US Property Law
Real and Personal Property
US property law draws on the English common law tradition, distinguishing fundamentally between real property (land and interests in land) and personal property (all other property). Real property encompasses the land itself, buildings and structures permanently attached as fixtures, and rights appurtenant to the land such as easements and profits. The maxim quic quid plantatur solo, solo cedit — whatever is affixed to the soil belongs to the soil — governs the classification of fixtures, though the degree of annexation and the intention of the affixing party determine whether a chattel has become a fixture. Personal property divides into chattels real (leasehold interests, which are classified as personal property despite relating to land), chattels personal (tangible movable goods), and choses in action (intangible rights enforceable by legal action, such as shares, debts, and intellectual property). The Uniform Commercial Code (UCC) Article 2 governs sales of goods, defining goods as all things movable at the time of identification to the contract, while Article 9 governs security interests in personal property.
Estates in Land
The common law system of estates in land, received from England and adapted in each state, classifies interests in land by their duration. The fee simple absolute is the largest estate recognised at common law, enduring potentially forever and freely alienable, devisable, and descendible. The fee tail, entailing the estate to the grantee and the heirs of their body, was largely abolished in the United States during the nineteenth century, with most states converting fee tails into either fee simples or life estates with remainder in fee simple. The life estate endures for the life of the measuring life, with the life tenant entitled to possession and use but obligated not to commit waste that permanently diminishes the value of the remainder. The leasehold estate — a non-freehold estate — gives the tenant a possessory interest for a term certain.
The Statute of Uses 1535, received as part of the common law, was designed to eliminate the use (the medieval precursor to the trust) by executing the use and vesting legal title in the beneficiary. Although largely repealed in England, its reception in American law was variable, and its principal legacy is the rule that a conveyance to A and his heirs creates a fee simple, and the operation of the Rule Against Perpetuities: no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. Many states have reformed or abolished the Rule, adopting the Uniform Statutory Rule Against Perpetuities (USRAP) which provides a wait-and-see period of ninety years.
Concurrent Ownership
Co-ownership of property in the United States takes three principal forms. Tenancy in common is the default form, under which each co-tenant holds a separate undivided fractional interest, freely alienable and devisable, with no right of survivorship. Joint tenancy requires the four unities of time, title, interest, and possession, and carries the right of survivorship: upon the death of a joint tenant, their interest automatically passes to the surviving joint tenants, avoiding probate. Most states require an express statement of intent to create a joint tenancy with right of survivorship, and severance may occur unilaterally through conveyance of the joint tenant’s interest. Tenancy by the entirety is a form of co-ownership available only to married couples, carrying the right of survivorship and protection from creditors of only one spouse. Approximately twenty states retain tenancy by the entirety. The modern trend, reflected in the Uniform Partition of Heirs Property Act (2010), seeks to protect co-tenants from forced partition sales that fail to capture fair market value.
Landlord and Tenant Law
The landlord-tenant relationship, historically governed by the common law principle of caveat lessee, has been transformed by statute and judicial decisions. The common law recognised four principal types of tenancies: the term of years (fixed duration), the periodic tenancy (continuing from period to period, such as month-to-month), the tenancy at will (terminable at any time by either party), and the tenancy at sufferance (holdover tenant after the expiration of a term). The modern law imposes an implied warranty of habitability in residential leases, requiring the landlord to maintain the premises in a condition fit for human habitation, complying with applicable housing codes. This warranty, first recognised in Javins v. First National Realty Corp. (D.C. Cir. 1970), cannot be waived and gives the tenant remedies including rent abatement, repair-and-deduct, and constructive eviction. The covenant of quiet enjoyment — implied in every lease — guarantees the tenant’s right to possess the premises without interference from the landlord or anyone claiming through the landlord. Breach of this covenant, including actual or constructive eviction, entitles the tenant to terminate the lease and recover damages. Eviction procedures are strictly regulated by state statute, requiring proper notice, judicial process, and compliance with the due process requirements of the Fourteenth Amendment for state action. The Uniform Residential Landlord and Tenant Act (URLTA), adopted in whole or part by approximately twenty states, codifies the modern residential landlord-tenant framework.
The Recording System
Each state maintains a system for recording documents affecting title to real property, designed to provide notice to subsequent purchasers and to resolve priority disputes. Three types of recording statutes exist. Race statutes — in force in a small minority of states — provide that the first to record prevails, regardless of notice. Notice statutes — the most common type — provide that a subsequent bona fide purchaser without notice of a prior unrecorded interest prevails over the prior interest. Race-notice statutes — adopted in approximately half the states — protect a subsequent purchaser who records before the prior conveyance, provided the purchaser had no notice of the prior interest. The Torrens system of land registration, under which title is judicially determined and registered, operates in a limited number of states including Massachusetts, Minnesota, Hawaii, and Colorado, but has not achieved the widespread adoption it has in Commonwealth countries. Title insurance, rather than the recording system itself, provides the principal mechanism for managing title risk in American real estate transactions.
Nuisance and Trespass
The law of nuisance protects a property owner’s right to use and enjoy their land free from unreasonable interference. Private nuisance is a substantial and unreasonable interference with the use and enjoyment of land, sounding in tort and remedied by damages or injunction. Liability requires proof of significant harm, balancing the utility of the defendant’s conduct against the gravity of the harm, and examining the character of the neighbourhood. Public nuisance involves an interference with a right common to the general public, such as obstruction of a public highway or pollution of navigable waters; a private plaintiff may recover only upon showing special injury different in kind from that suffered by the public. The distinction between nuisance and trespass lies in the nature of the invasion: trespass requires an intentional physical entry onto the land of another, while nuisance involves interference with use and enjoyment without physical intrusion. The law of trespass protects the exclusive possessory interest, while nuisance protects the beneficial use, though the two causes of action may overlap in cases involving physical invasions that also impair use.
Eminent Domain and Regulatory Takings
The Fifth Amendment’s Takings Clause — nor shall private property be taken for public use, without just compensation — applies to the states through the Fourteenth Amendment (Chicago, B. & Q. R. Co. v. Chicago, 1897). A taking requires public use, which the Supreme Court has interpreted broadly to include any purpose that satisfies the public benefit requirement, including economic development that transfers property from one private owner to another (Kelo v. City of New London, 2005), subject to state legislative responses limiting such takings. Just compensation is measured by the fair market value of the property at the time of the taking, determined by what a willing buyer would pay a willing seller.
Regulatory takings occur when government regulation goes too far in restricting the use of property without formal condemnation. The Supreme Court in Penn Central Transportation Co. v. New York City (1978) identified three ad hoc factors: the economic impact of the regulation, the extent of interference with distinct investment-backed expectations, and the character of the governmental action. Per se takings rules apply where regulation permanently physically appropriates property (Loretto v. Teleprompter Manhattan CATV Corp., 1982) or deprives the owner of all economically beneficial use (Lucas v. South Carolina Coastal Council, 1992), subject to background principles of nuisance and property law. The Court has also recognised that exactions imposed as conditions of development permits must have an essential nexus and rough proportionality to the impact of the proposed development (Nollan v. California Coastal Commission, 1987; Dolan v. City of Tigard, 1994).
Intellectual Property as Property
US law treats intellectual property as a category of intangible property, protected by distinct federal and state regimes. Copyright, grounded in Article I, Section 8 of the Constitution and codified in the Copyright Act of 1976 (17 USC §§ 101-1401), protects original works of authorship fixed in a tangible medium of expression, including literary, musical, dramatic, and artistic works, conferring exclusive rights of reproduction, distribution, public performance, public display, and the creation of derivative works for a limited duration (life of the author plus 70 years for individual works). Patent law, also under Article I’s Intellectual Property Clause and the Patent Act (35 USC §§ 1-390), protects inventions and discoveries that are novel, useful, and non-obvious, granting a 20-year exclusive right. Trademark law, under the Lanham Act (15 USC §§ 1051-1141n), protects words, phrases, symbols, or designs that identify and distinguish goods or services, lasting as long as the mark remains in use in commerce. Trade secret law, largely governed by state law under the Uniform Trade Secrets Act and the federal Defend Trade Secrets Act of 2016 (18 USC § 1836), protects confidential business information that derives independent economic value from not being generally known and is subject to reasonable secrecy measures.