Real Property & Real Estate Law

Nearly every lawyer in America takes Property Law as a required first-year course, and it is properly considered one of the foundational areas of legal doctrine and practice.

There are numerous legal career paths that involve property. Some practice areas involve a full-time, primary focus directly on questions of property ownership and use, primarily in the practice areas of real estate and land use. There are also numerous subfields under the property umbrella that also directly involve land or other forms of property, such as environmental law, energy, and estate planning.

An even broader array of practices often involve questions of property law as secondary issues, or as the subject matter of transactions or disputes, including tax, finance, and corporate transactions and litigation. Many lawyers find rewarding careers in the field of property law, and an even greater number use knowledge of property law regularly in their practices.

This subject overview will describe the potentially applicable skills, practice areas, venues, and available curricular options to develop expertise and career opportunities in property law.

Relevant Skills

Both the direct practice of property law, as well as engagement with property issues in any field, can take place in just about any setting. Given the breadth of property law, it is not surprising that a lawyer may practice property in transactional work, dispute resolution, and counseling clients. This section will discuss briefly how skills and knowledge in property law can assist lawyers across the spectrum of practices.

Transactional

Perhaps the most obvious type of practice in property law is that of real estate transactions—buying, selling, leasing, and otherwise transferring interests in real property. Property transactions can range from the typical residential real estate closing, to commercial land sales and leasing, to the most complex corporate transactions.

Beyond buying and selling land, transactional property lawyers may be involved in all facets of a deal, including development, finance, and negotiation, as well as problem-solving throughout the process. Regardless of the scale, however, what each of these types of transactions has in common is their tremendous importance to the client, whether as homeowner, business owner, or shareholder.

Students interested in a transactional practice should consider not only Professional Skills in Property and the other real estate courses discussed below, but also more generally the various courses in transactional law, such as Secured Transactions, either Contract Building Blocks or Contract Negotiations & Drafting, and Transactional Skills–Real Estate. Students should also consider general business-related courses, such as Corporations and Agency & Partnership.

Dispute Resolution

While the most conventional property-related practice focuses on transactions, there are property lawyers on the dispute resolution side as well. As with any type of transaction, property transactions sometimes do not work out as they were planned, or subsequent disagreements arise.

Perhaps more unique to property are disputes where the financial basis for the transaction falls through, either because hoped-for financing or investment falls through or because of unexpected financial reversals after the transaction. Because property concerns various parties with interests in land that remain or change over time, disputes often arise in that context. These disputes involve traditional civil litigation or alternative dispute resolution procedures.

Additionally, land use attorneys often represent and advocate for their clients before government bodies such as city councils, planning commissions, or zoning boards. Lawyers who engage in property dispute resolution might be primarily in a litigation or Alternative Dispute Resolution (ADR) practice, perhaps with some expertise in property, or they might be primarily transactional attorneys who also advise or engage in dispute resolution.

Students interested in property litigation should take courses in that area, as well as considering the advocacy and ADR programs. Given the breadth of South Texas College of Law Houston’s dispute resolution curriculum, these courses are not listed on the accompanying pathway. The Civil Litigation & ADR Subject Overview and Pathway provide more specific information about the courses relevant to careers focused on dispute resolution.

Counseling

Property law involves a great deal of continuous counseling to clients who have interests in property or who seek advice about property ownership. This function is particularly important in property law because ownership of property interests may continue for a long time and multiple parties may have interests in the same land.

A client will also need advice on the land use rules and regulations that may apply to the client’s property. The counseling function of a property lawyer is a continuing responsibility for clients ranging from individual tenants and homeowners, to large corporations and government entities.

Substantive Areas of Practice

The subject of property encompasses a diverse array of practice areas. This section will review some pertinent career pathway information for two of the substantive areas in which property law is the primary focus: real estate and land use.

Next, it will note several of the related fields that can be considered to fall under the larger umbrella of property law, but have their own separate subject overviews and pathways. This section will then briefly discuss some related fields of practice where property may play a large role.

Real Estate

Real estate law is the most basic and the most common form of legal practice in the area of property law. Real estate law is often thought of, with good reason, as primarily a transactional field; however, it often involves a great deal of counseling, negotiation, and litigation and dispute resolution as well.

Lawyers can specialize in a certain type of real estate practice, such as residential closings or commercial leasing. Alternatively, they can have a more general practice that covers all areas of real estate law. The courses in real estate, and in related areas such as transactional skills, will help provide a foundation for practice in various areas of real estate practice.

Basic Real Estate Transactions

The bread and butter of a real estate practice is the transfer of title in land from one owner to another. The size and scope of the transaction can range from the typical house closing to the most complex deal, but the basic underlying legal principles and practice skills start from the same foundation.

These basic underlying principles are introduced in Property II. The course in Texas Oil, Gas, & Land Title Examination would also be useful, as would Transactional Skills–Real Estate and the additional skills courses listed on the accompanying pathway that concern real estate or transactional practice.

Real Estate Finance

From basic mortgages to complex financing deals, a real estate attorney must be familiar with how entities pay for real estate projects. Finance is a part of the development of new projects, the sale of land and buildings, and residential and commercial leases. Students interested in real estate finance should consider taking Secured Transactions and related business courses.

Real Estate Development

Lawyers who are involved in real estate development participate in a multifaceted business that ranges from buying land and planning and approval for new projects, to renovation and re-lease or sale of existing projects, to marketing, managing, and selling the development. Students interested in this subfield should take Land Use Management & Control and related business courses.

Construction Law

This area is related to real estate development but focuses in particular on the legal issues surrounding the construction agreement and process. It involves transactions but often can have a litigation focus as well. In addition to relevant transactional or dispute resolution courses, interested students should take Construction Law and consider participating on the Construction Law Journal.

Property Management

Homeowners’ and property owners’ associations, commercial and residential leases, condominiums, and other forms of property often involve continuing roles in advising clients, representing them in disputes, or the renegotiation of arrangements.

Landlord-Tenant Law

There is a specific subset of property law that regulates the relationship between landlord and tenant. Both parties have certain rights and obligations with respect to the other. This topic is introduced in Property I but interested students should also consider clinical, public interest, and academic internship opportunities to advise clients in landlord-tenant disputes.

Land Use

Land use law involves public and private planning, development, management, regulation, and control of the use of property in the context of our shared communities. There is a good deal of overlap between land use and the real estate practice described above, given that a real estate transaction or dispute will very often, if not always, involve some form of land use rules or regulations.

Some attorneys, however, specialize primarily in land use law. Land use issues can involve anything from permission to build a certain type of development, to siting of projects, historic preservation rules, affordable housing, First Amendment issues, and much more. Land use practice, like property law generally, encompasses a broad and diverse array of different topics and activities, including those discussed here.

An aspiring land use attorney should have a general familiarity with these topics and consider specializing in one or more practice areas. Note that State & Local Government is listed on Stage 2 of the accompanying pathway (rather than Stage 3) primarily for students interested in a career focused on land use.

Private Land Use Controls

Covenants, deed restrictions, and other private agreements form a network of land use control that is separate from, and often more restrictive than, zoning and other forms of public regulation. Homeowners’ associations play a prominent role. Land use attorneys negotiate and draft these covenants, advise clients about what clients can and cannot do with their land, and help resolve the frequent disputes that arise through litigation and ADR.

These topics are introduced in Property II and they are covered further in the Land Use Management & Control course.

Public Land Use Controls

Zoning and other forms of government regulation, such as site requirements, subdivision rules, and development codes, are the traditional basis for controlling land use and development. Attorneys advise government entities such as city councils, planning commissions, and zoning boards. They also represent individual clients before these government entities in seeking approval for permits, variances, and exceptions.

This practice involves a great deal of negotiation, as well as occasional litigation. These issues are the foundation of the Land Use Management & Control course. State & Local Government is also highly recommended.

Property Rights and Eminent Domain

Land use attorneys represent government entities and private clients in eminent domain actions and vested rights and regulatory takings claims. Relevant courses include Property II, Constitutional Law, and Land Use Management & Control.

Planning

Land use attorneys work extensively with state, regional, and local governments on planning matters. Specifically, such attorneys address drafting and implementing comprehensive plans for development, infrastructure, transportation, environmental protection, housing, aesthetic regulation, historic preservation, economic development, and other property-related issues.

Other Subfields of Property

The following practice areas can be considered part of the world of property law, but they have their own separate pathways available. All of them require some knowledge and skill in basic property law.

Environmental Law: Environmental and natural resource law encompasses all areas of law that concern the protection of air, land, and water, including pollution prevention and the cleanup of contaminated areas.

Energy Law: The law related to oil & gas and energy production involves questions of title, interests in land and mineral rights, leasing arrangements, and transactions and dispute resolution regarding these property interests.

Estate Planning: The drafting and the execution of wills and trusts, and the administration of estates, are fundamentally concerned with making arrangements to transfer ownership. The accompanying pathway recommends Wills, Trusts, & Estates. Additional courses for students interested in an estate planning career are listed on the Estate Planning Law Pathway.

Family Law: Issues of marriage, divorce, custody, and guardianship include many questions of property law, particularly marital property.

Related Areas

Many lawyers who do not practice primarily in property law or in a property-related field often deal regularly with property law issues. General corporate and business law practices, for example, quite often involve property as the subject matter of both transactions and disputes, which in turn means that the issue will involve questions of property law.

Tax law, likewise, often requires lawyers to advise and resolve issues with respect to property, both in terms of determining ownership and in specific property tax issues. The same is true for bankruptcy and other areas. Civil litigation and ADR practices may often have property disputes as their subject matter.

Accordingly, a basic understanding of property law could be beneficial for students who desire to practice in these (and other) legal fields as well.

Practice Venues

Property law careers are possible across the entire spectrum of legal practice. Some careers focus primarily on property law, while in other positions property is an important part of a given practice.

Private Practice

Large Firm Practice: Most large, full-service law firms have attorneys—perhaps a discrete department or section—focusing primarily on real estate law, as well as attorneys who engage in property issues in other areas of focus. Real estate sections tend to be part of transactional practices. Litigation sections may include attorneys who specialize in land use or eminent domain litigation. Other related sections may include environmental law or construction law. Be sure to research the particular firm’s structure and culture.

Small Firm or Solo Practice: Perhaps a majority of property lawyers work in a small firm or solo practitioner environment. These practices come in two general varieties (with variations). Some small firms and solo practitioners focus exclusively on property law. Numerous firms hold themselves out as subject-matter experts on real estate or land use law (or related areas such as environmental compliance, oil and gas, or estate planning). These attorneys are full-time property lawyers who serve a wide variety of clients in all facets of real estate and land use law.

The second model of property-oriented small firm or solo practice is that of the full-service or general practitioner, who offers clients advice on property and other areas. A common example is an attorney who counsels and represents clients in family law, estate planning, and real estate issues—combining several property-related fields to fit the clients’ needs.

Students interested in becoming a solo practitioner or working for a small firm should consult the Solo & Small Firm Practice Subject Overview.

In-House Practice: As with other areas of practice, corporations, businesses, and other organizations often need property experts on their in-house counsel staff. These organizations may own real estate, sometimes in large amounts, or engage in business activities that involve property transactions, investment, or development. In property law, additionally, there are also some unique opportunities for in-house practice with organizations that are primarily focused on property, such as development corporations, property management groups, or homeowners’ associations.

Government/Public Interest

General Government Practice: Almost every form and level of government in America has some sort of counsel, such as the City Attorney, County Attorney, or State Attorney General. Government agencies also have their own individual counsel. These offices often deal with property law issues, because governments own land and regulate its uses. This also applies to other single-purpose governments such as school districts, municipal utility districts, and improvement districts.

Through the Government Process Clinic/Academic Internship program, students can arrange field placement within various government agencies.

Government Agencies Uniquely Focused on Property: At all levels of government there are agencies devoted to property issues. Some of these agencies serve the government in its capacity as landowner, and others deal with regulatory aspects. Examples at the federal level include the Bureau of Land Management, Department of Housing and Development, and Environmental Protection Agency. State agencies include the Texas General Land Office, Real Estate Commission, and Railroad Commission. Local agencies include the Houston Planning Commission, METRO, and Housing and Community Development Department.

Important courses to take would include Administrative Law and State & Local Government. Additionally, through the Government Process Clinic/Academic Internship program, students can arrange field placement at a government agency devoted to property issues.

Public Interest Law and Legal Services: Numerous non-governmental organizations advocate on property issues or provide property law services in the public interest. Given the wide variety of important issues revolving around property—including homeowners’ and tenants’ rights, housing and community development, environmental concerns, and public planning—there are potential opportunities for employment, retention, or practice-building volunteer work with these advocacy groups. Additionally, there is a great need for legal services, clinics, and pro bono work to help citizens with their housing, tax, estate planning, and other needs.

Through the Public Interest Clinic/Academic Internship program, students can arrange field placement at a public interest organization that focuses on property-related issues. Interested students should also consider taking the Urban & Poverty Law Seminar.

For additional information on a career in public interest law, please consult the Public Interest Law Subject Overview.

Private Practice Representing Government or Public Interest: Smaller governmental entities often hire private practitioners to serve as their counsel. Some small firms even specialize in representing local governments, municipal utility districts, and the like. Private practitioners are also retained often as outside counsel to handle large transactions and litigation involving government entities or public interest groups. And of course, private practitioners are encouraged to perform pro bono work, which often involves property issues.

Administrative Law, State & Local Government, and Land Use Management & Control are particularly important courses.

Ways to Structure a Curriculum in Property Law

A law student interested in a potential property law career can use the Real Property & Real Estate Pathway course list in several ways, given the diversity of substantive practice areas in property law.

One approach is to use the course list to take as many of the property-related courses as possible, in order to become generally well-educated in the larger field of property. This approach would likely focus first on the “bar elective” courses in property plus a few of the more basic Stage 1 and Stage 2 courses, such as Land Use Management & Control.

A second approach would be to take most of the basics, as outlined above, but also to pick and choose among the various electives to try and see what areas the student might find interesting to study and in which to potentially practice. A student might take, for example, Water Law or Construction Law to gauge interest in those fields.

A third approach to the pathway courses would be to “go deep” in the particular area that a student has identified as his or her primary desired future practice area to maximize knowledge and expertise and to signal interest in the field. A student interested in a career in real estate transactions, for example, could focus on taking every real estate course that is offered plus related transactional skills courses. This approach would be best for students who feel confident in their chosen path.

These approaches are merely suggestions for ways to think about the pathway courses in an area as broad and diverse, and with as many subfields, as property law. Students should use their own best judgment in how to choose their paths and seek advice from professors and practitioners in the field.

Property Careers Where a Law Degree is Advantageous

The nature of property law means that a property law practice can be interdisciplinary and is likely to involve interactions with other non-legal professionals and experts. It is one of the rewarding parts of a property law practice.

It also suggests that property lawyers may benefit from informal or formal education in a related field. Some land use attorneys, for example, also have degrees in, or have informally studied, city planning. Real estate lawyers routinely interact with agents and brokers, developers, and other professionals. Environmental lawyers work with scientists, oil and gas attorneys routinely interact with engineers, and so on.

There are also some jobs in property fields that do not always require a J.D. but do cross over into the legal realm. In many cases, lawyers perform these jobs because, while a J.D. is not absolutely required, a legal education is tremendously helpful. A lawyer might engage in this work as a supplement to, or in lieu of, a more traditional law practice.

Real estate agents and brokers are prominent examples of this possibility, where some legal knowledge is part of the job, and a law degree can give the practitioner a superior understanding of the law of real estate transactions.

Another example is the oil and gas landman. A landman—the term is gender-neutral—primarily works to resolve ownership and title to various mineral interests, which can be quite complex. Many lawyers engage in this work, either instead of, or as a starting point, towards a legal career in the oil and gas field. For additional information on a career as a landman, please consult the Energy Law Subject Overview.