Property

Estate Classification Framework

Property analysis begins by identifying the estate conveyed. When analyzing an estate, ask:

1. What is the duration? Will the estate last forever (fee), for a lifetime (life estate), for a term of years (leasehold), or for some other period?
2. Is the estate inheritable? Will it pass to heirs upon death (fee, leasehold) or terminate at death (life estate)?
3. Is the estate subject to conditions? Can it be cut short (fee simple determinable, fee simple on condition subsequent)?
4. Who takes if the estate ends prematurely or at its natural termination? This identifies future interests held by others

Present Possessory Estates

Fee Simple Absolute: The largest estate possible. Lasts forever, passes to heirs. Conveyed by words like "to A and his heirs" or "to A in fee simple." Subject only to government power (taxes, eminent domain) and any restrictions on the land.

Fee Tail: Inheritable only by descendants. Largely abolished; when created (words "to A and the heirs of his body"), it typically converts to fee simple. Prevents disinheritance of descendants.

Life Estate: Lasts for the life of a named person. Conveyed by "to A for life." Upon death, passes to a remainder holder. Ends at death; not inheritable. Subject to waste doctrine—life tenant cannot permanently damage the property.

Leasehold (Term of Years): Lasts for a fixed period (month, year, 99 years). Conveyed by "to A for [term]." Typically inheritable during the lease term but terminates at the end of the term. Governed by landlord-tenant law.

Future Interests

Reversion: The interest retained by the grantor when conveying less than a fee simple. When a fee simple grantor conveys a life estate, the reversion is automatically retained. No words needed; reversion arises by operation of law.

Remainder: An interest that takes effect when a prior estate ends. Must follow a prior estate and be expressly created. Examples:

• "To A for life, then to B." B has a vested remainder in fee simple (B will definitely take the fee when A dies).
• "To A for life, then to B if B survives A." B has a contingent remainder (uncertain whether B will satisfy the condition).

Executory Interest: Similar to remainder but follows a fee simple determinable or fee simple on condition subsequent. Can also take effect cutting short a prior estate (springing or shifting executory interest).

The Rule Against Perpetuities (RAP)

Statement: No interest is valid unless it must vest, if at all, not later than 21 years after a life in being at the creation of the interest.

Application Process:

1. Identify the future interest to be tested (usually contingent remainders and executory interests)
2. Identify the validating lives (lives in being who determine vesting)
3. Ask: Is it possible that the interest might vest (if at all) after 21 years after the validating life dies?
4. If the answer is "yes" (even if remote possibility), the interest violates RAP and is void
5. If the answer is "no" (it must vest within the perpetuities period), the interest is valid

Key Point: RAP is a rule about vesting, not about duration. An interest that vests but then lasts forever is valid; an interest that might never vest is void. Modern trend is toward abolition of RAP for many types of interests.

Landlord-Tenant Law

Creation of Relationship: Lease (written or oral) creates landlord-tenant relationship. Must include essential terms: parties, property, term, rent. Recording requirements vary by jurisdiction and lease duration.

Landlord's Duties:

• Warranty of Habitability: Property must be fit for human occupancy. Breach entitles tenant to withhold rent, repair-and-deduct, or terminate (constructive eviction)
• Quiet Enjoyment: Landlord must not interfere with tenant's peaceful possession
• Maintenance: Landlord responsible for structural elements and common areas

Tenant's Duties:

• Pay Rent: Tenant must pay agreed-upon rent; landlord may evict for non-payment
• No Waste: Tenant must not substantially damage the property (ordinary wear and tear excepted)
• Maintain: Tenant responsible for minor maintenance and repair

Recording Systems and Title

Three Recording Statute Types:

• Notice Statute: Subsequent buyer without notice of earlier unrecorded interest takes free of that interest. Protects innocent purchasers
• Race Statute: First to record wins. Protects the first person to record, even if they had notice
• Race-Notice Statute: Subsequent buyer without notice who records first takes free of earlier unrecorded interest. Requires both innocence and recording

Key Concepts:

• Bona Fide Purchaser (BFP): One who buys for value without notice of competing claims. BFPs receive special protection under recording statutes
• Notice: Actual notice (knew of the interest), constructive notice (should have known from recorded documents), or inquiry notice (reasonable investigation would have revealed)
• Chain of Title: Recorded instruments in sequence showing ownership transfer. Gaps in chain may render later documents unrecorded as to one without access to the full chain

Exam Strategy

• Always identify the estate(s) created and their duration
• Identify all future interests created by the conveyance
• For future interests, test for violation of RAP
• For landlord-tenant issues, identify which duty was breached and what remedies are available
• For recording issues, identify the type of recording statute in the jurisdiction and apply it to determine who has priority
• Watch for conditions and defeasibility in estate language
• Draw diagrams of property transfers to visualize estate parcels and future interests