REAL PROPERTY — BAR ONE-SHEET (ELEMENTS & MNEMONICS)
Lean issue-spotting checklist — elements and mnemonics only. Pair with the full Real Property Master Outline for depth, then drill questions at MBEMax.
KEY PRINCIPLE #1 — PRESENT ESTATES
- Fee simple absolute = "to A" (and heirs). Absolute ownership.
- Fee simple determinable = durational words ("so long as," "while," "until") → automatic reverter (possibility of reverter in grantor).
- Fee simple subject to condition subsequent = conditional words ("but if," "provided that") + re-entry right → right of entry/power of termination (grantor must act).
- Fee simple subject to executory interest → cuts to third party.
- Fee tail (mostly abolished) · Life estate ("to A for life"; reversion/remainder; pur autre vie). Life tenant duty: no waste.
WASTE: affirmative (voluntary — exploit) · permissive (neglect/fail to maintain/pay) · ameliorative (improve, changing character).
KEY PRINCIPLE #2 — FUTURE INTERESTS
- In grantor: reversion · possibility of reverter (FSD) · right of entry (FSSCS).
- In grantee — REMAINDER (waits politely for natural end of prior estate): vested (ascertained + no condition precedent) — incl. vested subject to open / subject to divestment — vs contingent (unascertained or condition precedent).
- EXECUTORY INTEREST (cuts short prior estate): shifting (from grantee) vs springing (from grantor).
RULE AGAINST PERPETUITIES (RAP): contingent interest void unless it must vest or fail within 21 years of a life in being at creation. Applies to contingent remainders, executory interests, vested subject to open, options. (Validating life; "wait & see"/reform by statute.) Watch fertile octogenarian, unborn widow, slothful executor.
- Class gift: "bad as to one, bad as to all" (rule of convenience closes class).
- RULE AGAINST RESTRAINTS ON ALIENATION: absolute disabling restraints void.
KEY PRINCIPLE #3 — CONCURRENT ESTATES
- Tenancy in common = separate undivided shares; descendible/devisable/alienable (default).
- JOINT TENANCY = right of survivorship + four unities (mnemonic "TTIP": Time · Title · Interest · Possession) + clear survivorship language. Severed by sale/mortgage (title theory)/partition.
- Tenancy by entirety = married couples + survivorship; neither alone can convey/encumber.
- Rights: each possesses whole; ouster; contribution (taxes/mortgage); accounting for rents from 3rd parties; partition (kind or sale).
KEY PRINCIPLE #4 — LANDLORD-TENANT
- Tenancies: term of years (auto-end) · periodic (notice = one period) · at will · at sufferance (holdover).
- Tenant duties: pay rent · avoid waste · repair (no destruction).
- Landlord duties: deliver possession · implied covenant of quiet enjoyment (constructive eviction = substantial interference + notice + vacate) · implied warranty of habitability (residential — can't waive).
- Assignment (entire — privity of estate; covenants run) vs sublease (partial — no privity w/ LL). Original tenant remains liable (privity of K).
KEY PRINCIPLE #5 — EASEMENTS, COVENANTS & SERVITUDES
EASEMENT CREATION — mnemonic "PING": Prescription (open, notorious, continuous, hostile for statutory period) · Implication (prior use — quasi-easement, apparent, continuous, necessary) · Necessity (landlocked at severance) · Grant (writing — SoF). Plus estoppel.
- Appurtenant (benefits land — dominant/servient; runs) vs in gross (personal).
- TERMINATION — mnemonic "END CRAMP": Estoppel · Necessity ends · Destruction · Condemnation · Release (writing) · Abandonment (act + intent) · Merger · Prescription.
- REAL COVENANT (damages): writing · intent to run · touch & concern · notice (burden) · horizontal + vertical privity (burden); benefit needs vertical only.
- EQUITABLE SERVITUDE (injunction): writing · intent · touch & concern · notice. (No privity. Implied reciprocal — common scheme + notice.)
- License (revocable, no SoF) · profit (extract).
KEY PRINCIPLE #6 — CONVEYANCING: CONTRACT & DEED
- LAND SALE K: SoF (writing — parties, land, price, signature; part performance exception) · marketable title (implied) · equitable conversion (risk of loss on buyer, majority) · time not of essence unless stated.
- DEED: lawful execution (writing, identify parties/land, signed by grantor) + delivery (intent) + acceptance.
- COVENANTS OF TITLE (general warranty): present — seisin, right to convey, against encumbrances; future — quiet enjoyment, warranty, further assurances.
- Special warranty (grantor's own acts) · quitclaim (none).
- Doctrine of merger: K covenants merge into deed at closing.
KEY PRINCIPLE #7 — RECORDING ACTS & MORTGAGES
- RACE: first to record wins (notice irrelevant).
- NOTICE: subsequent BFP (no actual/record/inquiry notice) wins, even if doesn't record first.
- RACE-NOTICE: subsequent BFP who records first wins. (Shelter rule; wild deeds; estoppel by deed.)
- MORTGAGES: lien theory (default) vs title theory. Equity of redemption (can't clog). Foreclosure: senior survives, junior wiped (if joined); deficiency/surplus. Due-on-sale; assume (personal liability) vs subject to. Priority by recording; PMM super-priority.
KEY PRINCIPLE #8 — ADVERSE POSSESSION & LAND USE
ADVERSE POSSESSION — mnemonic "ENCHO": Exclusive · Notorious (open) · Continuous (statutory period; tacking w/ privity) · Hostile (without permission) · Open/actual. (Disabilities toll; not vs government.)
Misc: fixtures (annexation/adaptation/intent) · lateral & subjacent support · zoning (nonconforming use, variance) · water rights (riparian vs prior appropriation).
ADDITIONAL HIGH-YIELD POINTS
Doctrine of Worthier Title. Grant to grantor's own heirs is void as a remainder — the future interest stays with the grantor as a reversion. Rule of construction (rebuttable by intent).
Rule in Shelley's Case. A grant "to A for life, then to A's heirs" merges — A takes a fee simple; "heirs" is read as words of limitation, not purchase. Mostly abolished, but test it.
Destructibility of contingent remainders. Common-law rule destroyed a contingent remainder not vested by the natural end of the prior estate — abolished in most states (interest becomes springing executory interest instead).
RAP — "what-might-happen" test & charity exception. Measure validity by any conceivable scenario at creation, not actual events. Gift-over from one charity to another charity is exempt from RAP.
Easement scope — surcharge. An easement is used only for its reasonable, contemplated purpose; overuse (e.g., serving an after-acquired parcel) is a surcharge enjoinable as misuse, but generally does not terminate the easement.
Easement appurtenant transfer. The benefit passes automatically with conveyance of the dominant estate; the burden passes with the servient estate if the taker had notice. Appurtenant easements cannot be severed from the land.
Negative easements. Recognized only for Light, Air, Support, and Stream/flow of an artificial waterway (some add view/scenic). Must be expressly created in writing.
Covenant remedy distinction. Plaintiff seeking money damages sues on a real covenant (privity required); plaintiff seeking an injunction sues on an equitable servitude (no privity, just notice). Same restriction, two tracks.
Marketable title defects. Title is unmarketable if there is a defect in the record chain, an undisclosed encumbrance (lien, mortgage, easement, covenant), significant zoning violation, or title resting only on adverse possession. Buyer's pre-closing remedy; cured by closing.
Implied warranty of fitness/quality. Builder-vendor of a new home impliedly warrants fit construction/workmanship; many states extend to subsequent buyers. Distinct from caveat emptor on used homes (subject to duty to disclose latent defects).
Equitable conversion & death. On signing, buyer holds equitable title (real property — passes to heirs/devisees of realty); seller holds legal title as security (personal property — proceeds pass as personalty). Drives the risk-of-loss and devise outcomes.
Estoppel by deed (after-acquired title). Grantor who conveys land he does not yet own, then later acquires title, is estopped — title passes automatically to the grantee. Subsequent BFP from the grantor may cut this off.
Recording — types of notice. AID: Actual (real knowledge), Inquiry (duty to investigate possession/recitals in recorded instruments), and record/constructive notice. A BFP must give value and take without notice.
Shelter rule. A grantee from a protected BFP "shelters" under the BFP's status and prevails over a prior interest — even if that grantee personally had notice. (Cannot use to launder one's own prior bad act.)
Chain-of-title problems. A "wild deed" (recorded but outside the searchable chain) gives no constructive notice. Estoppel-by-deed and late-recorded deeds can also fall outside the chain — subsequent purchasers are not charged with them.
Mortgage alternatives & PMM priority. Deed of trust, installment land contract, absolute deed intended as security, and sale-leaseback are all treated as mortgages (equity looks to substance). A purchase-money mortgage has priority over earlier liens against the buyer, even prior recorded judgment liens.
Adverse possession — tacking & color of title. Successive possessors tack their periods only if in privity (deed, will, descent). Color of title (a defective instrument) can support constructive possession of the whole described parcel.
Fixtures & trade fixtures. An item annexed to realty becomes part of it (passes with the land); intent is the key factor. A tenant's trade fixtures remain removable if removed before lease end and damage is repaired.
Support rights. Lateral support: strict liability for subsidence of land in its natural state; negligence required if the weight of buildings contributed. Subjacent support owed by a subsurface (mineral) rights holder to the surface.
Zoning — nonconforming use & variance. A use lawful before the ordinance may continue as a vested nonconforming use (cannot be eliminated without amortization/compensation). A variance requires undue hardship + no harm to the public welfare; a taking occurs if regulation denies all economic use.
★ ONE-LINE ATTACK ORDER
Classify present estate → Future interest + RAP → Concurrent estate (TTIP / severance) → Landlord-tenant (duties; assignment vs sublease) → Easement/covenant/servitude (PING create; run with land?) → Land sale K (marketable title) → Deed (delivery; warranties) → Recording act (race/notice/race-notice; BFP) → Mortgage priority/foreclosure → Adverse possession (ENCHO).