Teaching property - a conceptual approach.

• Author: Whitman, Dale A.
• Position: Symposium: A Festschrift in Honor of Dale A. Whitman

The property course has shrank. This fact is well-documented, and is obvious to anyone who has taught the course over any appreciable length of time. For many decades, Property received six credits in most law schools (1) typically three in the Fall and three in the Winter semester of the first year. Now, few schools give the course more than four or five credits, and some have cut it to three. (2) The change seems to have occurred mainly over the last two decades.

While it is doubtful that many Property teachers would have chosen this reduction, it is now an accomplished fact. Thus, teachers of the course are left with this question: how can we take best advantage, for our students, of this new poverty of credits? That is the question I propose to address in this short paper.

This question is typically answered by a discussion of which topics within the traditional course should be reduced in emphasis or omitted. I suggest that this is not the soundest approach, and to propose an alternative. Before doing so, I will suggest certain norms that I believe should guide our decisions.

The first of these norms is that our task is to prepare our students to practice law (though many of us do not always act as if this were so). We are, after all, training (3) people to engage in a profession. Whatever pedagogical techniques and emphases contribute to this goal should attract our attention.

My second proposition is that it is the practice of real property that ought to occupy our attention in the first-year Property course. This is not to say that there is intellectual vacuity in other types of property, such as personal property or intellectual property. Indeed, a comparison of real property with alternative property regimes can be stimulating and sometimes enlightening. (4) But far more lawyers must deal, day to day, with real property issues than with these other regimes. When we occupy significant time with these other topics in the Property course, we are cheating our students out of the knowledge of real property that many more of them will find more valuable.

Indeed, I have been increasingly dismayed by the diversity of material found in Property casebooks that has very little real property relevance. There is material on the sale of body parts, nuisance, zoning and land use planning, in addition to personal property and intellectual property. In one recently-published casebook containing 1375 pages of content, more than 600 pages are devoted to these issues that are outside the core of real property. The real property material is, in consequence, fairly superficial. Of course, no teacher is bound by the emphasis taken by the casebook, but I think it is difficult to justify this level of relative inattention to real property in a course of four or five credits.

I understand that these peripheral issues can make for enjoyable classroom discussion. At the same time, I suspect that some of my colleagues are drawn to them in part because they have relatively little knowledge of the way real property law is practiced, and prefer to avoid classroom situations that might display their ignorance. This is a particularly likely explanation for those who regard themselves as having primary commitments in other fields of law, and who have been dragooned by their deans into teaching Property despite their meager interest in it.

But if we decide that Property means Real Property, we are still left with a great deal of material from which to choose. How do we decide what to cover? As I have reflected on this question, I've concluded that we--and I include myself in this equation--have tended to become too rule-bound and insufficiently conceptual. Anyone can discover the rules in his or her jurisdiction with a little effort on Lexis or Westlaw ... anyone, that is, who has a strong grasp of property concepts.

It is the concepts that count. Anglo-American property law embodies many fairly subtle concepts that are anything but obvious to law students. Most property concepts are based on history, and often they do not resemble what we might develop if we were starting from scratch today. Yet a conceptual understanding is absolutely essential to successful practice in the field. Hence, a strong Property course is one that focuses on concepts, not rules.

Let me illustrate. Not long ago I was in a meeting with a group of lawyers, most of whom were property specialists. I happened to mention that a joint tenancy might be severed by a conveyance by one of the joint tenants, even if the other joint tenant was unaware of the action and did not consent to it. (5) One of the other lawyers, who has been out of law school 25 years and practices predominantly in the real property field, was struck. "You mean," he said, "that if I hold property in joint tenancy with my wife, I can take away her right of survivorship without her even knowing about it?"

Every lawyer whose practice touches the real estate field needs to know the concept of severance of joint tenancies. It is not so important to know whether a severance would be accomplished by a particular type of conveyance--a mortgage, a lease, or a conveyance of a life estate. A little research will disclose what light can be shed on these details in any specific jurisdiction. But if a lawyer is oblivious to the idea of severance--the conversion of a joint tenancy into a tenancy in common by means of a conveyance from one joint tenant--then she or he will never do the research at all, and may engage in conduct that is highly detrimental to a client.

With this introduction, and with apologies to David Letterman, I present my top ten property concepts: the things that every student should understand upon completion of a property course.

10. Severance of joint tenancies, as I mentioned above, is number 10. A lawyer who fails to understand the concept can leave a client in a corner with no escape. (6)

9. Adverse possession is not a transfer of title from the former true owner, but rather creates a new original title in the adverse possessor, (7) while terminating the former true owner's title. (8) Since it is based on the running of the statute of limitations for an action in ejectment, it will not run against owners of interests who could not sue in ejectment--in particular, against holders of nonpossessory rights, such as future interests (9) and mortgages. (10) Hence, the title acquired by an adverse possessor may well be subject to such encumbrances.

8. A future interest is "future" only in the sense that possession under it is deferred until some later time. (11) Future interests exist in the present, as witnessed by the facts that they can be presently transferred, (12) that they are compensable in eminent domain, (13) and that their holders are entitled to compensation or injunctions for waste (14) and to notice of foreclosure of preexisting mortgages. (15) However, waste damages are not necessarily easy to compute, or even envision, where the future interest in question is...