ABSTRACT
Property is an evolving construct awarding power over resources and allocating nuanced individual rights among competing claimants. Notwithstanding the multiple lenses through which the law of property can be viewed, some core principles reign consistent. In the United States, property law remains divided into two broad categories, namely, real property (realty) and personal property (personalty). Ownership rights, including the right to exclude others from, to transfer, or to destroy the property, are central to, but vary between, the classifications of property as realty or personalty. Shifting societal norms together with advances in science have stretched this binary property classification system beyond workability and necessitated the legal recognition of a third broad category of property: specialty.
Emerging against the backdrop of well-settled property law are two unrelated yet remarkably parallel growing areas of law: pet custody and human reproductive rights within the framework of assisted reproductive technology. Both areas have challenged existing property classifications, as partners seeking to disentangle their unique property interests confront ill-suited, yet legally decisive, labeling in the division of their interests. Without any apparent reference to the other, the genesis of pet custody laws and the jurisprudence of addressing the status of frozen embryos offer parallel justifications for recognizing a third classification of property. The time has come for the law to experience growing pains and to acknowledge that the rigid (and exclusive) divide between that which is person in the eyes of the law and that which is mere property fails to capture the truth: some special things, while clearly not persons, are more than just personal property. This Article argues that the recognition of Specialty Property will empower legislatures and courts to craft and implement more nuanced rules of property ‘ownership’ and division.
Black, Lynda Wray, Specialty: How Pets Unleashed a New Classification of Property (April 7, 2023), Gonzaga Law Review, volume 58, no 2, 2023.
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