, INSTRUCTOR'S MANUAL
FOR
ROBERT J. AALBERTS
REAL ESTATE LAW
Eighth Edition
PART I
THE LEGAL SYSTEM AND THE NATURE
OF REAL PROPERTY
CHAPTER I
INTRODUCTION TO THE LEGAL SYSTEM
CHAPTER OUTLINE
I. Sources of Law
A. Constitutions
B. Statutes
C. Administrative Law
D. Judicial Decisions
1. Common Law
2. Equity
II. The Role of Ethics in the Law
III. The Court System
A. State Courts
B. Federal Courts
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use
as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for
classroom use.
1
,IV. Legal Procedure
A. Commencement of Legal Action
B. The Defendant's Response
C. Discovery--The Deposition
D. Other Methods of Discovery
E. The Trial
F. Concluding Stages
V. Alternative Methods of Resolving Disputes
A. Settlements
B. The Administrative Process
C. Neutral Third Party
A NOTE TO INSTRUCTORS REGARDING ETHICAL ISSUES
Ethics is a highly abstract discipline for which an in-depth coverage is beyond the scope of this
book. However, within each chapter we have included ethical and public policy issues to provide
students with the opportunity to learn and debate real estate law and practices as well as public
policy relating to real estate from an ethical perspective. These “Ethical and Public Policy
Issues” include Question 10 at the end of each chapter and an “Ethical and Public Policy Issues”
box containing a picture (a fountain pen and paper signifying that the pen is mightier than the
sword) at pertinent junctures throughout every chapter.
There are, of course, many theories of what constitutes and justifies ethical or moral behavior.
This book will generally focus on three fundamental ethical theories. The first, called the
consequentialist or teleological approach, focuses on the consequences of an action as a means of
judging its moral correctness. Utilitarianism is the theory most closely associated with teleology.
Under utilitarianism the morally correct outcome is that which gives the greatest good to the
greatest number. Real estate issues, especially those relating to public policy, are often justified
under this theory. As a result of the significant economic importance of property, utilitarianism
is crucial in justifying private laws and transactions that are efficient and cost-effective, even if
they appear to trammel on the rights of a few. Utilitarianism weighs costs versus benefits and
how they relate, in varying degrees, to multiple stakeholders in justifying a moral position.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use
as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for
classroom use.
2
, The second theory, called the deontological approach (sometimes referred to as duty-based ethics
or formalism), involves rights and duties. Ethicists argue that humans derive rights generally
from four sources. We derive rights first by simply being human beings under the natural law.
We also derive rights under law by being citizens, legal occupants or even sometimes as illegal
occupants of a particular country, state, or local jurisdiction. Third, humans gain rights by their
positions and lastly by those rights created in contracts. Of course, when a person has a moral
right, someone else owes her a moral duty just as a legal right corresponds always to a legal
duty.
Real estate is built upon property and contractual rights and duties. While rights derived by law,
position, and contract may very well be legal, they can sometimes be difficult to justify morally.
Conversely, a moral right or duty may not actually impose a legal right or duty. These moral
dilemmas will be discussed throughout the chapters as well.
The last theory focuses on principles of fairness and justice. Fairness and justice, often
associated with the 20th century American philosopher and ethicist John Rawls, states that a
moral act is one that treats similarly situated people in a similar manner with regard to process
and outcome and the ethical solution in proportion to the act. Thus principles of procedural and
distributive justice, often studied by our students in management and legal environment of
business courses, will be applied to various ethical dilemmas arising in real estate scenarios. In
particular, these issues become important when the government imposes laws on private property
owners, such as in eminent domain, regulatory takings, zoning, and environmental regulations.
IMPORTANT CONCEPTS AND RELATIONSHIPS FOR STUDENTS TO KNOW
1. Know what sources of law are created at the federal, state and local levels and
examples of what they regulate in real estate.
2. Know the difference between public and private law.
3. Know how the U.S. Constitution is divided between the three powers of government-
legislative, executive and judicial- as well as the Amendments to it.
4. Know about the 14th Amendment and why it is particularly important.
5. Know the relationship of the U.S. Constitution to state constitutions.
6. Know from what source of government statutes are created and how they relate to
judicial decisions.
7. Be aware that courts also interpret statutes and must apply certain rules, such as the
intent of the legislature, to accomplish this.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use
as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for
classroom use.
3
FOR
ROBERT J. AALBERTS
REAL ESTATE LAW
Eighth Edition
PART I
THE LEGAL SYSTEM AND THE NATURE
OF REAL PROPERTY
CHAPTER I
INTRODUCTION TO THE LEGAL SYSTEM
CHAPTER OUTLINE
I. Sources of Law
A. Constitutions
B. Statutes
C. Administrative Law
D. Judicial Decisions
1. Common Law
2. Equity
II. The Role of Ethics in the Law
III. The Court System
A. State Courts
B. Federal Courts
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use
as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for
classroom use.
1
,IV. Legal Procedure
A. Commencement of Legal Action
B. The Defendant's Response
C. Discovery--The Deposition
D. Other Methods of Discovery
E. The Trial
F. Concluding Stages
V. Alternative Methods of Resolving Disputes
A. Settlements
B. The Administrative Process
C. Neutral Third Party
A NOTE TO INSTRUCTORS REGARDING ETHICAL ISSUES
Ethics is a highly abstract discipline for which an in-depth coverage is beyond the scope of this
book. However, within each chapter we have included ethical and public policy issues to provide
students with the opportunity to learn and debate real estate law and practices as well as public
policy relating to real estate from an ethical perspective. These “Ethical and Public Policy
Issues” include Question 10 at the end of each chapter and an “Ethical and Public Policy Issues”
box containing a picture (a fountain pen and paper signifying that the pen is mightier than the
sword) at pertinent junctures throughout every chapter.
There are, of course, many theories of what constitutes and justifies ethical or moral behavior.
This book will generally focus on three fundamental ethical theories. The first, called the
consequentialist or teleological approach, focuses on the consequences of an action as a means of
judging its moral correctness. Utilitarianism is the theory most closely associated with teleology.
Under utilitarianism the morally correct outcome is that which gives the greatest good to the
greatest number. Real estate issues, especially those relating to public policy, are often justified
under this theory. As a result of the significant economic importance of property, utilitarianism
is crucial in justifying private laws and transactions that are efficient and cost-effective, even if
they appear to trammel on the rights of a few. Utilitarianism weighs costs versus benefits and
how they relate, in varying degrees, to multiple stakeholders in justifying a moral position.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use
as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for
classroom use.
2
, The second theory, called the deontological approach (sometimes referred to as duty-based ethics
or formalism), involves rights and duties. Ethicists argue that humans derive rights generally
from four sources. We derive rights first by simply being human beings under the natural law.
We also derive rights under law by being citizens, legal occupants or even sometimes as illegal
occupants of a particular country, state, or local jurisdiction. Third, humans gain rights by their
positions and lastly by those rights created in contracts. Of course, when a person has a moral
right, someone else owes her a moral duty just as a legal right corresponds always to a legal
duty.
Real estate is built upon property and contractual rights and duties. While rights derived by law,
position, and contract may very well be legal, they can sometimes be difficult to justify morally.
Conversely, a moral right or duty may not actually impose a legal right or duty. These moral
dilemmas will be discussed throughout the chapters as well.
The last theory focuses on principles of fairness and justice. Fairness and justice, often
associated with the 20th century American philosopher and ethicist John Rawls, states that a
moral act is one that treats similarly situated people in a similar manner with regard to process
and outcome and the ethical solution in proportion to the act. Thus principles of procedural and
distributive justice, often studied by our students in management and legal environment of
business courses, will be applied to various ethical dilemmas arising in real estate scenarios. In
particular, these issues become important when the government imposes laws on private property
owners, such as in eminent domain, regulatory takings, zoning, and environmental regulations.
IMPORTANT CONCEPTS AND RELATIONSHIPS FOR STUDENTS TO KNOW
1. Know what sources of law are created at the federal, state and local levels and
examples of what they regulate in real estate.
2. Know the difference between public and private law.
3. Know how the U.S. Constitution is divided between the three powers of government-
legislative, executive and judicial- as well as the Amendments to it.
4. Know about the 14th Amendment and why it is particularly important.
5. Know the relationship of the U.S. Constitution to state constitutions.
6. Know from what source of government statutes are created and how they relate to
judicial decisions.
7. Be aware that courts also interpret statutes and must apply certain rules, such as the
intent of the legislature, to accomplish this.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use
as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for
classroom use.
3
