Foundations of Property Law: Estates, Tenure, and Interests
The Core Framework
Property law is built on two organizing ideas: the doctrine of estates and the doctrine of tenure. Tenure describes the relationship between a holder and the sovereign; estates describe the duration of a holder's interest in land. A candidate must be able to classify every interest by duration (fee simple, life estate, term of years), by number of holders (sole, joint, in common), and by when it takes effect (present or future).
Present and Future Interests
Fee simple absolute is the fullest estate and endures indefinitely. A fee simple determinable ends automatically on a stated event and leaves a possibility of reverter in the grantor. A fee simple subject to condition subsequent requires the grantor to re-enter, leaving a right of entry. A fee simple subject to executory limitation shifts automatically to a third party. Life estates are measured by a named life; remainders follow them. Vested remainders are certain to become possessory; contingent remainders depend on an unfulfilled condition or an unascertained person.
Traps to Watch
Questions love to blur "automatic" versus "requires action." Words like "so long as" and "until" signal determinable; "but if" and "provided that" signal condition subsequent. Another trap is the distinction between a remainder and an executory interest: a remainder can only follow a life estate or term of years, never a fee. Also watch class gifts and the rule against perpetuities, which invalidates interests that may vest too remotely.
Rule of Thumb
Ask three questions in order: What estate did the grantor keep? What future interest did the grantor create? Does that future interest vest automatically or only on action? If it vests automatically in a third party, it is an executory interest, not a remainder.
Worked Example
"To A so long as used for farming, then to B." A holds a fee simple determinable; the grantor holds a possibility of reverter. Wait - the grant to B makes it a fee simple subject to executory limitation, and B holds a shifting executory interest. Precise reading of who receives the future interest is decisive.
Co-Ownership, Landlord-Tenant, and Conveyancing Basics
Co-Ownership Forms
Joint tenancy requires the four unities: time, title, interest, and possession. Its defining feature is the right of survivorship. Tenancy in common has no survivorship and permits unequal shares. Tenancy by the entirety exists only between spouses in some jurisdictions. A candidate must know how a joint tenancy is severed: conveyance by one joint tenant destroys the unity of title and converts the estate to a tenancy in common as to that share, while a lease or mortgage may or may not sever depending on jurisdiction.
Landlord-Tenant
Leasehold estates include term of years, periodic tenancy, tenancy at will, and tenancy at sufferance. Key doctrines include the covenant of quiet enjoyment, constructive eviction, and the implied warranty of habitability in residential leases. Assignment transfers the entire remaining term; sublease transfers less than the whole. Watch for questions that confuse privity of estate with privity of contract when assigning covenants.
Conveyancing
Valid conveyance requires a writing, identification of parties and land, words of grant, signature, and delivery with intent. Recording statutes protect subsequent purchasers: race, notice, and race-notice. A candidate must apply the shelter rule and identify who qualifies as a bona fide purchaser without notice.
Traps
Questions often hide a severance inside a deed recital, or ask whether a lease severs a joint tenancy. Another trap is a grantor who delivers a deed but retains possession - delivery with intent controls, not physical transfer.
Rule of Thumb
For recording disputes, list the parties in chronological order, mark what each knew at the time of purchase, then apply the jurisdiction's statute. Notice beats race; race-notice requires both recording first and lack of notice.
Worked Example
A conveys to B, who does not record. A then conveys to C, who pays value and has no notice. Under a notice statute, C prevails; under race-notice, C prevails only if C records before B.
Mortgages, Easements, Covenants, and Servitudes
Mortgages
A mortgage is a security interest in land. The mortgagor retains title in title-theory states or retains equity in lien-theory states. Key concepts include foreclosure, redemption, deficiency judgments, and priority. Purchase-money mortgages generally have priority over earlier judgments. A candidate must understand that recording determines priority among competing mortgages and that foreclosure extinguishes junior interests but not senior ones.
Easements
An easement is a nonpossessory right to use another's land. Easements may be express, implied, by necessity, or by prescription. Appurtenant easements benefit a dominant estate; in gross easements benefit a holder personally. Easements can be terminated by release, abandonment, merger, prescription, or estoppel. Watch for questions about scope: an easement for ingress does not authorize parking.
Covenants and Servitudes
Real covenants require writing, intent, touch and concern, notice, and horizontal and vertical privity. Equitable servitudes require intent, touch and concern, and notice, but not privity. Both run with the land. Traps arise when a covenant is claimed to run at law but privity is missing - then only equitable enforcement is available.
Rule of Thumb
For any servitude question, identify the benefit and burden, then test whether both run. Burden requires notice and touch and concern; benefit requires intent and touch and concern. Privity is the usual failure point.
Worked Example
A grants B a right-of-way across A's land for access to B's parcel. This is an express easement appurtenant; the burden runs with A's land and the benefit with B's. If A later sells to C with notice, C takes subject to the easement.
Adverse Possession, Takings, and Zoning
Adverse Possession
Adverse possession transfers title after a statutory period. The elements are actual, exclusive, continuous, open and notorious, and hostile possession. Hostility may be measured by objective or good-faith standards depending on jurisdiction. Color of title and payment of taxes can shorten the period. A candidate must track tacking between successive possessors and know that the period does not run against the government in many jurisdictions.
Takings
Regulatory takings arise when government action goes too far. Key tests include the Penn Central factors (economic impact, investment-backed expectations, character of the action), physical invasion, and the Nollan/Dolan nexus and rough-proportionality requirements for exactions. Watch for questions that confuse a taking with a due-process violation.
Zoning
Zoning divides land into districts and regulates use. Nonconforming uses may continue but generally cannot expand. Variances address hardship; special exceptions address permitted uses. Spot zoning and exclusionary zoning raise constitutional issues. A candidate must distinguish a variance (use or area) from a special exception.
Traps
Questions often describe possession that is intermittent or shared, defeating continuity or exclusivity. Another trap is a permit condition that lacks an essential nexus to a legitimate state interest.
Rule of Thumb
For adverse possession, list the five elements and test each against the facts. For takings, ask first whether there is a physical invasion; if not, apply the Penn Central balancing factors.
Worked Example
A fences and farms a neighbor's unused parcel for the statutory period, paying taxes. If the jurisdiction requires color of title for shortened periods, A's lack of a deed means the full period applies.