The personal property part is fairly easy to relate to because it is familiar. Questions will be raised as to who owns the expensive ring that is found in the back of an old safe purchased from the Salvation Army. Can the owner of stolen property get it back from someone who bought it in good faith from the thief? Is the restaurant responsible to the diner if someone walks off with a coat? You will learn about property called fixtures that may be real or personal, depending on the circumstances. Do the window shades go with the building? How about the large fruit trees in big, oaken half-barrels that border the patio? What about the two-ton statue of Aphrodite's grandmother sitting in the middle of the front lawn?
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Is there such a thing as squatter’s rights? Does a property owner have to file a law suit to protect rights to the property? What happens when someone purchases a piece of land described in complicated surveyor's language in the deed and the survey is incorrect? There is one case where the surveyor got turned around 180 degrees and came back on the same line.
- Suppose you build your house on the wrong lot?
- Who owns the land from the curb to the middle of the street?
- When you buy land by the acre and there is a very high hill on the property, do you measure the acreage as you go up the side of the hill—which results in less actual land—or do you measure the acre along a flat plane, as if the hill didn't exist—in which case you get more?
Much of real property law comes from the old English ways of holding land. Full outright ownership was known as "fee simple absolute." If the land had to stay in the family blood line it was called "fee tail." "Fee tail male" or "fee tail female" meant it could only pass to male or female blood relatives.
There is a whole area of study concerning the rights of tenants, rights between tenants, length of tenancy, and so on.
Another subject division called easements covers the right to use someone else's property for a specific purpose. A flood control district purchases an easement to divert flood waters over certain farm lands during the rainy season. Does this give the district the right to permit the public to use the temporary body of water for hunting and fishing? Or can the farmers consider the public trespassers and put them off the property?
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A good way to get into real property problems is to go to the law library before the semester starts and read some historical back-ground material. There are some old works by Pollack and Maitland covering the feudal period which you will find very worthwhile. A few hours browsing through Blackstone's Commentaries could also prove educational and enjoyable.
You will be exposed to the concepts of limitations, future interests and estates. What kind of restrictions can be put on the future use of property? Land is donated to a school district for use as long as an elementary school is maintained on the premises. Fifty years later, the neighborhood has changed and only a few old people still live there. If the school is closed and the property put up for sale, do the heirs of the original grantor have any right to claim that the land should go back to them?
Bible Belt property is originally sold only to members of a certain religious sect, with the intent that they will build houses there and live as a tight knit community. The deed restrictions bar resale or transfer to persons not following the tenets of the faith. One couple dies, leaving no heirs except an atheist niece in Chicago. Can she move into the house? Can she sell it?
In general, you will come to realize that when lawyers refer to property, it is not so much the physical object as the right of an individual to hold and control it, dispose of it, or prevent others from using it. You will learn that within the concept of total ownership, there are still restrictions which have been set by historical precedent and statutory enactment. For example, an owner cannot dig a hole so close to the property line that lateral structural support is taken away, causing a neighbor's building to fall. Another limitation on owners' rights is a doctrine known as the Rule Against Perpetuities. This old common law doctrine, still current in some variation in a number of states, prevents disposition of an estate to an unborn individual not conceived within the life time of persons named by a testator in a will, plus 21 years.
Suppose a woman with one son, and no other living heirs, wanted to tie up her real property and will it to her great-grandchildren. If at the time of her death, and thereafter, the son had no children, there would never be any great-grandchild to inherit the estate. At the end of the 21-year period, or on his earlier death without children, the estate would be divided as if this special provision were not in the will. If there were no contingency provision, she would be considered intestate (having no will) as to the portion set aside for great-grandchildren.
On the other hand, if the son had a living child at, or after, the mother's death, and that child (her grandchild) also had a child conceived within the 21-year period, then there would be a great-grandchild eligible to inherit.
When someone dies intestate (leaving no valid will) as to all or part of an estate, the court distributes the unwilled property according to certain formal rules established by the common law, or as changed by statute. Generally, the purpose is to locate the nearest living relative. Occasionally, this leads to the "laughing heir" situation—the person who one day answers a knock at the door and learns that some unknown cousin of her great-grandfather had died in Australia, and she is now the sole owner of a sheep ranch.
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