Teaching the Basic Property Course in U.S. Law Schools

By Roger Bernhardt and Joanne Martin

Roger Bernhardt is a professor of law at the Golden Gate University School of Law in San Francisco. Joanne Martin is a Senior Research Fellow with the American Bar Foundation in Chicago.

Real estate practitioners report increasing difficulty in finding young lawyers sufficiently familiar with the essential concepts of real estate practice that had previously been learned in law schools. They also observe that their law firms are consequently required to provide more “remedial” education to compensate for this deficiency than was the case in the past. There is a perception that many property courses are becoming less adapted to modern real estate practice as professors turn to more theoretical—and more academically interesting, although less useful—principles. At the same time, it remains true that a substantial number of lawyers specialize in or spend a significant amount of their time in the practice of real estate law—an activity that often combines arcane and difficult rules that must be memorialized in complex and elaborate documentation in transactions often involving large sums of money. The risk of malpractice is high and the consequences of lack of preparation and thoroughness costly. Because underprepared new associates cannot be counted on to perform the essential tasks these projects require, they are either avoided or forced to undertake prolonged and costly learning apprenticeships.

To investigate and address these concerns, the ABA Section of Real Property, Probate, and Trust Law created the Task Force on Real Property Law School Curricula (“Task Force”) and charged it with evaluating the basic property course as it is currently taught in the nation’s law schools. (Members of the Task Force are identified in the box on page 42.) The Task Force undertook an investigation of the current required property course—which provides the only exposure the majority of law students have to this area of law. Building on several earlier studies conducted by the property teaching profession itself and working with the American Bar Foundation, a survey of law professors currently teaching the basic property course was undertaken. Completed surveys were received from 360 law professors teaching at 171 ABA-approved law schools.

Course Credit

The Task Force’s first concern was with the number of credit hours allocated to the basic property course, which is that course taken by first-year day students and first- or second-year night students. The predominant course hour allocation to the basic property course is now four hours, a measure adopted by 48.7% of the 191 ABA-approved law schools. The once traditional six-hour format is now employed in only 27.2% of the schools. Five-hour property courses are taught in 19.4% of ABA-approved law schools. Six law schools offer only three-credit-hour property courses. In general, three- and four-credit-hour courses are taught within a single semester, while six-credit-hour courses span two semesters. The five-unit version is taught over two semesters in 24 law schools and in one semester in 10 others.

Reduced crediting of the basic property course is closely connected to law school ranking. Table 1 sets out course crediting patterns against the U.S. News & World Report’s rankings of the law schools in which the responding professors are teaching. The four-credit-hour course is the predominant format experienced by law professors teaching in the top 20 law schools, while those teaching in law schools ranked in the fourth tier are more likely to adhere to the six-credit-hour course format. There is a clear pattern of decline in credit hours allocated to the required property course as the school ranking increases.

Topic Coverage

To determine what subjects are being covered in basic first-year property courses, and how course coverage is being affected by credit hour reductions, the Task Force developed a list of topic areas and asked law professors to identify the number of 50-minute clock hours they devote to each topic. Table 2 on page 38 sets out the percentage of responding law professors who devote at least some class time to each of the various topics by the number of course credit hours allocated to the entire course.

Four topics are universally covered, whether the course is taught in a four-, five-, or six-unit course: adverse possession; concurrent ownership; servitudes, including both easements and covenants running with the land; and estates, including future interests. Other topic areas are less likely to be touched on as course credit shrinks. Slight declines in the frequency of coverage occur for landlord/tenant, land use regulation, personal property, and nuisance. The major effect of course credit hour reduction is on the coverage of real estate transactions. While 95.7% of the law professors teaching a six-credit-hour course spend at least some time on this subject, only 59.1% of those teaching a four-credit-hour course do so. Real estate financing is also affected—82.6% of the responding law professors teaching a six-credit-hour course touch on the subject, compared to 42% of those teaching four-credit-hour property courses. It is clear that the major effect of course credit hour reduction is the elimination of what formerly was called “conveyancing” from first-year property.

It also should be noted that some topics receive slightly increased frequency of coverage as course credit hours shrink. The percentage of law professors including intellectual property in their courses goes up from 57.6% to 61.3% as the credit hour allocation declines from six to four. Also the percentage of property professors including “other” topics (which include introduction to property, theory, philosophy, and history) increases from 34.8% to 56%. Some professors appear to be taking advantage of course credit hour reduction to redesign their courses.

Variations in topic coverage also were examined across school rankings. As shown in Table 3 on page 39, the patterns are, as might be expected given the correlation between ranking and course credit hour allocation, quite similar to those seen in the previous table. Adverse possession, concurrent ownership, servitudes, and estates are included in virtually all property courses, regardless of the ranking of the law school. Personal property and nuisance are covered with varying frequency across the different ranking groups in no particular pattern. More significantly, as the level of school ranking increases, the frequency of coverage of landlord/tenant and land use declines somewhat and that of real estate transactions and real estate financing falls considerably. The aversion to real estate transactions appears to derive both from a desire to emulate what is being done at the top-tier law schools and a need to cut something out of the course as its crediting shrinks.

Time Devoted to Various Topics

Table 4 on page 40 sets out the average percentage of class time devoted to each topic across property courses categorized by the number of credit hours allocated to the course. This presentation depicts the composition of the typical basic property course as taught in various credit hour formats. In six-unit courses, topics, ranked according to class time, are: (1) transactions, (2) estates, (3) servitudes, (4) landlord/tenant, (5) land use, (6) personal property, and (7) concurrent ownership. In four-unit courses, the ranking is: (1) estates, (2) servitudes, (3) landlord/tenant, (4) land use, (5) transactions, (6) concurrent ownership, and (7) adverse possession. Course credit reduction leads to drastic shrinkage of attention to real estate transactions and reduced attention to real estate financing and personal property. Coverage of estates, servitudes, and concurrent ownership is less likely to be reduced and, as a result, these topics become correspondingly larger components of the course.

The elevation of estates and servitudes over transactions as courses are reduced from six to four units is clearly due to preservation of the former at the expense of shrinkage of the latter. Professors appear unwilling to reduce their coverage of estates and servitudes as their credit hours are reduced; they will somewhat reduce coverage of personal property and real estate finance; and they will make the most significant cuts in their coverage of real estate transactions. As shown below, transactions is allocated only 8.5% of total class time in four-unit courses compared to 15.1% of class time in six-unit courses; whereas estates coverage comprises 16.7% of four-unit courses compared to 14.1% of six-unit courses.

Attitudes About Coverage

The survey questionnaire asked professors to identify the topics to which they would prefer to devote more class time. Among those teaching five- and six-credit-hour courses, such preferences were for intellectual property, land use, and natural resources. Law professors teaching four-hour courses reported that the topics deserving more attention were land use, intellectual property, and conveyancing. The preference for focusing greater attention on conveyancing and land use among those teaching four-unit courses is hardly surprising, given that both of these topics suffer significantly when credit reduction occurs.

The topic identified most frequently as the one to which professors would prefer to devote less time was estates in land and future interests. Because, as already noted, that topic does not shrink correspondingly as course credit is reduced, that too is unsurprising. The paramount position of estates in land may seem anomalous to many students who are made painfully aware of the contradiction between its complexity and its complete lack of significance to both modern real estate and estate planning.

Real Estate Transactions

Law professors who had been teaching property for five or more years were asked whether their coverage of real estate transactions had increased or decreased over that time. Although 61.3% reported that coverage of this topic had remained the same, 24.5% said that they had decreased coverage of real estate transactions. On the other hand, 14.2% indicated that they had increased coverage, which appears to be a somewhat surprising finding in the face of credit reduction.

Our questionnaire also asked about the inclusion of discussions of the types of residential and commercial real estate transactions on which practitioners work. About 70% of professors who responded to the survey devote some time to residential real estate transactions, but the likelihood of coverage of this topic varied by the number of credit hours allocated to the course. About 91.3% of those who teach six-credit-hour courses devote some class time to a discussion of residential real estate transactions compared to 77.9% of the law professors currently teaching five-hour courses and 58.9% of those who teach four-hour courses.

The correlation between patterns of coverage and law school rankings is again apparent. As detailed in Table 5 on page 41, the likelihood that this topic will be covered declines as the ranking of the law school increases. While 84% of the law professors teaching in fourth-tier schools who responded to the survey touch on the topic of residential real estate practice, only 56.8% of those teaching in the top 20 law schools do so.

Only 36.9% of the responding professors devote some class time to the type of commercial real estate transactions that occupy so much of practitioners’ time, and again the likelihood that this topic is covered is greater among those teaching larger courses: 51.6% of the respondents who teach six-hour property courses and 43.3% of those teaching five-hour courses do so, compared to 28.5% teaching four-hour courses. On the other hand, the pattern across law school rankings is not as pronounced as that seen for the coverage of residential real estate transactions practice. Although commercial real estate transactions practice generally gets less coverage as school rank increases, as shown in Table 6 on page 41, the subject is covered by about the same percentage of professors in top-tier schools as those in third-tier law schools.

Perceptions Regarding Sufficiency of Credit-Hour Allocation

The curtailment of course credits provokes diverse academic reactions. More than half of the property professors responding to the survey (57.2%) feel that the course crediting for the basic property course at their schools is appropriate, while one-third of them (33.5%) believe that it should be increased. Only 9.3% indicate that the number of course credit hours allocated to property should be decreased.

As might be expected, however, there is a significant relationship between the actual credit-hour allocation and attitudes regarding its appropriateness. As detailed in Table 7 on page 42, the responding law professors who teach courses of less than six credit hours are more likely to believe that the number of credit hours should be increased—about a third of those teaching five-credit-hour courses and 44.9% of those teaching four-credit-hour courses. The majority of law professors teaching six-credit-hour courses feel that the allocation is appropriate; only 16.1% are of the opinion that it should be decreased.

The desire of faculty for an increase in the credit hours allocated to the basic property course is stronger in schools ranked lower than the top 20, where, in general, it is taught as a smaller course. As shown in Table 8 on page 42, law professors teaching property in the next tier of law schools—ranked from 21 to 50—exhibit the strongest preference for increase, indicating perhaps that those schools follow the lead from above with reluctance.

Bar Exam Coverage

The Task Force also attempted to identify the type and frequency of real property questions included on the three Multistate Bar Examinations that have been released by the National Conference of Bar Examiners and to fit them within the categories used in the survey. Ordering topics according to bar examination inclusion in these three MBEs leads to the following ranking: (1) conveyancing (33 questions); (2) servitudes (18 questions); (3) estates (16 questions); (4) real estate finance (9 questions); (5) concurrent ownership (8 questions); (6) landlord/tenant (6 questions); and (7) adverse possession (2 questions). There were no questions on land use on these three exams.

Although the purpose of the law school curriculum is not to teach to the bar exam, the disparities between course and bar exam coverage are noteworthy. Real estate transactions is far and away the most frequently tested property topic but is subject to less coverage as property course sizes diminish and/or school rankings increase. To the extent that bar examiners are attempting to reflect the profession’s perception of public needs through their emphasis on real estate transactions, the impression given by law schools—especially the more elite—is of movement in the opposite direction. This imbalance is aggravated by the extensive inclusion of real estate finance on the bar exam compared to its almost nonexistent coverage in most property courses.

Recommendations

The concern among the members of the profession regarding the declining level of preparation of young lawyers for real estate practice is not unfounded. As detailed in the discussion of the survey results above, there has been a decreasing emphasis on the teaching of property topics generally over time in the nation’s law schools as evidenced by the decline in credit hours allocated to the first-year required property course. It is also quite clear that the principal property topic that receives less coverage as credit hours decline is real estate transactions.

The correlation between reduced course credit hours and law school rankings contributes to this concern. Property courses in highly ranked law schools are more likely to be taught in a four-credit-hour format and, as a consequence, are less likely to include coverage of real estate transactions. As curriculum committees and faculty members in lower-tier law schools strive to mirror the norms set by the more elite schools, this pattern becomes more prevalent.

Based on the findings of the research, the Task Force offers the following recommendations:

1. Preserving the Credit Value of the Basic Property Course

The Task Force regrets the development now occurring in law schools to reduce the time spent on teaching the basic property course from six- to four- (or even three-) credit-units. The Task Force believes that this trend deprives students of the knowledge and skills they will need to practice in the real property area. From an academic perspective, property has not become a simpler course. Although the importance of the old convoluted rules of estates in land has been dramatically reduced, that topic simplification has been more than offset by the addition of land use as a major component, along with the inclusion of environmental considerations in conveyancing, and with the separation of landlord/tenant law into distinct doctrines of commercial leasing and residential tenant protection. Perhaps the law of easements and covenants may ultimately achieve some doctrinal simplification and consistency because of the new Restatement of Servitudes, but the immediate effect of that work appears rather to be an increase in complexity caused by the need to embrace yet another alternative set of possible rules.

The Task Force believes that an effective introduction to real property concepts still requires six units. The Task Force acknowledges that this can be accomplished through division of the course into first-year and advanced components, but it believes that such an arrangement constitutes an acceptable alternative only when students are sufficiently persuaded to take all of the courses necessary to cover the entire spectrum of property rules, which the Task Force doubts is in fact the case. The Task Force believes that law firms will find that law school graduates who have taken no more than four hours of property in their law school careers will not be as equipped to practice in that field, or to contribute in their early years of practice, as those with more courses offering more time and covering a greater variety of topics.

The Task Force further regrets the effect that the reduction of the basic property course has on topic coverage. As the next two recommendations analyze at greater length, credit reduction appears to have led to an increased emphasis on estates in land and a reduced coverage of real estate transactions, both of which the Task Force regards as undesirable consequences.

2. Reducing Coverage of Estates and Future Interests

Comparative course coverage of estates in land and future interests has increased from 14.1% in six-unit courses to 16.7% in four-unit versions (Table 4). The Task Force expresses its strong opposition to this increase and to what it regards as bloated coverage of the topic in general. The Task Force’s research indicates that this is the area most frequently cited by professors as one they would prefer to devote less rather than more time covering. The Task Force concurs in that opinion. Not only does estates have little or no relevance for modern real estate practice, but the method of analysis that underlies it is inconsistent with most contemporary legal thought, relying more on historical dogma than on contemporary policy arguments and being too susceptible to “right or wrong” answers rather than to consideration of nuanced alternatives.

The retention and significance of estates is probably due more to the influence of the bar exam than to the natural inertia of professors to teach what they had been taught when they were students. The Task Force cannot object to the desire of professors to prepare their students for the bar exam, but it urges both academics as well as those who administer bar examinations to minimize the distortion created by the false impression that this topic is a critical component of modern real estate practice or contemporary property law.

3. Continuing Minimal Coverage of Real Estate Transactions

The Task Force expresses its regret that “conveyancing,” once the main component of basic property courses, has been the topic that has suffered most from the recent credit reductions discussed above. The Task Force believes that transactions constitutes the lifeblood of the real estate practice of most law firms—large as well as small—and that a proper grounding in this area is rightly regarded as indispensable by all practitioners in the field. Its traditional components of contracts (vendor-purchaser), deeds (including execution and delivery), and priorities (recording) have grown to now also include real estate brokers, physical defects (including contamination), contemporary escrow practices, title insurance, and real estate finance, much of which is not covered elsewhere in other law school courses. Transactions remains the largest single area of property covered in the bar exam, far and away exceeding all other areas. It is the opinion of the Task Force that—even when property is taught only in a four-unit form—there must be at least some introduction to conveyancing fundamentals, especially priorities, in that first-year course itself, notwithstanding the availability of more thorough coverage in an advanced real estate transactions or finance course.

4. A Commitment to Scholarship

The Task Force additionally regrets the negative effect that the shrinkage of the number of credit hours in the first-year property course is likely to have on scholarship in the real property law area. This de-emphasis on the course, coupled with the finding from the survey that almost three-quarters of the responding law professors also regularly teach nonproperty-related courses and that their scholarship is more likely to focus on these other areas, highlight this concern across the practicing bar that looks to the academic community to lead the development of the law in this area. In the view of the Task Force, law schools should make a commitment to legal scholarship in the real property law area on a continuing and sustained basis.

5. Covering Land Use on the Bar Exam

Although bar exam coverage is not the main focus of this report, the Task Force notes with regret the complete absence of land use on the exams released for review. As the tables in this article show, that field is covered by more than three-quarters of the responding law professors (91.1% of those teaching in the top 20 law schools), and ranks either fourth or fifth in terms of the percentage of class time spent on it in courses of four, five, and six credit hours. The Task Force believes that the bar exam would be significantly improved if bar examiners announced their intent to cover this area in the future.

The Task Force

The Task Force’s chair is David K. Y. Tang (2005–08). The co-chair is Edward T. Brading (2006–08), and the former co-chair is Nancy J. Appleby (2005). The members of the Task Force have included Roger Bernhardt (2005–08), Daniel J. Homick (2005–06), Carl H. Lisman (2005–08), Jack C. Murray (2005–06), Joyce Palomar (2005–08), Roseleen Parker Rick (2005–08), Sidney G. Saltz (2006–08), Stephanie M. M. Smith (2006–08), Susan G. Talley (2005–06), and Dale A. Whitman (2005–08).

The Task Force is interested in receiving comments from Section members on the recommendations set out in this article. Comments and suggestions should be sent to Joanne Martin, American Bar Foundation, 750 North Lake Shore Drive, Chicago, IL 60611-4403, (312) 988-6513, Joanne@abfn.org