Gilbert Law Summary on Property: A Critical Book Review

Overview of Property Acquisition and Personal Property

Chapter 1 deals with the acquisition of property in all its different forms. From its very beginning, the chapter states the fundamental rule in property ownership: the rule of capture. The rule of capture holds that the first person to take possession of a thing owns it. Following this introductory notion, the chapter details the most important elements of the rule of capture, including particular cases such as the capture of wild animals or the discovery of caves.

The chapter focuses substantially on the way property is awarded in the allocation of resources, such as rights to energy resources (oil or gas) and water rights. In terms of the latter, groundwater rights are generally limited by a reasonable-use clause, while transportation of water off the land is more restricted. Surface water also belongs to the person who captures it and, as such, can generally be used in any manner as long as lower owners are not harmed.

Beyond the rule of capture, the chapter discusses acquisition by creation as another means of recognizing property. The purpose of this type of recognition is to reward labor, as the chapter shows in presenting the general rule for this case. The chapter also covers several other types of property acquisition, including acquisition by find and acquisition by adverse possession.

Chapter 2 expands on the most important notions relating to personal property by first defining and discussing the concept of bailments, where a person has rightful possession of goods without being the owner. The bailee, as this person is referred to, has a series of rights and obligations — among the latter, the duty to redeliver and the obligation to exercise care.

Personal property can also be obtained by means of a voluntary transfer without consideration (a gift of an object or any other type of property), or by the transfer of property, in which case the bona fide rule is applied: a seller can transfer no better title than he has. All of these definitions are blended with examples and detailed throughout this chapter.

Possessory Estates, Future Interests, and Trusts

Chapter 3 is an extensive discussion of the possessory estates concept — a legal element tracing back to the feudal system in medieval England, as imposed by the Norman conquerors. The chapter opens with a short historical description of how possessory estates came about, and the different types of estates (fee simple, fee tail, life estate, and leasehold estate) are introduced before each is examined in detail.

Each of the possessory estates is defined by the length of time the property right lasts. There are different types of fee simple, including the fee simple absolute (with ownership potentially of infinite duration) and the defeasible fees (where infinite duration is no longer certain). All subchapters referring to possessory estates detail both the historical background and the main characteristics of each notion, including the different types of fee tail.

Chapter 4 discusses future interests, introduced with an ample definition at the chapter's outset. Summarizing this, the future interests concept proposes the idea of a present, nonpossessory interest capable of becoming possessory in the future. The chapter presents the five categories of future interests — reversion, possibility of reverter, right of entry, remainder, and executory interest — in separate subchapters that include a definition of each concept and particular situations requiring separate treatment. These include, for example, the concept of alienability in the case of the possibility of reverter, and vested interest in the case of reversion.

Chapter 4 also presents executory interests, as well as a generous historical perspective in a subchapter on rules restricting contingent remainders. While these rules have been mostly abolished, they still illuminate how general notions relating to interests and property came about, making this a useful chapter to work through.

One of the more interesting notions described at length in Chapter 4 is the concept of trust — a fiduciary relationship established between a trustee and beneficiaries. Beyond the formal definition, trust describes a legal arrangement in which a person is entrusted to manage property for the benefit of the beneficiaries. The powers of the trustee are quite broad, and there is virtually no distinction as to the degree of management the trustee may exercise compared to the actual owners.

Concurrent Ownership, Marital Rights, and Landlord-Tenant Relations

Chapter 5 deals with concurrent ownership and marital rights. The chapter begins with several subchapters on the notion of tenancy, opening with definitions that are key to understanding how tenancy functions within the broader concept of property. Each subchapter addresses a different type of tenancy — tenancy in common, joint tenancy, and tenancy by the entirety — with a clear description of what each type implies and how it translates into practice. The subchapters also detail particular requirements and cases that warrant separate discussion.

Following the discussion of tenancy, subchapters E and F expand on marital rights to property following either divorce or the death of a partner. In each case, a clear differentiation is drawn between common law and modern law, with the relevant concepts opened for discussion. A particularly interesting subchapter addresses the rights of unmarried partners, as the prevalence of cohabitation without marriage has necessitated debate on this topic. Contracts can be established between unmarried partners, and increasingly across the United States, same-sex partners can enjoy the rights and obligations available to any other couple.

Chapter 6 presents the relationship between the landlord and the tenant in a manner consistent with the book's approach elsewhere — beginning with historical perspective before moving to substantive explanation. The landlord-tenant relationship has particular features that distinguish it from other types of lease relationships, most notably that the tenant has the right to possession. The chapter proceeds to present several types of tenancies, including tenancy for years, periodic tenancy, and tenancy at will.

Several subchapters elaborate on the obligations of the landlord, among them the duty to deliver possession, the duty not to interfere with the tenant's quiet enjoyment, and the duty to provide habitable premises. Regarding the last of these, the chapter presents the general framework in which the landlord has a duty to repair after entry by the tenant.