Tuesday, October 12, 2004


Property can be real or personal. Real property is land, earth, dirt and improvements, such as clean dirt - hence the term Real Estate. Personal property consists of things like underwear, diaries, feminine hygiene products, secret vices and the contents of the top drawer of every night stand in America - hence the phrase, "Hey, get out of there! That's personal!"

Property law is not about a person's relationship with land or items (that's really no one's business). It's about keeping land or items out of other people's hands and in yours - it is about a person's relationship with property relative to another person. Thus, the many property law cases involving leather straps and ball-gags.

In Property, you'll also learn very interesting things about people. For example, people like to name their real estate. And they don't name real estate normal names like "Reginald" or "Vespasian;" they name it, almost without exception, Blackacre. This makes for very confusing deeds and titles, but very busy lawyers. (This is not entirely true; some people name their property Whiteacre.)

People also never simply sell their estates or leave them to their children. Oh, no. They can't do that. Instead, they leave life estates to their spouse with remainders to various children.....For instance, "Whiteacre to my surviving spouse if she hasn't been murdered then to my second wife with a remainder to all the children from my third marriage, but only when they reach the age of 21 and have a job."

There are some pretty basic concepts in property law every student and lawyer should understand:

Adverse possession

Adverse possession occurs when the devil takes possession of a human being contrary to that human being's will. "Adverse Possession," then, should be distinguished from another well-known property concept, the "Faustian Bargain," which also involves Satan (which, if unscrambled, spells "Santa" - just think about how this discovery affected an eight-year old Tweed), but which is more properly associated with contract law.

Adverse possession also allows a human being to take title to real estate they don't own by virtue of the real owner's laziness. (Oddly enough, the devil rarely attempts adverse possession of real estate due to the negative tax consequences.) This can result in someone going to visit his or her property and discovering that the Clampett clan has settled down in a tar paper shack village smack-dab in the middle of his or her dirt (effecting a dis-improvement, by making the dirt even dirtier than it was). It can also arise after your neighbor puts a swimming pool in your backyard.

Remember, long ago, public policy dictated that land be "productive". The state wanted people to better their land and produce something. Thus, if you ignored your land and someone actually used it, the rule in Use It v. Lose It, 18 US 666 (1805) kicked in. This public policy is now embedded in much case law even though the government owns huge areas of unproductive land. See, Do as I Say v. Not As I Do, 122 US 812, 822 (1923).

Possession is Nine Points of the Law

Everyone's heard of this. But to be perfectly honest, we haven't a clue as to its actual meaning. Law is not generally divided into "points," and if it were; who's to say that nine of them is all that good? Nonetheless, the notion persists that if you possess something - a raging case of hemorrhoids, say - that you have more right to it than others. Sometimes this is a good thing - if, for example, you possess lots of gold. Sometimes it's not so good - if you have crabs. Oddly enough, however, if you possess someone else's property, he or she can usually take it back - making a mockery of the whole system.

Holders in Due Course

A holder in due course is what every kid in the suburbs wants to grow up to be. Indeed, I can recall many occasions when my father pulled me aside to say: "Son, what you want to be is a holder in due course." "Holders in due course" are beings that exist in the mystical world of the law of "negotiable instruments." As you might imagine, being a "holder in due course" of a "negotiable instrument" is the cat's pajamas.

And now, through the wonders of law school, we can tell you a very simple way to attain such a status: get someone to write you a check.

The Rule in Shelley's Case

This is extremely important, and you should understand it completely. Really, this is crucial. In its way, it's the whole ball game.

Eminent Domain

"Eminent Domain" is a concept that runs counter to the concept that a Man's Home is His Castle. The concept of Eminent Domain actually teaches us that it is not his castle, but his wife's. In addition, the principle of Eminent Domain teaches us that a man's home is not even his wife's castle either - it's actually their neighbor's, for certain purposes - and not for the fun, Commandment violating kind of purposes either. Eminent Domain entitles the government to limit what you can do with your dirt. For example, in most residential neighborhoods, you cannot build an oil refinery in your back yard - I know, I've tried. Similarly, in some neighborhoods, you're not allowed to have clothes lines, colored mailboxes, pets or last names ending in vowels.

Actually, Eminent Domain allows the government to take your dirt for public purposes - like expanding a highway or protecting frogs. Those other things are all related to what you can do with your dirt and not what the government can do with your dirt. And the rules can be imposed by the government, negative covenants that run with the land, special tax municipalities or Elvis' dog. Then there's favoritism. If you're confused, now you know why I don't practice property law.

The Dreaded Rule Against Perpetuities

Easily the most feared rule in Property, the Dreaded Rule Against Perpetuities is actually a simple concept:

"No interest is good unless it must vest, if at all, not later than twenty-one years after a life in being can figure out what the Dreaded Rule Against Perpetuities means."*

* Hint: The Dreaded Rule Against Perpetuities has something to do with an irrational fear of grandmothers.

1 comment:

Audacity said...

Fuckin Blackacre! Bwhahaha.