Restatement (First) of Property

Editorial note. The American Law Institute, founded in 1923, undertook the Restatement of Property as one of its first great projects. Reporter Harry A. Bigelow, and later Richard R. Powell, directed the work through the Institute's Council and Advisers. The five volumes were published serially: I (1936), II (1936), III (1940), IV (1944), V (1944). The First Restatement's task was to reduce a corpus of Anglo-American case law—much of it inherited unaltered from medieval English sources—to a coherent statement of modern American doctrine.

Editorial note. To restate the general common law of property in the several States, to identify and reconcile divergences, and to articulate principles in a form usable by courts, legislatures, and practitioners.

Editorial note. Estates in land (fees, life estates, terms for years); future interests (reversions, remainders, executory interests); the Rule Against Perpetuities and cognate rules; restraints on alienation; concurrent estates; servitudes (easements, real covenants, and equitable servitudes); and landlord-tenant relations.

Editorial note. Volume I covers estates in land; Volume II, construction of instruments creating property interests; Volume III, future interests and the Rule Against Perpetuities; Volume IV, restraints on alienation and powers of appointment; Volume V, servitudes and related interests.

Editorial note. Each section states a black-letter rule, followed by Comments (explanatory prose), Illustrations (worked examples), and Reporter's Notes (case citations and doctrinal history). Sections are grouped into Chapters and Divisions corresponding to the classical taxonomy of property interests.

Editorial note. The First Restatement of Property draws on the common law inherited through the great English statutes—De Donis Conditionalibus (1285), Quia Emptores (1290), the Statute of Uses (1536), the Statute of Wills (1540), and the Statute of Frauds (1677)—as received into American jurisdictions. It has been superseded in part by the three Third Restatements of Property (Servitudes, Mortgages, Wills and Other Donative Transfers), which supplant the corresponding portions of the First. No Second Restatement of Property was published.

Editorial note. On subjects untouched by the Third Restatements—estates, future interests, the Rule Against Perpetuities, and restraints on alienation—the First Restatement remains the authoritative Restatement formulation and is routinely cited by American courts.

Editorial note. State courts have adopted numerous First Restatement sections as their state's common-law rule. Modern statutory reforms of the Rule Against Perpetuities (e.g., the Uniform Statutory Rule Against Perpetuities, 1986) build upon the First Restatement's articulation of the common-law rule.

Editorial note. Courts routinely cite the First Restatement for propositions concerning classification of estates, construction of ambiguous conveyances, the vesting of future interests, and the validity of restraints on alienation. Its Illustrations are frequently reproduced in judicial opinions.

Editorial note. Restatements are secondary authority prepared by the American Law Institute; they are persuasive, not binding. A Restatement section becomes binding within a jurisdiction only when adopted by that jurisdiction's highest court or legislature. Where a Restatement conflicts with binding primary authority in a jurisdiction, the primary authority controls.

Editorial note. See Restatement (Third) of Property: Servitudes (2000) (superseding Volume V); Restatement (Third) of Property: Mortgages (1997); Restatement (Third) of Property: Wills and Other Donative Transfers (1999–2011); Uniform Statutory Rule Against Perpetuities (Unif. L. Comm'n 1986).

Editorial note. For the practitioner, the First Restatement remains the working reference for estates, future interests, the Rule Against Perpetuities, and restraints on alienation; for the other three fields, its Third-series successors control.