CHAPTER 1

INTRODUCTION

I. “PROPERTY” GENERALLY

A. General definition:  A person may be said to hold a property interest, in the broadest sense, if he has any right which the law will protect against infringement by others. In addition to tangible property (land and chattels), courts have increasingly recognized broad categories of intangible property interests. For instance, a teacher with tenure in a public school system may be found to have a constitutionally-protected property interest in continued employment.

1. Real and personal property:  In this book, we are concerned almost exclusively with rights in tangible property, i.e., all real property and tangible personal property. “Real” property includes land and any structures built upon it. “Personal” property includes all other kinds of property; while our discussion of personal property concentrates on tangible property (e.g., an automobile), a few types of intangible property (e.g., bank accounts) are considered. The bulk of the treatment of personal property is in the following chapter, so that the remainder of the book concentrates heavily on real property.

B. Possession vs. title:  Perhaps the most important distinction which will appear throughout the course of this outline is the distinction between possession and title.

1. Possession:  There is no precise definition of the term “possession”, and its use varies according to the context. However, a person may generally be said to have possession of land or personal property if he has dominion and control over it.

2. Title:  Title, on the other hand, is roughly synonymous with what the layman thinks of as “ownership.” Thus a tenant in a residential apartment building has possession of the apartment, but the landlord has title to it.

a. Divided title:  A unique feature of Anglo-American property law is that title to a parcel of real estate can be spread among numerous owners and in several different ways. The chapters on future interests, marital estates and concurrent interests are all illustrations of this fact.

C. Law and equity:  Another frequently-drawn distinction is between law and equity. The difference between courts of law and courts of equity is discussed more fully infra, p. 87. The basic idea is that a law court awards money damages, and an equity court awards other sorts of relief, usually injunctions.

D. Bundle of rights:  The non-lawyer thinks of property as a single right: one either “owns” personal or real property, or one does not. But in fact, ownership consists of a number of different rights, often called a “bundle”: the right to possess the object; the right to use it; the right to exclude others from possessing or using it, and the right to transfer it. Even the right of transfer has two distinct aspects, the right to make a gift, and the right to sell. See D&K, p. 86.