Introduction
Property law is the law of rocks and dirt. It is the law that governs how we take care of and use things that we own or at least have a right to possess. It is an ancient body of law, dating back to before human beings thought of themselves as civilization, when societies and communities were defined by kinship and religious associations. Societies go back and forth in history between any one of three general approaches to property: community property (every member of the community has equal and undivided interest in everything), government property (the government owns everything and grants rights of possession to individuals), and private property (individuals possess property and use and abuse it as they will).
Today, much of the world consists of private property and the objective of most governments is to protect private property rights. But property law is not anywhere near the beginning of our attempt to define and govern our use of property and how we resolve our conflicts about it.
Our law on "real property" (land) as well as personal property (everything else of a more or less permanent nature that belongs to us) is built upon centuries of decisions that govern the scope of our rights to use what is ours. People who claim to own property or who are accused of abusing someone else’s property all have an interest in establishing with certainty their rights of possession, use, and exclusion. Much of the law of property is the law of exclusion: telling someone who is rummaging through your garage to get out; a lock on your door; a legislature’s prohibition against harvesting shellfish on private beaches; that sort of thing.
The law of property is so ancient that it was part of the law of the religion that governed the inhabitants of the territory that now comprises the United States, and the way we possess and use property traces back to a time when almost all cultures had the same system of possession and use of property . Our law on property has evolved in response to industrialization, global trade, infrastructure development, and even the practice of our law. Today, we are accustomed to knowing precisely what we can do with what we have, and the state of the law today reflects that.
For example, you’re probably comfortable knowing that if you kick someone who is trespassing in your driveway, you won’t be charged with battery because he or she was trespassing. Most jurisdictions prohibit wild animals and some domesticated ones (dogs and cats) from trespassing onto your property, and if they do, you can make them leave or zap them with an air rifle or something.
What you’re not likely to be comfortable about is when and whether you can kick someone who has stolen – or simply taken – things from your house, or set off a booby trap to keep out trespassers. The limits on your right to exclude and keep safe your property are not as precise as they are when someone steps on your lawn without an invitation.
Here’s where your influence can help resolve some of the broader issues about what is a reasonable effort at keeping out intruders, and how far you can go in protecting your things. All property is subject to wider interests, both as a matter of policy and because what we own may have collateral consequences for our neighbors.
So property law is located at the intersection between your rights and those of the world around you. It is very much reliant upon how we want to define those boundaries and respond to increasingly complex stressors on our property, ranging from new technologies (aerial drones) to the effects of climate change (beach erosion).
Main Rules Governing Property Law
Understanding Property Law: Key Rules, Policies, and Practices
THE LEGAL FOUNDATIONS
Property law has a long and storied legal history in the Anglo-American world. It is an area that has been the source of tumult and bitter legal disputes for centuries. The Jenga of property law is comprised of its fundamental rules and philosophies, which run through the entirety of this field’s centuries of legal precedents unapologetically. These fundamental rules are, in essence, intertwined with the law itself, and have survived the test of time, continuing to be useful to property lawyers in modern times.
For example, the Rule Against Perpetuities gives property law academics, practitioners, and judges the heebie-jeebies. Against a backdrop of English aristocrats who owned everything and feared their vast estates would no longer belong to their descendent hundreds of years after their death, a crazy circuit court judge in 17th century England thought of a way to avoid this crisis through property law. Eventually, either as a result of international takeover by the British Monarchy or as a fluke during a moonlight raid on London, the rule was genuinely accepted as law. This centuries-old rule — that a future event cannot be used to invalidate a present interest in real estate — is still used today as the basis for much of property law.
In addition to the Rule Against Perpetuities, many land use regulations remain in effect today throughout the United States. The most common of these is zoning, or local government regulation of how property can be used based on where it is. (The Federal Government does not participate in these zoning restrictions, only sometimes using its powers to regulate certain areas.) In the early 1900s, it came to be widely accepted that zoning was an acceptable use of police power by local governments. However, zoning is not without its own complications. Local governments seem to have a knack for going too far in regulating the use of property. Moreover, how these regulations impact property owners has long been the subject of much debate — and litigation — among courts and lawmakers.
One related doctrine, however, has lost much of its relevancy in recent years due to the expansion of other, more restrictive policies — such as zoning. For decades, courts had to balance the permanent destruction of one’s use of land with its value. This doctrine, having been mentioned in no U.S. Supreme Court opinions since the 1940s, was reliant on federal constitutional protections which have mostly fallen out of favor or are otherwise replaced by more recent laws. The remaining vestiges survive today, however: the Fifth Amendment remains part of the U.S. Constitution and requires governments to pay for taking private property.
Another key policy in property law is the doctrine of Adverse Possession, the rules of which are well-known but often misunderstood. Adverse Possession allows a trespasser to take title to land they illegally occupy for a long period of time as long as certain factors are established (whether under statutory or common law). These factors include, first, that the trespasser entered and remained on the land. Second, they must intend to be there, making it impossible for the original owner to come back and take possession. Third, they must treat the land as their own by making improvements to the property or conditioning its use. Fourth, they must know about or deny knowledge of the true owners of the land. Finally, the continued occupancy must be for at least the statutory requirement, which may vary by state.
Policies that Affect Property Law
Beyond the rules and doctrines that comprise property law, there are a number of policies, some broad, some narrow, that shape it. These include policies like environmental regulations, zoning laws, and housing policies. Environmental regulations establish rules for the ownership, development, transfer, and management of various kinds of real estate. Zoning laws are found in municipalities and establish rules for what property owners can and cannot do with their properties in those municipalities. Housing policies at different levels of government can affect who has access to housing, the types of housing that gets built, and where. These policies directly impact property owners and some policies can become property law in a given jurisdiction. Understanding the policies that shape property law is key to understanding the workings of property law.
Typical Property Law Practices
Common practices in the real estate sector are very important to understand for anyone buying, leasing, or selling property. One of the most common day-to-day practices involving real estate is the purchase and sale of property. The typical process for purchasing property is for an individual to make a proposal, which is negotiable, to purchase the property for a given amount of money. After an offer is made, the seller may negotiate the price before ultimately accepting the deal. Of course, closing the transaction and signing the contract is essential.
Most property sales must be in writing so that there is a legal record of the transaction. Once the offer is accepted, the new owner has the right to obtain possession of the land. Title insurance will protect all owners of the land, including banks or other lenders who are involved in the purchase.
Mortgage agreements are common between a purchaser and a bank when parties buy property. The purchaser receives a mortgage for a portion of the money needed to pay for the property , and the lender is given the right to hold the title until the money has been fully paid off.
We have already discussed many elements of real estate leases, such as the idea that these agreements establish the terms of the landlord-tenant relationship. Like purchase agreements, property leases must be in writing, and will eventually expire. Many leases will grant the tenant a favourable right to lease the property along with what are often very restrictive commercial conditions.
Dispute resolution for property owners is often handled on a civil basis, unless criminal acts like trespassing have occurred. Sometimes the police are called to handle disputes over boundaries or nuisances like noise from neighbors or issues like improperly parked cars. Private actions can also be taken to enforce rights to property. Boundary disputes might require court involvement to determine where the agreed-upon border lies. Many property disputes involve the creation of servitudes, usage rights and obligations that are legally binding between property owners.
It should be noted that lawsuits are rarely a desirable outcome for partners in a business or personal partnership.
Recent Developments in Property Law
An area of law that is rapidly evolving is how we speak about, describe and understand property. The law is now beginning to take notice of the fact that physical ownership is no longer the dominant mode of possession. For example, more people do not own their own cars but instead buy access to them using various car sharing models. People also no longer buy or rent their own films or music but instead buy access to streams of fast servers and cloud based services. In the near future we may not own books or other written works but instead access encrypted bits and bytes of data across a network of state of the art computers and servers. The right word for this new model of possession is not possession at all but access.
Access is the language of the coming era and in turn it will alter the law. When access is more important than possession we will see the adoption of new rules and the alteration of old ones. People will begin to think of things differently and laws will eventually reflect those new understandings. No longer will the law pretend that possession is more important than access. Access will be paramount.
Of course this is an ongoing process. For one thing property law, like most other areas of the law, is case law driven, meaning that changes occur slowly as judges wrestle with complicated issues over months, if not years. So far, the early signs are encouraging that the law is modifying itself to fit these new paradigms of access. The emergence of blockchain technology may be one of the biggest harbingers of change in this regard. The old rule of law for land registration was that one unit of land can only have one owner, however this old idea fits into a transaction system that is archaic and does not work well in globalized societies where trade has become infinitely more sophisticated.
This is precisely why blockchain has already crept into global trade routes and is being tested for other uses. This technology has the ability to replace the one-to-one property assignment process with a one-to many ledger system where the various parties to a transaction can access a universal ledger detailing the past ownership of a good and its current price. Blockchain would render the old system irrelevant by permitting easy transfer of ownership, with key features such as mutual authentication, that satisfy the ancient morays of title, while also permitting different transaction regimes for different types of goods. The rules experts build around this groundbreaking shift in business and trade will be the fundamentals of modern property law.
Conclusion and Future Projections
While the above essay does not attempt to provide a definitive summary of the numerous facets of the property law doctrine, several important points have been made. The analysis focuses on the so-called common law approaches to property law, rather than public land policy or proprietary rights records. The essay also discusses three categories of property rights: complete full (or original) possession; joint ownership of undivided interests; and equal individual ownership. Although this analysis does not state the numerous other possessions rules, limitations, adverse possessions, etc., the essay makes several generalizations. First, property in the United States is not entirely based on common-law or civil law, as it is a hybrid of the two systems. The focus depends on what area of law property is being addressed, such as contractual, real-estate, or insurance law. Second, there is a trend in the last few decades to create a unitary view of property, which unifies the various possessions discussed above . Third, many of the possessions in the US are based on common law as they have been integrated over the past several decades.
On a forward-looking statement, the above possessions do not reflect the future outlook of property law. Starting with a basic rule of thumb based on the above essay, the post-modern approach is the future for property law in the United States. The so-called "French system", which is based on civil law, is not the future of property law because of the unique foundation history of American property. The counter-argument is that the original conception of civil law has died, and the United States systems of property is so different that the French system dominance on moral issues is the basis of the argument. Thus, any limitation on the above post-modern approach will be subjective, since all property rights are based on a hybrid of civil law and common law, and the historical perspective of usage in the United States. Ongoing global challenges will also affect the future outlook of property law, as societies evolve on how property is perceived and utilized.