PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Thursday, May 17, 2012

"Property Law" at law school

I didn't take a course in "Property" in my New Zealand LLB; rather, I took courses in "Land Law" and "Equity and Succession".  Some thoughts:

* The basis of Land Law was the Torrens system and issues around indefeasibility, though of course estates in land, the relationships of landlord/tenant and mortgagor/mortgagee, easements, adverse possession, etc were part of the paper.

* Equity and Succession covered trusts, wills, and equitable jurisdiction (though in NZ, common law and equity are in a single court system - and some would say are "fused", at least to some extent).  This also considered realty vs personalty.

* Personal property and intellectual property were generally part of optional courses.

What this means is that the rule against perpetuities was part of Equity, rather than "Property" (and in New Zealand we have a Perpetuties Act, which generally makes things much easier).  It seems to be an obsession of US teachers (and students) of "Property"!

The failing of this system, however, was the lack of an overview of "Property" as a whole.  It is one thing to learn about land registration, estates in land, trusts, and so on - but quite another to miss out on "what is property?" (particularly given my earlier comments on the lack of graduate law courses in property).  On the other hand, that has had the benefit of discovering Rose, Heller, Gray, Merrill and Smith by reading them, rather than being taught them - which might be the best way to learn.

But what do the Americans think - is the rule against perpetuities here to stay in the first-year Property course?  Does it belong somewhere else? Will the first-year Property course itself remain in its current (varied) forms?

Thomas Gibbons

Law Book

May 17, 2012 in Estates In Land, Future Interests and the RAP, Law Schools, Property Theory, Recording and Title Issues | Permalink | Comments (0) | TrackBack (0)

Monday, January 16, 2012

The Fee Tail in Downton Abbey


If you are looking for a example to teach your students about the fee tail (particularly one restricted to male heirs), look no further than the Golden Globe-winning PBS series “Downton Abbey.”  This drama focuses on Robert Crawley, the Earl of Grantham, his American-born wife Cora, their three teenage/young adult daughters, and the estate they control, Downton Hall.  The show begins with the death of the Earl’s cousin and his son, the two closest male relatives of the Earl and therefore the presumptive heirs to Downton Hall.  Two of the maids discuss what this tragedy means to the future of Downton:

O’Brien:  “Mr. Crawley was his lordship’s cousin and heir to the title.”

Gwen:  “I thought Lady Mary [the Earl's eldest daughter] was the heir.” 

O’Brien:  “She’s a girl, stupid.  Girls can’t inherit.  But now Mr. Crawley is dead and Mr. Patrick was his only son.  So what happens next?”

What happens next is that the Earl has to reach out to his third cousin, Matthew Crawley, a solicitor from Manchester, and inform this (lucky?) chap that he’s now next in line to become an Earl and inherit a huge estate. 

Even if you aren’t looking for an example of the fee tail, you should still watch Downton Abbey.  Several episodes from Season One are available for free on, they are all on Netflix and iTunes.  Season Two began two weeks ago, and the first two eps are available for free on

Tanya Marsh

January 16, 2012 in Future Interests and the RAP | Permalink | Comments (4) | TrackBack (0)

Monday, October 3, 2011

Don't Sell This Home. Ever.


Here's a property story from my local paper.  Heiress Emma Watts grew up in creepy-looking mansion in Richmond, Kentucky.  During her life, the local university (Eastern Kentucky U.), repeatedly attempted to purchase the property from her.  The relationship between Emma and EKU deteriorated, and she refused to sell.

Here's the propety angle: When Watts died in 1970, her will specified that the mansion could never be sold. She left a trust fund to pay for basic upkeep and, for four decades, no one has touched the building or its furnishings. The will reads:

(The trustee) shall have no power or authority to sell or in any manner hypothecate any of my real estate located in Madison County, Kentucky, or any of the furniture, furnishings, linens, china, silver, glassware, books, ornaments or other tangible personal property located in Elmwood at the time of my death. . . .   It is my primary testamentary intention to preserve my residence, “Elmwood,” and to maintain it in its present condition, in so far as is possible, for the benefit of my cousins, Margaret Kilgore Cope, Millard Lewis Cope, Jr., and Margaret Parhan Cope.

Yet, the estate's trustee and Watts' remaining cousins recently deduced that while Elmwood could not legally be sold to the university, they could donate it.  In return for the gift, EKU plans give the estate $400,000 to cover the cost of recent improvements.
This seems problematic on many levels. Most obviously, given the context, the "donation" seems to violate the testator's intent. Also, If the cousins were so eager to monetize the property, I'm surprised they didn't make a restraint on alienation argument or push to diversity the trust holdings under duty of care. 
Steve Clowney  

October 3, 2011 in Estates In Land, Future Interests and the RAP, Home and Housing, Trusts | Permalink | Comments (0) | TrackBack (0)

Monday, June 6, 2011

Shepard on Perpetuities Rules

Scott Andrew Shepard (John Marshall Chicago) has posted Which the Deader Hand? A Counter to the American Law Institute’s Proposed Revival of Dying Perpetuities Rules on SSRN.  Here's the abstract:

Encouraged primarily by a fluke in federal estate and gift tax law, more than half of the states have either effectively or entirely abolished their rules against perpetuities in the past two decades. The American Law Institute, deeply troubled by this development, has adopted for its Third Restatement a proposed rule against perpetuities that would essentially prohibit conditional gifts to continue for the benefit of parties born more than two generations after the transferor.

The ALI’s efforts are misguided. The rule against perpetuities was the product of a legal, political and social age very different than our own. It was designed in large part to address concerns, such as inalienability conditions, that do not effectively exist in modern law, either because the evolution of property structures has dealt with these problems by other means, or because changes in political and social structure have drained the problematicity from the concerns. While some of the old concerns do remain, in modified form, the RAP provides a poor response to them. It offers a medieval barber’s amputation saw where the job demands a modern surgeon’s scalpel. Though both may save the patient from the illness, the scalpel will do a more exact and reliable job, with far less collateral damage.

This article demonstrates where the ALI went wrong, and fashions the scalpel required to deal with modern iterations of dead-hand control and related problems.

Ben Barros

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June 6, 2011 in Estates In Land, Future Interests and the RAP, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 20, 2011

Merrill on Waste and Melms v. Pabst Brewing Co.

The most recent issue of Marquette's alumni magazine has a fascinating article by Tom Merrill (Columbia) on Melms v. Pabst Brewing Co. and the doctrine of waste.  A must read for anyone who teaches the first-year property course.

Ben Barros

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May 20, 2011 in Estates In Land, Future Interests and the RAP, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 30, 2011

Strand on Inheriting Inequality

Palma Joy Strand (Creighton) has posted Inheriting Inequality: Wealth, Race, and the Laws of Succession on SSRN.  Here's the abstract:

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues for attacking it. Finally, the article proposes two changes in our laws of succession to address this contemporary manifestation of White advantage and Black disadvantage. First, the article explains how civil rights considerations support existing proposals that inheritances be taxed as windfall income to those who receive them (as are lottery winnings currently). Second, the article identifies a need for revising intestacy law to provide heirs with clear title to assets, especially homes belonging to families of modest wealth whose wealth is primarily the value of those homes.


Ben Barros

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March 30, 2011 in Estates In Land, Future Interests and the RAP, Recent Scholarship, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 27, 2010

Contingent Remainders and Executory Interests

Steve's last post mentioned a recent discussion of contingent remainders and executory interests on the Property Prof listserv.  In case you don't have access to the listserv, and are curious about the discussion, here is a quick summary.  The question involved this conveyance:  "to A for life, then to A's children who reach the age of 21."  A is alive, and has two children, B, age 24, and C, age 17.  A has a life estate, and B has a vested remainder subject to open.  But what does C have?  A contingent remainder or an executory interest?  C's interest looks a bit like a contingent remainder, in that it will become possessory only at the natural end of the preceding estate, but it also looks like an executory interest, in that it will divest part of B's vested remainder when and if C turns 21.  The majority view on the listserv was that under modern law, C should be seen as having an executory interest, though there were still a few folks who thought it was best seen as a contingent remainder.  There also was consensus that the distinction between the two doesn't matter in modern law, so this was a true academic debate in every sense of the word "academic."

Ben Barros

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October 27, 2010 in Future Interests and the RAP | Permalink | Comments (1) | TrackBack (0)

Is Property Dead?

For those not on the propertyprof listserve, let me report that there has been a very lively discussion about future interests over the last week or so.  As I have followed the email thread, I have been remarkably impressed by the passion, learning, and intellectual discipline of my colleagues.  The conversation has been scholarly yet accessible, and full of strong opinions yet remarkably cordial.  All in all, it's been a real advertisement for everything that's great about working in the property field.

And yet...  And yet, the discussion has also left me a little cold.  The subtle difference between executory interests and contingent remainders has sparked more discussion than any other topic over the last year?  Really?  It just feels small somehow, persnickety even.  Disciplines naturally ebb and flow over the course of years.  Is property just in a lull? 

Steve Clowney

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October 27, 2010 in Future Interests and the RAP | Permalink | Comments (2) | TrackBack (0)

Wednesday, September 30, 2009

Salzberg on De Donis

Kenneth Salzberg (Hamline) has posted De Donis on SSRN.  Here's the abstract:

For many hundreds of years, starting at least in the 12th Century, many owners of land granted the land to new owner 'and the heirs of his body' - or some similar form of grant. The grantors continued to do this notwithstanding very substantial changes, over at least two centuries, in the law’s understanding of the effect of such grants. Part I provides an historical and jurisprudential analysis of those grants. Part II attempts to explain why so many land owners continued to make such grants, seemingly at about the same rate, throughout the 200 year period of those substantial changes.

Ben Barros

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September 30, 2009 in Estates In Land, Future Interests and the RAP, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 16, 2009

Humbach's Estates and Future Interests Tutorials

From John A. Humbach at Pace:

Free Online Tutorials:  Estate System and Basic Future Interests for first year Property

Many regard the estate system and basic future interests as intricate and tedious. Indeed, for many law students these subjects are the hardest thing they do in their first year.

To help with this, I have developed two online tutorials that are absolutely FREE: The Estate System and Basic Future Interests. They are available without charge over the internet to anybody who wants to use them.


The tutorials present the traditionally “difficult” estates material in a steady progression of easily absorbed bite-sized portions. Numerous student users at my school have told me that the lessons provide a relatively quick and painless presentation of these subjects. Yet, the treatment is also thorough.


The two tutorials, along with a set of online “drill” questions (also free to all),  not only provide students a helpful learning supplement and review but they also let the professor shorten and even (if desired) potentially eliminate the class time spent on estates and future interests. There is also an optional free online proficiency test (I require my students to attain 90% proficiency, far higher than I have ever achieved, on average, using traditional teaching methods alone.)


I do not make money on these online tutorials and do not ever expect to. My time spent in creating them is amply repaid just knowing that students benefit from using them. My goal right now is to make them more widely known and utilized.


I urge you to try the online tutorials for yourself and to recommend them to your first-year students.


The tutorials and exercises can be found at my professorial website.


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September 16, 2009 in Estates In Land, Future Interests and the RAP, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 21, 2009

Davis and Brophy on Family, Property, Will and Trust in the Antebellum South

Stephen Duane Davis II (Law Clerk, U.S. District Court, Northern District of Alabama) and our own Alfred L. Brophy (UNC - Chapel Hill) have posted The Most Esteemed Act of My Life: Family, Property, Will, and Trust in the Antebellum South on SSRN.  Here's the abstract:

This paper combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families, and especially how male testators were suspicious of loss of their family's wealth through their daughters' marriages. Second, the testators used sophisticated trust mechanisms for both managing property and keeping it within their families. In the antebellum era, Americans celebrated the ways they harnessed technologies, from the steam engine to the telegraph and printing press, to create wealth and improve society. This study reveals that trusts should be added to that list of technologies that assisted in the creation and management of wealth. Finally, the data reveal the salience of enslaved human property, often managed through trusts after their owners died and also frequently divided between family members, to the maintenance of family wealth.

While some in the United States at the time, including some jurists, as well as politicians and novelists, questioned the desirability to our country of inheritance, the Greene County data show an extraordinary devotion to maintenance of family wealth. The findings in 'The Most Esteemed Act of My Life' invite further study in other places in the South, as well as in the North, to test the extent to which the existence of wealth (particularly a wealth based on human property) led to different patterns of bequest from those seen among some of our nation's wealthiest individuals at critical period of American history.

Al has some further comments on this very interesting article over at the Faculty Lounge.

Ben Barros

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July 21, 2009 in Estates In Land, Future Interests and the RAP, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 5, 2009

Restricting Use of Property From Beyond the Grave

The NY Times has an interesting article on the problem of how to deal with restricted gifts to charities as times change.  

The story in Trinity’s case is a common one for these rifts. An economics professor (whom I don’t know) complained to the Connecticut attorney general’s office that money meant to support his endowed position was being misused. What had been $750,000 some 30 years ago had grown to $9 million. That was far more than was needed to pay one professor, so the college proposed using some of the excess income to pay for scholarships. The professor cried foul. . . .

Iris J. Goodwin, associate professor at the University of Tennessee College of Law, said a fund set up to buy typewriters 100 years ago should still buy typewriters today, even if there was little need for them. Most colleges would probably use the funds to buy computers, but doing so would violate the bequest, she said.

Few would challenge something like this, since typewriters are nearly obsolete. But when money is, say, for the study of Sumerian civilization, there is no legal reason not to finance it, even if the restricted endowment has grown to $30 million and there are only four students.  

I've been thinking about this issue in another context recently.  It seems to me that the trend in Wills & Trusts is to try to honor donor intent above all else.  I'm not sure that makes sense -- I think that honoring donor intent is the right thing to do in the vast majority of circumstances.  But we restrict property owners' ability to use their property during life all the time when there are important policy reasons to do so.  I'm not sure why we shouldn't do the same after death.

UPDATE:  I've had some e-mail correspondence with Iris Goodwin, and she makes the good points that (a) these types of donations are often important sources of funding of counter-majoritarian ideas, and (b) that it is hard to come up with any objective standard for when it is appropriate to depart from donor intent.  I'm sure these points will be familiar to those of you who are more up on T&E issues than me.

Ben Barros

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May 5, 2009 in Estates In Land, Future Interests and the RAP | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 8, 2009

Teaching the Rule Against Perpetuities

The latest issue of The Law Teacher has a short essay by Diane J. Klein (La Verne) titled Why Teach The Rule Against Perpetuities:  Four Good Reasons.  Here are the reasons:

(1) Studying the Rule Against Perpetuities Makes You Smarter

(2) Studying the Rule Against Perpetuities is one of the Most Difficult Things You Will Do In Law School

(3) RAP Problems Have Right and Wrong Answers

(4) The Study of RAP is an Initiation Into Law and Law School

I like the essay, but I think that only point (1) is actually a reason to study the RAP (and a questionable one at that); the rest are reasons to put up with the burden.  I taught the RAP in Property for one major reason:  it is a subject that no lawyer would want to learn on her own in practice.  Teaching the RAP, though, has real costs, in terms of class time that could be better spent on other matters.  Once Pennsylvania (where the vast majority of my students practice) abolished the RAP, teaching the RAP lost out on the cost/benefit analysis.

Ben Barros

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April 8, 2009 in Future Interests and the RAP, Teaching | Permalink | Comments (6) | TrackBack (0)

Friday, December 12, 2008

Fertile Septuagenarian

A couple of days ago, Kaimi Wenger noted this interesting story out of India:

Rajo Devi became the oldest woman in recorded history to ever give birth on November 28, when the 70-year-old delivered a baby girl in India. . . . The baby was conceived through the use of a donor egg that was injected with Ms. Devi’s 72-year-old husband’s sperm. . . . The record age for giving birth has inched up over the years (well, it’s the record if you don’t count Sarah and Abraham in the Bible) passing through the sixth decade — from 62 to 66 to 67 — an occasional woman at a time.

As Kaimi noted, Jee v. Audley no longer looks as absurd as it once did.

Ben Barros

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December 12, 2008 in Future Interests and the RAP | Permalink | Comments (1) | TrackBack (0)

Sunday, September 21, 2008

AALS Donative Transfers Section Panel

The Wills, Trusts and Estates blog has a post about the Donative transfers section panel, which may be of interests to many propertyprofs.  Info on the Property section panels will come in a future post.

Ben Barros

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September 21, 2008 in Conferences, Estates In Land, Future Interests and the RAP | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2008

Harding on Perpetual Property

Sarah Harding (Chicago Kent) has posted Perpetual Property on SSRN.  Here's the abstract:

This paper explores the emergence of perpetual property in a number of discrete areas of property law: the longevity of servitudes in historic and environmental preservation, the ever growing time span of intellectual property rights, the disappearance of the rules against perpetual interests, and the temporally unlimited reach of cultural property claims. While the demise of temporal limitations is itself worthy of recognition and will be the focus of a significant part of this paper, my primary interest is whether these changes tell us something about shifting cultural attitudes to the institution of private property. If it is the case, as a number of prominent sociologists have argued, that an exploration of social attitudes toward time is indispensable to an understanding of our current cultural conditions then exploring temporal limitations in property law will presumably help us better understand what Professor Radin has called the cultural commitments of property. This topic is particularly compelling when one considers that the emergence of perpetual property, with its assumption of stability and permanence, has occurred at a time when speed, flexibility and impermanence are dominant features of our current social conditions. The prevailing conditions in society, even a single generation into the future, are likely to be so different from today that long-term control of property seems anachronistic and paradoxical. So why is it that in an era of rapid technological change we are more willing to tolerate perpetual property interests?

Ben Barros

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September 3, 2008 in Estates In Land, Future Interests and the RAP, Property Theory, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, October 1, 2007

Leona Helmsley and the Dead Hand

I’d like to thank Al, Ben, and Rose for inviting me to guest blog here. 

As Ben said, my first post will be devoted to the so-called Queen of Mean, Leona Helmsley, who died Aug. 20, 2007 at the age of 87.  Leona’s will has been given a lot of attention in the press, mostly because it establishes a $12 million trust for the alleged benefit of her dog, Trouble.  Somewhat less attention has been given to another provision of the will, which imposes a condition on distributions from another testamentary trust created for the benefit of two of Leona’s grandchildren, David and Walter Panzirer.  This clause provides that David and Walter are not entitled to any distributions unless they visit the grave of their father, Leona’s son, “at least once each calendar year, preferably on the anniversary of my said son’s death” (with an exception if David and Walter are prevented from doing so by mental or physical disability).  This provision has been criticized as a bad and clumsy example of dead hand control.  (Some have cleverly suggested that the beneficiaries could satisfy the requirement by visiting the gravesite for a few minutes every two years, provided they do so just before and after midnight on Jan. 1.)

I have previously written about so-called “incentive trusts” such as these, which are apparently becoming more common, although they tend to be discouraged by leading estate planners.  Some would argue that, because Leona has the right to do whatever she wishes with her property during her lifetime, she should be able to attach conditions to its distribution after her death.  Given the abolition in many states of the Rule Against Perpetuities, however, it is now possible to tie up property in a trust for several generations.  Do we really want the Leona Helmsleys of the world to have the power to restrict access to their property indefinitely?  On the other hand, some incentive trust provisions (such as conditions promoting education and hard work) may be socially beneficial, if the beneficiaries are not intrinsically motivated to engage in the desired behavior.  In any event, courts will have to wrestle with these issues in the future as beneficiaries inevitably bring lawsuits to modify or terminate incentive trusts.

Josh Tate

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October 1, 2007 in Future Interests and the RAP | Permalink | Comments (0) | TrackBack (0)

Thursday, September 27, 2007

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

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September 27, 2007 in Estates In Land, Future Interests and the RAP, Real Estate Transactions, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, August 13, 2007

Should We Still Teach the RAP?

So asks Ilya Somin at the VC:

In legal circles, the RAP is virtually a byword for abstruse complexity, and is traditionally one of the most hated parts of the law school curriculum. Forcing law students to learn it is almost a form of hazing, much like making them learn the Blue Book.

But that's not why I'm considering dropping it. I think it should probably be dumped from introductory property courses because virtually every state and most foreign common law jurisdictions have essentially abolished it - either by providing for the creation of "perpetual trusts" or by enacting statutes suspending its operation for 90 years after the death of the previous owner. The RAP takes a good deal of time to read about and explain, and causes endless frustration for both students and property professors. I suspect that that time and energy can be better spent on more productive activities - much like the time we spend learning and applying the Blue Book.

Ilya's point about the changes to the RAP is an important one.  Pennsylvania just abolished the RAP for newly created interests (wait-and-see will continue to apply to pre-2007 interests), and I'd bet that the RAP will be abolished completely within the next twenty years.  Many of the statutory changes, however, still involve some application of the common law rule, which suggests that keeping the RAP in first year Property is a good idea.  The RAP is also something that might be hard to grasp without having some exposure to it in law school, and the Rule does come up in some odd contexts.  On the other hand, teaching it well takes at least four hours of class time.  With time scarce, I wouldn't be surprised if the RAP is increasingly cut out of Property.

Ben Barros

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August 13, 2007 in Future Interests and the RAP, Teaching | Permalink | Comments (3) | TrackBack (0)

Tuesday, March 20, 2007

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

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March 20, 2007 in Estates In Land, Future Interests and the RAP, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)