Property law is the area of law that governs what people own. It’s the area of law that says who can own land and personal items, how they can use them and with what conditions. Property law applies to both real property and personal property. Ownership and use of property is an area of law that impacts everyone in society. Property law is also an important part of estate law, family law and municipal law.
Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights, and obligations thereon.
The concept, idea or philosophy of property underlies all property law. In some jurisdictions, historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty.
Though the Napoleonic code was among the first government acts of modern times to introduce the notion of absolute ownership into statute, protection of personal property rights was present in medieval Islamic law and jurisprudence, and in more feudalistic forms in the common law courts of medieval and early modern England as well.
What is the difference between real property and personal property?
There are two kinds of property: real property and personal property. Real property is land. It can also include things that are attached to the land like a house, commercial buildings, a garage or barn and even trees. Real property is land and the things that go along with land. By contrast, personal property is something that you possess or own that can move. A car is an example of personal property. A desk chair, a computer and anything else that’s not land or buildings is personal property. Most people own at least some personal property.
Property law is primarily state law
Although there are times that the federal government may have something to say about property law, for most people, state law is what matters the most. Each state has their own system for ownership and transfers of real and personal property. When a property lawyer advises clients, they must be aware of the law that applies to their state and their case. There can be significant differences in the laws between states, so it’s important to know what the state and local laws say about the issues involved in each particular case.
Types of property law
Property law may involve many different topics, including:
- Adverse possession – The law gives people the right to claim ownership of property without paying for it in some circumstances. Claiming property by right is called adverse possession. To acquire property by adverse possession, a person must occupy the property for a number of years. Usually, they must live on the property, not in hiding, with a claim of ownership for a decade or more. Adverse possession can be a common issue when neighboring property owners use inaccurate border boundaries for a period of time. The purpose of adverse possession is to settle land disputes and ensure that land is used.
- Eminent Domain – Sometimes, the government may want to take private property for public use. The right of the government to take real property from a private owner is called eminent domain. The government may take the property even if someone objects, but they must compensate the person fairly for the property. Eminent domain is subject to restrictions, and it’s often the subject of legal challenges. Property attorneys work on behalf of their clients both for government agencies and individual landowners as it relates to eminent domain.
- Personal property – gifts, lost property and abandoned property – Real property issues typically depend on the state law. For example, in some states, an engagement ring is a gift. If the marriage doesn’t occur, the person who receives the engagement ring gets to keep it. In other states, an engagement ring is a conditional gift. If the marriage doesn’t occur, the person who receives the ring has to give it back. Each state also has their own rules for how to treat lost and abandoned property.
- Private land use laws like homeowners association rules – Just like the government can restrict the use of property owned by others, private associations can also restrict property use. Property law involves creating, enforcing and challenging private homeowner association laws. While a government attorney may take steps to enforce zoning violations, attorneys act on behalf of private associations in order to enforce property restrictions. There are state laws that control how associations go about establishing themselves as an authority and what they must do in order to create enforceable law.
- Transfers of property and types of ownership – Property owners need to know how they can own their property and what they must do in order to lawfully transfer ownership through sale or gifting. For example, a person may own a piece of property with sole ownership, or they might have a joint tenancy with others. If they have joint tenancy, they may or may not have a right to transfer their share of ownership to someone else at any time or at their death.
- What is a deed? – A deed is a legal document that states ownership of real property. The type of deed that a person has is very important to their legal interest. For example, a warranty deed guarantees the purchaser free and clear ownership in the property. On the other hand, a quitclaim deed only signs over any right that a person may have in the property. Each jurisdiction has rules for how to create and record an effective deed.
- What is an easement? – An easement allows a person to use property that’s owned by someone else. The right to use property owned by someone else is called an easement or a right of access. If a person has no other way to access their property except by traveling over someone else’s property, they likely have an easement over the property. How a person can use an easement can often be highly debated and the subject of litigation.
- Wild animals and natural resources – A piece of real property may also have wild animals and natural resources. These resources may be on the land all the time, or they may be intermittently on the property. Property laws concern when and how a property owner may use natural resources on their property. Oil and gas lawscan also come into play as the law determines how a person must treat wild animals and natural resources that happen upon their land.
- Zoning laws – A government can restrict what a person does with their property. Laws that restrict the use of real property are called zoning laws. For example, a government can restrict the use of a property to residential, commercial or industrial uses. People who purchase property in an area must know zoning restrictions and follow them. Zoning laws can be generic like restricting a property to residential use, or they can be quite specific like requiring buildings to have a certain amount of setback from the road.
Emerging issues in property law
Property laws continue to grow and change. As drones become more common, the law must grapple with when a drone can photograph someone else’s property and when they can enter the airspace above someone’s property. In addition, the Internet has made it easier than ever to rent out a home. As short-term rentals become more popular, they also become more controversial. Real property and personal property issues continue to emerge, and laws continue to change. Property lawyers have the opportunity to create, develop and challenge new property laws.
Who practices property law?
Property law is primarily state law, but there may be constitutional challenges or federal government ownership issues involved in property law. Property lawyers generally work throughout the United States. They generally practice transactional law, but they must be prepared for litigation if their case goes to court. Property lawyers live and work in large cities and small towns. They may be city attorneys, or they may work on behalf of individual property owners.
Why become a property lawyer?
For lawyers who enjoy technical writing and attention to detail, property law can be a great choice for a legal practice. Property law involves detailed reading and writing. Even one word can have great meaning in property law. Lawyers often develop longstanding relationships with their clients, so practicing property law can be the foundation of a stable legal practice for solo attorneys, small firms and large firms alike.
Making a career out of property law
Property lawyers help clients have the confidence to know that they own the real and personal property that they want to own and with terms that they understand. Property lawyers help clients transfer ownership of property. They understand the nuances of state and local law in order to help their clients acquire, use and transfer property.