Real Property
Estates and Future Interests
Fee simple absolute, defeasible fees (fee simple determinable with possibility of reverter; fee simple subject to condition subsequent with right of entry; fee simple subject to executory limitation), and life estates. Remainders are vested (indefeasibly, subject to open or divestment) or contingent. The Rule Against Perpetuities: no interest is good unless it must vest, if at all, within 21 years of a life in being; it applies to contingent remainders, executory interests, and vested remainders subject to open - not to reversions or indefeasibly vested remainders.
Co-tenancy and Landlord-Tenant
Joint tenancy requires the four unities plus survivorship; severance by conveyance. Tenancy in common has no survivorship; tenancy by the entirety in some states. Leaseholds: term of years, periodic, at will, at sufferance. Know the implied warranty of habitability, constructive eviction, and rent abatement.
Servitudes and Recording
Easements: express, implied (prior use), necessity (strict necessity plus unity of ownership), prescriptive (adverse use). Covenants run with land if there is writing, intent, touch and concern, notice, and privity. Equitable servitudes require notice. Recording acts: race, notice, race-notice; a BFP takes free of prior unrecorded interests. The shelter rule protects transferees from BFPs. Marketable title requires no encumbrances.
Traps
- RAP: fertile octogenarian and unborn widow problems.
- Easement by necessity ends when the necessity ends; prescriptive easements need adverse use, not exclusivity.
- Wild deeds give no constructive notice.
Worked example: O conveys to A, who does not record; O then conveys to B, a BFP who records first. In a notice or race-notice jurisdiction, B wins.