KeepingsNew York University Environmental Law Journal (2015)
Individuals usually prefer to keep what they own; property law develops around that assumption. Alternatively stated, we prefer to choose whether and how to part with what we own. Just as we hold affection and attachment for our memories, captured in the lyrics of the George Gershwin classic, so too do most individuals adopt a “they can’t take that away from me” approach to property ownership.
We often focus on the means of acquisition or transfer in property law. We look less often at the legal rules that support one’s ability to keep what one owns. Yet, it is precisely the ability to keep property that motivates its acquisition. This ability serves as a necessary element in offering any property up for sale. The property’s value is directly correlated with the buyer’s confidence in the seller’s authority to transfer—which can only exist if the owner also has the authority to keep it, i.e. not transfer—and with the buyer’s confidence in her own ability to keep the property once she acquires it in the transfer.
This Article catalogs and evaluates a variety of doctrines, assumptions, presumptions, principles, and guidelines that exist for the purpose of aiding owners in keeping their property. I use “keepings” and “keepings rules” as terms that refer collectively to these parts of the substantive law, procedural rules, and legal infrastructure. Included is an analysis of keepings rules within a Hohfeldian framework of immunities. In conclusion, the Article explains why these keepings rules are a necessary and vital component of an effectively operating property system.
- property rights,
- property presumptions,
- right to keep,
- Hohfeldian immunities,
- labor theory,
- lost property,
- land use,
- adverse possession,
- statute of frauds,
- rule of law,
- third party neutral enforcement
Citation InformationDonald J. Kochan, Keepings, 23 N.Y.U. Envtl. L.J. 355 (2015).