PropertyProf Blog

Tate on Testamentary Freedom

Joshua C. Tate (SMU) has posted Caregiving and the Case for Testamentary Freedom on SSRN.  Here's the abstract:

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others. Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly. Law reform, therefore, should focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in cases of intestacy.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Defeasible Estates in the News!

A school renovation project was put in jeopardy when 100-year old deeds surfaced showing that part of the relevant property had been granted for school playground purposes only, otherwise to revert to grantor's family.  The best quote, from the counsel for the title insurance company that didn't find the deeds and ended up on the hook:  "I would have to say, in my 30 years in this business, this is the first time I've seen a right of reverter anywhere but in a law school exam."

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Stake on Estates and Future Interests

Jeff Stake (Indiana-Bloomington) has posted Summary of Key Rules in the Law of Estates and Future Interests on SSRN.  Here's the abstract:

The rules of law governing estates in land and future interests are boiled down as much as possible, but hopefully not more so.

As members of the PropertyProf listserv know, Jeff is one of the most knowledgeable people around on issues of future interests and estates in land.  Highly recommended, especially for students looking for secondary material on these issues.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Deng on Landownership in China and England

Feng Deng (Chongqing University) has posted A Comparative Study on Landownership Between China and England on SSRN.  Here's the abstract:

By comparing the development of landownership in China and England, this paper explores what were behind their different trajectories. In particular, I examined the delineation of property rights, alienation of land, rent and tax, inheritance and accumulation of land. Feudal England was a combination of the Roman system and Anglo-Saxon tradition. From that very strict hierarchical structure England has experienced an evolution toward free land market. In contrast, since very early China has established a unique economic system that allowed free alienation of land, but it has been trying to check the development of land market and private property rights by various means, the most important of which is the strengthening and expanding of patriarchal clan system. The different development paths of China and England show the different responses of two different cultures, which are oriented toward family and individual, respectively, to the same problems related to landownership.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Korngold on Intergenerational Conflicts

Gerald Korngold (Case Western Reserve University School of Law) has posted Resolving the Intergenerational Conflicts of Real Property Law: Preserving Free Markets and Personal Autonomy for Future Generations on SSRN.  Here's the abstract:

This article argues that land allocation agreements (e.g., deeds, mortgages, covenants, easements, etc.) made today will have a profound and perhaps negative effect on owners in future generations. It shows that the current architecture of the land transaction system and related rules unduly favor current owners over successors, causing a negative impact on land markets and choices of future players. Moreover, the article demonstrates that current doctrine and theory do not provide adequate flexibility for future generations to deal with outmoded land allocation agreements, leading to inefficiencies and frustration of the personal autonomy of future owners. The article suggests a new conceptual framework as well as specific alternative approaches for courts and legislatures across the spectrum of real property areas (including, inter alia, interpretation of instruments, the recording system, changed circumstances rules, conservation easements, subdivision covenants, and eminent domain). Given the historical and ongoing importance of land in the American experience, it is essential that decision makers act to guarantee future generations the opportunity to engage in markets and to fulfill their personal aspirations.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Rivers on Heirs' Property

Thanks to Ann Bartow (in a comment to my last post) for pointing out an interesting paper by Faith Rivers (Vermont Law School) titled Restoring The Bundle of Rights:  Preserving Heirs' Property in Coastal South Carolina.  From the introduction:

Heirs' property refers to real property held without clear title.  The property is typically owned and inhabited by indigenous families, a significant number of whom can trace their ownership back to purchases by former slaves during the civil war and reconstruction.  The deed to the land is registered to a deceased family member.  The land has been handed down from generation to generation through the intestacy laws and is now owned by a group of relatives who possess fractionated fees as tenants in common.

The paper provides a historical overview of the problem and discusses related policy and reform issues.  Heirs' property presents a host of interesting and important issues.  I talk a bit about it when I cover tenancy in common and actions for partition.  Buyers (often white) can buy one heir's interest, seek partition, and buy the property in the partition sale, a problem that Rivers discusses in some detail.  The highly fractured ownership caused by generations of intestacy also reminds me of the Native American land at issue in Hodel v. Irving.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Is this really the end of Feudalism?

Following up on my post on Robert Palmer's English Law in the Age of the Black Death, I thought I'd post a little more on feudalism.  An island I’d never heard of, Sark, has just ended its “feudalism.”  (Listen to NPR's story here.) It is in the English Channel and is “owned by the Queen of England but not part of Great Britain.”  Whatever that means.  Anyway, the Parliament has consisted of forty Sark landowners.  Now, it’s coming to an end.  From here on out, there will be elections for the Parliament and 12 members will be landowners; 12 memebers will be non-owners.  What is the world coming to?  The Seigneur of Sark will maintain a few heredity rights–the right to keep the only unspayed dog on the island and the right to whatever washes up on the shore between the low and high watermark.

I seem to recall debate about whether feudalism ever existed, led by Susan Reynolds, Fiefs and Vassals. (Useful reviews here).  Sounds like there are some pretty interesting resonances on Sark with the anti-rent movement in the upstate New York in the 1830s-1860s.

Alfred L. Brophy

Comments are held for review, so they will not appear immediately.