by John V. Orth. Burlington, VT: Ashgate, 2010. 172pp. Hardback. £60.00/$99.95. ISBN: 9780754677314.
Reviewed by David Schultz, School of Business, Hamline University. Email: Dschultz [at] hamline.edu.
Property law is a vexing topic for lawyers but an often ignored topic for public law political scientists. In law school, first year law students are perplexed with the rule against perpetuities, reversions, reverters, life estates, and seisin, and practicing lawyers confront the baffling world of real estate purchasing agreements, trespass, and zoning. While for political scientists, property law is seldom considered, except perhaps for an occasional eminent domain case. In fact, for the political science community, land use and property law is dismissed as unimportant, as was my experience when returning to graduate school and wanting to craft a dissertation about it. Yet the very perplexity and oversight speak to why there is a need to examine property law in more detail. Exploring the conundrums of property law is the subject of this volume.
John V. Orth’s focus is on property law in the United States, but it might as well speak to the law on this subject in England and many of the Commonwealth countries. Property here is mainly real property or real estate, but Orth also addresses other forms of property. He acknowledges from the onset that the subject of property is a large subject, growing as new technologies create new types of possessory interests. The aim is to make sense of the rules of property, to bring order to the disparate and various forms of ownership that exist. But there is an overarching theme here – the rules of property make little sense. They are the product of the common law and traditional practices. They are the accumulation of many centuries of rules, reflecting bygone social practices and traditions that are bundled together to form current property law. Instead of altering possessory rules to reflect new social relations, old rules are retained, gerrymandered to fit the present, and new rules and exceptions are promulgated. What has emerged is that property, in Orth’s words, is less a bundle of rights than a bundle of rules. The vexing and confusing nature of property law is a product of dead social practices weighing on the present, with old analogies about possession awkwardly fitted to the present. Real changes in ownership law are needed, but it will not occur because of the conservative nature of property law.
The book divides into two sections. The first examines classic cases or problems in property law – the staple of law school and the bane of a 1L’s existence – while part two looks to the forces that drive the problems revealed in these cases. The first eight chapters in part one cover traditional ground for law professors. These problems include the law of abandoned property and findership. Specifically, when has someone abandoned property, such that they have given up title and another can [*273] then claim ownership? Critical here is determining intentionality of the prior possessor. Chapter two explores the Rule in Shelley’s Case, an arcane 1581 British decision addressing the willing of property to someone and then her heirs. Without explaining the details of the problem, the simple issue is about the type of estate the different parties receive and what their interests are. Other problems in the first half of the book examine issue of rights in joint tenancy and tenants by entirety and who gets to devise property to whom, leases, easements, escheat, and implied covenants of habitability. All of the property issues have become problems because of efforts to accommodate ownership rights with new social policies and practices. For example, implying covenants of habitability in leases for the purposes of landlord/tenant law confuses property with contract law, yielding confusing legal issues regarding what rights respective parties can contract for.
Part two turns to what Orth labels the “driving forces’ of property law. Much of the confusion centers on clarifying or seeking to discover the intention of owners when they devise property, or upon buyers and sellers when undertaking transactions. There are also problems generated by a federal system in the United States where individual states compete against one another to encourage business incorporation or the location of trusts (think of Delaware), and they are willing to fabricate laws, often at odds with other states and contrary to any rules that might make sense. Legal fictions to characterize or highlight legal issues, use of special and outdated jargon to label property interests, and a decentralized ad hoc approach to update ownership rights further contribute to the confused nature of the law. The result is that the law lacks an overall coherence, and updating it needs to reflect the demands of twenty-first century life. For most people, property law is incoherent because it does not speak to our current life experiences. It still lives in an era when the law had to figure out who had the right to capture wild animals, who owned uncivilized land, a what type of inheritance rights married women possessed.
REAPPRAISALS IN THE LAW OF PROPERTY is well crafted and written, but it is not a book for everyone. It addresses the real guts of property law as examined by academic law professors. Orth does a good job making the problems real, showing how practicing lawyers face the reality of these problems. Many LPBR readers may not find the book of interest, but it does examine foundational issues of ownership at the heart of many property issues in American society. The author does not really come to any solution regarding the mess property law faces, but he does offer a good diagnosis of how the law has evolved and the points of confusion that exist.
© Copyright 2011 by the author, David Schultz.