CHAPTER 1

The Law of Property

    INTRODUCTION

Some courses on property law begin with the analysis of cases—sometimes they concern the acquisition of personal property, sometimes wild animals; and sometimes they introduce the subject with a U.S. Supreme Court case concerning the Fifth Amendment’s takings clause or with a case about Native American claims to property that puts our American system into perspective. Historical and philosophical readings about property law’s development might also be used to gain perspective.

  Different perspectives on the institution or the idea of property have been around for a long time. These perspectives have long been controversial. Plato and Aristotle disagreed as to property’s role in society. Since that time, property has been viewed variously as the product of one’s labor (John Locke), as an extension of one’s will (Georg W. F. Hegel), as the product of a person’s settled expectations (Jeremy Bentham), and as the foundation of capitalism and class conflict (Karl Marx).

  In the first year of law school, property is studied along with the two other wide-ranging areas of private and commercial law, the law of torts, and the law of contracts. The three subjects are studied in separate classes, but even though the signs on the classroom doors are different, this curricular separation should not lead you to the conclusion that the three subjects are entirely distinct. They are not. They are constantly intersecting. Property and torts, for example, have in common an historic origin in the cause of action for trespass, and often a substantive statement of a rule of property law begins or ends with the phrase “absent an agreement to the contrary”—meaning that persons involved are free to make a contract providing what the rule does not. In particular, the law of landlord and tenant (pertaining to leases) is a recently developed combination of contract and property law. Property, contract, and tort doctrines constantly arise and intersect in any law practice.

  The subject matter of a course on property typically covers several topics. There may be a roadmap to your course in contracts, but with property there is no one roadmap; instead, there are at least six roadmaps. Thus, to the beginning student, the course’s subject matter may seem huge. Personal property, common law estates and concurrent interests, landlord and tenant, real estate transactions, easements and covenants, and public land use regulation are the topics most frequently mapped in the first-year course on property.

  Although some of these subjects will be unfamiliar if you are reading this during your first semester or quarter of law study, you will quickly realize that each has its origins in a different historical era of our legal system’s development. The economic and social context in which the rules of each arose shaped it in different ways: Each developed in spurts and at different times. For example, common law estates developed rapidly in the late Middle Ages, while the law of landlord and tenant developed most quickly over the past several decades. Our legal system’s rules for real estate transactions developed in response first to the system of estates, then to the development of the executory contract in the eighteenth century, and finally to American modifications in the English system designed to suit our own needs. The law of easements and covenants developed rapidly in the nineteenth century in response to the industrialization and urbanization then taking place. Our system of land use regulation developed gradually over the last century, but did so more rapidly during some decades—the 1920s, the 1950s, and the 1970s—than during others.