A Short & Happy Guide to Property, 2d
Author:
Franzese, Paula Ann
Edition:
2nd
Copyright Date:
2012
19 chapters
have results for A Short and Happy Guide to Property
Introduction 4 results
- WELCOME TO THE START
- For that matter, understanding, retention, and performance are enhanced immeasurably by calm. Part of your mission, then, is to keep the fear factor at bay. Hear me now and believe me later: the task at hand is achievable. You are on your way to becoming a Property connoisseur.
- Finally, by way of introduction, I would like to extend a belated word of congratulations on all that you have achieved to have earned the privilege of experiencing law school. This is a time in life when you deserve to be feeling some sense of self-satisfaction and happiness. Yet, happiness may not be the first emotion to be conjured up at this particular moment. In this regard, George Bernard Shaw said it best: “Forget about the likes and the dislikes and do what must be done. For now, this is not about happiness. This is about greatness.”
- In this book, we will use acronyms, imagery, metaphor, and humor, sometimes conjuring up a cast of characters and sometimes using song. This is all by conscious design. Over the course of the last several years, my research and scholarship has taken me into the realm of adult learning and memory. Cognitive psychology and neuroscience teach us that the assimilation and retention of complex subject matter is enhanced immeasurably by the use of mental associations, anchoring metaphors, images, and humor.
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Copyright Page 2 results
- Short and Happy Guide series is a trademark registered in the U.S. Patent and Trademark office.
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney, If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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Title Page 4 results
About the Author 3 results
- Professor Paula Franzese, the Peter W. Rodino Professor of Law at Seton Hall Law School, is the creator and editor of “The Short and Happy Guide” series. Nationally renowned for her excellence in law teaching, she is the unprecedented nine-time recipient of the Student Bar Association’s Professor of the Year Award, has been named “Exemplary Teacher” by the American Association of Higher Education and was ranked by the NJ Law Journal as the Top Law Professor in her home state. She has demonstrated and deconstructed her pedagogical expertise on teaching as both art and science at workshops and colloquia across the country, is the author of
- The author of numerous publications, her scholarship in the area of Property law includes critical examination of common interest communities, homeowners associations and the dilemma of privatization, the law of servitudes, exclusionary zoning, affordable housing, adverse possession doctrine and takings law. She joined in the submission to the U.S. Supreme Court of an amicus brief in the Case, and has written and presented on takings law reform. She has been elected a Fellow of the American College of Real Estate Lawyers, is a Fellow of the American Bar Foundation, and the recipient of numerous accolades, including the Sir Thomas More Medal of Honor, the YWCA Woman of Influence Award, the Women Lawyers Association’s Trailblazer Award, and the State Bar Foundation’s Medal of Honor.
- Recognized as one of the country’s leading experts in property law as well as government ethics, Prof. Franzese has spear-headed ethics reform initiatives on behalf of three governors, serving as Special Ethics Counsel to Governor Richard Codey, Chair of the State Ethics Commission, Vice-Chair of the Election Law Enforcement Commission and as ethics advisor to state and local governments across the country, including Mayor Cory Booker’s administration in Newark. In 2011 she was presented with the National Council on Governmental Ethics Laws (COGEL) Award, the highest form of recognition conferred by the organization.
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Chapter 1 - The Top Ten Themes of Property Law 19 results (showing 5 best matches)
- As a legal construct, property is not a “thing,” but instead a set of rights and duties that exist with respect to some “thing.” Those rights and duties are referred to historically and metaphorically as a “bundle of sticks,” meaning the set of entitlements and obligations that pertain to a particular subject matter. That subject matter could be (and most often in the Property course will be) land, synonymous with realty or real property, and typically referred to as “Blackacre.” But it could also be personal property, synonymous with personalty or chattel, intellectual property (including such intangibles as copyrights, patents and trademarks) and semi-intangibles, such as stocks, bonds and mutual funds.
- For example, to state that “Blackacre is Joe’s property” is to imply that Joe enjoys a bundle of rights in connection with Blackacre, such as the right to possess the land, to exclude others from the land, to improve the land, to transfer the land, and so on. In addition, to indicate that “Blackacre is Joe’s property” is to indicate that Joe is obliged to reasonably maintain the land, to refrain from using the land to hurt others’ interests, and to abide by governing laws with respect to that land, such as the duty to pay property taxes.
- The conceptualization of property as a bundle of sticks will be helpful as you consider, for example, whether and when the bundle of rights and duties ought to exist in intellectual property, or products of the mind. Just how big a stick is the right to exclude, particularly when the public domain could benefit by sharing? The bundle of sticks metaphor resonates when studying eminent domain, since so much of the case law on when a government regulation has gone so far as to work a taking essentially asks how many sticks in the bundle of property rights have been taken away as a result of the intervention, and whether that deprivation triggers the constitutional mandate to afford the affected owner just compensation. It applies when ascertaining the responsibilities and entitlements inherent in the interests conferred upon life tenants, for instance, or concurrent owners, or lessees, such as the duty to refrain from committing waste and the right to use and possession.
- That ancient maxim informs the bundle of rights and, more essentially, the duties to accompany one’s property interest. It attempts to sustain much of nuisance law and the nuisance test of takings law, as well as the doctrine of waste. It asserts itself as an adjunct to the proposition that property law seeks to avoid incompatible land uses, and it has been invoked to justify all sorts of public and privately imposed restrictions on land, whether via zoning or servitudes law. Ultimately, the maxim rings hollow, if for no other reason than its sheer circularity. If A is compelled to refrain from a certain use simply to avoid working harm to B, then B has worked harm to A.
- of your study of Property, you will find that certain themes emerge again and again. Think about the following common threads in the Property tapestry, and return to them as you synthesize and reconcile the materials for the course. Moreover, one or more of these themes will come in handy when you happen to get called on in class to respond to a “why this result?” question. Invariably, you’ll find the applicable broad-strokes policy rationale here.
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Chapter 12 - Exam Preparation 42 results (showing 5 best matches)
- The law school experience can find you weary, overwhelmed and just plain tired. Particularly at this time, it seems appropriate to recount an old fable, a favorite of mine for many years. It is the story of the parent who has two children. One is an avowed optimist, happy no matter his circumstances. The other is an avowed pessimist, miserable most of the time.
- The parent waits a short while, and then ventures into the pessimist’s room. There he finds the child standing in the corner, arms folded in front of him, scowling. The boy says, “How dare you patronize me with these petty offerings?” The parent shrugs sadly, and proceeds to the optimist’s room. There, he is astonished to find his child whistling while at work, busily spraying room freshener and shoveling the manure into a corner. The parent asks in amazement, “Child, in the midst of all this, how can you possibly maintain so cheerful and hopeful an outlook?” The little boy replies with great sincerity and strength of purpose, “Papa, don’t you get it? With all this horse manure, there’s got to be a pony somewhere!”
- Further, I promise you that on the occasion of your first real estate closing, no one around that conference room table will turn to you and ask, “By the way, what did you get in Property?” At your first oral argument on, for example, a products liability case, the judge won’t interrupt to inquire, “So, how did you do in Torts?” In life, what counts is who you are. You are not your grades, or, for that matter, your resume, law journal placement, or summer job.
- Law school modes of evaluation leave much to be desired. In a context where there is so little feedback, how one happens to do on a particular day on a three or four hour test tends to take on an undeserved importance and magnitude. Some even construe their grades as the final word on their abilities and opportunities as a future lawyer. Nothing could be further from the truth.
- For that matter, there is an infectious contagiousness to pre-exam anxiety. You can catch it in the halls, the library, before and after class. You may walk into school on a Monday morning after a great weekend only to hear from a classmate, “I just finished all of my outlines and synthesized Contracts. What a relief!” Indeed. At that point, your uneasiness may be compounded by the questions, what is an outline? What is a synthesis? (They, by the way, are just fancy names appended to efforts that you have already applied and mastered.)
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Chapter 3 - Estates In Land and Future Interests 151 results (showing 5 best matches)
- For example, O conveys “To A, if and when he marries.” A is unmarried. If and when A marries, A cuts short O’s otherwise limitless time with the land. Hence, O has a fee simple subject to A’s springing executory interest.
- Remainderman patiently waits his turn to take. He waits until that preceding life estate or term of years, for example, comes to its natural conclusion. By contrast, we now turn to the executory interest, a future interest that takes effect by cutting short another transferee, in which case we call it a shifting executory interest, or by cutting short the grantor, in which case we call it a springing executory interest.
- Notice that B is in a position to interrupt, or cut short, A’s otherwise limitless time with the land. B is not a remainder. A remainder follows a present estate of known, fixed duration, such as a life estate or term of years. It waits patiently for that preceding estate to run its natural course. It does not interrupt or cause the divestiture of that preceding estate, nor does it stand to take as a consequence of the earlier estate holder’s forfeiture. Here, your tip-off that B is not remainderman is the fact that the present estate is not “To A for life,” or “To A for a term of years,” but rather “To A and his heirs,” meaning that but for the presence of some condition of forfeiture, A and then her heirs would enjoy infinite time with the land. B will get to take only as a consequence of the disruption of A’s otherwise limitless entitlement. The beneficiary of A’s forfeiture is the executioner—meaning, the holder of an executory interest.
- For example, “To A and her heirs, but if A leaves the legal profession, then to B.” A has a fee simple subject to executory limitation. A (and on A’s death, A’s heirs) enjoy potentially limitless time with the land, unless A leaves the law. In that case, B cuts short A’s otherwise infinite entitlement. Because B follows A’s defeasible fee, B cannot have a remainder. Remainders never take as a consequence of a present estate holder’s forfeiture of that estate. Instead, B has an executory interest, and, more specifically, a shifting executory interest.
- In this example, the clause “remainder to B” is an illustration of language that, taken alone and set off by commas, creates a vested remainder in the first place. The conditional clause that comes thereafter, “but if B dies under the age of 25,” is an example of a condition subsequent. Hence, B has a vested remainder subject to complete defeasance, because of the condition subsequent. C has a shifting executory interest, something that we will define shortly. In this conveyance, if B is under 25 at the time of A’s death, B still takes. Remember, the age requirement is not a prerequisite or condition precedent to B’s taking. It is, however, a condition subsequent, meaning that B must live to the age of 25 for his estate to retain his interest. Otherwise, B’s heirs will lose it all, and C or C’s heirs will take.
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Chapter 6 - Servitudes 121 results (showing 5 best matches)
- Of the various categories of negative easements, negative easements for light are the most common. Last summer, my children and I toured Boston. We took a guided and narrated Trolley Tour to see the sights. We got to the Back Bay area, Copley Place, and came upon the new John Hancock building. Our tour guide Sam came over the microphone and said, “Ladies and gentlemen, you’ll see that the new John Hancock building’s exterior is made up of thousands of mirrored glass, light-reflective panels. This is because the Trinity Church, located across the street, has a negative easement for light over the John Hancock building. The John Hancock building’s architects ingeniously found a way to abide by the terms of that negative easement by coming up with the mirrored façade, so that now, the building does even more than fail to interfere with the Church’s access to sunlight. It actually enhances the amount of sunlight that the Church receives during all hours of the sunlit day.”
- 5) How a covenant runs with the land.
- The license is a freely revocable, mere privilege to enter another’s land for some narrow purpose. In stark contrast to the easement, which is the grant of a property interest that is not easily terminated, licenses are far flimsier, mere privileges. Common examples of licensees include the newspaper carrier, the ticket holder and the parking garage patron.
- a) The running of the burden. Does the burden of A’s promise to B run from A to A–1?
- In this setting, an ounce of history is worth pounds of logic. The restrictive covenant came to be because of Property law’s insistence that negative easements be limited in scope to those four LASS categories (Light, Air, Support, and Streamwater from an artificial flow). Since, still today, the range of permissible negative easements is so limited, some other restrictive device had to enter the fray to allow neighbors to avoid potentially incompatible land uses. Hence, the restrictive covenant emerged.
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Chapter 5 - Landlord/Tenant Law 99 results (showing 5 best matches)
- A landlord comes to you and says: “Counselor, help me. I have a tenant who hasn’t paid rent for the past two months. She’s still living there. What are my options?” You say, “Landlord, this is going to be a short conversation. You have only two options.”
- 2) The tenancy at sufferance is usually short-lived. It endures only until the landlord either evicts the tenant or elects to hold the tenant to a new leasehold.
- Surrender is a term of art in Property law. It means that Tenant has demonstrated, by words or conduct, that he wishes to give up the lease.
- 6) If the transfer by T1 is a mere sublease, the relationship between L and T1 remains fully intact. L and T2, the sublessee, share neither privity of estate nor privity of contract. Instead, as a result of a sublease, sublessee T2 is responsible to T1, and viceversa. Thus, T2 is obliged to remit rent to T1 (who in turn remits rent to L), and T1 is obliged to enlist L to remediate any problems on the premises.
- A fixture is a once moveable chattel that, by virtue of its attachment to realty, objectively shows the intent to permanently improve the realty. Common examples include heating systems, custom storm windows and a furnace.
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Preface 7 results (showing 5 best matches)
- This book endeavors to allay the doubts that the often difficult law of Property can conjure up. It aims to demystify the subject matter, and to provide you with a cogent and accessible doctrinal framework. With that foundation in place, you can set about the task of building a house of expertise that is nuanced and rich.
- Through the years, I continue to take that advice to heart. If most fears are born of fatigue or imaginings, I have learned to trust, even when that seems an act of blind faith, and to get some rest in response to those late night voices of worry and doubt. I have chosen to look for the best in myself, in others, and in the law. More often than not, I have found it.
- Law school can be a very trying experience, even for the most self-assured. People who are accustomed to feeling competent and successful can suddenly find themselves filled with doubt and fear. The night before I was to begin law school, I phoned home in a panic. I still had more than fifty pages to read, and I could not understand most of it. Tired and overwhelmed, I cried to my dad, “I’m terrified. I don’t think that the law is for me. I can’t do this.” My father replied, “Paolina,” (that was his pet name for me. Loosely translated from the Italian dialectic, it is said to mean “little legal genius of our nation.” But that might be a loose translation). He continued, “Throw your fears out the window. For this moment, stop thinking with your weary mind. Go to what you know in your heart. You are precisely where you are meant to be. Trust, and get some sleep!”
- This book was inspired by my students, past and present, Property connoisseurs all. They are shining lights. I thank them for the privilege.
- There is a force that meets good with good. Believe in the nobility of our craft and the importance of your place in it. There will never be another you. Countless clients and causes, as yet nameless and unknown, are counting on you to make the difference that only you can make.
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Chapter 8 - Zoning 9 results (showing 5 best matches)
- 3) Zoning amendments and the problem of spot zoning.
- a) The area variance:
- For example, A wishes to add a glass-enclosed front porch to her home. To do so, she needs an area variance. Otherwise, her premises will be in violation of the township’s minimum setback requirement, which is a zoning ordinance that requires that all homes be situated a certain minimum number of feet away from the front curb. A’s proposed addition presents a problem of ill-fit. She must petition the township’s Zoning Board of Adjustment for an area variance. To succeed, A must demonstrate undue hardship. For instance, perhaps her child suffers from respiratory maladies, and the pediatrician has indicated that the glass enclosure will help to abate those ills. Additionally, in fairness to the neighbors, A must show that the variance, if granted, will not adversely affect surrounding property values.
- The variance is the principal means to achieve flexibility in zoning. A variance is permission to depart from the literal requirements of a zoning ordinance. There are two kinds of variance: the area variance and the use variance. The variance is granted or denied by administrative action, typically in the form of a zoning board.
- Zoning is an inherit power of the state, derivative of its police powers. We allow government to enact zoning ordinances to reasonably control land use, for the protection of general health, safety and welfare.
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Chapter 7 - Land Transactions: The Purchase and Sale of Real Estate 90 results (showing 5 best matches)
- Title is unmarketable if the property violates a zoning ordinance. Note that the mere presence of a set of zoning ordinances is of no consequence. Rather, it is the parcel’s violation of an applicable zoning ordinance that renders title infirm, since that violation subjects the property to the threat of litigation.
- a) Adverse Possession.
- Marketable title means an unencumbered fee simple. Thus, servitudes or liens on the property render title unmarketable, unless the buyer has waived them. In most instances today, Blackacre will be subject to an easement or covenant, which buyer usually agrees to exempt from the guarantee of marketable title.
- i) Grantor promises that he has not conveyed this property to another. He promises, in other words, that he is not a dirty double dealer.
- 5) Proper recordation and the chain of title.
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Chapter 4 - Concurrent Estates 49 results (showing 5 best matches)
- Partition in kind works best when Blackacre is a rural tract, or a vineyard, or some other form of sprawling acreage. If, upon physical division, the value of one party’s interest disproportionately exceeds the value of the other(s), the court may award owelty to the party(ies) that come up short. Owelty is an equitable device, which allows the court to order that the party who has reaped more than his or her rightful share remit some designated dollar amount to the other co-tenants, to equalize the respective values.
- 6) Repairs: During the life of the co-tenancy, the repairing co-tenant enjoys an affirmative right to contribution for any reasonably necessary repairs that she makes, provided that she has notified the others of the need for the repairs.
- 1) Possession: Each co-tenant is entitled to possess and enjoy the whole.
- 8) Waste: A co-tenant must not commit waste.
- For example, O conveys Blackacre “to A and B as joint tenants, with the right of survivorship.” When A dies, her share goes automatically to B.
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Chapter 2 - The Acquisition of Property Other Than by Voluntary Transfer 22 results (showing 5 best matches)
- acquiring a property interest other than by the more traditional means of sale, gift, devise or descent. This unit takes up the three principal ways to do that: 1) by capture, 2) by find, and 3) by adverse possession.
- The rule of capture provides that one succeeds in acquiring a property interest in wild animals hunted on public land by mortally wounding the animal, or so maiming or ensnaring it as to render its escape a virtual impossibility. That is the lesson of the famous case, Pierson v. Post. Mere pursuit is not enough. The law rewards those who succeed in firing the fatal blow. Decided in 1805, Pierson v. Post is very much a product of its time. Back then, foxes were considered a nuisance, and their eradication was to be rewarded. The rule of capture quickly came to be applied to the acquisition of all sorts of fugitive (moving) resources, including oil and gas. It led to preoccupation with capture technologies and excessive ecological exploitation compromising many natural habitats in the process. The rule has since been modified by more environmentally-protective sensibilities now contained in various statutory, regulatory and treaty-based laws.
- The only time that tacking is not allowed is when there has been an ouster. Ouster is wrongful conduct, and it defeats privity. For example, suppose that A is an adverse possessor on his way to satisfying the COAH elements when Mr. X comes along and says, “Move it or lose it,” thereby ousting A and assuming possession himself. Mr. X, who came to his occupation of Blackacre as a consequence of his wrongful ouster of A, will not be afforded the benefit of A’s time with the land. Ouster defeats privity. Therefore, tacking is not allowed.
- Possession is the exercise of dominion and control. By contrast, title is ownership. As you think about the ways to succeed in acquiring rights by capture, find and adverse possession, note that in each instance the law is endeavoring to protect possessors. Why? Ordinarily, it is expedient and just to do so, since possessors are usually rightful owners who simply cannot prove ownership. (Think about the possessions with you as you read this. Chances are that you own the clothes that you are wearing, the laptop that you are using, and so on, but that you are unlikely to be carrying receipts to prove your ownership.) Even when possessors are not owners, the law protects possession to honor reasonable expectations and promote social order. Otherwise, might could make right, and a possessor could be divested of her possessions as a consequence of another’s exercise of brute force.
- For example, suppose that in 1990, A, an adverse possessor, assumes possession of Blackacre. In 2000, A’s devisee John takes A’s place, assuming possession of Blackacre until 2010. This jurisdiction has a twenty year statute of limitations. In 2010, John owns Blackacre, assuming that he has met the COAH elements. To satisfy the requisite statute of limitations, John is permitted to tack on to his ten years with the land his predecessor’s ten years. A and John were in privity.
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Chapter 9 - Eminent Domain 11 results (showing 5 best matches)
- Here, a private landowner claims that a government regulation, although never intended to be a taking, nonetheless has the same effect. The given regulation has significantly compromised that property owner’s reasonable, investment-backed expectations.
- a) The categorical taking.
- Exactions are those amenities that government seeks in exchange for granting permission to build. For example, suppose that you are a developer seeking permission to build a 200–unit residential development in the town of Utopia. The town tells you that it will grant you the requisite permit if you agree to provide several new streetlights, a small park and wider roads. Government, in other words, is seeking exactions from you. As you might imagine, exactions are inherently suspect. Left unchecked, they could become tantamount to takings without just compensation. To protect against governmental abuse of power, exactions must pass constitutional scrutiny. Government’s demands must be reasonably related, both in nature and scope, to the impact of the proposed development. If they are not, the exactions are unconstitutional.
- Eminent domain is the government’s Fifth Amendment power, made binding on the states by the Fourteenth Amendment, to take private property for public use in exchange for just compensation.
- Explicit takings are overt acts of governmental condemnation. For example, government comes knocking on your door and says, “We’re sorry. But we must condemn your beloved Blackacre to make way for a public highway.” If, after notice and an opportunity to be heard, the taking is deemed constitutionally permissible, the government must pay you just compensation for its taking.
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Chapter 11 - Possessors’ Rights: Trespass and Nuisance 6 results (showing 5 best matches)
- Private nuisance is the substantial and unreasonable interference with another’s use and enjoyment of land. While trespass requires actual physical invasion, nuisance does not. Thus, for example, odors and noise could give rise to a nuisance, but not a trespass. Hence, noisy protesters across the street could inspire a successful nuisance claim, but not a trespass claim.
- a) Nuisance and the hypersensitive plaintiff.
- For example, suppose that A operates a dog kennel that is located near a power plant. She notices that some of her dogs are becoming increasingly agitated. She learns that the power plant emits a high-pitched frequency heard by animals but not humans. If A sues the plant for nuisance, A will lose, because the problem that she complains of is attributable to A’s ultrasensitive or hypersensitive use.
- Trespass is the invasion of land by tangible, physical object. To remove a trespasser, one brings an action for ejectment.
- has the right to be free from trespass and nuisance.
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Chapter 10 - Water Rights 3 results
- Here, the water belongs initially to the state. However, the right to use it can be acquired by an individual, regardless of whether she happens to be a riparian owner. Rights are allocated according to what is called priority of beneficial use. This means that a person can acquire the right to divert and to use water merely by being amongst the first to put the water to some beneficial or productive use. The norm for distribution is first in time, first in right.
- The riparian doctrine provides that the water belongs to those who own the land bordering the watercourse. These people are called riparians. Riparians share the right of reasonable use of the water. Riparians must not be unduly exploitative, and must not commit waste.
- the riparian doctrine and the prior appropriation doctrine.
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Table of Contents 6 results (showing 5 best matches)
- Publication Date: September 21st, 2012
- ISBN: 9780314282415
- Subject: Property
- Series: Short & Happy Guides
- Type: Overviews
- Description: The second edition of this efficient and effective guide takes difficult subject matter and makes it accessible and easy to remember. Professor Paula Franzese, a nationally renowned teacher and scholar, sets forth understandable techniques for mastering estates in land and future interests (including the dreaded rule against perpetuities), concurrent estates, landlord-tenant law, servitudes, land transactions, recording system, zoning, and eminent domain. This expanded edition also includes the top ten themes of property law, the rule of capture, and the law of finders. Learn from this nine-time recipient of the Professor of the Year Award and become a property connoisseur!