Chapman University Dale E. Fowler School of Law Associate Dean Donald Kochan’s article “
” was published as the lead article in Issue 3 of Volume 23 of the
New York University Environmental Law Journal
From the abstract:
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.
Donald J. Kochan
is the Associate Dean for Research & Faculty Development and Professor of Law at Chapman University Dale E. Fowler School of Law. Dean Kochan has published more than 35 scholarly articles and essays in well-respected law journals. His work has been cited in more than 300 published law review articles, and his articles have been downloaded more than 11,000 times from SSRN and BePress. Among his numerous activities, Dean Kochan currently is a Contributing Editor of the “Keeping Current-Property” section in Probate & Property, the bi-monthly magazine of the Real Property, Trust & Estate Law Section of the American Bar Association, serves as the Chair-Elect for the Section on Property Law for the Association of American Law Schools, serves as a Co-Editor of the Jotwell section on Property Law, and serves as Vice Chair of the Committee on Environmental & Natural Resources Regulation of the ABA Section on Administrative Law & Regulatory Practice. Dean Kochan teaches Property I & II and Administrative Law, among other courses. Related recent works include “
Dealing with Dirty Deeds: Matching Nemo Dat Preferences with Property Law Pragmatism
,” published in 2015 in the
Kansas Law Review
, and “
A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective
,” published in 2015 in the
Michigan Journal of Environmental & Administrative Law