Approaches to choice of law: property

Question 1

Immovables

Answer 1

Immovables include land and interests in land.

Under all three approaches to choice of law, immovables are governed by the law of the place where the property is located—i.e., law of the situs.

Courts apply the whole of the law of the state, including the state’s choice of law rules—i.e., renvoi is generally accepted.

Question 2

Immovables: Second Restatement approach

Answer 2

The Second Restatement still requires consideration of the background principles.

The most important principle, however, is the justified expectations of the parties.

There is a strong presumption in favor of the law of the situs.

Question 3

Tangible movables

Answer 3

Tangibles are mostly governed by the UCC, which allows parties to choose the applicable law.

Where the UCC does not apply, both the First and Second Restatement approaches usually result in application of the law of the state where the property was located at the time of the transaction.

The Second Restatement still requires application of the guiding principles.

Question 4

Intangible movables

Answer 4

Under the First Restatement, the applicable law is that of the state in which the intangible property was created.

The Second Restatement determines the applicable law based on its background principles.

Question 5

Succession of property at death: immovables

Answer 5

The law of the situs governs distribution of immovable property at death under both Restatements.

Question 6

Succession of property at death: moveables

Answer 6

The law of the decedent’s domicile at the time of death governs issues concerning the distribution of moveable property.