RIGHTS IN A DEMOCRACY

All Rights Relative Property and personal rights are, by

definition, relative to and circumscribed by the rights and privileges of others in that society.

Each right or privilege must be balanced against similar, equivalent, and superior rights.

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PROPERTY RIGHTS IN A DEMOCRACY

Balancing Rights Protected by the democratic concept &

constitutional safeguards. 14th Amendment prevents any state from

depriving any person of property without due process of law.

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Restrictions on Use

Constitutional Restrictions The owner of a wholly owned company town

may not prohibit demonstrators.

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Restrictions on Use

Nuisance An owner may not use residential property for

a garbage dump.

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Restrictions on Use

Private Covenants, Conditions, and Restrictions

A real estate developer may place covenants, conditions, and restrictions on a subdivision.

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Restrictions on Use

Police Power A local government may use zoning to

prohibit certain uses. Allows for building codes.

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PROPERTY AS A CREATION OF LAW What Is Property? Two theories define the nature of property.

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What Is Property?

Natural rights doctrine - holds that property exists independent of law.

Creation of law doctrine - property is a creation of law and has no existence without the protection of law.

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Bundle of Rights the right to use and possess the property to the

exclusion of others the right to sell or will the property to others the right to grow crops and build on the land

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Not Absolute but Abolishable Limitations

Due process Equal protection

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Rights

Estate of Larkin65 C.2d 60 (1966) A California resident, having no heirs in USA,

left his estate to a Russian living in the U.S.S.R. The State of California tried to claim the estate under the doctrine of escheat, alleging that the gift was invalid for want of a qualified heir by reason of the reciprocity required for aliens under Probate Code 259.

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The Soviet citizen may inherit the estate.

The record clearly establishes that citizens of the United States enjoy a reciprocal right to inherit from Soviet estates on the same terms and conditions as Soviet citizens.

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