Real Property
Real Property questions test how estates and interests divide, who wins a race to the recorder, and what a lease or servitude actually promises.
Estates and future interests
- Fee simple absolute, life estate, and defeasible fees: fee simple determinable (possibility of reverter), fee simple subject to condition subsequent (right of entry), fee simple subject to executory limitation (shifting executory interest).
- Concurrent estates: joint tenancy needs the four unities and carries survivorship; a conveyance by one joint tenant severs that share; a mortgage severs in title-theory states but not in lien-theory states.
- Rule Against Perpetuities: an interest must vest or fail within lives in being plus 21 years; it applies to contingent remainders and executory interests.
Leases, servitudes, recording
- Leaseholds: term of years, periodic tenancy, tenancy at will, tenancy at sufferance. Implied covenants include quiet enjoyment; residential leases carry an implied warranty of habitability.
- Easements: express, implied, necessity, prescriptive. Covenants need writing, intent, touch and concern, privity, and notice.
- Recording acts: race, notice, or race-notice; the shelter rule protects a transferee from a protected purchaser.
- Adverse possession needs actual, exclusive, open and notorious, continuous, hostile possession for the statutory period.
Worked example
Owner conveys to Alice, who does not record, then conveys the same parcel to Ben. Ben pays value and has no actual, inquiry, or record notice. In a race-notice state Ben wins because he is a bona fide purchaser and records first. In a pure notice state Ben still wins. In a pure race state the first to record wins, regardless of notice.
Traps
Treating a recorded deed outside the chain of title as constructive notice (the wild-deed problem); assuming a prescriptive period runs against the dominant estate; applying the warranty of habitability to commercial leases; thinking a joint tenant's will controls the survivorship share.