Week 12 – Property Law

- Provide a legal definition of Property.

n. anything that is owned by a person or entity. Property is divided into two types: "real property" whic
h is any interest in land,real estate, growing plants or the improvements on it, and "personal property" 
(sometimes called "personalty") which iseverything else. 

“Legally protected rights and interests a person has in anything with an ascertainable value
that is subject to ownership”*

• 2 Types of Property: Real property vs Personal Property

• Real Property: land, whatever is growing or built on land, and the rights

associated with ownership and use thereof**

• Personal Property: all property, tangible and intangible, except real property; generally
property without a permanent location**

- What are the basket of rights associated with property ownership?

The bundle of rights is a concept that helps us understand our rights to the property
we own. So what does it mean, exactly?

The term “bundle of rights” describes the set of legal rights associated with
ownership of real property. The “bundle” is made up of five different rights: the right
of possession, the right of control, the right of exclusion, the right of enjoyment and
the right of disposition

• In a nutshell, your “Bundle of Rights” includes:

• Possession
• Control
• Exclusion

• Enjoyment
• Disposition: Sell or Transfer

- Under what circumstances may a person hold the entire “bundle of rights?”

As property owner, your “Bundle of Rights” includes:

 • Usus: Possession, improve, modify, enjoy, control, exclude

• Fructus: receive rents, dividends, crops, timber, etc.

• Abusus: sell or transfer, destroy, lien (security for loan)

A person holds the entire “bundle of rights” when he has complete ownership to a property. Ex:
he purchases a house and pays up front for it in its full price. He is owning the house all by
himself and there are no other liens, he has the complete ownership and entire “bundle of
rights.” He posses the furniture in that house, he controls the rules in that house, he has the right
to exclude anyone from entering the house, he has the right to enjoy the house and invite guests
over, and he has the right to sell or transfer by inheritance the house to someone else.

- Under what circumstances may a person hold less than the entire “bundle?” Provide examples to
support your response.

A person may hold less than the entire bundle is when a person pays a mortgage for the house. He has
not fully owned the house yet, and has to keep paying a percentage of the mortgage until he has
complete ownership of the house over several years. For example, A person pays a mortage of 1000
euros each month for his apartment, and he is not allowed to demolish the house until he has complete
ownership after paying the full price of the house. He does not fully possess the house or is entitled to
sell or transfer it, leading him to holding less than the entire bundle. However, he can modify, control,
exclude and enjoy.

- What are the major intellectual property law regimes? See Chapter 15 (3rd Edition: Ch 18)

A word about Intellectual Property rights: Traditional 3 pillars:

i) Patents: inventions that are “novel, useful and non-obvious”

ii) ii) Trademark: words, symbols, names, or devices (or any

combination) to identify and distinguish goods i

ii) Copyright: works of original authorship

Newest edition:

iii) Trade secrets: any device or info that is used in a business and provides its owner
an advantage over its competitors

Trademark

A trademark is any word, name, symbol, or device or any combination that identifies goods and distinguishes
them from those manufactured or sold by others. Trademarks are derived from their commercial use in order to
identify goods and are protected by registration and filing at state and federal levels, as well as through
international treaties and conventions. The federal law that deals with trademark issues is the Lanham Act or
Trademark Act. The Lanham Act prohibits three forms of unfair competition related to trademark infringement:
(1) false advertising, (2) passing off (counterfeiting), and (3) false designation of place of origin. The Lanham
Act defines false advertising as the use of a “false or misleading description of fact, or false or misleading
representation of fact in commercial advertising or promotion which misrepresents the nature, characteristics,
qualities, or geographic origin of his or another person’s goods, services, or commercial activities.”

Copyright

Copyright is a form of protection provided to authors of “original works of authorship” fixed in a tangible form
of expression. Copyright has become increasingly important with the development of digital technology and the
Internet, where it is a major form of intellectual property protection for content distributed online, and where it
faces difficult enforcement issues. Works must be fixed in tangible form in order to receive federal copyright
protection; improvisational speeches or performances that have not been recorded or written are not protected.
The eight generic categories of copyrightable works include literary, dramatic, musical, choreographic, pictorial
(including graphic and sculptural works), motion pictures, sound recordings, and architectural works. These
categories are interpreted broadly. For example, computer programs may be registered as “literary works.”
Copyright protection is available to both published and unpublished works and affixes to the work at the time of
its creation.

Material found in the public domain is not protected. These materials include government publications and
materials whose copyrights have expired. An analogous concept in trademark law is the brand name–generic
distinction. A brand name can be protected as a trademark. However, if the name is used widely as a generic
name, then it is said to have entered the public domain and is no longer entitled to trademark protection.

Software piracy

Types of software piracy include: (1) end-user piracy (users copy software for distribution in violation of their
software license); (2) preinstalled piracy (computer manufacturer illegally installs software on numerous
computers); (3) Internet piracy (copies are illegally downloaded and distributed); (4) counterfeiting (illegal
copies are manufactured and distributed, and can include counterfeit packages and registration cards); and (5)
online auction piracy (software resold that was marked “not for resale”).

Patent

To achieve patent protection, an invention generally must be of practical use (utility), show an element of
novelty, and must have been non-obvious (some new application not known in the body of existing knowledge
in its technical field). This body of existing knowledge is called prior art. The invention must show an inventive
step (one that could not be deduced by a person with average knowledge of the technical field). Finally, its
subject matter must be accepted as “patentable” under law. In many countries, scientific theories, mathematical
methods, plant or animal varieties, discoveries of natural substances, commercial methods, and methods for
medical treatment are generally not patentable

It is important to file a patent application before you publicly disclose the details of your invention. In general,
any invention that is made public before an application has been filed would be considered prior art. In countries
that apply the foregoing definition of prior art, the applicant’s public disclosure of the invention before filing a
patent application would prevent him or her from obtaining a valid patent for that invention, since the novelty
requirement would not have been met.

Trade Secrets

Unlike a U.S. patent, a trade secret does not entitle its owner to a government-sanctioned monopoly of its
invention for a particular length of time. Nevertheless, trade secrets are protected under state law and through
private con- tracts. Trade secret protection is a product of state common law, although many states have adopted
the Uniform Trade Secrets Act. The Uniform Trade Secrets Act is a model law that prohibits the
misappropriation of trade secrets by theft, bribery, or misrepresentation. Companies protect their trade secrets
through confidentiality agreements between them and their employees and by trade secret licensing agreements
that prohibit disclosure by licensees.
 - What is an easement? What is eminent domain? Provide examples.

• EASEMENT Definition: a non-possessory interest in land created either by express

agreement or by operation of law (implied)

• Grants to its holder a limited right to use of another person’s land for a specific purpose

 Most easements are affirmative but may also be negative if they restrict the
property owner’s rights in any way

 Examples?

• EMINENT DOMAIN : The right of national and regional governments, as well as other
entities with governmental powers, to take privately owned real property for public benefit

• Owner must be compensated for the property taken

• Amount awarded - the property’s fair market value before the taking occurred • Examples?

- Compare and contrast the difference between ownership and possession from a property rights
perspective.

• Ownership: I hold title to the house I bought (I live in it or not)

• Possession: My son rents an apartment where he currently lives

Distinction between ownership and possession

 Possession indicates the existence of a property right (although not necessarily the
entire “bundle of rights”)

 Result: public acknowledgment

 French and German law provide for a legal presumption that the possessor of a
moveable object is also the owner (Article 2276 Cciv, §1006 BGB)
What is fee simple absolute?

• Strongest form of ownership:

• “The grant of a fee in land conveys to the grantee complete ownership, immediately and
forever, with the right of possession from boundary to boundary and from the center of the
earth to the sky, together with all the lawful uses thereof.”*

• Legal presumption: law presumes that the estate being transferred is a fee simple, unless
the conveyance expressly states to the contrary.

Rights associated with land ownership:

Rights to property may also be broken down into surface rights, subsurface rights,
riparian rights, and air rights. They include the right to build on the ground
(surface), extract minerals (subsurface), collect water from a stream (riparian), and
prevent neighboring buildings from overhanging your own (air).

Two main principles of European Property Law

#1 Numerus clausus (closed number):

 There are a limited number of rights that apply to property (ownership,

easements, usufruct, etc.)

 Result: “privileged remedies” for holders of property rights over personal claims. This
is especially important with land law.

 However, one may only use property rights provided for by the law, new property
rights cannot be created.

#2 Transparency (based on erga omnes)

• Everyone needs to be able to make themselves aware of who owns

what
• The entire system of ownership needs to be accessible, specified and policy-based (see,
local country rules).

• Moveables: generally, transfer by possession

• Immovables (ex, land, buildings, everything connected to land): written register reflects
ownership