The Comparative Law of Property

Stare decisis is a legal principle that requires courts to follow the precedents set by higher courts in similar cases.

In civil law systems, legislation is the primary source of law, followed by case law, custom, and legal scholars.

In common law systems, ownership is viewed as a bundle of rights, including the right to possess, use, enjoy, and dispose of property.

A fee simple is an inheritable, freehold estate in possession, while a life estate is a leasehold estate that terminates at the death of the life tenant.

The rule against perpetuities is a common law rule that prohibits the creation of future interests that may vest more than 21 years after the death of the transferor.

A mortgage is a lien on property, a loan secured by property, and a contract between a borrower and a lender. A deed of trust is a transfer of title to a trustee, a sale of property with a right of redemption, and a contract between a borrower and a trustee.

An easement is a right to use the land of another, an interest in land, and created by grant. A covenant is a promise to do or refrain from doing something, a personal obligation, and created by contract.

A warranty deed contains covenants of title, which are promises by the grantor that the grantor has good title to the property and that the property is free from encumbrances. A quitclaim deed does not contain any covenants of title.

A lien is a charge against property, a security interest, and created by operation of law. A mortgage is a transfer of title to a creditor, a debt instrument, and created by contract.

A foreclosure is a judicial proceeding initiated by the lender that results in the sale of the property. A power of sale is a non-judicial proceeding initiated by the borrower that results in the transfer of title to the lender.

Adverse possession is the acquisition of title to property by possession, based on the principle of abandonment, and requires the possession to be open, notorious, exclusive, and hostile. A prescriptive easement is the acquisition of a right to use property by prescription, based on the principle of adverse use, and requires the use to be open, notorious, continuous, and adverse.

A zoning ordinance regulates the use of land, is enacted by a local government, and is more restrictive than a building code. A building code regulates the construction of buildings, is enacted by a state government, and is less restrictive than a zoning ordinance.

Eminent domain is the power of the government to take private property for public use, is a taking of property, and requires compensation. Police power is the power of the government to regulate the use of property, is a regulation of property, and does not require compensation.

A real covenant runs with the land, is created by deed, and is enforceable at law. An equitable servitude does not run with the land, is created by contract, and is enforceable in equity.