Note: This is the webpage for a class from the past that has ended. Information about current classes is available here.

Updates

Final exam: Thank you for a wonderful semester! I have posted the final exam here and a memo discussing the exam here. I’ve also posted two sample student answers here and here. (6/18/21)

Review session for the final exam: We will hold a review session on Wednesday, May 12, at 4:30 pm. More details on the session TBA. (5/2/21)

Past final exams: I have posted past final exams here: 2020; 2019; 2018 (and memo); 2017. Note that occasionally, a question may reference a case or doctrine we did not study this year. (4/27/21)

Make-up class: We will hold a make-up class on Thursday, April 29 at 2:00–4:00 pm. We will meet using our normal Zoom link, with in-person classroom 282. (4/26/21, updated 4/27/2021)

Today in essential Coase Theorem news: The incomparable Matt Levine on paying people not to cut down trees. (4/21/21)

Rule-against-perpetuities handout: I have posted a summary of how to solve rule-against-perpetuities problems here, which we will discuss in class on March 26. (3/26/21)

Estates review problems: I have posted review problems on estates and future interests here, which we will discuss during office hours on March 25. (3/24/21)

Estates summary: I have posted a summary of estates in land here. (3/12/21)

Past midterm exams: I have posted past midterm exams here: spring 2020; spring 2019; spring 2018; spring 2017; spring 2019 deleted question; spring 2017 ungraded sample midterm. (3/4/21)

Office hours: We will continue to hold group office hours each week on Thursday at 3:30–4:30 p.m., using the normal class Zoom link. As always, if you would like to meet individually at another time, I am happy to do so; please email me with some times that you would be available and we can set up a time to meet. (2/10/21)

Whaling, still occasionally a thing: In 2018, the New York Times profiled Kristjan Loftsson, one of the world’s last commercial whalers. (2/4/21)

432 Park Avenue: Homeowners-association feuds are a perpetual source of property cases, as we will see later in the course. Turns out the fighting is just as petty and rancorous when the residents are billionaires. (2/3/21)

Office hours: I will be holding our first group office hours on Thursday, February 4 at 3:30–4:30 p.m. using the normal class Zoom link. As always, if you would like to meet individually at another time, I am happy to do so; please email me with some times that you would be available and we can set up a time to meet. (2/1/21)

Great article: This is a fascinating story about historical preservation, redevelopment, racial restrictions on property ownership, and a nearly-a-century-old neon sign. (1/27/21)

Zoom link: To join our online Zoom classes, click here. (1/16/21)

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 property, including real estate, personal property, intangible property, and intellectual property. With primary emphasis on real property, topics covered include the rights and powers of ownership, how property rights are acquired and conveyed, how those rights can be shared between people simultaneously and over time, and how property rights can be divided, regulated, and restricted by the government.

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 specialized 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 the different ways we could 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 to govern the same situation, 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. Also be sure you don’t have the “Concise Edition,” which is missing critical content. Rental, used, and new copies are also available from Amazon at a significant discount.

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 that will cover the third and fourth editions, though even older editions are probably fine.

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 other resources

We will meet on Tuesdays and Fridays from 12:30 to 2:30 p.m. Because we are a large group and circumstances are quickly evolving in the wake of the Covid-19 pandemic, we will begin the semester meeting remotely via Zoom, though it is possible we will transition to in-person meetings during the semester. (See below for more on the accommodations we will make for the pandemic.) 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 will be holding remote office hours via Zoom at a time to be determined. If you’d like to set up another 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. Just to avoid unnecessary back and forth, please include a list of times that would work for you. And I’m a night owl, so I’m typically reluctant to meet in the morning and quite willing to meet in the afternoon, evening, or night.) 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.

If there is anything that is making it harder than it should be to perform well in this class or in law school generally — whether that’s an issue with your mental or physical health, challenges securing food or housing, relationships with other students or family members, anything — please get in touch with the Assistant Dean of Students or with me if you’re comfortable doing so. We can point you toward useful tools and resources and can do whatever we can to help.

Grading and collaboration policy

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 you are free to consult whatever sources you wish in your work for this class and, except on the exams, you’re also free to collaborate with each other.

Attendance policy and Covid-19 pandemic accommodations

We are going to move quickly and cover a lot of material, so it’s critical that you keep up with the material if you don’t want to fall behind. Having said that, the ongoing pandemic means that things will come up that are more important and urgent than class. So we will all have to be patient and flexible with each other — none of us signed up for this.

One thing we will have to be flexible about is having class in person versus remotely, via video. In-person class is clearly preferable for all involved: both teaching and learning are easier and more effective face-to-face. But the pandemic remains very dangerous, and we are a large group. So I will be holding class in person only once it is clear that it is safe to do so. And even once that point is reached, you are welcome to participate remotely if you feel safer doing so.

In person or remote, though, it is still critical that you 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.

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. I will also be recording class and posting videos online in case you have to miss class, and watching those videos will count as attending class as long as you sign the attendance form when you do so.

As for video etiquette, please be dressed and mute yourself except when speaking. I do not require you to have video enabled, but ask that you do so unless you have a good reason not to, since it is much harder to teach when facing a grid of black rectangles. Use your actual name as your Zoom screen name and please upload a photo or drawing of yourself as your Zoom profile icon. And to protect your classmates’ privacy, it is forbidden to take video or screenshots of another student, pin video of another student, or share screenshots or videos with anyone not in the course.

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. The point is somewhat moot in the era of Covid-19, but it still has some useful takeaways. So 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 using a laptop 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.

Class recordings

I will link to videos of class over the course of the semester.

  1. January 22, 2021.
  2. January 26, 2021.
  3. January 29, 2021.
  4. February 2, 2021.
  5. February 5, 2021.
  6. February 9, 2021.
  7. February 12, 2021.
  8. February 16, 2021.
  9. February 19, 2021.
  10. February 23, 2021.
  11. February 26, 2021.
  12. March 2, 2021.
  13. March 5, 2021.
  14. March 9, 2021.
  15. March 12, 2021.
  16. March 16, 2021.
  17. March 23, 2021.
  18. March 26, 2021.
  19. March 30, 2021.
  20. April 2, 2021.
  21. April 6, 2021.
  22. April 9, 2021.
  23. April 13, 2021.
  24. April 16, 2021.
  25. April 23, 2021.
  26. April 27, 2021.
  27. April 29, 2021.
  28. April 30, 2021.

Office hours and review sessions:

  1. March 4, 2021 — outlining and law-school exams.
  2. March 11, 2021 — midterm practice.
  3. March 16, 2021 — more midterm practice.
  4. March 25, 2021 — review problems on future interests.
  5. May 12, 2021 — final-exam review.

Schedule and reading assignments

Last updated April 21, 2021.

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 and discovery. 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 I. DK 18–30; UPL §§ 3.01–03.
  3. Capture and custom II. 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: 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 working through the problems together. 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 209–234 (skim 209–215 for background); 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 I. DK 343–61; UPL §§ 10.01–10.04 (though some of this won’t be relevant until the next assignment).
  6. Co-ownership II. DK 361–71, 383–93; UPL §§ 11.01–11.04.
  7. Leasehold estates and landlord-tenant law. DK 443–53, 482–92, 515–26; UPL §§ 15.01–15.05, 17.01–17.07, 19.01–19.07. (Note: edited 3/29/2021.)

The rights of owners and regulating ownership

  1. The right to exclude and the right to use. DK 104–110, 777–786, 790–806; review UPL §1.03; UPL §§ 29.01–29.07, 30.01–30.07.
  2. Easements. DK 809–820, 825–833, 865–875; UPL §§ 32.01–32.10.
  3. Covenants and servitudes. DK 892–898, 903–921, 937–954; UPL §§ 33.01–33.06, 34.01–34.07, 35.01–35.04.
  4. Zoning I. DK 967–996, 1010–1020; UPL §§ 36.01–36.07.
  5. Zoning II; Takings. DK 1080–1097, 1107–1127; UPL §§ 37.01–37.04, 38.01, 38.04–38.06, 39.01–39.07, 40.01–40.05.