»  Updates

Review session: We will hold a review session on Tuesday, April 30, at 3:00 pm in the Rich Room. (4/30/19)

Midterm memo update: I have updated the memo discussing the midterm exam to discuss an ambiguity in question 2. I have also updated scores on the exams to give credit for an alternate answer to part of question 2. I will discuss this in class on April 23. See the updated memo for more information. (4/22/19)

Schedule note: On Tuesday, April 23, we will meet from 12:30 to 2:30 pm. (4/18/19)

Past final exams: I have posted the past final exams here: spring 2018 (and memo); spring 2017. (4/18/19)

Midterm exams: I have posted the midterm exam here and a memo discussing the exam results here. I’ve also posted a question that I cut from the midterm exam here, if you’re interested. (4/18/19)

Makeup class #2: We will hold a makeup class on Friday, April 12, from 12:00 to 2:00 pm in room 282. (4/9/19)

Midterm word-limit clarification: The 800-word limit for the midterm exam is for your answers; you may omit the mandatory statement concerning the collaboration policy and word and time limits from your word count. (3/23/19)

Makeup class #1: We will hold a makeup class on Friday, March 29, from 2:30 to 4:30 pm in the Rich Room. (3/22/19)

Midterm exam: The midterm exam will be distributed by email from the Registrar’s Office on the afternoon of Friday, March 22. Two paper copies of your responses will be due to the Registrar’s Office on Tuesday, March 26 at 9:30 am. (Please be sure you are able to return printed copies by that time and plan ahead so you don’t run into technical issues printing your responses.) The exam will cover material through assignment 12. (3/19/19)

Handouts: The estates summary distributed during class 12 is available here. The rule-against-perpetuities handout distributed during class 14 is available here. (3/14/19)

Review session and class schedule: On Thursday, February 21, we will hold class from 12:15 pm to 2:15 pm in our normal room, room 204. We will then hold an hour-long practice review session for the midterm where we will discuss the past midterms linked below. We'll start with the most recent and work our way backwards. (2/19/19)

Past midterm exams: I have posted the past midterm exams here: 2018; 2017; 2017 ungraded practice. Note that the 2017 examples have future-interest questions that cover material we haven’t read or discussed yet. (2/19/19)

»  Introduction

The official UNH course description for Property is this:

This course will introduce and illustrate the fundamental legal concepts and terms involved in the control of three kinds of property: real estate, chattels (goods), and intellectual property. With primary emphasis on real property, we will study the rights and powers of ownership, how they are acquired and transferred, how ownership can be shared (either simultaneously or over time, including future interests, leases, and licenses), recording systems and the rights of purchasers or lien holders, and sovereign powers (grant, escheat, eminent domain, regulation, and forfeiture).

This is true as far as it goes, but it does a poor job of capturing what this class is really about. The core substantive first-year law-school classes — torts, contracts, property, (at most schools) criminal law — are taught to everyone and tested on the bar exam because they form the basic building blocks of how society regulates behavior. Torts and crim tell us how the law deters, remedies, and punishes harms committed against another; without these doctrines we would be on perpetual lookout for threats to our safety, security, and solitude. Contracts tells us how the law regulates promises and exchanges; without these doctrines it would be hard or impossible to plan for the future. And property tells us how the law governs resources, or things that can be owned and possessed — land and houses, cars and laptops, and less-tangible resources like stocks and bonds, wireless spectrum rights, even in some cases ideas and regulatory exclusivities. Without property law, some of these resources would be fought over; others would be under- or over-used; others would never come into existence in the first place.

The ideas in this course, then, show up throughout the law and throughout the law-school curriculum. If you wind up practicing intellectual-property law, real-estate law, environmental law, corporate law, family law, or any of several other fields, you will deal with property issues and property concepts every day. And even if you don’t deal with property issues in your practice, you will in your personal life, whenever you buy or lease a home or a car, deal with a homeowners’ association or city building inspector, or think about starting a business, obtaining a copyright or patent, or planning an estate.

Because the course touches on so many issues, it can feel like a bit of a grab bag. One useful organizing principle is to think about it like this. Imagine a two-dimensional grid. Each of the columns represents a different kind of property: land; buildings; cars; money; mineral deposits; copyrights; and so forth. Each row is a type of question we can ask about that kind of property: What does it mean to “own” this kind of property? How does this kind of property become property in the first place? How does this kind of property change owners? How can multiple people divide up ownership of this kind of property? How does one prove ownership of this kind of property? How can the government regulate this kind of property? And so forth. We won’t answer all of those questions for every kind of property in this course — many of them are the province of other courses, and this course tends to emphasize real property, to the occasional detriment of other kinds of property — but we will begin to think about how we can answer them.

The other thing every first-year course does is help us understand how to think about the law. So in addition to learning about property law and property theory, we’ll spend a lot of time on legal-reasoning skills that will apply across the law-school curriculum. Why do different states or nations adopt different legal rules, and what should we think when they seem to adopt inconsistent rules? What are the different values and normative assumptions that policymakers and judges rely on, explicitly or implicitly, when enacting rules or deciding cases? Do those assumptions and values hold up under scrutiny, or are there persuasive counterarguments? What are the different metrics we could use to evaluate a legal rule? When should society change a legal rule? We won’t be able to definitively answer any of these questions, but we can begin to make some progress.

»  Materials

There are two required books for this course.

The casebook is Dukeminier, Krier, Alexander, Schill, & Strahilevitz, Property (8th ed. 2014). Note that there is a new ninth edition; we won’t be using it this year, so be sure you get the eighth edition. The book is available in several formats, including hardcover, digital, and looseleaf editions. (The “Concise Edition” will not work; do not buy it.) Please note that if you choose the “Rental + CasebookConnect” version, you are just renting the physical book and will have to return it at the end of the semester. Rental, used, and new copies are also available from Amazon at a significant discount — new copies are available for about $70, and used copies for about $20, as of this writing.

The required supplement is John Sprankling’s Understanding Property Law. Because property law doesn’t change that quickly, the specific edition is not critical; I will post reading assignments for the third and fourth editions, though even older editions are probably fine.

Both required books will be on reserve in the library, as will a number of helpful study guides and supplements.

In addition to these books, I will post occasional readings and assignments on this site. I will not be using Canvas or a similar system.

»  Class meetings, office hours, and teaching assistant

We will meet on Tuesdays and Thursdays from 1:30 to 3:30 p.m. in room 204, the Rich Room. On a few occasions, we may need to cancel class due to a conflict or a snow storm; we will make up those sessions at times announced in class and posted on this site.

Outside of class, I don’t have set office hours, but you are always welcome to stop by my office (room 210) and chat or just grab some candy. This semester, I am teaching in Durham on Mondays, but I should be in the office most other afternoons. If you’d like to set up a specific time to talk, please email me at roger.ford@nulllaw.unh.edu. (Do remember, though, that this is a professional environment, which means your email should be professional in formatting and tone.)

I don’t have set office hours not to discourage you from coming to talk to me, but because I want to make it as easy and flexible as possible to do so. I’m happy to meet and help if there’s something from class that’s confusing or unclear, or to go over the material we covered in class, or talk about connections between our material and other classes or legal issues you’ve come across, or discuss career plans or other courses to take — whatever’s helpful for you. One of the secrets to doing well in law school is to talk with your professors early and often, and this course is no exception.

The teaching assistant for the class is Hannah Hamilton. Hannah will host periodic review sessions; more information about those sessions will be announced in class. Hannah is also available to meet outside of class; email her at hh1059@nullunhlaw.unh.edu to set up a time.

»  Attendance, grading, and collaboration policies

Regular attendance is required, and under the standard ABA rules, you may be barred from taking the examination and receiving credit for the course if you miss more than 20% of class sessions. Attendance will be taken by sign-in sheet, and signing in for someone else is, as always, academic misconduct.

I expect you to come to class prepared, having read and considered the assigned materials. I will call on students to ensure broad participation, but I hope that all of you will also volunteer responses, questions, and comments. Because I want to encourage an open and meaningful class discussion — about which more shortly — out of respect for your fellow students’ privacy, I will not be recording class sessions, and I ask that you do not do so. (New Hampshire, for what it’s worth, is an all-party-consent state.)

It’s okay if you have to miss an occasional class, but please let me know by 8:00 p.m. the night before class so I can avoid calling on you. Likewise, since I would rather you come to class unprepared than not come to class at all, if for any reason you won’t be prepared to discuss the assignment for a particular class, email me by 8:00 p.m. the night before and I won’t call on you, no questions asked.

Your course grade will be based on two components: a short open-source take-home midterm exam (25%) and an open-source take-home final exam (75%). We will discuss the content and timing of the midterm in class; the final will be comprehensive. I may adjust grades upward or downward by one step on the grading scale (for instance, from a B-plus to an A-minus or a B) for participation that is especially helpful or insightful, or for any students who are repeatedy unprepared or absent.

We are all here to learn about the law, and in general I am all for anything that helps further that goal. This means that, except on the midterm and final exams, you’re free to collaborate with each other and to consult whatever sources you wish in your work for this class.

»  Class discussion, diversity, and inclusion

In this course, I use the Socratic method, which means that most of our class time will consist of me asking you questions about the material. Some students find this intimidating — I was one of them when I was in law school — but I think it’s the best way to learn how to think like a lawyer. As Elizabeth Garrett explained in an influential essay in the journal The Green Bag, the method does a better job than others of developing the sort of critical-thinking skills that lawyers use every day:

Professors could lecture students about legal reasoning, but those who use the Socratic Method prefer to rely as much as possible on active learning. Just as a professor who immediately answers her students’ questions loses an opportunity to help them discover the answers on their own, the professor who dispenses legal principles in classroom soliloquies will reduce students’ opportunities to engage in independent critical thinking that could lead them to a deeper understanding of the material.

This learning process only works if the classroom is a welcoming and inclusive place that supports a diversity of thoughts, perspectives, and experiences, and honors your identities, including race, gender, class, sexuality, religion, ability, and so forth. I want you to feel comfortable in class, free to express your experiences and opinions — in a professional and respectful manner — and learn from the diverse experiences and opinions of your classmates. If anything is making you uncomfortable, inside or outside of class, please come and talk with me about it, and I will do anything I can to help so long as it’s consistent with the goal of learning. And if you use a name or set of pronouns that differ from those in UNH’s records, or if I mispronounce your name, please let me know.

In an ideal world, the law would similarly reflect the full, diverse array of thoughts, perspectives, and experiences. Law, though, is a field that is historically built on a small subset of privileged voices. We will make an effort to read materials from a wide array of authors and perspectives, but we can only do so much given the way that legal doctrines and ideas have developed. I am counting on each of you to help surface these biases and limitations as we make our way through the course.

»  A note on laptop use

There has been a lot of talk in law-professor circles in recent years about whether to let students use laptops in class. I want to lay out some of the points of discussion and explain my approach to this issue so we’re all on the same page.

There are good arguments on both sides. Proponents of banning laptops generally make two arguments: (1) that laptop use by one student can distract other nearby students; and (2) that laptops hurt students’ understanding of the material. The second point is worth unpacking. Most people can type more quickly than they can write by hand, so students using laptops can be tempted to just transcribe the class in their notes. If you can only handwrite so much, though, you have to think through the material and synthesize and summarize, which — similarly to the Socratic method — promotes understanding of the material. And there are academic studies backing up these arguments (see here, here, here, and here), though the conclusions one can draw from them are limited due to methodological issues and small effect sizes.

Opponents of banning laptops have arguments of their own: (1) that using technology effectively and responsibly is a key part of legal practice; (2) that laptop bans can disproportionately hurt, or stigmatize, students with disabilities; and (3) that laptop bans differently affect students with different learning styles. For instance, some students learn better from written material than from oral delivery; some learn better by synthesizing material after the fact, rather than in the moment. Laptops can be useful tools for these students. (There are also debates about pedagogy and paternalism versus libertarianism, but we can set those to the side.)

On balance, I find the arguments against banning laptops slightly more persuasive than the arguments in favor. So I allow their use in class, with two caveats. The first is that I encourage you to think about whether laptop use actually helps you learn the material — whether you are one of those students for whom taking notes on a laptop will work better than by hand. The second is that that use must be limited to note taking and the like. Where laptop use unequivocally hurts understanding — for both yourself and surrounding students — is when it’s unrelated to class. So laptop use for social media, email, web browsing, chat, games, and the like is prohibited.

»  Competencies

In 2013, the faculty approved a list of competencies that are important to the practice of law. For a list of those competencies, indicating which will be covered in this class, click here.

»  Schedule and reading assignments

Last updated April 1, 2019.

This syllabus is a living document, which means I will update it throughout the semester. The reading assignments are listed below, and I will fill in the list over the course of the semester. We will cover about one assignment per day. “DK” refers to the casebook, while “UPL” refers to Understanding Property Law.

How property becomes property

  1. Origins. This syllabus; DK 1–18; Locke excerpt; UPL §§ 1.01–04, 2.01–07.
    • Note: The Locke reading is dense. Take it slowly. Spend some time understanding the argument: What questions are Locke trying to answer? What are his answers? What reasoning gets him to those answers?
  2. Capture and custom: Animals. DK 18–30; UPL §§ 3.01–03.
  3. Capture and custom: Minerals. Hammonds; Coffin; Popov; UPL §§ 31.01–02, 31.06.
  4. Creation. DK 56–76.
  5. Personhood. DK 76–104; UPL § 7.05.
  6. Find. DK 125–144; UPL §§ 4.01–07.
  7. Adverse possession I. DK 144–169; UPL §§ 27.01–03, 27.06.
  8. Adverse possession II. DK 170–189; UPL § 7.02.
  9. Gift. DK 189–206; UPL §§ 5.01–05.

Dividing ownership over time and between people

Note: The assignments 10–13 contain a few cases and a lot of highly technical, often-unintuitive legal rules. We will spend a bunch of time in class talking through the problems. I’ve assigned both the casebook’s explanations and the corresponding portions of Understanding Property Law in the hopes that having two explanations will make the rules clearer, though at the cost of some redundancy.

  1. Fee simple, fee tail, and life estates. DK 209–233 (skim 209–215 for background); Unsel; UPL §§ 8.01–02, 9.01–05.
  2. Life-estate conflicts and defeasible fees. DK 235–256; UPL § 9.06.
  3. Future interests and trusts. DK 275–297; UPL §§ 12.01–14.07.
  4. The rule against perpetuities. DK 307–315, 328–335; UPL §§ 14.10–11.
  5. Co-ownership. DK 343–71; UPL §§ 10.01–10.04 (though some of this won’t be relevant until the next assignment).
  6. Marriage. DK 383–401; UPL §§ 11.01–11.04.
  7. Leasehold estates and landlord-tenant law. DK 443–53, 461–65, 482–92; UPL §§ 15.01–15.05, 16.04, 19.01–19.07.
  8. The problem of affordable housing. DK 515–26, 531–34; UPL §§ 17.01–17.07.

The rights of owners and regulating ownership

  1. The right to exclude. DK 104–110; UPL §§ 30.01–30.07.
    • Note: This short assignment will probably take less than a full class period.
  2. The right to use. DK 777–786, 790–808; review UPL §1.03; UPL §§ 29.01–29.07 (typo corrected 4/2/19).
  3. Easements I. DK 809–820, 825–833; UPL §§ 32.01–32.10.
  4. Easements II. DK 833–847, 865–875.
  5. Covenants and equitable servitudes. DK 892–898, 903–909; UPL §§ 33.01–33.06, 34.01–34.07.
  6. Common-interest communities. DK 909–921, 937–954; UPL §§ 35.01–35.04.
  7. Zoning I. DK 967–996; UPL §§ 36.01–36.07.
  8. Zoning II. DK 1010–1020, 1080–1097; UPL §§ 37.01–37.04, 38.01, 38.04–38.06.
  9. Takings I. DK 1107–1127; UPL §§ 39.01–39.07.
  10. Takings II. DK 1162–1179; UPL §§ 40.01–40.05.
    • Note: This last assignment may be cut for time.