Property Final Outline

Estates in Land: Present Possessory Estates

I. Fee Simple
a. Terms:
i. Fee = an estate that can pass by inheritance
1. Can be inherited by anyone
ii. Simple = no restrictions on who can inherit the property
iii. Absolute = No conditions under which the estate can terminate
b. FSA – Can endure forever
i. O grants Blackacre to “A and his heirs” or “to A”
ii. Indefeasible
iii. The largest of the estates with potentially infinite duration
c. FS Defeasible – Can be defeated by the occurrence of some event
i. All 3 defeasible fees are of potentially infinite duration, like the FSA, but only if the
stated event does not occur
ii. 3 Types:
1. FS Determinable
a. Automatically ends at happening of some event to
b. The grantor has a possibility of reverter; That is, the property will
revert to O when the specified event occurs
c. (possibility of reverter never goes w/ anything else)
i. So long as
ii. While
iii. During
iv. Unless
v. until
d. Back to grantor
2. FS SCS
a. If event happens after granting, O may assert right of entry to take
it back
i. Right of entry always goes with SCS
ii. A ROW can only be created in the grantor or her heirs;
such an interest created in favor of a 3rd party creates an
executor interest
b. Words of condition
i. To A provided that
ii. But if A
iii. On condition that
c. Back to grantor
3. FSSEI
a. If event happens, interest automatically divested in favor of 3rd
person
i. To A, but if [event happens], then to B
ii. To A on condition of…otherwise to C
b. To 3rd person
II. Fee Tail – Passes through bloodline (issue);
a. ends when first fee tail tenant has no lineal descendants
b. Fee Tail can be transferred to 3rd parties only during the lifetime of the current owner
c. Fee Tail is a “smaller” estate than the various fee simple
d. To A and the heirs of his body
e. Types:
i. Fee Tail determinable
ii. Fee Tail SCS
 iii. Fee Tail SEI
f. FT exists only in DE, ME, MA, RI
III. Life Estate
a. Necessarily ends at death of grantee
b. Smaller state than any of the fees b/c it exists only for the life of the grantee
c. To A for life
d. The LE may be measured by
i. The life of the grantee, OR
ii. Pur Autre Vie – Can be measured by life of another other than O
1. To A so long as B lives
e. Determinable life estate
f. Types
i. Determinable Life Estate
ii. Life Estate SCS
iii. Life Estate SEI
g. The LT is entitled to beneficial use of land, but may not act to impair value of future interest
holders interests
i. LT is under duty to pay interest on debt secured by the property
ii. LT is under duty to pay ordinary property taxes
iii. LT and FI holders apportion costs of permanent improvements
IV. Leasehold
a. Endures for a fixed number of years
b. Usually are defeasable
c. To A for ___ years
d. Types
i. Determinable Leasehold
ii. Leasehold SCS
iii. Leasehold SEI

Estates in Land: Future Interests

I. In Grantor
a. Reversion
i. Created when a grantor or testator transfers a vested estate of a lesser quantum
than that which he has
1. Hierarchy of Estates, from greater to lesser:
a. Fee simple
b. Fee Tail
c. Life Estate
d. Leasehold
ii. No words are necessary to create a reversion
1. If the grantor transfers a lesser estate than that which he has, he necessarily
retains that part not transferred
iii. Although reversion can only be created in the grantor, after creation it can be
transferred to some other person
iv. NO SUCH THING as a possibility of reversion!!!
v. Follows LE
vi. Automatic by operation of law
vii. To A for life; then reversion in O
b. Possibility of Reverter
i. Created when a transferor conveys a determinable estate
ii. May follow:
1. FSD
 2. FTD
3. Determinable LE
4. Determinable Leasehold
iii. Creation of a possibility of reverter is implicit whenever a determinable estate is
created
iv. Operates automatically
c. Right of Entry
i. Created whan a transferor conveys an estate SCS
ii. May follow
1. FSSCS
2. FTSCS
3. LESCS
4. Leasehold SCS
iii. Creation of a ROE is implicit when an estate SCS is created
iv. Does not go back until ROE is exercised by O
1. Does not operate automatically
II. In Grantees
a. Remainder
i. Whenever a reversion could have been created b/c the grantor conveyed a lesser
estate than that which he owned, but instead conveys that interest to a 3 rd party
ii. Characteristics of Remainders
1. Future interests created in a person other than the grantor must be
remainders or executor interests
2. A remainder need not be co-extensive with the interest retained by the
grantor;
a. a document may create a present possessory estate, a remainder,
and a reversion
3. Remainders may be:
a. Vested, or
b. Contingent
4. Once created, a remainder may be transferred, but even is transferred back
to the grantor it is still called a remainder
5. Remainders may follow a fee tail, LE, or a leasehold
iii. Always follows LE
iv. Vested Remainder
1. A remainder that is certain to become possessory upon the expiration of the
prior estate created a the same time
2. It must be:
a. Given to an ascertained person AND
b. Not SCS
i. Other than the natural termination of the preceeding
estates
3. Waits patiently
4. To A for life, then to B
5. 3 Types of vested remainders
a. Indefeasibly Vested Remainder
i. A remainder is indefeasibly vested is it is certain of
becoming possessory in the future and cannot be divested
ii. To A for life, then to B and her heirs
iii. Nothing can ever take it away
b. Vested Remainder Subject to Total Divestment (aka Vested
Remainder SCS)
i. A remainder is subject to total divestment if the
occurrence of some condition subsequent can create an
 interest in some other party that can divest the
remainderperson’s interst
ii. To A for life, then to B and her heirs, but if B does not survive
A, to C and his heirs
iii. Through FSD or FSSCS
c. Vested Remainder Subject to Open (aka Vested remainder subject
to partial divestment)
i. A remainder is created in a class of persons, one of whose
members is already ascertained
ii. There is no condition precedent, AND new persons may
still be added to the class
1. More heirs can pop up
iii. To A for life, then to A’s children and their heirs
d. NOTE: a remainder may be subject to both partial and total
divestment
v. Contingent Remainder
1. A remainder is contingent rather than vested if it’s
a. Given to an unascertained person, OR
b. Made contingent upon the occurrence of a condition precedent
2. If there is a condition precedent, OR there is an unascertained class (ex/
unborn kids)
3. To A for life, then to the heirs of B where B is still alive
a. The takers are unascertained b/c no one is heir to the living
4. To A for life, then to B and her heirs if B survives A, and if B does not survive A,
to C and her heirs
a. The words “if B survives A” creates a condition precedent, as do the
words “and if B does not survive A”
b. B and C thus each have a contingent remainder
c. These are also alternative contingent remainders
5. Special problems with contingent remainders
a. While vested remainders accelerate into possession (become
possessory estates) as soon as the prior estate terminates,
contingent remainders no not so long as they remain contingent
b. The Doctrine of Destructability of Contingent Remainders:
i. At common law, and today in some states, contingent
remainders were destroyed if they did not vest upon
termination of the preceding estate
b. Executory Interest
i. An executor interest is a future interest created in a transferee that must, in order to
become possessory,
1. Divest or cut short some interest in another transferee, OR
a. “shifting EI”
2. Divest the transferor in the future
a. “springing EI”
ii. Always follows FSSEL
iii. Springing – “springs” form O upon a future condition fulfilled
iv. Shifting – “divests” prior estate to 3rd person
v. Function automatically

Future Interests: Special Rules

I. Merger: If the life estate and the next vested estate come into the hands of one person, the lesser
estate is merged into the larger:
 a. O conveys Blackacre “to A for life, then to B and her heirs.” A then conveys his life estate to B.
b. The life estate merges into the remainder in FSA, and B now owns Blackacre in FSA.
II. The Doctrine of Destructibility of Contingent Remainders
a. Rule: Under this doctrine, contingent remainders are destroyed if they do not vest upon the
natural termination of the preceding life estate, e.g.:
i. “To A for life, then to B and her heirs if B reaches 21.”
ii. If A dies before B is 21, B’s remainder [under the doctrine] would be destroyed,
even though B will later reach 21.
iii. If the remainder is still subject to a condition precedent when the preceding estate
terminates, the remainder is wiped out and the right of possession moves on to the
next vested interest
b. Destructibility and Executory Interests: The doctrine of destructibility of contingent
remainders does not apply to executory interests.
c. This doctrine has been abolished in most US states and appears to be extinct in the rest.
d. Merger and the Doctrine of Destructibility
i. Here’s the trick: O conveys Blackacre “to A for life, then to B and her heirs if B
survives A.”
ii. A conveys his life estate to O; O now owns Blackacre in FSA.
iii. Why?
1. B’s remainder is contingent
2. No other outcome is specified, so O retains a reversion in FSA.
3. The life estate merges into the reversion in FSA.
e. Note: In all property questions, children later born alive are treated retroactively as lives in
being from the time of conception -- if doing so is for the child’s benefit.
III. The Rule in Shelley’s Case
a. If:
i. One instrument
ii. Creates a life estate in land in A, and
iii. Purports to create a remainder in persons described as A’s heirs [or the heirs of A’s
body], and
iv. The life estate and remainder are both legal or both equitable
b. b) Then:
i. The remainder becomes a remainder in fee simple [or fee tail] in A.
c. c) The Rule in Shelley’s Case and Merger
i. Example: O conveys Blackacre “to A for life, then to A’s heirs.”
ii. Under the merger doctrine, the life estate in A will then merge into A’s vested
remainder in fee, and A will have a FSA or fee tail.
iii. In theory the rule in Shelley’s Case applies only to contingent remainders and not to
executory interests.
IV. The Doctrine of Worthier Title (DWT)
a. Where there is an inter vivos conveyance of land with a remainder or EI in the grantor’s own
heirs, no future interest in the heirs is created but a reversion is retained by the grantor.
b. Example: O conveys Blackacre “to A for life, then to O’s heirs.”
c. Under the DWT, O’s heirs have nothing; O has a reversion.
d. The Doctrine of Worthier Title Today
i. The DWT today is applied as a rule of construction rather than a rule of law; it can
be overcome by a showing of contrary intent.
ii. It can also be applied to personal as well as real property.
iii. The DWT has been abolished in many states, including California.

Future Interests: The Rule Against Perpetuities

V. Rule: No interest is good unless it must vest, if at all, not later than twenty-one years after some
life in being at the creation of the interest.
 a. Must be certain to either vest or fail no later than 21 years after everyone alive at the
creation of the interest is dead
b. Measuring life must be alive at the time of the conveyance
c. The trick is to find any life that can validate the conveyance
VI. Interests subject to the rule:
a. Contingent remainders
b. Executory interests
c. Gifts to a class of people (i.e. VRSTO)
VII. Interests not subject to the rule
a. Vested interests
i. But note that gifts to a class are treated for RAP purposes as not vested in any
member of the class until vested in all.
b. Interests retained by the transferor
i. Reversions
ii. Rights of entry (aka powers of termination)
1. Even though they are not vested interests
iii. Possibilities of reverter
VIII. Effect of the rule:
a. Interests that may vest too remotely are stricken from the conveyance;
b. The conveyance is read as if the portions granting such interests have been lined out.
IX. The Rule Against Perpetuities Today
a. RAP has been modified/abolished in the maj of US jdx (see chart on Dukeminier p. 334)
b. Some states have a wait-and-see RAP: The question is not whether a future interest might
vest outside the measuring period, but whether it actually does.
c. More states have adopted the Uniform Statutory Rule Against Perpetuities (USRAP), which
takes a wait-and-see approach for 90 years rather than for a life in being plus 21 years.
d. The cy pres doctrine: In some states conveyances of interests that violate the RAP are not
stricken from the grant, but reformed with the goal of carrying out, to the greatest extent
possible, the grantor’s intent within the limits of the rule.
X. Many states combine these modifications of the RAP in various ways.

Adverse Possession

I. 6 Elements:
a. Actual entry
b. Giving exclusive possession
c. That is open and notorious
i. At min = trespassory
ii. In min of states = in good faith
iii. In another min of states = in bad faith
d. Adverse (hostile) to the interest of the true owner
i. Don’t confuse this with entry under color of title
e. And continuous
i. Normal and expected use of the property
f. for the statutory period.
i. Tacking can be used to satisfy this element
1. Tacking requires privity
a. Privity is a voluntary transfer
ii. What about tolling??
II. Color of Title:
a. Refers to a claim founded on a written instrument (such as a deed or a will) or a judgment or
decree that is for some reason defective or invalid.
 b. Entry or occupancy under color of title is requirement of adverse possession in some states.
c. In many states where its not a requirement, its nonetheless easier to acquire title when the
adverse possessor acts under color of title.
i. For example, the statutory period might be shorter.
d. In all states color of title allows an adverse possessor to acquire title to the whole property
even when s/he occupies only part, because s/he is in constructive possession of the whole.
e. There are some limitations to this doctrine, however.
III. Adverse possession when the landowner is under a disability:
a. Sample disability statute:
i. An action to recover the title to possession of real property shall be brought within
twenty-one years after the cause thereof accrued, but if a person entitled to bring
such action, at the time the cause thereof accrues, is within the age of minority, of
unsound mind, or imprisoned, such person, after the expiration of twenty-one
years from the time the cause of action accrues, may bring such action within ten
years after such disability is removed.
b. Note that under this statute the disability must exist at the time of the entry.
IV. Adverse Possession Against the Government
a. At common law, the rule was nullum tempus occurit regis: No time runs against the king.
b. In general, there is no adverse possession against any government – federal, state or local.
c. Exceptions have been made in some states, however.
d. In the absence of anything on an exam telling you that such an exception exists, it’s safe to
assume it doesn’t.
e. What about land (in the U.S.) owned by foreign governments?

Concurrent Interests

I. What is a concurrent interest?

a. Previously we’ve look at rights that are consecutive or mutually exclusive.
b. When two or more persons have a possessory right in real property at the same time and
those rights do not exclude each other, those persons have concurrent interests.
II. 3 types of concurrent interests:
a. Tenancy in common
b. Joint tenancy
c. Tenancy by the entirety
III. Tenancy in common (TIC)
a. Tenants in common have separate but undivided interests in the property.
b. There are no rights of survivorship.
c. TIC interests are alienable and descendible.
d. TIC requires unity of possession: Each tenant must have a right to possession of the whole.
e. Issues that will arise
i. Formation of the interest
1. 5 unities that will be required
a. TBTE
i. Marriage
ii. Time
iii. title
iv. Interest?
v. Possession
b. JT
i. Time
ii. Title
iii. Interest
iv. Possession
c. TIC
 i. Only requires unity of possession
2. Will involve one or more of the unities being absent
a. Failed attempt to create a TBTE Will create either a JT or TIC
i. Couples tend to show an intent to right of survivorship, so
JT most often applies
b. Failed attempt to create a JT create a TIC
c. Failed attempt to create a TIC creates NOTHING
ii. Termination Issues
1. When one party to a TIC transfers his share, nothing happens
2. When one party tyo a TBTE attempts to transfer a share, nothing happens.
The TBTE remains unchanged
3. When one party to a JT attempts to transfer a share…WHAT HAPPENS??
4. When one party to a TBTE dies, the surviving spouse owns the whole thing
5. When one party to a JT dies, his other cotenants divide the deceased
persons share among them
a. The surviving JTs take everything (if only one other JT, he takes
everything)
6. TIC does not have a right of survivorship.
a. His part passes to his heirs
iii. Rights of the cotenants against each other
1. Every co-tenant has right to possess the entire property
2. Look for OUSTER in an exam
a. When one person’s right to the property is being denied by another
co-tenant, then you have ouster
b. Onc eyou have ouster, then the person doing the ousting may be
liable for rent and the person doing the ousting may begin to
adversely possess the property
c. The person being ousted can bring an action for rent and can DO
SOMETHING to end the ouster
IV. Joint tenancy (JT)
a. Joint tenants each “own” the undivided whole; each is seised per my et per tout.
b. There is a right of survivorship: When one joint tenant dies the remaining joint tenants
continue as before, without the participation of the deceased joint tenant.
c. Because of the right of survivorship, JT interests are not descendible.
d. At common law, four unities were required to create a joint tenancy:
i. Time: The interest of each joint tenant must be acquired or vest at the same time.
ii. Title: All joint tenants must acquire title by the same instrument or by a joint
adverse possession. A JT can never arise by intestate succession or other act of law.
iii. Interest: All tenants must have equal undivided shares and interests of identical
duration.
iv. Possession: Each tenant must have a right to possession of the whole. After a joint
tenancy is created, however, one joint tenant can voluntarily give exclusive
possession to the other joint tenant.
e. At common law, and in many states, an attempt to create a JT without one or more of the
four unities will fail, and a TIC will be created instead.
i. In these states, severance of any of the four unities will transform the JT into a TIC.
ii. Note that this makes it possible for any JT to unilaterally convert the JT into a TIC
(by conveying his or her share of the property to some outside party).
f. Some states have abolished the “four unities” requirement.
i. On an exam, though, unless you’re specifically told otherwise, assume that all four
unities are required.
g. In all states the parties to a JT can bring an action for judicial partition.
V. Tenancy by the entirety:
a. Similar to joint tenancy, except that the parties are seised per tout et non per my, the legal
fiction being that the married couple is a single person.
 b. Creation of a tenancy by the entirety requires the four unities required for JT plus a fifth, the
unity of marriage.
i. In Hawaii, a tenancy by the entirety may also be created in registered reciprocal
beneficiaries, including same-sex couples and parent & child.
c. As with JT, tenants by the entirety have a right of survivorship; this means that a tenancy by
the entirety is not descendible.
d. The fact that the parties are seised per tout et non per my means that any attempt by one
party to convey his or her “share” in the property is necessarily void.
e. In states where the tenancy by the entirety still exists (a large minority of states), a
conveyance to a husband and wife will generally be presumed to create a tenancy by the
entirety if these five unities exist.

I. Testable Issues
a. Estates
i. Formation
1. What are the words necessary to form the estates
ii. General classifications
1. What types of estates that exist
b. Future Interests
i. What words create FSD, STEL, FSSCS
ii. What are the future interests that go with the estates
1. ROE always goes with ___, etc.
iii. Identifying CRs (identifying conditions precedent as opposed to conditions
subsequent)
1. ***Heavily testable****
c. THE ESSAY WILL INCLUDE CONVEYANCES AND TRACING THE STATE OF THE TITLE
i. Put the year (make it up) and which estates are created at that time
1. Then, if RAP applies, apply RAP
2. If there is anything that must be stricken from the grant, state which and
why
3. Then, rewrite what the grants are after all of this
ii. Then, move on to subsequent years and state how the events in the hypo change the
grants
d. Adverse Possession
i. Will likely be combined with the conveyance hypo
ii. Can structure many ways
e. Concurrent Interests
i. Formation
1. One of the unities will be missing
ii. What happens when one JT transfers a share
iii. Right of survivorship may arise, but probably not in the essay