As we understand it, at some of our leading law schools the basic Property course is no longer a required 1L course. It’s an elective. Quelle horreur! 

We think that’s a bad idea. Our Property I course (a 4-credit one-semester monster) is where we learned about things like treasure trove (finders, keepers – losers, weepers), fee tail, and the dreaded Rule Against Perpetuities from the venerable Allan F. Smith. It’s also where we first learned of vested rights and zoning estoppel. Thank you Professor Smith. What a shame it would have been had we not been required to take that course where we learned so much about the vibe of the law (not just property law). 

Hawaii’s vested rights and estoppel rules as developed over the years by the courts are based on constitutional and equitable principles: if someone receives “official assurances” from a government official acting “within the ambit of their authority,” and actually relies on those assurances to substantially change position, then that person has a property right that “cannot be taken away,” and the government is estopped from backing away from those assurances. More about these concepts in property law here (a U. Hawaii Law Review article we wrote up with Ken Kupchak and Greg Kugle).

What’s all that got to do with Mother’s Day, you ask? 

Well, it turns out that under the Governor’s coronavirus orders, Hawaii’s florists are not deemed to be “essential,” and were ordered to stop doing business. But as this story (“Ige’s reversal halts delivery of Mother’s Day flowers“) details, recently, in anticipation of Mother’s Day (May 10, don’t forget Mom, wherever you are), florists responded to the Governor’s invitation to request an exemption. The Governor even has a special email address at which to send such requests. And responding to those requests, florists received a good response from that same email address: if florists comply with three health-related conditions, they could open and take and fulfill orders for Mother’s Day.

All seemed well until two days later, when the Governor publicly announced “my bad.” Sorry, the exemption notification was an error (NoKo “this is not a drill” nuke texts, anyone?). The sender didn’t have authorization or approval. Sorry, florists.

Problem was, in the two days since the official green light to reopen, many florists took orders, ordered flowers from their suppliers, and generally incurred a whole lot of obligations. After all, Mother’s Day is, we understand, the biggest single flower event on the yearly calendar. Florists are hurting badly in the shut down, and maybe they could undig that hole a bit and bring a small ray of sunshine to shut-in Hawaii moms. Now they were even more screwed. 

That’s where Property I might’ve played a small part. In addition to an outpouring of public support in petitions to the Governor (we told you the First Amendment doesn’t get tossed aside in emergencies) someone told the Gov about things like “official assurances” by an official “acting within the ambit of their authority,” and “substantial reliance” leading to a property right that “cannot be taken away” (without condemnation and compensation), and equitable estoppel and restitution. These principles can be enforced even against the government.

Next thing we know, the Governor is holding a press conference announcing reversing the reversal (“Governor Ige reverses his decision and allows flower shops to make deliveries for Mother’s Day“). Mother’s Day flowers are back on the calendar! 

So here’s your lesson, elite law students who may be thinking of not registering for the basic Property course because you don’t see a need to learn things with a lot of confusing Norman Law French terms (and it conflicts on the schedule with “Arguing with Judge Judy: Popular Logic on TV Judge Shows“): resist that temptation. You never know when the things you learn there will help out, even if you never practice property law.  

PS – order Mom some flowers!