Torts, Real Property, and Estates
Torts, Real Property, and Estates
This domain tests the elements and defenses of civil wrongs, the estates and interests in land, and the transfer of property at death.
Torts
Negligence requires duty, breach, actual cause, proximate cause, and damages. The standard is a reasonable person under like circumstances; professionals are held to their profession, and children to others of like age and intelligence. Landowner duties vary by status: trespasser (avoid willful harm), licensee (warn of known dangers), invitee (inspect and make safe). Res ipsa loquitur permits an inference of negligence. Contributory negligence bars recovery in a few jurisdictions, while comparative negligence apportions fault. Strict liability applies to abnormally dangerous activities and products liability. Intentional torts include battery, assault, false imprisonment, trespass, conversion, and IIED; defamation is limited by the actual-malice standard for public figures.
Real property
Estates: fee simple absolute, life estate, leasehold. Future interests: reversion, remainder (vested or contingent), executory interest. Co-tenancy: tenancy in common, joint tenancy with right of survivorship, tenancy by the entirety. Easements may be appurtenant or in gross, created by grant, implication, necessity, or prescription. Recording acts are race, notice, or race-notice. Adverse possession requires actual, open, notorious, exclusive, continuous, and hostile possession for the statutory period.
Estates
Probate passes assets by will or intestacy; non-probate assets pass by beneficiary designation or survivorship. A valid will requires capacity, intent, and attestation, or holographic form where recognized. Trusts may be revocable or irrevocable, and spendthrift clauses shield beneficiaries from creditors.
Worked example
A sells Blackacre to Buyer 1, who does not record. The seller then conveys to Buyer 2, who has no notice and records first. In a notice jurisdiction Buyer 2 prevails. In a race-notice jurisdiction Buyer 2 prevails only if Buyer 2 recorded before Buyer 1. In a pure race state, the first to record wins regardless of notice.
Traps
- Reciting adverse possession without the hostile element.
- Assuming a life tenant may devise the fee.
- Confusing a remainder with an executory interest.
- Treating a joint tenancy as unilaterally revocable without severance.