Review: the Essence of Property Law

• Publication year: 1999
• Citation: Vol. 22 No. 03

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 4SPRING 1999

Review: The Essence of Property Law

Fundamentals of Modern Real Property Law, 3d Edition. By Edward H. Rabin and Roberta Rosenthal Kwall. New York, New York: Foundation Press, 1992. Pp. xvi, 1092.

Reviewed by Vada Waters Lindsey(fn*)

I. Introduction

I have taught property law for four years and, after considering other casebooks, I have always used Rabin and Kwall's Fundamentals of Modern Real Property Law.(fn1) My initial reason for selecting this casebook had much to do with my comfort level in contacting Professor Kwall to discuss her use of the casebook and course content. She graciously supplied me with several syllabi she had used throughout the years and helped alleviate the anxiety that accompanies new class preparation. In addition, I found Rabin and Kwall's Teacher's Manual to be a useful tool because of its level of detail, including a reference list to scholarly articles analyzing every subject covered in the casebook.

When my former Academic Dean asked me to consider teaching Property Law, I agreed to teach the course without hesitation. I was extremely excited to teach a course in property law-not because I would gain a strong understanding of the archaic rule against perpetuities, but because of my desire to help the students establish a strong foundation in transactional law. I taught Wills and Estates during my first semester of law school teaching, which was when the dean approached me regarding teaching Property. I was more than a little frustrated that students lacked a basic understanding of some fundamental property law concepts, such as the difference between joint tenancy and tenancy in common. I have since come to understand the difficulty of covering all fundamental property law concepts in a four-credit course. In teaching property, however, I attempt to provide a strong foundation so that students are as prepared as possible for upper-level courses in Wills and Estates, Real Estate Transactions, Real Estate Finance, Family Law, and Land Use Planning.

My early trepidation of teaching property has long since abated, but I continue using the Rabin and Kwall casebook because it closely matches my pedagogical method. This essay will explain why I use the Rabin and Kwall casebook and how it conforms to my teaching methodology. As will be explained in this essay, Professors Rabin and Kwall's use of the problem method in conjunction with the reading and analysis of case law, as well as their ordering and selection of the material, is consistent with my approach to teaching Property Law. My use of the casebook also enables me to teach Property Law from a historical perspective by exploring the evolution of American property law, its derivation from early English common law, its modern reforms, and its future.(fn2)

Part II of this essay will outline my overall approach to teaching Property and the inherent challenges of the subject. Part III sets out the topics covered in my property classes and the relevance of the "bundle of rights" concept. Part IV describes my use of the problem method in teaching Property and counters the purported disadvantages of applying that method. That part also demonstrates the practical use of the problem approach. Part V examines the evolutionary nature of property law and looks at three areas of law: landlord and tenant relationships, the law of servitudes, and future interests.

II. The Study of Property Law

Most lay people believe the term "property" means a tangible or intangible thing. The term, however, really denotes the various rights appurtenant to the thing.(fn3) My primary objective in teaching the first session of my property course is to dispel any possible misinterpretation students are likely to have about the meaning of property.(fn4) Professors Rabin and Kwall's casebook is consistent with my methodology.

The casebook's Introduction is entitled, "The Right to Exclude Others: The Essence of Ownership of Real Property."(fn5) The first case in this chapter is Loretto v. Teleprompter Manhattan CATV Corp.(fn6) The Supreme Court in Loretto addressed the right of an owner to exclude others from the owner's property in the context of a permanent physical taking. In reaching its conclusion that there was a taking that required just compensation, the Court characterized the right to exclude as part of the "bundle of property rights."(fn7) The Rabin and Kwall casebook and its 1996 supplement also contain cases that do not rise to the level of a per se "permanent" taking because the taking is temporary.(fn8) In such cases, courts use a balancing of interests approach. A comparison of the permanent physical takings cases with the temporary takings cases gives me an early opportunity to explain the theoretical differences between the per se rule and the balancing approach.

Property is a difficult first year course. First, many of the key cases in property law are early English common law cases and, consequently, may be difficult for students to read at this stage in their legal education. Second, in many areas there is the traditional approach, the majority approach, the modern trend, and the Restatement approach. The modern trends may or may not be the majority approach. From my perspective, the various approaches represent the continuing evolution of property law. From the students' perspective, it is often difficult to articulate the law because there is no uniform standard. Finally, unlike other first year courses, most property law concepts are foreign to the students. Students are unlikely to read about property law fundamental concepts such as easements, covenants, concurrent estates, springing executory interests, and restraints on alienation in their local newspapers.

The one area that students have an understanding of, and quite often direct experience with, is the law governing landlords and tenants-nonfreehold estates in property law vernacular. Most students are, in fact, tenants, and they have signed leases. The students may have even encountered legal issues pertaining to the demised property. As a result, the students can relate to the law of landlord and tenant unlike many other topics. Because most students already have had some experience in the landlord and tenant area, it is the first major substantive topic that I cover in my Property course. It is also the first major topic addressed in the Rabin and Kwall casebook.(fn9)

III. Coverage of Property Law Concepts

There are 1088 pages of substantive material in the Rabin and Kwall casebook. In addition, the supplement contains another 108 pages. At Marquette University Law School, Property is a required first year, four-credit course. I am limited to covering approximately 500 pages. I prefer to cover fewer topics in critical detail rather than more topics with less attention to detail. In my course, I generally cover three broad topical subjects every semester: (1) nonfreehold estates (the law of landlord and tenant); (2) freehold estates (future interests and concurrent estates); and (3) servitudes (covenants and easements). I devote approximately two-and-one-half weeks to landlord and tenant relationships. With minor modifications, I usually cover all of the landlord and tenant materials. However, I do not cover the chapter entitled "Landlord's Tort Liability for Personal Injuries"(fn10) because the students are exposed to the liability issues in their substantive Torts class. I spend approximately four weeks on the nonconcurrent and concurrent estates, with the majority of the time spent on future interests. I cover most of the materials on concurrent estates. However, I only cover the introductory materials of the chapter entitled "Marital Property"(fn11) because Marquette University Law School has a separate Marital Property course. I devote approximately two-and-one-half weeks on the materials entitled "Covenants Running with the Land (Promissory Servitudes)"(fn12) and cover most of the material under that subtitle.

In order to provide even a rudimentary understanding of the future interest concepts, I must devote approximately three weeks to the materials. I cover all of the future interest material except the chapter entitled "Problems of Vesting."(fn13) Although I did cover that material during my last Property class, I do not plan to cover it again because I believe it is more appropriately covered in the Wills and Estates class. Many property law professors no longer cover future interests and the Rule Against Perpetuities.(fn14) Although modern reforms have essentially narrowed the significance of the Rule Against Perpetuities (RAP), I teach future interests and RAP because they establish the foundation for the law of trusts. My colleagues who teach Wills and Estates do not cover the classification of estates and future interests. Hence, if I choose not to cover future interests, it will not be covered in any other course at my law school. In covering the materials on future interests, I necessarily devote a lot of time to the technical rules; however, I attempt also to use the materials as an opportunity to expound on the "bundle of rights" concept. For example, one of the rights inherent in property is an owner's right to dispose of it. An individual who is not yet entitled to present possession of a physical object may still be able to exercise the right to...