REAL PROPERTY LAW Flashcards
General Warranty Deed
GWD 3PC (S R2C CAE) 3FC (W QE FA)
Rule Statement:
A general warranty deed includes three present covenants, including: seisin (rightful owner), right to convey, and covenant against encumbrances. It also includes three future covenants, including: warranty (defend against third-party claims to title), quiet enjoyment (not to be bothered by a third-party’s claim to title), and further assurances (to do whatever is necessary to perfect title).
Present Covenants:
Seisin:
Rightful Owner: The grantor warrants they are the rightful owner of the property.
Right to Convey:
The grantor warrants they have the legal right to transfer the property.
Covenant Against Encumbrances:
The grantor warrants that the property is free from any encumbrances, except those explicitly stated in the deed.
Future Covenants:
Warranty:
Defend Against Third-Party Claims to Title: The grantor will defend the title against any claims made by third parties.
Quiet Enjoyment:
Not to be Bothered by a Third-Party’s Claim to Title: The grantee’s possession of the property will not be disturbed by anyone asserting a claim to the title.
Further Assurances:
To do Whatever is Necessary to Perfect Title: The grantor will take necessary actions to ensure the grantee’s title is perfected.
Common Tricks on the Exam:
Distinguishing Present and Future Covenants:
Questions might mix up present and future covenants. Ensure clarity on which covenants apply at the time of the deed and which extend into the future.
Understanding Seisin:
Fact patterns may misinterpret the covenant of seisin. Confirm it ensures the grantor is the rightful owner at the time of the conveyance.
Encumbrances Misunderstanding:
Scenarios might suggest there are no encumbrances without specifying exceptions. Verify the property’s freedom from undisclosed encumbrances.
Future Covenant Scope:
Questions might confuse the scope of future covenants. Ensure the grantor’s obligations to defend, assure quiet enjoyment, and provide further assurances are correctly applied.
Special Warranty Deed
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Rule Statement:
A special warranty deed contains two promises that the grantor makes on behalf of himself only:
He has not conveyed this estate to anyone other than grantee.
The estate is free from encumbrances made by grantor.
Promises in a Special Warranty Deed:
Conveyed Estate to Anyone Other than Grantee:
The grantor assures that he has not transferred the property to anyone else except the grantee.
Free from Encumbrances Made by Grantor:
The grantor assures that there are no encumbrances on the property created by him.
Common Tricks on the Exam:
Scope of Promises:
Questions might confuse the extent of the grantor’s promises in a special warranty deed. Ensure the promises apply only to the grantor’s actions.
Encumbrances:
Fact patterns may overlook the specific limitation to encumbrances made by the grantor in a special warranty deed. Verify that encumbrances refer to those created by the grantor only.
Comparison with General Warranty Deed:
Scenarios might compare special and general warranty deeds. Confirm the limited scope of promises in a special warranty deed versus a general warranty deed.
Quitclaim Deed
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Rule Statement:
A quitclaim deed includes no covenants/warranties.
No Covenants/Warranties:
The grantor makes no promises or guarantees about the title or the condition of the property.
Common Tricks on the Exam:
Misunderstanding Quitclaim Deed:
Questions might imply that a quitclaim deed provides some assurances. Ensure that the deed offers no covenants or warranties.
Comparison with Other Deeds:
Fact patterns may confuse the quitclaim deed with other types of deeds that do provide covenants or warranties. Verify the absence of promises in a quitclaim deed.
Grantor’s Liability:
Scenarios might suggest the grantor has ongoing liability. Confirm that a quitclaim deed does not hold the grantor liable for title defects or encumbrances.
Bona Fide Purchaser
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Rule Statement:
A bona fide purchaser (1) takes property without notice of a prior instrument/conveyance, and (2) pays valuable consideration.
Takes Property:
The bona fide purchaser must acquire the property.
Without Notice:
The purchaser must not have actual, constructive, or inquiry notice of any prior claims or instruments affecting the property.
Prior Instrument/Conveyance:
Any previously recorded or known interests in the property that could affect the purchaser’s rights.
Pays Valuable Consideration:
The purchaser must provide something of value in exchange for the property, such as money or other tangible benefits.
Common Tricks on the Exam:
Notice Requirement:
Questions might ignore different types of notice (actual, constructive, inquiry). Ensure the purchaser had no notice of prior claims.
Consideration:
Fact patterns may overlook whether valuable consideration was given. Confirm the exchange involved something of value.
Timing of Acquisition:
Scenarios might confuse the timing of when the property was taken. Verify that the purchaser acquired the property before any notice of prior claims.
Shelter Rule
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Rule Statement:
The shelter rule means that a person who purchases land from a bona fide purchaser receives the same status and rights as the bona fide purchaser.
Bona Fide Purchaser:
An individual who acquires property without notice of prior claims and pays valuable consideration.
Status and Rights:
The subsequent purchaser inherits the protection and benefits afforded to the bona fide purchaser, including immunity from prior claims.
Common Tricks on the Exam:
Understanding the Rule:
Questions might confuse the shelter rule with other property rules. Ensure the focus is on the transfer of status and rights from a bona fide purchaser.
Chain of Title:
Fact patterns may overlook whether the previous owner was a bona fide purchaser. Confirm the previous owner’s bona fide status.
Extent of Protection:
Scenarios might misinterpret the extent of protection given under the shelter rule. Verify that the subsequent purchaser gains all the rights and protections of the bona fide purchaser.
Chain of Title & Wild Land Records
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Rule Statement:
Chain of Title:
The chain of title shows all transfers for a piece of land. A deed that is properly recorded in the chain of title puts subsequent purchasers on constructive notice of prior transfers.
Wild Deed:
A wild deed is not recorded properly and does not put subsequent purchasers on constructive notice of the land transfer.
Chain of Title:
Transfers for a Piece of Land:
Records of all ownership changes of a specific property.
Subsequent Purchasers:
Future buyers or grantees of the property.
Constructive Notice:
Legal presumption that information has been obtained by an individual through due diligence.
Prior Transfers:
Previous changes in ownership that should be reflected in the chain of title.
Wild Deed:
Not Recorded Properly:
A deed that is missing from or incorrectly placed in the public record.
Put Subsequent Purchasers:
A wild deed fails to notify future buyers of previous transfers.
Constructive Notice:
Future buyers are not legally presumed to know about the transfer due to improper recording.
Land Transfer:
The act of conveying property from one person to another.
Common Tricks on the Exam:
Proper Recording:
Questions might suggest a deed is valid without proper recording. Ensure the deed is part of the recorded chain of title.
Constructive Notice:
Fact patterns may overlook whether subsequent purchasers have constructive notice. Confirm proper recording to establish notice.
Wild Deeds:
Scenarios might ignore the impact of wild deeds on constructive notice. Verify that improperly recorded deeds do not provide notice to subsequent purchasers.
Assignment of a Lease
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Rule Statement:
A lease assignment is when tenants transfer all of their remaining lease interest. Leases may be freely assigned unless the lease states otherwise. After an assignment, both the assignees and the original tenants are liable for the rent.
Tenants Transfer:
The original lessees transfer their lease rights to another party.
Remaining Lease Interest:
The entire duration of the remaining lease term is transferred.
Freely Assigned:
Assignments are allowed unless restricted by the lease agreement.
Lease States Otherwise:
Some leases may include clauses that restrict or require permission for assignment.
Both Liable:
Both the new lessee (assignee) and the original lessee remain responsible for lease obligations.
Assignees:
The new lessees who take over the lease from the original tenants.
Original Tenants:
The initial lessees who entered into the lease agreement with the landlord.
Common Tricks on the Exam:
Permission for Assignment:
Questions might suggest that assignments always need landlord approval. Verify if the lease states otherwise.
Liability After Assignment:
Fact patterns may ignore the continuing liability of original tenants. Confirm both parties remain liable.
Scope of Assignment:
Scenarios might confuse subleasing with assignment. Verify that the entire lease interest is transferred in an assignment.
Real Covenant
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Rule Statement:
A real covenant is a promise to do or not do something related to the land. For a real covenant to run with the land, there are five requirements:
The original promise must have been in writing.
The original parties must have intended that the covenant would run.
The promise must touch and concern the land.
Horizontal privity and vertical privity – the original parties must have shared some interest in the land independent of the covenant.
Subsequent bona fide purchaser must have had notice (actual, inquiry, or record) of the arrangement at the time of the purchase.
Five Requirements for a Real Covenant to Run with the Land:
Original Promise in Writing:
The covenant must be documented in writing to be enforceable.
Original Parties’ Intent:
The original parties to the covenant must have intended for the covenant to run with the land and bind future owners.
Touch and Concern the Land:
The covenant must affect the use or value of the land itself.
Horizontal Privity and Vertical Privity:
Horizontal Privity: The original parties must share some interest in the land independent of the covenant (e.g., landlord-tenant, grantor-grantee).
Vertical Privity: There must be a direct link between the original party and the subsequent owner.
Notice to Subsequent Bona Fide Purchaser:
The subsequent purchaser must have notice of the covenant. This notice can be:
Actual Notice: Direct knowledge of the covenant.
Inquiry Notice: Awareness that would lead a reasonable person to inquire further.
Record Notice: The covenant is recorded in public records.
Common Tricks on the Exam:
Documentation of the Covenant:
Questions might imply that an oral promise can create a real covenant. Ensure the covenant is in writing.
Intent of the Parties:
Fact patterns may overlook the original parties’ intent for the covenant to run with the land. Verify intent.
Impact on the Land:
Scenarios might ignore whether the covenant touches and concerns the land. Confirm the covenant affects land use or value.
Privity Requirements:
Questions might confuse horizontal and vertical privity. Ensure both types of privity are present.
Notice to Purchasers:
Fact patterns may neglect the requirement for notice to subsequent purchasers. Verify notice was given.
Easement
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Rule Statement:
An easement is a non-possessory interest in the use of someone else’s land.
Non-Possessory Interest:
The holder of an easement does not own or possess the land but has the right to use it for a specific purpose.
Use:
The easement grants the right to make a particular use of the land, such as access, utility lines, or drainage.
Someone Else’s Land:
The land subject to the easement is owned by another person, not the holder of the easement.
Common Tricks on the Exam:
Ownership vs. Use:
Questions might confuse ownership with the right to use the land. Ensure the distinction between possessory and non-possessory interest is clear.
Purpose of Easement:
Fact patterns may overlook the specific purpose for which the easement is granted. Confirm the use specified in the easement agreement.
Holder of the Easement:
Scenarios might imply the easement holder has broader rights than granted. Verify the exact rights conferred by the easement.
Easement by Grant
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Rule Statement:
An easement by grant requires a writing that (1) is signed by the owner of the burdened property, (2) reasonably identifies the parties and the land, and (3) indicates the grantor’s intent to convey the easement.
Signed by the Owner:
The writing must be signed by the owner of the property that will be burdened by the easement.
Reasonably Identifies the Parties and the Land:
The writing must clearly identify both the grantor and grantee, as well as the specific land involved.
Indicates the Grantor’s Intent to Convey the Easement:
The writing must show that the grantor intends to grant an easement to the grantee.
Common Tricks on the Exam:
Signature Requirement:
Questions might overlook the need for the owner’s signature. Ensure the document is signed by the property owner.
Identification of Parties and Land:
Fact patterns may ignore whether the parties and land are clearly identified. Confirm the writing specifies both accurately.
Intent to Convey:
Scenarios might suggest an easement without clear intent. Verify the grantor’s intention to convey the easement is indicated in the writing.
Easements by Implication
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Rule Statement:
An easement by implication requires (1) a single tract of land divided by a common owner, (2) a preexisting use by the owner, established prior to division, (3) continuous and obvious indication that it was meant to be permanent, (4) the use affects the value of the land conveyed, and (5) the use is reasonably necessary for the owner’s use or enjoyment of the land conveyed.
Requirements for Easement by Implication:
Single Tract of Land Divided by Common Owner:
The land must have been originally owned as a single parcel by one owner and then divided into separate parcels.
Preexisting Use by the Owner, Established Prior to Division:
There must have been a use of part of the land by the owner before the land was divided into separate parcels.
Continuous and Obvious Indication that it was Meant to be Permanent:
The use must be apparent and obvious, and it must have been intended to continue after the division of the land.
Use Affects the Value of the Land Conveyed:
The use must have an impact on the value of the property being conveyed.
Reasonably Necessary for the Owner’s Use or Enjoyment of the Land Conveyed:
The use must be reasonably necessary for the use and enjoyment of the parcel being conveyed.
Common Tricks on the Exam:
Preexisting Use Requirement:
Questions might suggest an easement without preexisting use. Ensure the use was established before the land was divided.
Continuous and Obvious Use:
Fact patterns may overlook whether the use was continuous and obvious. Confirm that the use was apparent and intended to be permanent.
Necessity for Use or Enjoyment:
Scenarios might misinterpret the necessity requirement. Verify the use is reasonably necessary for the owner’s use or enjoyment of the land.
Easements by Necessity
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Rule Statement:
An easement by necessity requires that (1) land owned by one owner is subdivided, and (2) access to easement is essential to the use of the property due to lack of ingress or egress.
Requirements for Easement by Necessity:
Land Owned by One Owner is Subdivided:
The property must have been originally held as a single parcel by one owner and then divided into separate parcels.
Access to Easement is Essential to the Use of the Property:
The easement must be absolutely necessary for the reasonable use of the property.
Lack of Ingress or Egress:
There must be no other legal access to the property, requiring the easement for entry (ingress) and exit (egress).
Common Tricks on the Exam:
Necessity Requirement:
Questions might suggest an easement without demonstrating absolute necessity. Ensure the easement is essential for access.
Single Ownership Prior to Subdivision:
Fact patterns may overlook the requirement that the land was originally owned by one owner before subdivision. Confirm the initial single ownership.
Ingress and Egress:
Scenarios might misinterpret the need for ingress and egress. Verify that the property lacks legal access without the easement.
Easements by Prescription
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Rule Statement:
An easement by prescription is analogous to adverse possession. It requires that the possessor’s use be (1) open and notorious, (2) continuous, (3) hostile, and (4) for the statutory period.
Requirements for Easement by Prescription:
Open and Notorious:
The use of the land must be visible and apparent, giving the true owner a reasonable opportunity to become aware of it.
Continuous:
The use must be uninterrupted for the entire statutory period, showing regular and consistent use.
Hostile:
The use must be without the permission of the true owner, indicating a claim of right.
For the Statutory Period:
The use must continue for the period required by statute, which varies by jurisdiction.
Common Tricks on the Exam:
Hostility Requirement:
Questions might suggest permissive use can lead to an easement by prescription. Ensure the use is without the owner’s permission.
Continuous Use:
Fact patterns may overlook interruptions in use. Confirm the use was continuous for the statutory period.
Statutory Period:
Scenarios might confuse the length of the statutory period required. Verify the specific duration required in the jurisdiction.
Covenants That Run with the Land: Burden Requirements
Covenants That Run with the Land: Burden Requirements
Rule Statement:
A covenant that burdens land runs with the land if the following elements are met:
Writing: The covenant must be in writing to satisfy the Statute of Frauds.
Intent: The original parties must intend for the covenant to run with the land.
Touch & Concern: The covenant must touch and concern the land, meaning it must affect the parties’ legal relations as landowners.
Horizontal Privity: There must be horizontal privity between the original covenanting parties.
Notice: The successor must have notice of the covenant.
Vertical Privity: The successor must hold the same estate as the original party.
Acrostic and Mnemonic
Acrostic Sentence:
Witches Intend To Cast Hexes Nightly.
Writing
Intent
Touch & Concern
Horizontal Privity
Notice
Mnemonic Visualization:
Visualize a Witch’s Spell:
Imagine a witch in a haunted house (the land) writing out a spell (Writing) with the intent to curse the land (Intent). The spell affects the land’s fertility (Touch & Concern). The witch casts the spell alongside a wizard (Horizontal Privity), and the new owner of the house finds the spellbook and learns about the curse (Notice). This visualization can be expanded to include vertical privity by imagining the spell continuing to affect subsequent owners (Vertical Privity).
Detailed Breakdown
Writing:
Definition: The covenant must be documented in writing to comply with the Statute of Frauds.
Example: A recorded deed that includes a restrictive covenant.
Intent:
Definition: The original parties must intend for the covenant to bind successors.
Example: Language in the covenant stating it is to run with the land and bind future owners.
Touch & Concern:
Definition: The covenant must affect the use, value, or enjoyment of the land.
Example: A covenant restricting the use of land to residential purposes.
Horizontal Privity:
Definition: There must be a special relationship (such as landlord-tenant, grantor-grantee, or mutual interest in the same land) between the original parties at the time the covenant was created.
Example: A covenant made between a developer and the first buyer of a plot within a subdivision.
Notice:
Definition: The successor in interest must have actual, inquiry, or constructive notice of the covenant.
Example: The covenant is recorded in the chain of title, providing constructive notice.
Vertical Privity:
Definition: The successor must hold the same or a similar interest in the land as the original party.
Example: The new owner holds the fee simple estate, just like the original party.
Common Ways Tested
Writing: Questions may involve the necessity of a written document to enforce the covenant.
Intent: Fact patterns often test whether the original parties intended for the covenant to run with the land.
Touch & Concern: Scenarios may require analysis of whether the covenant affects the land itself or only personal obligations.
Horizontal Privity: Questions may involve determining whether the required privity existed between the original parties.
Notice: Fact patterns often test whether the successor had proper notice of the covenant.
Vertical Privity: Scenarios may involve analyzing the relationship between the original party’s estate and the successor’s estate.
Common Tricks
Writing: Scenarios might present oral agreements or informal writings to test the Statute of Frauds requirement.
Intent: Questions may include vague language in the covenant to test whether the intent to bind successors is clear.
Touch & Concern: Scenarios might present covenants that seem personal rather than related to land use.
Horizontal Privity: Fact patterns may test the nature of the relationship between the original parties.
Notice: Questions might involve successors who had constructive, but not actual, notice of the covenant.
Vertical Privity: Scenarios may test whether the successor holds the same estate as the original covenantor.
Termination of Easements
Easement Termination: “END CRAMP”
Rule Statement:
Easements can be terminated through various methods, which can be remembered using the acronym “END CRAMP”:
Estoppel: The easement holder indicates by words or actions that they intend to abandon the easement, and the servient landowner relies on this indication.
Necessity Ends: An easement created by necessity terminates when the necessity no longer exists.
Destruction: The destruction of the servient estate (unless due to the easement holder’s misconduct) ends the easement.
Condemnation: Government condemnation of the servient estate extinguishes the easement.
Release: The easement holder provides a written release of the easement to the servient landowner.
Abandonment: The easement holder demonstrates an intention to abandon the easement through physical action.
Merger: The easement is terminated if the same person acquires ownership of both the easement and the servient estate.
Prescription: The servient landowner interferes with the easement in a manner that is adverse, continuous, open, and notorious for the statutory period.
Acrostic and Mnemonic
Acrostic Sentence:
Elephants Never Drink Coffee, Real Athletes Make Protein Shakes.
Estoppel
Necessity Ends
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
Mnemonic Visualization:
Visualize an Elephant’s Gym:
Imagine an elephant at a gym, where the gym represents a piece of land with an easement. The elephant (representing the easement holder) performs various activities that signify each method of easement termination:
Estoppel: The elephant promises the gym owner it won’t use certain equipment (easement), and the gym owner relies on this by repurposing that area (Estoppel).
Necessity Ends: The elephant no longer needs a specific exercise machine because it finds another way to work out (Necessity Ends).
Destruction: The gym is damaged in a storm, making the equipment unusable (Destruction).
Condemnation: The government takes over the gym to build a road (Condemnation).
Release: The elephant signs a form relinquishing its right to use certain equipment (Release).
Abandonment: The elephant leaves the gym equipment and never returns (Abandonment).
Merger: The elephant buys the gym and owns both the equipment and the gym itself (Merger).
Prescription: The gym owner locks up the equipment, preventing the elephant from using it for a long period (Prescription).
Detailed Breakdown
Estoppel:
Definition: Easement termination by the holder indicating an intent to abandon, and the servient owner relying on that indication.
Example: A farmer tells a neighbor they no longer need to use the path (easement) and the neighbor builds a fence over it.
Necessity Ends:
Definition: Easement created by necessity terminates when the necessity no longer exists.
Example: An easement to access a landlocked property ends when a new public road is built.
Destruction:
Definition: The destruction of the servient estate terminates the easement.
Example: A fire destroys a building with an easement to use a passageway through it.
Condemnation:
Definition: Government condemnation of the servient estate extinguishes the easement.
Example: The government takes land through eminent domain to build a highway.
Release:
Definition: The easement holder provides a written release to the servient landowner.
Example: A property owner signs a document relinquishing their easement rights to a neighbor.
Abandonment:
Definition: The easement holder shows an intention to abandon through physical action.
Example: An easement holder builds a fence blocking their own access to the easement.
Merger:
Definition: Easement terminates if the same person acquires ownership of both the easement and the servient estate.
Example: A landowner purchases adjacent land over which they have an easement.
Prescription:
Definition: The servient owner interferes with the easement in an adverse, continuous, open, and notorious manner for the statutory period.
Example: The servient owner erects a permanent barrier, preventing the easement holder from using the easement for 20 years.
Common Ways Tested
Estoppel: Questions may involve whether the servient landowner reasonably relied on the easement holder’s indication of abandonment.
Necessity Ends: Scenarios often test whether the necessity that created the easement still exists.
Destruction: Questions might involve the destruction of the servient estate and its impact on the easement.
Condemnation: Scenarios may test the effect of government taking on existing easements.
Release: Fact patterns often test the validity and enforceability of written releases.
Abandonment: Questions might focus on actions that indicate an intent to abandon the easement.
Merger: Scenarios often test whether the easement and servient estate have merged under common ownership.
Prescription: Questions may involve the servient owner’s actions to block the easement and whether the statutory period for prescription has been met.
Common Tricks
Estoppel: Scenarios might include ambiguous actions by the easement holder to test if reliance was reasonable.
Necessity Ends: Fact patterns may test whether the necessity truly ended or still exists in a different form.
Destruction: Questions might present partial destruction and test if it affects the easement.
Condemnation: Scenarios may include partial condemnation to test the extent of easement termination.
Release: Fact patterns may involve informal releases to test compliance with legal requirements.
Abandonment: Questions might focus on distinguishing between mere non-use and actual abandonment.
Merger: Scenarios may test if the ownership was truly unified or temporarily joined.
Prescription: Questions might present borderline cases of interference to test if the statutory period was met.
Ownership Attack Plan
UBE Real Property Attack Plan
Area One: Ownership
Step One: Identify the Possessory Interest
Present Estates
Future Interests
Concurrent Estates
Leaseholds
Step Two: Define Present Estates
Present Estates:
Fee Simple Absolute: Ownership of potentially infinite duration.
Mnemonic: “Forever Estate Lasts.”
Common Mistake: Confusing fee simple absolute with defeasible fees.
Defeasible Fees:
Fee Simple Determinable: Automatically ends and reverts to the grantor upon the occurrence of a stated event.
Elements: Automatic reversion, Stated event.
Mnemonic: “Determined Event Reverts Automatically.”
Common Testing: Identifying if an event triggers automatic reversion.
Common Mistake: Misidentifying conditions that cause reversion.
Fee Simple Subject to Condition Subsequent: Does not automatically end; grantor must take action to reclaim.
Elements: Conditional grant, Reentry action required.
Mnemonic: “Condition Requires Action.”
Common Testing: Distinguishing from fee simple determinable.
Common Mistake: Assuming automatic reversion without action.
Fee Simple Subject to Executory Limitation: Automatically shifts to a third party upon the occurrence of a condition.
Elements: Automatic shift, Condition, Third party.
Mnemonic: “Shift Happens Automatically to Third party.”
Common Testing: Identifying third-party interests.
Common Mistake: Confusing with fee simple determinable.
Fee Tail: Duration measured by the lives of lineal descendants of the grantee.
Mnemonic: “Family Ties Last.”
Common Testing: Recognizing historical context.
Common Mistake: Misunderstanding the modern relevance.
Life Estate: Duration measured by the life of the grantee or another person.
Elements: Measured by life, Terminates at death.
Mnemonic: “Life Ends Tenancy.”
Common Testing: Identifying life tenant’s rights.
Common Mistake: Confusing with term of years.
Concurrent Estates:
Tenancy in Common: Each tenant owns an undivided interest.
Elements: Undivided interest, No survivorship.
Mnemonic: “Tenants Own Individually.”
Common Testing: Rights upon sale or death.
Common Mistake: Confusing with joint tenancy.
Joint Tenancy: Right of survivorship.
Elements: Right of survivorship, Equal interest.
Mnemonic: “Joint Tenancy Survivorship.”
Common Testing: Creation and severance.
Common Mistake: Ignoring requirement for unity.
Tenancy by the Entirety: Only available to married couples.
Elements: Married couple, Right of survivorship.
Mnemonic: “Entirely Married Jointly.”
Common Testing: Rights upon divorce or death.
Common Mistake: Confusing with joint tenancy.
Co-Tenants’ Rights and Duties: Rights of possession, contribution for expenses, and accounting.
Mnemonic: “Possession, Contribution, Accounting.”
Common Testing: Obligations for repairs and profits.
Common Mistake: Misunderstanding contributions required.
Step Three: Identify the Future Interests
Future Interests:
Grantor:
Reversion: Interest held by the grantor after conveying a lesser estate.
Elements: Lesser estate, Reversion to grantor.
Mnemonic: “Reverts to Grantor.”
Common Testing: Identification in conveyance.
Common Mistake: Confusing with remainder.
Possibility of Reverter: Automatically reverts upon the occurrence of a condition.
Elements: Condition, Automatic reversion.
Mnemonic: “Possibly Reverts Automatically.”
Common Testing: Identifying triggering conditions.
Common Mistake: Assuming manual action required.
Right of Reentry: Grantor must take action to reclaim the estate.
Elements: Condition, Action required.
Mnemonic: “Reentry Requires Action.”
Common Testing: Distinguishing from possibility of reverter.
Common Mistake: Assuming automatic reversion.
Grantee:
Shifting Executory Interest: Cuts short another estate.
Elements: Cuts short, Another estate.
Mnemonic: “Shifts and Cuts Short.”
Common Testing: Identifying third-party shifts.
Common Mistake: Confusing with springing interest.
Springing Executory Interest: Cuts short the grantor’s estate.
Elements: Cuts short, Grantor’s estate.
Mnemonic: “Springs from Grantor.”
Common Testing: Distinguishing from shifting interest.
Common Mistake: Confusing parties involved.
Contingent Remainder: Subject to a condition precedent or held by an unascertainable person.
Elements: Condition precedent, Unascertainable person.
Mnemonic: “Contingent on Condition.”
Common Testing: Conditions or unascertained persons.
Common Mistake: Confusing with vested remainder.
Vested Remainder: Held by an identifiable person and not subject to any condition precedent.
Elements: Identifiable person, No condition precedent.
Mnemonic: “Vested and Identifiable.”
Common Testing: Identifying vested interest.
Common Mistake: Misidentifying as contingent.
Indefeasibly Vested Remainder: Not subject to divestment.
Elements: Identifiable person, No divestment.
Mnemonic: “Indefeasible and Certain.”
Common Testing: Identification of no conditions.
Common Mistake: Confusing with vested remainder subject to defeasance.
Vested Remainder Subject to Complete Defeasance: Can be divested by a condition subsequent.
Elements: Identifiable person, Subject to divestment.
Mnemonic: “Vested but Defeasible.”
Common Testing: Conditions subsequent.
Common Mistake: Confusing with contingent remainder.
Vested Remainder Subject to Open: Class of persons with the remainder may grow.
Elements: Identifiable person, Class may grow.
Mnemonic: “Vested and Open.”
Common Testing: Identifying class gifts.
Common Mistake: Misunderstanding class closing rules.
Step Four: Address Special Problems in Ownership
Waste: Actions by a life tenant that harm the future interest.
Elements: Life tenant’s actions, Harm to future interest.
Mnemonic: “Waste Harms Future.”
Common Testing: Actions constituting waste.
Common Mistake: Overlooking permissible uses.
Rule Against Perpetuities (RAP): No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.
Elements: Must vest, 21 years, Life in being.
Mnemonic: “RAP: 21 years, Life in Being.”
Common Testing: Applying RAP to future interests.
Common Mistake: Miscalculating vesting period.
Fee Simple Absolute
Fee Simple Absolute: Ownership of potentially infinite duration.
Mnemonic: “Forever Estate Lasts.”
Common Mistake: Confusing fee simple absolute with defeasible fees.
Fee Simple Determinable
Fee Simple Determinable: Automatically ends and reverts to the grantor upon the occurrence of a stated event.
Elements: Automatic reversion, Stated event.
Mnemonic: “Determined Event Reverts Automatically.”
Common Testing: Identifying if an event triggers automatic reversion.
Common Mistake: Misidentifying conditions that cause reversion.
Fee Simple Subject to Condition Subsequent
Fee Simple Subject to Condition Subsequent: Does not automatically end; grantor must take action to reclaim.
Elements: Conditional grant, Reentry action required.
Mnemonic: “Condition Requires Action.”
Common Testing: Distinguishing from fee simple determinable.
Common Mistake: Assuming automatic reversion without action.
Fee Simple Subject to Executory Limitation
Fee Simple Subject to Executory Limitation: Automatically shifts to a third party upon the occurrence of a condition.
Elements: Automatic shift, Condition, Third party.
Mnemonic: “Shift Happens Automatically to Third party.”
Common Testing: Identifying third-party interests.
Common Mistake: Confusing with fee simple determinable.
Fee Tail
Fee Tail: Duration measured by the lives of lineal descendants of the grantee.
Mnemonic: “Family Ties Last.”
Common Testing: Recognizing historical context.
Common Mistake: Misunderstanding the modern relevance.
Life Estate
Life Estate: Duration measured by the life of the grantee or another person.
Elements: Measured by life, Terminates at death.
Mnemonic: “Life Ends Tenancy.”
Common Testing: Identifying life tenant’s rights.
Common Mistake: Confusing with term of years.
Tenancy in Common
Concurrent Estates:
Tenancy in Common: Each tenant owns an undivided interest.
Elements: Undivided interest, No survivorship.
Mnemonic: “Tenants Own Individually.”
Common Testing: Rights upon sale or death.
Common Mistake: Confusing with joint tenancy.
Joint Tenancy
Joint Tenancy: Right of survivorship.
Elements: Right of survivorship, Equal interest.
Mnemonic: “Joint Tenancy Survivorship.”
Common Testing: Creation and severance.
Common Mistake: Ignoring requirement for unity.
Tenancy by the Entirety
Tenancy by the Entirety: Only available to married couples.
Elements: Married couple, Right of survivorship.
Mnemonic: “Entirely Married Jointly.”
Common Testing: Rights upon divorce or death.
Common Mistake: Confusing with joint tenancy.
Co-Tenants’ Rights and Duties
Co-Tenants’ Rights and Duties: Rights of possession, contribution for expenses, and accounting.
Mnemonic: “Possession, Contribution, Accounting.”
Common Testing: Obligations for repairs and profits.
Common Mistake: Misunderstanding contributions required.
Grantor
Grantor:
Reversion: Interest held by the grantor after conveying a lesser estate.
Elements: Lesser estate, Reversion to grantor.
Mnemonic: “Reverts to Grantor.”
Common Testing: Identification in conveyance.
Common Mistake: Confusing with remainder.
Possibility of Reverter
Possibility of Reverter: Automatically reverts upon the occurrence of a condition.
Elements: Condition, Automatic reversion.
Mnemonic: “Possibly Reverts Automatically.”
Common Testing: Identifying triggering conditions.
Common Mistake: Assuming manual action required.
Right of Reentry
Right of Reentry: Grantor must take action to reclaim the estate.
Elements: Condition, Action required.
Mnemonic: “Reentry Requires Action.”
Common Testing: Distinguishing from possibility of reverter.
Common Mistake: Assuming automatic reversion.
Grantee
Grantee:
Shifting Executory Interest: Cuts short another estate.
Elements: Cuts short, Another estate.
Mnemonic: “Shifts and Cuts Short.”
Common Testing: Identifying third-party shifts.
Common Mistake: Confusing with springing interest.
Springing Executory Interest
Springing Executory Interest: Cuts short the grantor’s estate.
Elements: Cuts short, Grantor’s estate.
Mnemonic: “Springs from Grantor.”
Common Testing: Distinguishing from shifting interest.
Common Mistake: Confusing parties involved.
Contingent Remainder
Contingent Remainder: Subject to a condition precedent or held by an unascertainable person.
Elements: Condition precedent, Unascertainable person.
Mnemonic: “Contingent on Condition.”
Common Testing: Conditions or unascertained persons.
Common Mistake: Confusing with vested remainder.
Vested Remainder
Vested Remainder: Held by an identifiable person and not subject to any condition precedent.
Elements: Identifiable person, No condition precedent.
Mnemonic: “Vested and Identifiable.”
Common Testing: Identifying vested interest.
Common Mistake: Misidentifying as contingent.
Indefeasibly Vested Remainder
Indefeasibly Vested Remainder: Not subject to divestment.
Elements: Identifiable person, No divestment.
Mnemonic: “Indefeasible and Certain.”
Common Testing: Identification of no conditions.
Common Mistake: Confusing with vested remainder subject to defeasance.
Vested Remainder Subject to Complete Defeasance
Vested Remainder Subject to Complete Defeasance: Can be divested by a condition subsequent.
Elements: Identifiable person, Subject to divestment.
Mnemonic: “Vested but Defeasible.”
Common Testing: Conditions subsequent.
Common Mistake: Confusing with contingent remainder.
Vested Remainder Subject to Open
Vested Remainder Subject to Open: Class of persons with the remainder may grow.
Elements: Identifiable person, Class may grow.
Mnemonic: “Vested and Open.”
Common Testing: Identifying class gifts.
Common Mistake: Misunderstanding class closing rules.
Waste
Waste: Actions by a life tenant that harm the future interest.
Elements: Life tenant’s actions, Harm to future interest.
Mnemonic: “Waste Harms Future.”
Common Testing: Actions constituting waste.
Common Mistake: Overlooking permissible uses.
Rule Against Perpetuities (RAP)
Rule Against Perpetuities (RAP): No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.
Elements: Must vest, 21 years, Life in being.
Mnemonic: “RAP: 21 years, Life in Being.”
Common Testing: Applying RAP to future interests.
Common Mistake: Miscalculating vesting period.
