The Restatement of Property is a multi-volume reference published by the American Law Institute that organizes the common law of property — land ownership, leases, mortgages, easements, wills, and related topics — into numbered rules with explanations and examples. It is not a statute and cannot override one. Courts treat it as persuasive authority, meaning a judge may adopt one of its rules when state statutes and local case law don’t clearly answer the question in front of them, but will set it aside when they do.
Who Writes It and Why Courts Listen
The American Law Institute is a private organization of more than 4,500 lawyers, judges, and legal scholars whose stated mission is to clarify, modernize, and improve American law.1The American Law Institute. Frequently Asked Questions It has no power to pass legislation. What gives its Restatements weight is the drafting process behind them.
Each project is led by one or more reporters, usually law professors with deep expertise in the subject.1The American Law Institute. Frequently Asked Questions Reporters prepare drafts that go through layered review: an advisory group of subject-matter experts, then the ALI’s governing council, and finally a vote of the full membership at the annual meeting.2The ALI Adviser. How ALI Works By the time a rule appears in a published Restatement, it has been argued over by hundreds of experienced lawyers and judges. That’s why courts cite it even though it carries no formal legal force.
What’s in Each Volume
The Restatement of Property is not a single book. It has been issued in four generations, each covering different parts of property law.
The First Restatement (1936–1944)
The original volumes focused on the foundational categories of land ownership that had developed under English and American common law: fee simple estates, life estates, future interests, and the technical rules governing how property could be divided among multiple holders over time. The rules around future interests alone were notoriously complex, and the First Restatement tried to bring order to centuries of piecemeal court decisions. It said little about tenants or commercial transactions because those weren’t the dominant concerns of the era.
The Second Restatement: Landlord and Tenant (1976)
The Second Restatement turned toward renters. Its most significant contribution was the implied warranty of habitability, which holds that landlords must maintain rental properties in a condition fit for human habitation. That was a departure from older rules that treated a lease like a sale of land, where the tenant took the property as-is and the landlord owed almost nothing after handing over the keys. The Second Restatement also addressed the right to quiet enjoyment, constructive eviction, and the framework for how leases are formed, modified, and terminated. Courts in many states leaned on it when expanding tenant rights during the 1970s and 1980s.
The Third Restatement: Servitudes, Mortgages, Wills
The Third Restatement was published in pieces over more than a decade and covers three distinct areas.
Servitudes, published in 2000, covers easements, covenants, and other agreements that allow one person to use or restrict the use of another person’s land. These rules matter heavily in subdivisions governed by homeowners’ associations, where restrictive covenants control everything from house color to fence height. A central question the volume addresses is when a covenant is enforceable against future owners who weren’t parties to the original agreement.
Mortgages, published in 1997, addresses the legal relationship between borrowers and lenders when real estate secures a loan. One important provision concerns the equity of redemption: the borrower’s right to pay off the mortgage debt and reclaim the property before foreclosure is complete. The Restatement provides that this right exists from the moment the full debt becomes due until foreclosure is finalized, and that any agreement made at the time of the mortgage that tries to eliminate it is unenforceable.
Wills and Other Donative Transfers, published across three volumes between 1999 and 2011, covers how property passes through wills, trusts, and other gifts.3The American Law Institute. Property (Wills and Other Donative Transfers) It includes rules on will validity, interpretation of ambiguous language, and what happens when a beneficiary dies before the testator. It also modernized the approach to the Rule Against Perpetuities by adopting a “wait and see” method, which lets courts look at actual events rather than void a future interest based on hypothetical scenarios that might never occur.
The Fourth Restatement (in progress)
The ALI is now drafting a Restatement of the Law Fourth, Property, intended to pull American property law together more comprehensively than earlier editions, each of which was limited to a specific subtopic.4The American Law Institute. Restatement of the Law Fourth, Property The planned volumes range from the basics of possession and the estate system through trespass and nuisance, bailments, concurrent ownership and leasing, transfers of title, and public land-use regulation including zoning. The inclusion of zoning reflects how much modern property rights are shaped by public regulatory power rather than purely common-law rules.
As of 2025, ALI members have approved six tentative drafts covering material from most of these volumes.4The American Law Institute. Restatement of the Law Fourth, Property Material in those approved drafts can already be cited as the ALI’s position, even before final publication. For active litigation, the Fourth Restatement’s treatment of a topic may already be more current than what the earlier editions offer.
How to Read a Restatement Section
Every Restatement section has the same four parts, and knowing what each one does makes the volumes much easier to use.5The American Law Institute. A Handbook for ALI Reporters and Those Who Review
- The black letter is the rule itself, printed in boldface. Taken together, the black-letter provisions on a topic are meant to work as a standalone summary of the law.
- The comments explain the reasoning behind the rule, identify the competing interests it balances, and describe how it applies in practice.
- The illustrations are hypothetical fact patterns embedded in the comments that show how the rule applies to specific situations. These are usually the most practical part for anyone trying to figure out whether a rule covers their circumstances.
- The reporter’s notes list the cases and secondary sources the reporter relied on and flag areas where the reporter’s own views go beyond the ALI’s official position.
For a practicing attorney, the reporter’s notes are often the most valuable part. They function as a curated research trail back to the underlying case law, and a lawyer can follow that trail to decide whether a rule actually applies in a particular state.
How Courts Actually Use the Restatements
Restatements are persuasive authority, not binding law. A state statute or a ruling from a state’s highest court always takes priority. Courts turn to the Restatements when their own precedent is thin, ambiguous, or missing. In those situations a judge may adopt a Restatement position as the governing rule for that jurisdiction, effectively writing the ALI’s formulation into state case law through the opinion itself.
Attorneys cite Restatement sections in briefs to show that their proposed interpretation lines up with a nationally recognized standard. When a court agrees, it typically cites the specific section in its opinion, giving both sides a clear reference point going forward. This pattern is especially common in disputes over property transfers, boundary lines, easement scope, and mortgage enforcement, where many states lack comprehensive statutory frameworks and rely heavily on judge-made law.
Not every court goes along. The Third Restatement in particular has drawn pushback. Some judges and commentators view the more recent editions as crossing the line from restating existing law into advocating for reform. In one Iowa case, the court refused to adopt the Third Restatement’s approach to correcting technical errors in wills, reasoning that such a change was properly a matter for the legislature. Massachusetts courts have similarly declined to follow the Third Restatement’s positions on will reformation and spousal elective-share rules. The ALI sees itself as identifying the best rule; courts that reject its positions see it as overstepping into territory that belongs to legislators.
Where Restatements Sit in the Legal Hierarchy
The order of authority runs like this: federal and state constitutions at the top, then statutes passed by legislatures, then regulations issued by government agencies, then binding case law from a jurisdiction’s own courts. Restatements fall below all of these. Formally they carry no more weight than a well-reasoned law review article, though in practice judges give them more because of the drafting process behind them.
The practical consequence is simple. If a state statute says one thing and the Restatement says another, the statute wins. The Restatement only fills gaps that the legislature and existing case law have left open. Before relying on any Restatement section, check whether your state has a statute or binding court decision on the same issue. If it does, what the Restatement says is beside the point.
Where the Restatement becomes powerful is precisely in the spaces between statutes. Property law is old and sprawling, and large parts of it are still governed by accumulated court decisions rather than codified rules. In those areas, a Restatement section may be the clearest authoritative statement of the rule available, and a court may adopt it wholesale.
How to Access the Restatements
The full text of the Restatements is not freely available online. Published volumes are sold through legal publishers, and digital access generally requires a subscription to Westlaw or HeinOnline. The most practical free option for most people is a law library. Many law school libraries are open to the public and carry the volumes in print, and county law libraries often have copies.
For the ongoing Fourth Restatement project, the ALI makes discussion drafts and tentative drafts available to the public after the annual meeting at which they were considered.6The American Law Institute. Restatement of the Law, Property Once the membership approves a tentative draft, it represents the ALI’s current position and can be cited in court filings until the final published version replaces it.4The American Law Institute. Restatement of the Law Fourth, Property That means some of the most current material on property topics is accessible without a paid subscription, though reading it without legal training takes patience.