Organizing Property Doctrines

So in our last class, we talked about property as essentially a bundle of rights. I explained how looking at property as a bundle of rights allows us to disaggregate the various rights involved in property and deal with them one by one.

But thinking about property as a bundle of rights has another advantage, which is it allows us to actually organize property doctrines. And here I'm talking specifically about the property class.

Now, one of the issues that we often confront in property is that students express a confusion with regard to how the various doctrines that we cover and learn actually fit together. It's not that they don't understand the specific doctrines by themselves; they don't have a good sense of the bigger picture. How is this property class organized? Well, actually, the bundle of rights idea actually gives us a framework for organizing those particular doctrines in a property class.

Property Class: Issues

So more specifically, what I'm referring to is that you can divide the property class into four discrete types of issues.

A certain set of issues and doctrines deal with how we enforce particular rights, how we take one of the rights in the bundle of rights and we actually protect and enforce them.

Another deals with transferring of those rights. So, having identified a property as a bundle of rights, can we take one of the rights and transfer it to another person or another person's property as a part of their bundle?

The third is how we allocate rights. How do we divide, let's say, ownership between different people over the same property? How do we divide ownership over time?

And the last is with regard to regulating rights. How do we take, for example, one of those rights and regulate them? Can we say we eliminate one of those particular rights or we restrict how those can be used?

Now, when looking at property through these four particular examples, we can see how the various doctrines that you see fit into these particular categories. So for enforcing rights, we have trespass, adverse possession, and nuisance. For transferring rights, we're going to be talking about easements, covenants, and equitable servitudes. Allocating rights would be concurrent ownership, estates and future interest, and leaseholds. And regulating rights would be the recording and real estate transaction system, fair housing and anti-discrimination, zoning and land use controls, and takings.

Now to illustrate those, let's go through these very specifically, and one by one. I'm not going to give you all of them, just going to give a sense of how it works.

Enforcing Rights

So for the first category, enforcing rights, essentially, these sections deal with a particular right that we've identified in property and trying to determine how does the law protect those rights.

So, for example, as we talked about in the last class, part of the bundle of rights includes the right to possess and the right to exclude. So how do we protect that, let's say, against an individual that wants to intrude upon those rights? Well, that's the doctrine of trespass. When essentially saying that someone is trespassing on your property, you're essentially making the argument that they're violating your right to possess and your right to exclude, and the law, through trespass, gives you a remedy to deal with that particular violation.

Let's talk about another right in the enforcing rights category. Let's say we're talking about the right to use and the right to enjoy. So, what if your neighbor is doing something that infringes upon that right? I'm enjoying my land, essentially as a house in which I live. But my neighbor's decided to turn his property into a factory, and the smoke and the noise are essentially interfering with my right to use and enjoy my property as a house. How is that protected? Well, that's the doctrine of nuisance. Essentially, nuisance is the legal remedy that I would pursue to try to get my neighbor to stop polluting, stop making all those noises, because it infringes upon my right to use and enjoy.

Transferring Rights

Let's go to the second category of rights. So, another part of property class deals with doctrines that are about the transferring of particular rights. Now, we're not talking about the transferring of your entire property, the entire bundle of rights. I'm talking about whether or not we can take a particular right in that bundle and transfer that right to someone else. Here, let's look at the right to use and the right to alienate.

So, I have the right to alienate my rights. But I also have the right to use, in the context of my house, all sorts of things in my house. So let's say I had the right to use the house, I have the right to use the road, I've the right to use the yard, et cetera. And let's say in this particular case, the right to use the road, I want to take that particular right and transfer it to someone else. In this case, I can do that. That would be called an easement. So, in the study of easements, what we're dealing with is me taking a particular right, and maybe even in this case, a subset of that right, just the right to use the road, and giving it to someone else. I don't have to give it to another person; I can also transfer that right to someone else's property. I could transfer it into, in other words, their bundle of rights. So in this case, the right to use the road on my land can be given to the land of my neighbor. Therefore, anyone that lives in my neighbor's property now possesses, in their bundle of rights, the right to use my land.

Allocating Rights

In addition to doctrines about transferring property, there's also doctrines that relate to allocating rights within that property. And here what we're talking about is not necessarily allocating these specific individual rights. It's rather, can we allocate all those rights in different contexts, let's say between different people over time? And here the answer is yes. The doctrine for the example of concurrent ownership governs what happens if a bundle of rights is given not just to one person, but to multiple people. I own my house along with my wife. We both possess the entire bundle of rights. We both can exercise all those rights. But how does the law allocate the rights between me and my wife? We may have rights against the world and those may be the same, but what are the rights among us as joint property owners? And the law of concurrent ownership addresses that.

We might also be thinking about, how do we and can we allocate property, the entire bundle in this case, over time? Can I say, for example, that I want to give a specific property first to my wife for the rest of her life, but if she dies that property should then go over to my sister? And when my sister dies that then the property should then be transferred to my daughter? Property allows this as well. This is something we call estates and future interest. It allows me to essentially allocate that property over time and grant not only a present estate to someone, but also future interest in that property to other people, depending on whether or not a condition triggers.

What if I want to do something that is a combination of both? What if I want to allocate rights between certain individuals at the same time, but also allocate rights over time? Interestingly enough, this is not that unique. It's probably something you're quite familiar with. It's called a leasehold. A leasehold is an ability to allocate rights between concurrent owners, let's say in this case, the landlord, which possesses ownership of the property, but also tenants, which possess a lot of the property rights over the property. But because tenancy in a property, a lease, will ask for a certain amount of time, the property is also allocated over time. A landlord may be dealing with one person at a specific time, but once a new tenant comes in, it's another tenant, another time. And here we have a hybrid of both concurrent ownership between individuals, but also allocated over time.

Regulating Rights

A fourth category of property doctrines deals with regulating rights. What we're talking about here is we're taking a specific right, and essentially, the government is trying to decide whether or not those rights can be exercised in a particular way or potentially nullifying all those rights as a whole. Here, for example, through zoning and land use controls, the government might say that I have the right to use my property as a house, but I don't have the right to build a factory on that property. Through fair housing anti-discrimination, the government might be saying I have a right to exclude, but maybe I can exclude on the basis of race or religion, and therefore that particular ability to exercise that right is limited. Of course, there are limits on that as well. The government can certainly restrict or limit my ability to exercise a right. But can they go too far? Just like when we talked about earlier with regard to things that are considered essential to property, are there also certain regulations and limitations on a particular right that go so far that we essentially say that the government has taken our property? We have doctrines constitutionally called regulatory takings, that essentially say that that would be an issue if they do that.

Summary

In other words, what I'm trying to illustrate here is not only a broad overview of all the various property doctrines that we'll be considering, but to also use the bundle of rights idea to give a sense of how to organize in our head that essentially the property class is about different facets of playing with that bundle of rights, some with regard to taking a particular right and enforcing and protecting that particular right, some with regard to transferring those rights, some with regard to allocating the entire bundle among different people over time, and some with regard to the government's ability to regulate those rights. You should keep these in mind as we go through the individual doctrines, and if you ever feel confused of understanding how it connects to the whole, refer back to this to understand that at the end of the day, what property class law is about is essentially giving shape to the bundle of rights.