Property Law For Dummies E-Book

Alan R. Romero

• Herausgeber: John Wiley & Sons
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 684

Veröffentlichungsjahr: 2013

Beschreibung

The easy way to make sense of property law

Understanding property law is vital for all aspiring lawyers and legal professionals, and property courses are foundational classes within all law schools. Property Law For Dummies tracks to a typical property law course and introduces you to property law and theory, exploring different types of property interests—particularly "real property."

In approachable For Dummies fashion, this book gives you a better understanding of the important property law concepts and aids in the reading and analysis of cases, statutes, and regulations.

• Tracks to a typical property law course
• Plain-English explanations make it easier to grasp property law concepts
• Serves as excellent supplemental reading for anyone preparing for their state's Bar Exam

The information in Property Law For Dummies benefits students enrolled in a property law course as well as non-students, landlords, small business owners, and government officials, who want to know more about the ins and outs property law.

Leseprobe

Property Law For Dummies®

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Library of Congress Control Number: 2012954764

ISBN 978-1-118-37539-6 (pbk); ISBN 978-1-118-50323-2 (ebk); ISBN 978-1-118-50246-4 (ebk); ISBN 978-1-118-50322-5 (ebk)

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About the Author

Alan Romero is a professor of law at the University of Wyoming College of Law. He has been teaching Property Law and related courses at various law schools since 1998. He earned a BA summa cum laude in English and Political Science from Brigham Young University. He then graduated with honors from Harvard Law School in 1993, where he was President of the Harvard Journal on Legislation. Along the way, he unexpectedly discovered the wonders of property law. He’s been thinking, researching, practicing, teaching, and writing about property law ever since.

Dedication

To Amy, for all the reasons that can’t be written down in words.

Author’s Acknowledgments

Pretty much everything in this book I learned from others. Thanks to all the teachers, scholars, judges, and lawyers from whom I have kept learning about property law. And thanks to the many students who have helped me learn how to learn property law.

Writing this book also required a lot of help. Thanks to the Wiley editorial team who made this book so much better: David Lutton, my acquisitions editor; Jen Tebbe, my project editor; Danielle Voirol, Amanda Langferman, and Jessica Smith, my copy editors; and John Martinez, my technical editor.

Most of all, thanks to Amy and our kids for encouraging me, giving me the time to write this book, listening to me talk about it, and helping me remember what matters.

Publisher’s Acknowledgments

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Property Law For Dummies®

Visit www.dummies.com/cheatsheet/propertylaw to view this book's cheat sheet.

Table of Contents

Introduction

About This Book

Conventions Used in This Book

What You’re Not to Read

Foolish Assumptions

How This Book Is Organized

Part I: Introducing Property Law

Part II: Understanding Real Property Rights

Part III: Looking at Shared and Divided Property Ownership

Part IV: Acquiring and Transferring Property Rights

Part V: The Part of Tens

Icons Used in This Book

Where to Go from Here

Part I: Introducing Property Law

Chapter 1: Getting the Lowdown on Property Law

Defining Property

Viewing property as legal rights

Categorizing property as real or personal

Describing the Duration and Sharing of Ownership

Acquiring Original Property Rights

Transferring Property Rights to Another

Chapter 2: Defining Property in Legal Terms

Distinguishing between Real and Personal Property

The real world: Land and buildings

A personal touch: Everything else that can be owned

Describing a Property Owner’s Rights

Possessing property

Using property

Excluding others from your property

Transferring property

Limiting a Property Owner’s Rights

Declaring default common law rules

Modifying property rights by contract

Publicly regulating property

Exploring Remedies for Violations of Property Rights

Common law forms of action

Legal and equitable remedies

Chapter 3: Considering Property Ownership

Defining Title

Acquiring Title

The first owners: Identifying original government title

Patents: Conveying government land to individuals

Acquiring private land for the public

Conveying title to private land during life

Transferring property by will

To the heirs: Distributing property by intestate succession

Acquiring title by taking possession

Selling property by judicial order

Sharing and Dividing Property Ownership

Defining present and future estates

Understanding undivided concurrent ownership

Part II: Understanding Real Property Rights

Chapter 4: Identifying Common Law Rights in Real Property

Nuisance Law: Enjoying Property without Unreasonable Interference

Determining whether an activity is a nuisance

Substantially harming the landowner

Remedying nuisances

Altering How Surface Water Drains

The reasonable use rule: Altering drainage reasonably

The common enemy rule: Protecting your own land

The civil law rule: Paying for any harm you cause

Regulating Water Rights

Claiming water from watercourses

Drawing water from underground

Extracting Oil and Gas from Underground

The rule of capture: “Go and do likewise”

Modifying the rule of capture

Avoiding Landslides and Subsidence: Supporting Land

Laterally supporting adjacent land in its natural state

Laterally supporting nearby land and improvements to land

Supporting land from beneath

No Trespassing! Excluding Others from Land

Considering what constitutes a trespass

Remedying trespasses

Using Airspace

Defining boundaries in the air

Using and protecting airspace

Chapter 5: Adjusting Rights by Private Agreement: Covenants

Introducing Land-Related Covenants

Enforcing a Running Covenant at Law

Determining intent for a covenant to run

Deciding whether a covenant touches and concerns the relevant land

Establishing vertical privity

Satisfying the horizontal privity requirement

Enforcing a Covenant in Equity

Enforcing covenants without privity

Requiring notice of the covenant

Remedying a breach of a covenant in equity

Burdens for the Benefit of All: Enforcing Implied Reciprocal Covenants

Inferring covenants from a common development plan

Implying intent to run

Giving notice of implied covenant

Interpreting Covenants

Amending Covenants

Terminating Covenants

Invalidating covenants that restrain alienation

Terminating a covenant because of changed circumstances

Waiving a covenant

Abandoning a covenant

Refusing to enforce unreasonable covenants

Analyzing a Covenant Dispute

Chapter 6: Giving Others the Right to Use Your Land: Easements

Grasping the Basics of Easements

Distinguishing affirmative and negative easements

Describing profits

Telling easements apart from licenses

Knowing what’s an easement and what’s a covenant

Creating Easements

Looking at express easements

Avoiding the statute of frauds

Implying easements three ways

Over time: Acquiring easements by prescription

Interference and Trespasses: Determining the Scope of Easements

Prohibiting interference by the servient owner

Preventing use that benefits nondominant land

Changing the type or purpose of use

Increasing the burden on the servient land

Maintaining the easement

Transferring and Dividing Easements

Sticking to the land: Transferring appurtenant easements

Dividing appurtenant easements

Transferring easements in gross

Dividing easements in gross

Terminating Easements

Terminating easements by express release or agreement

Ending easements by merging dominant and servient estates

Abandoning easements

Terminating easements by estoppel

Extinguishing easements by adverse use

Chapter 7: Zeroing In on Zoning

Discovering Who Typically Regulates Land Use

Regulating the Big Three: Use, Height, and Bulk

Protecting Nonconformities from New Zoning Restrictions

Permitting Conditional Uses

Avoiding Unnecessary Hardship with Variances

Demonstrating inability to reasonably use the land as zoned

Explaining why unique conditions require a variance

Avoiding alteration of the essential character of the locality

Amending Zoning

Requiring consistency with a comprehensive plan

Invalidating spot zoning

Chapter 8: Recognizing the Limits of Public Regulation

Looking for the Local Power Source: State Enabling Statutes

Explaining Property Deprivations: Substantive Due Process

Identifying a deprivation of property

Deciding whether a regulation is rational

Considering whether a regulation advances a public purpose

Compensating for Property Taken for Public Use

Compensating for condemnations

Figuring out when a regulation is a taking

Remedying regulatory takings: Paying up

Treating Similarly Situated Owners the Same: Equal Protection

Looking for rational differences in treatment

Remedying equal protection violations

Respecting Free Speech Rights

Regulating the land use effects of speech

Regulating the content of speech

Part III: Looking at Shared and Divided Property Ownership

Chapter 9: Dividing Ownership over Time: Estates

Introducing the Concept of Present and Future Estates in Land

Creating and Distinguishing the Present Estates

Creating a fee simple: No expiration

Dealing with the fee tail: Direct descendants

Limiting a present estate to life

Making Present Estates Defeasible: Conditional Endings

Determinable estates

Estates on condition subsequent

Estates subject to an executory limitation

Identifying Future Estates

Reversionary interests

Nonreversionary interests: Creating future estates in others

Describing the present estate the future estate holder will own

Distinguishing contingent and vested remainders

Interpreting grants to heirs

Restricting Certain Future Estates via Common Law Rules

Destroying contingent remainders

Invalidating restraints on alienation

Limiting Nonreversionary Interests: The Rule against Perpetuities

Understanding the interests subject to the rule

Determining the moment of vesting

Considering lives in being

Modifying the rule by statute

Transferring Present and Future Estates

Governing the Relationship between Owners of Present and Future Estates

Taking a closer look at waste

Forcing the judicial sale of real property in fee simple absolute

Chapter 10: Sharing Property: Concurrent Ownership

Concurrent Ownership: Owning the Same Property at the Same Time

Getting Familiar with Tenancy in Common

Creating a tenancy in common

Understanding fractional shares

Transferring one’s interest

Taking a Closer Look at Joint Tenancy

Overcoming the presumption of tenancy in common: Creating a joint tenancy

Satisfying the four unities: Time, title, interest, and possession

Understanding the right of survivorship

Severing the joint tenancy

Examining Tenancy by the Entirety

Creating a tenancy by the entirety

Restricting transfers by tenants by the entirety

Till death do us part? Terminating a tenancy by the entirety

Governing the Relationship among Cotenants

Using the concurrently owned property

Paying expenses

Renting the property

Acquiring interests in the property

Avoiding waste

Breaking Up: Terminating Concurrent Ownership by Partition

Partitioning voluntarily: Deciding to split property or proceeds

Compelling partition

Court orders: Dividing the property physically or by sale

Fair shares: Accounting among cotenants

Restraining partition

Creating and Owning Condominiums

Creating a condominium

Owning individual units

Owning common areas

Managing common areas

Chapter 11: Owning Property in Marriage

Protecting the Surviving Spouse

Yours, Mine, and Ours: Community Property Systems

Distinguishing separate property from community property

Transferring and dividing property

Protecting Homesteads

Dividing Property upon Divorce

Classifying property to be distributed

Valuing property to be distributed

Distributing property

Chapter 12: Leasing Property: Landlord-Tenant Law

Distinguishing Leaseholds from Other Interests

Licensing versus leasing

Comparing easements and leases

Creating and Differentiating the Four Types of Tenancies

Fixed-term tenancy

Periodic tenancy

Tenancy at will

Tenancy at sufferance

Possessing the Leased Premises

Delivering possession to the tenant

Covenanting not to disturb the tenant’s quiet enjoyment

Maintaining the Leased Premises

Understanding common law duties

Contracting to maintain the premises

Taking a look at constructive eviction

Warranting habitability of the premises

Protecting third parties from injury

Transferring the Leasehold

Restraining the tenant’s right to transfer

Transferring all or part of the tenant’s estate

Holding transferring tenants liable for subsequent breaches of the lease

Terminating the Leasehold

Terminating pursuant to agreement

Abandoning the leased property

Terminating the leasehold in other ways

Holding over after termination of lease

Applying and refunding security deposits

Evicting the Tenant

Evicting by self-help

Evicting by summary procedure

Part IV: Acquiring and Transferring Property Rights

Chapter 13: Acquiring Rights by Finding and Possessing Personal Property

Taking a Closer Look at Possession

Resolving Claims among Competing Possessors

Intending to control

Determining whether someone interfered with possession

Getting possession by trespassing

Becoming an Owner by Possessing Unowned Property

Taking Possession of Owned Property

Protecting the owner’s rights

Describing bailments and the possessor’s duties to the owner

Examining the Possessor’s Ownership Rights against Third Parties

Resolving Conflicts between a Finder and the Landowner

Keeping mislaid property with the landowner

Possessing embedded property

Recovering treasure trove

Discouraging wrongdoing by the finder

Reforming the Common Law by Statute

Finding the owner

Rewarding the finder if the owner shows up

Awarding the property to the finder if the owner doesn’t claim it

Determining when the lost property statute applies

Escheating property to the state

Chapter 14: Becoming an Owner by Adverse Possession

Getting Acquainted with Adverse Possession

Clearing up ownership on the ground

Applying the statute of limitations to ejectment

Exploring the Elements of Adverse Possession

Element #1: Actually Possessing the Property

Defining actual possession

Determining the scope of possession

Possessing under color of title

Paying taxes

Element #2: Possessing Exclusively

Element #3: Possessing Openly and Notoriously

Element #4: Possessing Adversely

Possessing by right rather than permission

Using the property as an owner

Element #5: Possessing Continuously and without Interruption

Defining continuous possession

Interrupting possession

Element #6: Possessing for the Statutory Period

Determining the required period

Combining periods of possession

Understanding Title by Adverse Possession

Quieting adverse possession title

Identifying the interests affected

Chapter 15: Contracting to Sell Land

Creating an Enforceable Contract to Sell Real Property

Requiring a signed writing

Identifying essential elements of a writing

Amending or rescinding the purchase agreement

Making an exception when an oral agreement is partly performed

Specifying Deadlines for Performance

Remedying an immaterial breach of a deadline

Remedying a material breach of a deadline

Conditioning the Parties’ Obligations to Perform

Tendering the deed and purchase price

Requiring marketable title

Obtaining financing

Considering other conditions

Managing the Risk of Loss

Allocating risk by equitable conversion

Contracting about risks

Insuring against risks

Remedying Breaches of Contract

Calculating damages

Liquidating damages

Specifically performing the contract

Disclosing Latent, Material Facts

Implicitly Warranting Workmanship and Habitability

Chapter 16: Conveying Title by Deeds

Merging a Purchase Agreement with a Deed

Recognizing the Formal Requirements for a Deed

Identifying the parties

Identifying the land

Expressing intent to convey

Signing the deed

The Handoff: Delivering and Accepting a Deed

Performing acts intended to make a deed effective

Delivering by escrow

Delivering by escrow at death

Accepting delivery of a deed

Warranting Title in a Deed

Covering the various covenants

Distinguishing present and future covenants

Limiting or omitting warranties: Distinguishing types of deeds

Remedying breaches of title covenants

Chapter 17: Recording Title

Understanding Priority Disputes

Recording Documents

Identifying recordable documents

Complying with conditions for recording

Using Indexes to Find Recorded Documents

Distinguishing the Three Types of Recording Statutes

Determining Whether an Interest Is Recorded

Recording a document improperly

Being unable to find a recorded document

Paying Value for Property Interest

Taking Property Interest without Notice

Actual knowledge

Constructive notice

Inquiry notice

Protecting Subsequent Purchasers from Unlikely Claims

Curing defects by title curative acts

Eliminating specific old interests

Applying marketable title acts

Chapter 18: Mortgaging Real Property

Introducing Mortgages and Deeds of Trust

Possessing the Property before Foreclosure

Taking possession

Appointing a receiver

Selling Property in Foreclosure

Curing default or exercising equity of redemption

Extinguishing junior interests

Distributing the proceeds of a foreclosure sale

Recovering deficiency from borrower

Protecting Mortgagor by Statute

Anti-deficiency statutes

One-action statutes

Statutory rights of redemption

Transferring Mortgaged Property

Restricting transfer

Assuming mortgage debt

Enforcing a mortgage against the transferor

Transferring Mortgage

Part V: The Part of Tens

Chapter 19: Ten Notable Property Cases

Spur Industries, Inc. v. Del E. Webb Development Co.

Tulk v. Moxhay

Sanborn v. McLean

Village of Euclid v. Ambler Realty Co.

Penn Central Transportation Co. v. City of New York

Lucas v. South Carolina Coastal Council

Javins v. First National Realty Corp.

Armory v. Delamirie

Pierson v. Post

Stambovsky v. Ackley

Chapter 20: Ten Common Mistakes in Applying Property Law

Misapplying the Rule against Perpetuities

Mislabeling Present and Future Estates

Misunderstanding Hostility

Considering the Intent to Create a Covenant Rather than Intent to Run

Considering Only Notice of a Covenant’s Burden

Applying Estoppel or Part Performance without Evidence of an Agreement

Deciding a Joint Tenancy Exists without the Four Unities and Express Intent

Applying the Equitable Conversion Doctrine Where It Doesn’t Apply

Failing to Identify the Landlord’s Wrongful Act in a Constructive Eviction

Applying Purchase Agreements after Closing and Deeds before Closing

Chapter 21: Ten Property Subjects Commonly Tested in Bar Exams

Purchase Agreements

Mortgages

Deeds

Recording Acts

Landlord-Tenant Law

Estates

Concurrent Ownership

Covenants

Easements

Adverse Possession

Cheat Sheet

Introduction

Property is everywhere around you. Wherever you go in the United States, the part of Earth you’re on is the property of some person, entity, or government. If you look around you, almost everything you see is property — and it’s not just the land. Almost everything visible and tangible is property, except for the people themselves. Even some things you can’t see are property. Property law touches all of it.

Property law is about your relationship to all those things around you. It determines what you can do with those things and what you can stop other people from doing with those things. It governs how you acquire a right to possess and use a thing and exclude others from it. It directs how you can give that right to others.

You may be very familiar with property but not so familiar with property law. I wrote this book to help you understand those legal rules that are shaping the world around you in so many ways.

About This Book

Property Law For Dummies gives you the short and simple version of the property rules that are generally the subject of first-year law school courses in property law. I don’t cite many cases or include footnotes, so this book doesn’t look much like other law books. My goal is to organize, simplify, and clarify the basic rules of property law to make the subject easier to understand.

If you’re a law student, you know that your job in law school isn’t just to learn legal rules. You’re also learning how and why those legal rules are created and changed and how to apply them and make persuasive arguments about them. You’re learning how to figure out what the rules are by reading cases, statutes, and regulations. But you may find that in the process of reading cases, making arguments, considering possible rules and approaches, and exploring the reasons for rules, you sometimes have a hard time simply identifying what the rule is. That’s where this book can help.

You don’t have to read through the whole book in order to understand each part. You can turn to any issue you’re studying and find what you need to know. Some issues relate to other issues, of course, so often you find references to other chapters that you can turn to for more detail.

Conventions Used in This Book

I use the following conventions throughout the text to make things consistent and easy to understand:

New terms appear in italic and are closely followed by an easy-to-understand definition.

I use bold to highlight keywords in bulleted lists and the action parts of numbered steps.

What You’re Not to Read

Most of this book is just the basics. But sometimes I’ve included additional details, historical background, related rules, and the like. I think all the info is interesting and worth reading, but you can understand the subject without reading the extra stuff. I’ve set the skippable, nonessential info apart in two ways:

Sidebars: Sidebars are shaded boxes that give more background or details about the subject.

The Technical Stuff icon: This icon indicates information that’s interesting but that you can live without.

Foolish Assumptions

You may be interested in property law for all sorts of reasons. Even so, I’ve written this book assuming the following things about you:

You’re studying property law for the first time. Or you’ve forgotten it. You may be preparing to answer property law questions on the bar exam. Whether you’re learning property law for the first time or reviewing what you’ve studied before, this book can be a helpful reference and survey of property law issues.

You’re mostly interested in real property — land and buildings and other things attached to the land. Like most property law courses, this book covers some law related to personal property (and many of the rules for personal and real property are the same), but you won’t find a lot of info on cars and autographed baseballs or intellectual property like patents and copyrights.

You’re familiar with the law generally. You’re a law student or at least know the basics about the court system, lawsuits, remedies, the common law system, and so on. If this is a foolish assumption about you, you may benefit from a legal dictionary to help explain unfamiliar terms that I’ve assumed you know.

You’re not looking for cases and other authorities to cite in a brief or some other legal document. You just want to understand the basic rules. If you’re looking for supporting authorities to research and cite, you’ll need a hornbook or other treatise.

How This Book Is Organized

Each chapter of this book deals with some particular area of property law. I’ve grouped chapters dealing with the same types of issues into parts. Here’s what each part is about.

Part I: Introducing Property Law

Part I introduces the subjects I cover in Parts II, III, and IV and gives you some foundation to help you understand those later parts of the book. Chapter 1 introduces the subject of property law generally: what property law is, what property is, how you come to own it, and forms of ownership. Chapter 2 talks more about what property is: the types of property and the various rights — and corresponding remedies — that constitute property. Chapter 3 talks more about how title to property originates and is transferred and how ownership of property may be shared simultaneously or divided up over time.

Part II: Understanding Real Property Rights

This part develops the basic ideas from Chapter 2, that property is legal rights in relation to things and that those rights can be adjusted in various ways. In other words, this part is about what a property owner can do with her land and about the sources of such rules.

Chapter 4 describes the basic common law rights that come with ownership of land. The next two chapters then examine two ways in which landowners can adjust those rights by private contracts: covenants and easements. Finally, Chapters 7 and 8 study how public regulation can change those rights and look at the statutory and constitutional limitations on such regulation.

Part III: Looking at Shared and Divided Property Ownership

Part III considers how two or more people can share the ownership rights that I describe in Part II. People can own property concurrently, as I explain in Chapter 10. Marriage partners share property ownership in unique ways, as you examine in Chapter 11.

Two or more people also may share ownership of the same property successively, over time. For example, Chapter 12 studies the law related to leases of real property, in which both the landlord and the tenant have a legal interest; however, the tenant has the right to possess the property during the lease term, and then the landlord has the right to take possession when the lease ends. Chapter 9 talks about other ways property ownership may be divided up over time.

Part IV: Acquiring and Transferring Property Rights

This part considers how someone comes to have ownership rights in the first place. Sometimes a person may become an owner of moveable things simply by taking possession of them, as Chapter 13 explains. A person also may become an owner of land or other kinds of property by possessing the property as if she owned it for a long period of time; Chapter 14 talks about this rule, called adverse possession.

Most of the time, however, people come to own land by acquiring it from others who owned it before. Chapters 15 and 16 talk about contracts to buy and sell land and deeds that actually transfer ownership. Chapter 17 introduces the legal systems for notifying the world of a change in ownership. Often, buyers need to borrow some money to buy land, and they give a mortgage to a lender to ensure repayment of the loan. Chapter 18 talks about the law of mortgages, including how default on a mortgage loan can lead to a foreclosure sale that transfers ownership of the property to someone else.

Part V: The Part of Tens

The last part is a For Dummies tradition: The Part of Tens. This part includes three lists of ten that I hope you’ll find helpful as you study property law. Specifically, the Part of Tens fills you in on ten important property cases that are worth remembering, ten mistakes that law students often make in applying the property law I cover in this book, and ten property law subjects commonly tested on bar exams.

Icons Used in This Book

To make this book easier to read and simpler to use, I’ve included some icons that can help you note key ideas and otherwise find what you’re looking for.

This icon appears next to information that can help make the law easier to understand or easier to apply.

Any time you see this icon, you know the information that follows is especially important — the stuff you should read if you’re skimming and the stuff that’s most worth remembering.

This icon flags information that can help you avoid mistakes or misunderstandings.

This icon appears next to information that’s interesting but not essential. Feel free to skip these paragraphs.

This icon indicates an example of how a rule or concept works. You can skip examples if you’re just skimming for the rules or focus on examples to better understand how the rules work.

Where to Go from Here

If you’re a law student studying property law, this book is a supplement to a casebook and maybe other things that you’re reading for class. You know what you’re studying and what you need help with, so you can just look at the table of contents or the index, find what you’re looking for, and start reading.

If you’re using this book as your primary source of learning property law, I suggest you start with Chapter 1, which offers a basic foundation for the whole book and can help you get a big picture of the subject before you start studying details. Chapters 2 and 3 likewise introduce some basic perspectives to help you understand the later parts of the book.

Ultimately, where you go from here doesn’t really matter — as long as you go somewhere. Each part stands on its own, and the chapters cross-reference each other to help make sure you don’t miss anything. So dive in wherever you think is best.

Part I

Introducing Property Law

In this part . . .

Property law is about the legal rights that come with owning things. In this part, I help you think about what property is and introduce the types of laws that shape property rights. You find out about the basic rights that come with property ownership, how private agreements and public laws can change those rights, and the legal remedies that courts can give you when your rights are invaded. You also get an overview of how property rights are acquired, transferred, shared, and divided over time.

Chapter 1

Getting the Lowdown on Property Law

In This Chapter

Defining property

Introducing ways of sharing ownership simultaneously or over time

Looking at ways of acquiring and transferring property

Property law is the law about property. Okay, that’s probably not helpful, but I have to start the book somehow.

Maybe it’s not that helpful, but it’s true. Because property law is law about property, understanding what property law is requires understanding what property is. In this chapter, I explain the types of legal rights that constitute property and what the two big categories of property — real and personal — include.

I also describe the ways that ownership may be shared and divided up over time, and I identify ways people may become property owners and transfer their ownership to other people.

Defining Property

Because property law is simply all types of laws about property, describing property law requires defining property. That’s the organizing principle, the common denominator, for law school courses about property law and for this book. The following sections explain how property means having certain types of legal rights in relation to a thing and introduce the two main types of property.

Viewing property as legal rights

Property may refer to things that people own, but from a legal perspective, thinking of property as legal rights in relation to things is more accurate. A legal right is essentially a right that a court will recognize and enforce. (Chapter 2 introduces the ways that courts enforce property rights.)

Although you can be much more specific about the legal rights that constitute property, all property rights fit in four basic categories:

Rights to possess: The owner of land has the right to occupy it. The owner of other kinds of property has the right to physically control it.

Rights to use: The owner of property can use it in all sorts of ways. Of course, the right to use can’t be absolute because one person’s use of her property may interfere with others’ use of their property.

Rights to exclude others: An owner can keep others from using or invading her property.

Rights to transfer: An owner can transfer her legal rights in whole or in part to other people.

Describing property law

Unlike other traditional first-year law subjects (namely contract law, tort law, criminal law, constitutional law, and civil procedure), property law is organized by the subject matter of legal rights rather than the type or source of legal rights. Property law includes the study of some contracts, torts, constitutional clauses, procedures, and maybe even some crimes — grouped together because they all concern property. The following list illustrates and explains:

Torts: Interferences with property rights are torts. Torts related to property law include nuisance, trespass, conversion (taking or wrongfully keeping someone else’s property), and waste.

Contracts: Much of property law is about contracts that transfer and shape property rights. Covenants and easements contractually adjust property rights. Contracts transferring property rights include leases, purchase agreements, deeds, and mortgages.

Statutes: Property law also includes some statutory law related to property, including oil and gas laws, zoning laws, marital property laws, landlord/tenant laws, finders statutes, recording statutes, and mortgage and foreclosure laws.

Constitutional protection: The U.S. and state constitutions protect private property against governmental intrusions. An owner’s property rights therefore include constitutional rights against the government. These rights include the rights to substantive due process, just compensation for taken property, and equal protection. See Chapter 8 for details on these three constitutional property protections.

None of these rights are absolute; they’re simply categories and types of legal rights that constitute property ownership. But owning property means having these four rights to some extent.

The extent of these rights for any particular owner depends on the combined effect of all the sources of legal rights and rules. Specific property rights are determined by the following:

Common law: The common law describes traditional property rights that constitute property ownership, created and shaped by judicial decisions over time. Chapter 4 talks about some of the main common-law property rights.

Rights created by contract: Property owners can adjust their rights by private agreement with others. Under the common law, for example, a property owner has the right to exclude others from entering her land, but she can contractually give another person the property right to enter her land. Such rights are called easements, which I discuss in Chapter 6. Similarly, the common law may give a property owner the right to run a business on her land, but she can give away that legal right through a contract called a covenant, which promises someone else that she will or won’t do certain things in connection with her land. Chapter 5 discusses such covenants.

Statutory rules: Legislative bodies may adopt statutes and ordinances to create new property rights or adjust existing property rights. Zoning ordinances, which I cover in Chapter 7, restrict the types of buildings and uses permitted on the land, which limits the rights that property owners would otherwise have to use their property. Chapter 8 talks about constitutional restrictions on the legislative power to adopt new property rules by statute.

Categorizing property as real or personal

Even though having the legal rights to possess, use, exclude, and transfer in relation to any kind of thing that can be owned is property, there are two main categories or types of property:

Real: Real property means property in land and things attached to land, like buildings.

Personal: Personal property means any property that isn’t real. More specifically, personal property includes chattels, which are tangible things not connected to land, and intangible property, which includes things like intellectual property in ideas, patents, copyrights, and trademarks.

Chapter 2 talks more about these types of property and the differences between them.

Applying the same rules to real and personal property

Even though some rules are different for personal property and real property, many of the rules are basically the same. Here are some examples from this book:

Chapter 9 examines estates in real property, but a person may generally create estates in personal property subject to the same rules.

Chapter 10 discusses concurrent estates, in which two or more people own the same property at the same time. That chapter focuses on co-ownership of real property, but people can co-own personal property in the same way.

Chapter 11 talks about marital property rights that may apply to both real and personal property.

Chapter 14 talks about acquiring title to real property by adverse possession, but the same principles apply to personal property.

Law school property law courses (as well as this book) mostly talk about rules concerning real property. Chapter 13 is the only chapter in this book that focuses on rules unique to personal property — rules about the rights and duties of people who find chattels.

Describing the Duration and Sharing of Ownership

An individual can own all the legal ownership rights in an item of real or personal property. But often, more than one person has some ownership rights in a particular property.

Sometimes different people have the legal right to possess and use the same property at different times: One person has the right to use the property for a certain time, and then another person has the right to the property, then another, and so on. Estates and leaseholds are forms of successive ownership rights like this:

Estates: An estate is ownership of property for some amount of time. A person can own property indefinitely, for a lifetime, for a specified number of years, and for other time periods. For example, one person may own the property for her lifetime, and then another person gets it when she dies. Chapter 9 describes how estates may divide property ownership over time.

Leaseholds: A lease is a contract between a landlord and a tenant that gives the tenant the present estate (which may be called a leasehold). The tenant has the right to possess the property for a time, and the landlord has the right to take possession back when the leasehold ends. Chapter 12 covers landlord-tenant law in detail.

Different people also may share ownership of the same property at the same time rather than successively. Such ownership may be called concurrent ownership (Chapter 10 covers the forms of concurrent ownership of property and the rights and duties that co-owners have in relation to each other). Married couples may share ownership of property in unique ways. (Chapter 11 describes how spouses share property.)

Acquiring Original Property Rights

Anything that’s owned must have a first owner. Here are some of the ways that a thing first becomes owned as property:

Sovereign acquisition: In the U.S. legal system, all land was originally owned by a government. As Chapter 3 explains, federal, state, and foreign governments originated title to lands in the U.S. by asserting sovereign claims based upon discovery and conquest.

Adverse possession: If a person possesses property as if she owned it openly and continuously for a long period of time, she acquires title to the property. This is called adverse possession. Even though someone else formerly owned the property, the theory of adverse possession is that the adverse possessor acquires a new title instead of getting title from the former owner. Chapter 14 examines the doctrine of adverse possession in detail.

Creation: People can create new personal property. Much personal property is originally owned by the person who creates it. Even then, she probably has to acquire raw materials from someone else. But if she gets the raw materials, she can create a new thing, like a hat, and she’s its first owner. Similarly, a person can create intangible property like an idea and become its first owner.

Capture: Some things exist in nature but aren’t privately owned until captured. Chapter 13 talks about acquiring original ownership in this way. For example, wild animals aren’t owned until someone captures them. Similarly, underground water, oil, and gas may not be owned until someone lawfully draws them out from underground, as Chapter 4 explains.

Taking possession: Even when someone else already owned personal property, a person can acquire original ownership rights by taking possession. If the former owner abandons the property, for example, whoever finds and possesses it first becomes its owner, without acquiring ownership from the former owner. Even if the former owner doesn’t abandon the thing, a finder or the owner of the property where the thing was mislaid may acquire ownership rights against the rest of the world — and maybe even against the former owner. See Chapter 13 for details on acquiring ownership by taking possession.

Transferring Property Rights to Another

One of the basic rights of property ownership is the right to transfer your rights to other people. An owner can give away just some of her rights but remain the owner, such as by giving someone an easement to use her property. An owner also can transfer her entire ownership — the basic rights to possess, use, and exclude. Following are some ways she can transfer her ownership rights:

Deed: An owner can transfer her ownership by delivering a valid deed to a grantee. Chapter 16 talks about deeds in detail.

Will: An owner can transfer her ownership at her death by a will. Chapter 3 covers wills.

Mortgage: In some states, a mortgage is treated as a conveyance of title to the mortgagee; in others, it’s merely a lien, the legal right to sell the property to satisfy an unpaid debt. In either case, if the mortgagor defaults on the debt that the mortgage secures, the mortgagee can foreclose, hold an auction sale, and have the title transferred to the high bidder. Chapter 18 talks about mortgages.

When an owner transfers property to another person, the new owner wants to be sure that the world knows she now owns the property. She does that by recording her interest with the county clerk or other public officer who maintains records related to real property. If she doesn’t, as Chapter 17 explains, state recording statutes may allow someone else who buys the property without knowing about her interest to become the owner instead.

Chapter 2

Defining Property in Legal Terms

In This Chapter

Classifying types of property

Examining the basic rights that constitute property ownership

Introducing ways in which ownership rights are adjusted

Considering legal remedies for violations of property rights

You may call the things that you own your “property.” The law also sometimes uses the term property in this sense, referring to things that are owned. Lawyers love to categorize things, and, of course, they’ve categorized different types of things that may be owned. The first part of this chapter examines the categories of property.

Of course, the law isn’t really about things; it’s about legal rights in relation to things. So it’s no surprise that lawyers generally think of property as legal rights in relation to things rather than as the things themselves. A thing is property not because of its attributes but because we recognize certain kinds of legal rights concerning it. Although you could make a long list of different legal rights that are property rights, this chapter examines the basic types of rights that constitute property ownership. It also introduces the idea that those rights may be changed by private agreements and governmental regulation.

Distinguishing between Real and Personal Property

Anything that can be legally owned may be called property. All property can be grouped into two main categories: real property and personal property. Personal property can be further classified as chattels and intangibles. One reason to know these categories is simply to understand what other lawyers are talking about. Of course, knowing the categories can also help you decide which rules should apply to a particular item of property and which remedies are available for violations of property rights.

State statutes may define different categories of property for different purposes. So whenever the categorization of property makes a difference in legal rights or remedies, you should first search for relevant statutory definitions.

The following sections describe real property and the two types of personal property.

The real world: Land and buildings

Real property describes land and things that are attached to the land, which is why land is sometimes called real estate or realty. Even though wood, steel, and other building materials aren’t land themselves, when they’re built into structures attached to the land, they become real property, too. Trees and other plants naturally growing on the land are also part of the real property. But plants that require regular human cultivation and labor, such as grains and vegetables, sometimes aren’t treated as part of the real property.

This book focuses on the law related to real property, but many rules apply to real and personal property alike.

A personal touch: Everything else that can be owned

Personal property is all property that isn’t real property. That’s a big category. It can be further divided into two subgroups, chattels and intangibles, which I describe next.

Chattels

The term chattel sometimes refers to all kinds of personal property, but often it refers only to tangible personal property (such as nose flutes and toenail clippers) as opposed to intangible property.

A chattel, such as a furnace, can be affixed to land and become part of the real property. Such chattels are called fixtures. However, fixtures may retain their quality as separate personal property for certain purposes. For example, at the end of a lease term, the tenant generally has the right to remove fixtures she installed even though she doesn’t have any more right to the real property when the lease ends.

Intangibles

Intangibles are all kinds of personal property that aren’t tangible, that can’t be seen or touched. So you can say this kind of property doesn’t involve a “thing” at all; it involves only a legal right. The mere existence of such a category of property is a reminder that, in the law, property most accurately refers to legal rights, not to things.

Neither real nor personal: Things that can’t be owned

Some things can’t be owned at all and therefore can’t be private property. Some of these things, such as light, air, and the high seas, can’t be owned because they naturally seem communal. Other things, such as rivers and coastal waters, can’t be owned because they belong to the public. And some things can’t be owned because they’re illegal, like heroin.

A person can own all sorts of intangible “things,” including the following:

Bank accounts

Franchises and licenses

Insurance policies

Intellectual property such as patents, copyrights, and trademarks

Stocks, bonds, promissory notes, and similar documents that aren’t themselves valuable but merely represent intangible rights; currency is sometimes treated as an intangible

Describing a Property Owner’s Rights

Owning something means you can enforce legal rights concerning it. It doesn’t take a lawyer to identify the basic categories of rights that come with property ownership. If you own property, you have the right to do the following with it:

Possess it

Use it

Exclude others from it

Transfer it to someone else

The following sections discuss the meaning and significance of these basic rights.

Possessing property

Possessing property basically means intentionally exercising physical control over it. If you own real property, you have the right to occupy the land and structures on it. Similarly, the right to possess personal property is the right to physically control it. In other words, you can handle it and take it places.

Possession is a basic right of ownership, but it’s also a condition to having certain rights and duties with respect to property. For example, someone who possesses real property for a long period of time and satisfies other requirements obtains ownership of the property even though it wasn’t hers before. This is the doctrine of adverse possession, which I tell you about in Chapter 14. Even though possession always means basically the same thing, the required proof of possession varies with different legal rules.

Using property

Property has value because the owner can use it somehow. You can use real property all sorts of ways, such as building things on it, keeping personal property on it, and doing whatever it is you do — eating, sleeping, studying. (Maybe that’s all you do lately.) And of course, there are countless types of personal property and countless ways to use it.

Excluding others from your property

You don’t need property law to allow you to possess and use property. Even if property laws didn’t exist, you could still possess and use land and things. The problem is, so could others — and they might want to possess and use the same things you want to possess and use. As a result, the property would be much less useful to you; it might even be useless.

Excluding others is really what makes property property. You generally can keep others off your land. You can keep your things to yourself so they’re available for your own use as you choose. If you can’t generally exclude others from using a thing, it probably shouldn’t be called your property. And if you can exclude people, you can fairly call it property. Even people’s ideas and personal attributes, such as voices, have been called property because the law has recognized the right to exclude others from using them.

Transferring property

You can exclude others from your property, but you can also choose not to exclude them. If this book is your property, for example, you could let someone else read part of it or the whole thing. You could let someone else read it for a day, a week, or a year. In fact, you could let her possess and use it from now on. And if you did that, you could also give her the right to exclude others from now on. In short, you could give her your book. This power to give your property rights to others is the right to transfer, which lawyers sometimes call the right to alienate.

The right to transfer property is so fundamental that courts invalidate some attempts by private contract to restrict the right to transfer. Not only is this right a basic attribute of private dominion over a thing, it’s also important to society because the freedom to transfer is essential to wealth-producing market transactions. (See Chapters 5 and 9 for examples of how courts limit contractual restrictions on transfers.)

Limiting a Property Owner’s Rights

The rights to possess, use, exclude, and transfer property sometimes conflict with other people’s rights or the public interest. Therefore, these rights aren’t absolute. Property law attempts to reconcile competing rights and interests by means of default rules, contractual rules, and public regulations.

Declaring default common law rules

One large part of property law consists of the common law rules that generally describe the extent of property rights. I walk you through some of these rules in Chapter 4.

Suppose one person wants to use her land to raise pigs, but that use may seriously interfere with the adjoining landowner’s desire to use his land for his house. Instead of simply declaring that everyone can do whatever they want on their own land, property law sets default rules that limit owners’ respective rights. In this example, the law of nuisance declares a default rule that a property owner is entitled to be free from unreasonable interference with the use and enjoyment of her land. Likewise, she may not unreasonably interfere with others’ use and enjoyment of their land.

Modifying property rights by contract

Even though the law declares default rules that reconcile competing interests, as I explain in the preceding section, people can agree to change those rules. Just as a property owner may transfer her entire property to someone else, she may transfer just some of her rights to someone else.

For example, if the law of nuisance gave a residential property owner the right to prevent a pig farm next door, that owner could enter into a contract with the neighboring property owner to allow a pig farm on that land despite the default nuisance rule.

Covenants and easements are two types of contractual agreements that adjust parties’ respective property rights. I tell you more about covenants and easements in Chapters 5 and 6, respectively, but here’s a quick breakdown of these contractual agreements:

A covenant is a contractual agreement that limits a property owner’s freedom to use her land in some way or that requires her to do something on her land. For example, one common type of neighborhood covenant is a promise not to use land for nonresidential purposes.

An easement is typically a contractual agreement allowing someone else to use the owner’s land somehow, such as an agreement allowing a neighbor to drive across the owner’s land to get to the neighbor’s land. A negative easement, on the other hand, is a contractual agreement that restricts the property owner’s freedom to use her property.

Publicly regulating property

Federal, state, and local governments all have some power to regulate how land is used, and these regulations can further reshape property rights. For example, even though a property owner may have a common law right to use her property as she wishes (as long as she doesn’t unreasonably interfere with others’ use and enjoyment of their land), local zoning laws may further restrict that freedom by specifying that property in certain areas may be used only for residential purposes. (See Chapter 7 for details about zoning laws.) Similarly, a property owner may have a common law right to transfer her property as she wishes, but federal laws restrict her freedom to transfer it in ways that are racially discriminatory.

Exploring Remedies for Violations of Property Rights

A property right means nothing if you can’t enforce it. If you have the right to exclude others from your land but have no power to actually do so, you’re practically no better off than if you had no such right.

Enforcing property rights is what really makes them rights. Even if there were no laws at all, people could take possession of things, use them, give them to others, and do their best to exclude others from taking them away. Property law essentially offers the force of the government to help exclude invaders and specifies the conditions on which the government will do so.

Therefore, fully understanding and describing a property owner’s rights in relation to a thing requires consideration of both the right and the remedies, which are the ways the law enforces that right. Invoking the power of the government to repel an invader is very different from merely obtaining financial compensation from the invader, for example.

The following sections consider the different kinds of remedies available for different kinds of violations of property rights.

Common law forms of action

Long ago, different common law forms of action evolved to address different kinds of injuries to different kinds of property and to provide different remedies. Almost all U.S. jurisdictions have abolished the old common law forms of action and now provide for a single form of civil action.

However, you still need to be familiar with the predominant common law forms of action. Some of the old labels may still be used to identify claims for relief, some differences in claims and remedies persist, and you may read older judicial opinions that use the old labels.

Real property

Real property is called “real” because of the common law actions that protected and preserved the owner’s physical possession of land instead of just providing compensation for the land taken by another. Centuries ago in England, the action of ejectment evolved and took the place of various earlier real actions. Ejectment entitled the owner to have a wrongful possessor ejected and to regain possession.

If the wrongdoer entered the land but didn’t take possession from the owner, the action of trespass provided a damages remedy. And if a wrongdoer didn’t enter the land but merely interfered with its use and enjoyment, the action of trespass on the case (or just case) likewise provided a damages remedy.

Personal property

A “personal” action was an action for damages rather than a judgment directly affecting possession of the property itself. Long ago, there were no “real” actions for property other than land, so such property came to be called “personal property.” Over time, however, actions developed to recover possession of personal property rather than to just obtain damages. Some of the actions related to personal property were

Trover: An action for damages from someone who wrongfully took personal property

Replevin: Originally only an action to recover chattels wrongfully seized by a landlord for breach of a tenant’s duties, it evolved to allow recovery of any wrongfully withheld personal property — or damages if the defendant wrongfully disposed of the property

Detinue: An action for wrongful withholding of possession of chattels, in which the defendant had the choice of returning the chattels or paying money damages

Trespass: An action for damages resulting from interference with land or chattels

Legal and equitable remedies

There’s another old remedial distinction that you should know: the distinction between legal remedies and equitable remedies. Property remedies developed in two different court systems in England. The common law courts developed the forms of action I talk about in the preceding section. The two basic legal remedies available to a plaintiff were damages and restitution:

Damages: An award of money calculated to compensate the plaintiff for injury to or loss of property

Restitution: An order requiring the defendant to return property to the rightful owner

The English Court of Chancery, on the other hand, offered some remedies that weren’t available in the common law courts. The English Court of Chancery was a court of “equity” rather than “law,” so its remedies were known as equitable remedies.

Even though modern courts may grant all the legal and equitable remedies recognized by the law, the terms are still used to distinguish types of remedies.

Here are some important equitable remedies to know:

Injunction: This is an order by a court preventing someone from interfering with another’s property. Such an order may prohibit someone from doing something, require someone to do something, or both. Today an injunction is generally available if the threatened harm by the defendant would be irreparable or if calculating the harm in monetary terms and awarding compensating damages would be difficult.

Specific performance: Specific performance is a particular kind of injunction that compels a party to perform a contract. Like injunctions generally, a court orders specific performance only when an award of damages would be inadequate.

Quieting title: Quieting title is a judicial declaration about the validity and state of a person’s title to land, resolving disputed claims about interests in the land.

Rescission: This is a judicial order that cancels a contract and restores the contracting parties to the position they were in before entering into the contract.

Reformation of written instruments: This is a judicial order that changes the terms of a written agreement to be consistent with the parties’ actual intentions.

Chapter 3

Considering Property Ownership

In This Chapter

Understanding what title is

Considering ways to get title

Introducing how ownership may be divided over time

Looking at how ownership may be shared

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