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INTRODUCTION

    1. Splitting up:  Frequently, an “owner” of real or personal property will be found to have some but not all of these rights. For instance, one who “owns” a vacant downtown acre in “fee simple” (the broadest form of ownership known to American law – see infra, p. 50) does not have the right to erect a 150 story building on the site, if buildings of that height are forbidden by the local zoning code. Similarly, a person “owns” his kidneys in the sense that government cannot remove a kidney without his consent, yet one may not make a forprofit sale of one’s kidney to be transplanted into another. (See infra, p. 6.)

    2. The right to exclude others:  Even the right to exclude others, which goes to the core of what it means to “own” property, is subject to limits imposed by society. Most obviously, a property owner must allow fire and police officials on his property in certain circumstances. Some courts have cut back even further on the owner’s right to exclude. For instance, one court has held that the owner of a farm may not use trespass statutes to keep out private citizens who are trying to furnish medical or legal services to migrant workers living on the farm. See State v. Shack, 277 A.2d 369 (N.J. 1971). As the court said in Shack, “title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises.”

    II. SOURCES OF PROPERTY LAW

    A. Cases:  The principal source of property law is case law, i.e., opinions by judges. Property case law is largely the product of decisions by the appellate courts of the individual states. In contrast to many other areas of the law (e.g., constitutional law), the state courts are more or less free to develop their own property case law without interference by the U.S. Supreme Court. (However, in a few situations, e.g., zoning, constitutional issues will arise, and as to these the U.S. Supreme Court has the final word.)

    B.  Statutes:  Another large body of law is state statutes. The law of property has been heavily subjected to statutory modification of the old common-law principles and there are few property questions that can be answered wholly without reference to any statute.

    C.  Restatements and model acts:  A third source of authority consists of secondary materials prepared by law professors and other experts. Foremost among these are the various Restatements: (1) the First Restatement of Property (published beginning in 1936); (2) the Second Restatement of Property (published in 1976, and dealing only with landlord-tenant law and selected topics under the general title of “Donative Transfers”); and (3) the Third Restatement of Property (published in the late 1990s and early 2000s, and dealing only with “servitudes” and mortgages).

    1. Model acts:  Also, a number of model statutes have been drafted (e.g., the Uniform Residential Landlord-Tenant Act.) These have been enacted in some states, and are sometimes looked to (on a non-binding basis) by the courts of other states.

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