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University of the Pacific Scholarly Commons McGeorge School of Law Teaching Materials McGeorge School of Law Faculty Scholarship 2017 Understanding Property Law John G. Sprankling University of the Pacific, McGeorge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/facultyteaching Part of the Property Law and Real Estate Commons Recommended Citation Sprankling, John G., "Understanding Property Law" (2017). McGeorge School of Law Teaching Materials. 27. https://scholarlycommons.pacific.edu/facultyteaching/27 This Book is brought to you for free and open access by the McGeorge School of Law Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in McGeorge School of Law Teaching Materials by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. sprankling 00 fmt cx2 1/17/17 4:18 PM Page i Understanding Property Law sprankling 00 fmt cx2 1/17/17 4:18 PM Page ii sprankling 00 fmt cx2 1/17/17 4:18 PM Page iii Understanding Property Law fourth edition John G. Sprankling Distinguished Professor of Law University of the Pacific McGeorge School of Law Carolina Academic Press Durham, North Carolina sprankling 00 fmt cx2 2/2/17 1:05 PM Page iv Copyright © 2017 John G. Sprankling All Rights Reserved Names: Sprankling, John G., 1950- Title: Understanding property law / John Sprankling. Description: Fourth edition. | Durham, North Carolina : Carolina Academic Press, LLC, [2016] | Series: Understanding series | Includes bibliographical references and index. Identifiers: LCCN 2016046802 | ISBN 9781522105572 (alk. paper) Subjects: LCSH: Property--United States. Classification: LCC KF561 .S67 2017 | DDC 346.7304--dc23 LC record available at https://lccn.loc.gov/2016046802 Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America sprankling 00 fmt cx2 1/17/17 4:18 PM Page v For Gail, Tom, and Doug. sprankling 00 fmt cx2 1/17/17 4:18 PM Page vi sprankling 00 fmt cx2 1/17/17 4:18 PM Page vii Contents Preface xvii Chapter 1 · What Is “Property”? 3 § 1.01 An “Unanswerable” Question? 3 § 1.02 Property and Law 4 § 1.03 Defining Property: What Types of “Rights” Among People? 6 § 1.04 Defining Property: Rights in What “Things”? 10 Chapter 2 · Jurisprudential Foundations of Property Law 13 § 2.01 Why Recognize Private Property? 13 § 2.02 First Occupancy (aka First Possession) 15 § 2.03 Labor- Desert Theory 17 § 2.04 Utilitarianism: Traditional Theory 18 § 2.05 Utilitarianism: Law and Economics Approach 20 § 2.06 Liberty or Civic Republican Theory 22 § 2.07 Personhood Theory 23 Chapter 3 · Property Rights in Wild Animals 25 § 3.01 The Origin of Property Rights 25 § 3.02 The Capture Rule In General 26 § 3.03 Evaluation of the Capture Rule 30 § 3.04 Rights of Landowners 31 § 3.05 Regulation by Government 32 Chapter 4 · Finders of Personal Property 35 § 4.01 Finders as Owners 35 § 4.02 Who Is a “Finder”? 36 § 4.03 Categories of “Found” Property 37 § 4.04 Rights of Finder against Original Owner 39 § 4.05 Rights of Finder against Third Persons Generally 41 § 4.06 Rights of Finder against Landowner 42 § 4.07 Statutes Defining Rights of Finders 45 Chapter 5 · Gifts of Personal Property 47 § 5.01 Gifts in Context 47 § 5.02 What Is a Gift? 48 vii sprankling 00 fmt cx2 1/17/17 4:18 PM Page viii viii CONTENTS § 5.03 Gifts Inter Vivos 48 § 5.04 Gifts Causa Mortis 55 § 5.05 Restrictions on Donor’s Autonomy 56 Chapter 6 · Intellectual Property 57 § 6.01 Introduction 58 § 6.02 Copyrights 59 § 6.03 Patents 64 § 6.04 Trademarks 69 § 6.05 Trade Secrets 73 § 6.06 Rights in News: International News Service v. Associated Press 74 § 6.07 Rights of Publicity 75 § 6.08 Rights in Domain Names 76 § 6.09 Moral Rights of Artists 77 Chapter 7 · Other Personal Property Rules 79 § 7.01 Accession 80 § 7.02 Adverse Possession of Personal Property 81 § 7.03 Bailments 83 § 7.04 Bona Fide Purchasers 86 § 7.05 Property Rights in Body Parts 88 § 7.06 Trespass to Chattels 95 Chapter 8 · History of the Estates in Land System 97 § 8.01 The Estates System 98 § 8.02 Defining “Estate” and “Future Interest” 98 § 8.03 Property Law in Feudal England 98 § 8.04 Property Law in Post- Feudal England 103 § 8.05 Estates in Land in the Early United States 106 § 8.06 Trends in Modern Law Governing Estates in Land 108 Chapter 9 · Present Estates 111 § 9.01 A Byzantine System 112 § 9.02 Creation of Estates 112 § 9.03 Classifying Estates 113 § 9.04 Estates: Freehold or Nonfreehold? 113 § 9.05 Basic Categories of Freehold Estates 114 § 9.06 Freehold Estates: Absolute or Defeasible? 123 § 9.07 Freehold Estates: Legal or Equitable? 130 § 9.08 Restrictions on Transfer: Rule Against Restraints on Alienation 131 § 9.09 Restriction on Use: Waste 132 Chapter 10 · Concurrent Ownership 135 § 10.01 The Nature of Concurrent Ownership 136 sprankling 00 fmt cx2 1/17/17 4:18 PM Page ix CONTENTS ix § 10.02 Types of Concurrent Estates 136 § 10.03 Rights and Duties of Cotenants 145 § 10.04 Termination of Concurrent Estates 149 Chapter 11 · Marital Property 153 § 11.01 Gender and Marital Property 154 § 11.02 Traditional Common Law System 154 § 11.03 Modern Common Law System 157 § 11.04 Community Property System 164 § 11.05 Conflict between the Systems: The Problem of Migrating Couples 167 § 11.06 Attempts to Avoid the Systems: Premarital Agreements 168 § 11.07 The Future of Marital Property Law?: Uniform Marital Property Act 168 § 11.08 Same-Sex Marriage 169 § 11.09 Rights of Unmarried Couples 169 Chapter 12 · Introduction to Future Interests 173 § 12.01 Future Interests in Context 173 § 12.02 What Is a Future Interest? 174 § 12.03 Why Create a Future Interest? 174 § 12.04 Types of Future Interests 175 § 12.05 Classifying Future Interests: An Overview 177 § 12.06 Common Law Approach to Future Interests 178 § 12.07 Modern Future Interest Legislation 179 § 12.08 Contemporary Relevance of Future Interests 179 Chapter 13 · Future Interests Held by the Transferor 181 § 13.01 Three Future Interests 181 § 13.02 Types of Future Interests 182 § 13.03 Transfer of Interest 184 § 13.04 Other Rights of Interest Holder 184 § 13.05 Modern Reforms 185 Chapter 14 · Future Interests Held by the Transferee 187 § 14.01 An Intricate Common Law Maze 188 § 14.02 Classifying Future Interests Held by the Transferee 189 § 14.03 Remainders 190 § 14.04 Executory Interests 197 § 14.05 Consequences of the Distinction between Remainders and Executory Interests 200 § 14.06 Creation of Interests 201 § 14.07 Transfer of Interests 201 § 14.08 Other Rights of Interest Holders 202 § 14.09 Four Special Restrictions on Contingent Future Interests Held by Transferees 204 sprankling 00 fmt cx2 1/17/17 4:18 PM Page x x CONTENTS § 14.10 The Rule Against Perpetuities: At Common Law 205 § 14.11 The Rule Against Perpetuities: Modern Reforms 216 § 14.12 The Doctrine of Worthier Title 219 § 14.13 The Rule in Shelley’s Case 221 § 14.14 The Destructibility of Contingent Remainders 222 Chapter 15 · Introduction to Landlord-Tenant Law 223 § 15.01 Landlord- Tenant Law in Context 224 § 15.02 What Is a Leasehold Estate? 224 § 15.03 Leasehold Estate Distinguished from Nonpossessory Interests 225 § 15.04 Historical Evolution of Landlord-Tenant Law 226 § 15.05 Categories of Leasehold Estates 228 § 15.06 Modern Revolution in Landlord-Tenant Law 235 Chapter 16 · Creation of the Tenancy 241 § 16.01 The Lease 242 § 16.02 Selection of Tenants 244 § 16.03 Tenant’s Duty to Pay Rent 248 § 16.04 Landlord’s Duty to Deliver Possession 253 § 16.05 Tenant’s Duty to Occupy 255 Chapter 17 · Condition of Leased Premises 257 § 17.01 “Let the Tenant Beware”? 258 § 17.02 The Common Law Foundation 259 § 17.03 The Problem of Substandard Housing 262 § 17.04 Constructive Eviction 263 § 17.05 Illegal Lease Doctrine 269 § 17.06 The Implied Warranty of Habitability: New Common Law 269 § 17.07 The Statutory Warranty of Habitability 277 § 17.08 Landlord Liability for Personal Injury 278 § 17.09 Fixtures 281 Chapter 18 · Transfer of Leasehold Interest 283 § 18.01 Transfers in General 284 § 18.02 Distinguishing between Assignment and Sublease 284 § 18.03 Assignment 286 § 18.04 Sublease 289 § 18.05 Should the Assignment-Sublease Distinction Be Abolished? 291 § 18.06 Tenant’s Right to Assign or Sublease 291 § 18.07 Transfers by Landlord 298 Chapter 19 · Termination of the Tenancy 299 § 19.01 The Struggle for Possession 300 § 19.02 Surrender 301 sprankling 00 fmt cx2 1/17/17 4:18 PM Page xi CONTENTS xi § 19.03 Abandonment 301 § 19.04 Landlord’s Right to Terminate Lease 309 § 19.05 Self- Help Eviction 314 § 19.06 Ejectment 317 § 19.07 Summary Eviction Proceedings 318 Chapter 20 · The Sales Contract 321 § 20.01 Anatomy of a Sales Transaction 322 § 20.02 Role of the Attorney 325 § 20.03 Role of the Real Estate Broker 326 § 20.04 Requirements for Valid Contract 328 § 20.05 A Typical Sales Contract 334 § 20.06 Contract Provisions on Title 335 § 20.07 Contract Provisions on Financing 341 § 20.08 Closing the Transaction 343 § 20.09 Remedies for Breach of Contract 344 Chapter 21 · Condition of the Property 349 § 21.01 “Let the Buyer Beware”? 349 § 21.02 Seller’s Duty to Disclose Defects 350 § 21.03 Broker’s Duty to Disclose Defects 356 § 21.04 Builder’s Implied Warranty of Quality 357 § 21.05 Risk of Loss before Conveyance 359 Chapter 22 · The Mortgage 363 § 22.01 The Role of Security for Debt 364 § 22.02 What Is a Mortgage? 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